Substantive fee schedule discussion/Procedural analysisJune 10, 2017

Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 2017 NY Slip Op 50706(U)(App. Term 2d Dept. 2017)

(1) “With respect to the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that the amounts sought were not in accordance with the workers’ compensation fee schedule, we find that defendant did not establish its prima facie entitlement to summary judgment, as it failed to provide an expert’s affidavit to explain its interpretation of the fee schedule at issue”

** this was clearly an issue of  “additional bonus codes” that were by report or where the carrier sough to change the billed for code.  It does not involved 97810, 97811, 97813, 97814 or modality codes with RVUs compensated at the Chiropractor rate **

(2) “We note that, contrary to defendant’s argument, the omission of the jurat in Dr. Vatelman’s affirmation is not fatal (People ex rel. 5th Ave. & 37th St. Corp. v Miller, 261 App Div 550, 552 [1941], affd 286 NY 628 [1941]; see also People v Gouiran, 192 AD2d 620 [1993]), particularly in the absence of a showing of substantial prejudice to defendant (see CPLR 2001).”

** People ex rel. Fifth Ave. & 37th St. Corp. v. Miller, 261 App. Div. 550, 553 (1st Dept. 1941), aff’d, 286 N.Y. 628 (1941)

‘The courts are not entirely agreed as to the effect of the omission of a jurat or a signature thereto upon the affidavit. According to the majority view, such an omission is not fatal to the validity of the affidavit, so long as it appears, either from the rest of the instrument or from evidence aliunde, that the affidavit was, in fact, duly sworn to before an authorized officer. This rule is based upon the principle that a party should not suffer by reason of the inadvertent omission of the officer to perform his duty. Under this view, an affidavit defective by reason of the omission of the jurat of the officer’s signature may, upon proof of its authenticity, be cured by amendment

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