Opinion
707640/12
04-24-2018
ACUPUNCTURE APPROACH, P.C. a/a/o Rosaura Dejesus, Plaintiff, v. USAA GENERAL INDEMNITY COMPANY, Defendant.
Attorney for Plaintiff: Gary Tsirelman, P.C. by Evan Polansky Esq. Attorney for Defendant: Peknic, Peknic & Schaeffer, LLC by Brian Peknic Esq.
Attorney for Plaintiff: Gary Tsirelman, P.C. by Evan Polansky Esq.
Attorney for Defendant: Peknic, Peknic & Schaeffer, LLC by Brian Peknic Esq.
Mary V. Rosado, J.
Defendant's motion for summary judgment pursuant to New York Civil Practice Law and Rule 3212 (hereinafter "CPLR") came before the court on February 28, 2018. In addition to oral arguments of counsel, the court considered the following submissions of the parties, pursuant to CPLR 2219(a) :
| Title/Number | |
|---|---|
| Defendant's Notice of Motion for Summary Judgment dated July 1, 2016; Defendant's Affirmation in Support of Motion for Summary Judgment dated July 1, 2016 and Supporting Exhibits A–G | 1–2 |
| Plaintiff's Affirmation in Opposition dated March 2, 2017 and Supporting Exhibit | 1–3 |
| Defendant's Affirmation in Reply dated April 6, 2017 | 4 |
Upon the foregoing papers, the Decision and Order of the Court is as follows:
In this action by a provider to recover assigned first-party no-fault benefits for services enumerated in four invoices, Defendant USAA General Indemnity Company (hereinafter "Defendant") moves for summary judgment alleging that it partially paid Plaintiff Acupuncture Approach, P.C. (hereinafter "Plaintiff") but denied each invoice's remaining balance because the services were billed in excess of the Worker's Compensation Fee Schedule. Defendant presents an affidavit from Scott Southers, a claims adjuster for Defendant, who explains the calculations for each code and why some codes were reimbursed at a lower rate than what was originally billed. Defendant supplied the pertinent portions of the Worker's Compensation Fee Schedule. Mr. Southers averred as to the mailing procedure and explained that Denial of Claims Forms and Explanation of Reimbursement Forms were not returned to AIS as "undeliverable" (see Southers Affidavit paragraph 21). Defendant further provided affidavits from Tammie Ulmer, the assistant vice president of bill review solutions at Auto Injury Solutions and Zach Trahan, a production manager for DMS Management, who were also involved in mailings processed in relation to this matter.
In opposition, Plaintiff alleges that Defendant has not presented an expert affidavit to support the applicable fee calculations. Further, Plaintiff calls into question Mr. Southers' affidavit which states that the Defendant used the Ingenix database to calculate their numbers. Plaintiff asserts that the New York State Attorney General called for health insurers to discontinue the use of Ingenix database because it distorted reimbursement and resulted in lower out-of-network payments. In support of his allegations, Plaintiff provided a copy of testimony taken before the New York State Assembly Committee regarding the budget for the fiscal year 2014–2015. Plaintiff, however did not cite to or provide any case law to support his argument. Plaintiff also claims that Mr. Southers' affidavit admits that important documentation was not delivered to Plaintiff.
It is well settled that, in order to succeed on a motion for summary judgment, a movant must establish his claim or defense sufficiently to warrant the court, as a matter of law, to direct judgment in his favor ( CPLR 3212[b] ), and he must do so by tender of evidentiary proof in admissible form (see Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ). The burden then shifts to the non-moving party to produce evidence in admissible form to demonstrate, based on affirmative proof, the existence of a disputed material issue of fact sufficient to require a trial (see SRM Card Shop, Inc. v. 1740 Broadway Assocs., L.P., 2 AD3d 136, 139–140 [App Div 1st Dept 2003] ; CPLR 3212[b] ).
Defendant may establish that the fees charged exceeded relevant rates set forth in a fee schedule without an expert affidavit (see Natural Acupuncture Health, P.C. v. Praetorian Insurance Company , 30 Misc 3d 132[A][App Term 1stt Dept 2011] ). Such calculations can be presented through an affidavit from a claims examiner and by providing relevant excepts for the Worker's Compensation Medical Fee Schedule (id. ). Therefore, in this matter, Defendant presentation of the affidavit from the claims adjuster Mr. Southers may be sufficient to explain Defendant's calculation, and the basis for their partial payment. Further, Plaintiff failed to provide an affidavit supporting Plaintiff's calculations in the invoices.
Plaintiff's argument that the fee schedule presented by Defendant has been largely discredited also fails to defeat Defendant's motion because the New York State Worker's Compensation Board 2010 Official Medical Fee Schedule is published and distributed by Ingenix, and Plaintiff has provided no legal authority for their assertion that the portions of the fee schedule presented are not correct.
However, Plaintiff successfully calls into question Defendant's submission of proof that relevant documentation was properly and timely mailed to Plaintiff. Mr. Southers' Affidavit asserts that documentation was returned to Defendant as "undeliverable" (see Aff of Southers at 20). This statement is inconsistent with other statements in the affidavit. Defendant did not supply a corrected or amended affidavit. In addition, although Defendant claims Plaintiff admitted that they received all the denials by attaching them to their discovery responses, Defendant failed to provide a copy of Plaintiff's discovery responses in Exhibit 1 to their reply papers as promised in the Affirmation. Therefore, Plaintiff has shown that there is an issue of fact as to whether the denial documentation and forms providing an explanation of the payments were properly and timely mailed.
Based upon the foregoing, Defendant's motion for summary judgment is denied.
This constitutes the Decision and Order of the Court.