Apple Tree Acupuncture, P.C. v Progressive Northeastern Ins. Co. (2012 NY Slip Op 51710(U))

Apple Tree Acupuncture, P.C. v Progressive Northeastern Ins. Co.

2012 NY Slip Op 51710(U) [36 Misc 3d 153]

Decided on August 31, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

Apple Tree Acupuncture, P.C. as Assignee of LORRAINE DAVIS, Appellant, —

against

Progressive Northeastern Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered August 4, 2010, deemed from a judgment of the same court entered November 3, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 4, 2010 order denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment, dismissed the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff's argument regarding several of defendant's denials, the denial of claim forms and the accompanying explanation of benefit forms were sufficient to apprise plaintiff that defendant was partially paying and partially denying plaintiff's bills on the ground that the claims exceeded the amount permitted by the workers' compensation fee schedule, and [*2]that defendant had fully paid plaintiff for the services billed for in accordance with the workers' compensation fee schedule for acupuncture services performed by chiropractors.

Plaintiff's remaining argument on appeal is that defendant's cross motion should have been denied because defendant, without explanation, paid some of the claims at issue at the rate for acupuncture services performed by a medical doctor and paid the rest of the claims at the rate for acupuncture services performed by a chiropractor. This argument lacks merit. 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 Term, 2d, 11th & 13th Jud Dists 2009]). Defendant was therefore entitled to an award of summary judgment dismissing so much of the complaint as sought to recover upon the claims that had been reimbursed at that rate. As the remaining claims had been paid based upon the workers' compensation fee schedule for acupuncture services performed by a medical doctor, a rate higher than that established for acupuncture services performed by a chiropractor, there is no reason to disturb the portion of the order that granted defendant summary judgment dismissing so much of plaintiff's complaint as sought to recover upon those claims (see Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).