August 2, 2019

BQE Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51260(U))

Headnote

The court considered the allegations of a provider seeking to recover assigned first-party no-fault benefits, and the defendant insurance company's motion for summary judgment to dismiss the complaint. The main issue decided was whether the amounts sought to be recovered by the plaintiff were in excess of the workers' compensation fee schedule, and whether the fee reductions made by the defendant in accordance with the workers' compensation fee schedule for acupuncture services performed by chiropractors were proper. The court held that the insurer could use the workers' compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services, and consequently affirmed the order granting the defendant's motion for summary judgment and denying the plaintiff's cross-motion for summary judgment.

Reported in New York Official Reports at BQE Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51260(U))

BQE Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51260(U)) [*1]

BQE Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

2019 NY Slip Op 51260(U) [64 Misc 3d 141(A)]

Decided on August 2, 2019

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 2, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-905 K C

BQE Acupuncture, P.C., as Assignee of Carrington, Earnel, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Picciano & Scahill, P.C. (David J. Tetlak of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered February 24, 2017. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the amounts plaintiff sought to recover were in excess of the workers’ compensation fee schedule and denied plaintiff’s cross motion for summary judgment.

The proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff argues that defendant failed to establish that defendant’s fee reductions, which had been done in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors, were proper. However, this court has held, “as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services” (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is affirmed.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 02, 2019