Midwood Acupuncture, P.C. v Allstate Ins. Co. |
2009 NY Slip Op 50459(U) [22 Misc 3d 1135(A)] |
Decided on March 6, 2009 |
Civil Court Of The City Of New York, Kings County |
Edwards, J. |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. |
This opinion is uncorrected and will not be published in the printed Official Reports. |
Midwood Acupuncture,
P.C. a/a/o Yensi Alan, Plaintiff,
against Allstate Insurance Company, Defendant. |
Plaintiff commenced this action to recover no-fault benefits from the defendant,
for acupuncture services performed by its licensed acupuncturist to its assignor, Alan Yensi. A
bench trial ensued.
At the outset, the parties stipulated that the plaintiff proved its prima facie case and
the defendant timely denied the claims. In addition, the bills and denials were admitted into
evidence. Plaintiff rested. At that point the burden of production shifted to the defendant to prove
the basis of its denial. Before defendant called its witness, it made a motion to dismiss, based
upon Great Wall Acupuncture v. Geico
Gen. Ins. Co., 16 Misc 3d 23, 842 N.Y.S.2d 131 (App. Term, 2d Dept. 2007); Ava
Acupuncture, P.C. v. Geico Gen. Ins. Co., 17 Misc 3d 41, 844 N.Y.S.2d 570 (App. Term, 2d
Dept. 2007), contending that an insurer is entitled to remit payment at the chiropractic rate
indicated in the Workers' Compensation Fee Schedule. The plaintiff argued in opposition that the
defendant was required to reveal its procedures for choosing the rate and the calculation of the
amount. This Court reserved its decision.
The defendant's claim representative testified that the Workers' Compensation Fee
Schedule is the tool used to pay healthcare providers. Since that schedule does not address
licensed acupuncturists, the defendant compared the educational and licensing requirements and
found that the chiropractic requirements are closest to the licensed acupuncturist. Therefore, the
plaintiff was paid at the chiropractic rate. On cross-examination the claim representative testified
that he was not the representative who denied the plaintiff's claims, but indicated that the
representative processed and issued the claims in accord with defendant's policies and
procedures, including using the Workers' Compensation Fee Schedule.
After due deliberation of the credible evidence submitted, this Court finds that the
defendant shouldered its burden of producing a proper grounds for denying full payment of the
no-fault benefits based upon the Workers' Compensation Fee Schedule. Great Wall
Acupuncture, 16 Misc 3d at 23; Ava Acupuncture, P.C., 17 Misc 3d at 41; Ops Gen.
Counsel NY Ins. Dept. 10-06-04. The plaintiff did not rebut this defense.
[*2]Accordingly, judgment in favor of the defendant
and the complaint dismissed.
This constitutes the decision and order of this Court.
Dated: March 6, 2009
________________________
Genine D. Edwards
Judge of the Civil Court