Acupuncture that is broken down by code October 2, 2017

Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 2017 NY Slip Op 51252(U)(App. Term 2d Dept. 2017)

(1)”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 the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810 and 97811, and to compel disclosure.”

(2) ” 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”

(3) “Furthermore, plaintiff failed to object to the discovery demands at issue within the time prescribed by CPLR 3122 (a) and 3133 (a). Thus, plaintiff is obligated to produce the information sought by defendant except as to matters which are palpably improper or privileged”

I notice a trend with these decisions, where the Courts on the acupuncture cases are breaking down the cases “code by code”.  It is a testament to the reality that acupuncture cases, except for the 810, 811, 813 and 814 involve frequently litigated issues where a bright line rule has not been set down.

It also interesting how what I perceive to intrusive discovery tends to be granted even though I suspect an offer of proof as to the issues upon which discovery is sought has not been set forth.

Workers Compensation from the First Department September 25, 2017

AEE Med. Diagnostic, P.C. v Travelers Prop. Cas. Co. of Am., 2017 NY Slip Op 51209(U)(App. Term 1st Dept. 2017)

“Defendant’s submissions in support of its motion for summary judgment dismissing this first-party, no-fault action, including the statement of plaintiff’s assignor, raised triable issues as to whether the assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers’ compensation benefits might be available (see Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010]; Great Health Care Chiropractic, P.C. v Lancer Ins. Co., 42 Misc 3d 145[A], 2014 NY Slip Op 50340[U] [App Term, 2d, 11th & 13th Jud Dists, 2014]). Plaintiff’s present argument that the assignor’s statement is defective and inadmissible, is unpreserved, as it is improperly raised for the first time on appeal (see Jordan v City of New York, 126 AD3d 619 [2015]). The defects now alleged by plaintiff could have been corrected by defendant before the motion court, if raised at an earlier time (see DeJesus v Tavares, 140 AD3d 433 [2016])”

“[T]he parties’ respective summary judgment motions should have been held in abeyance pending a determination by the Board as to the applicability of the Workers’ Compensation Law to plaintiff’s claims ”

This is the standard non livery W/C case.  Here, the EIP must have said to someone he was going to work, worked as a travelling salesperson or something else.  This is contrasted to the usual ATIC case where the driver seeks NF benefits, the driver is on a commercial policy and this fact in and of itself is sufficient to raise an issue of fact.

Considering the ease of which someone can seek a WC determination, I think the ATIC position may very well be meritorious.  However, should the drivers all seek a board determination and it is found that they were not in the course of employment, guess who is eating all the denied bills?  Double edged sword.

Workers Comp – trialble issue of fact. September 25, 2017

Compas Med., P.C. v American Tr. Ins. Co., 2017 NY Slip Op 51192(U)(App. Term 2d Dept. 2017)

“Contrary to plaintiff’s argument on appeal, defendant proffered sufficient evidence to support its contention that there was an issue as to whether plaintiff’s assignor had been acting as an employee at the time of the accident, and that, therefore, workers’ compensation benefits might be available (see e.g. Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), which issue must be resolved [*2]in the first instance by the Workers’ Compensation Board (see O’Rourke v Long, 41 NY2d 219, 225 [1976]; Arce Med. & Diagnostic Svce, 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U]; Jamaica Med. Supply, Inc., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U]).”


Here was part  of my brief on this.   I honestly forgot I wrote this, as I think I might do all of these appeals on autopilot.  Admittedly, however, the ATIC appeals always involved a level of ingenuity in forcing a square peg into a round hole.  I have since found other intellectual projects to stimulate my thinking.


“A triable issue of fact existed as to whether Appellant Assignor was in the course of employment when the accident occurred. This was supported through a hack license issued by the Department of Transportation, a commercial driver’s license that Appellant Assignor signed, a policy of
insurance covering a livery vehicle and a police report showing that Appellant Assignor was the driver of the said insured livey vehicle.

Civil Court found this proof sufficient to raise a triable issue of fact as to whether Appellant Assignor was in the course of his employment when the accident occurred. Therefore, summary judgment was granted to Respondent to the extent that the complaint would be dismissed unless
Appellant filed a prompt application with the Workers Compensation Board”


“The evidence Respondent presented was sufficient to raise a triable issue of fact for the board to decide. Initially, all of Appellant’s evidentiary objections to the admissibility of the proof are unpreserved and cannot be raised for the first time on appeal.  Boris Kleyman Physician, P.C. v IDS Prop. Cas. Ins. Co., 2014 NY Slip Op 51810(U) (App. Tenn 2d Dept. 2014); New Way Medical Supply Corp. v. ELRAC, Inc., 46 Misc.3d 132(A)(App. Term 2d Dept. 2014). See Joe v Upper Room Ministries, Inc., 88 AD3d 963 (2d Dept. 2011)”

On the merits, the evidence was not necessarily used for the truth of the matter asserted. The policy of insurance, hack license, commercial driver’s license and police report were offered to show that Appellant Assignor represented to be hack driver who was insured to operate a livery
vehicle. The truth of the assertions in these documents was an issue to be litigated before the Workers Compensation Board.

Furthermore, an uncertified police report is utilized to determine as preliminarily inatter the existence of coverage and whether a framed issue hearing is warranted. Matter of Allstate Ins. Co. v Aizin, 102 A.D.3d 679 (2d Dept. 2013); American Intern. Ins. Co. v. Giovanielli, 72 AD3d 948 (2d
Dept. 2010; Matter of Government Eh1pls. Ins. Co. v McFarland, 286 A.D.2d 50 (2d Dept. 2001)

Here, the police report showed that Appellant Assignor was the named driver of the livery motor vehicle. The truth of these assertions will await a framed issue hearing before the Workers Compensation board.  In total, a triable issue of fact has been raised that Appellant Assignor
operated a livery motor vehicle while “employed”. This is sufficient to warrant a hearing by the Workers Compensation board to determine the veracity of the coverage dispute.

Consequently, there is a triable issue of fact as to whether workers compensation would be primary. In total, the order of Civil Court should be affirmed.”

-go me.  short, sweet and to the point.

CPT Code 970309 September 21, 2017

Acupuncture Approach, P.C. v Tri State Consumer Ins. Co., 2017 NY Slip Op 51170(U)(App. Term 1st Dept. 2017)

The long-failed out of scope defense, well has long-failed.  Again, it failed.  Common theme?

“Triable issues of fact are raised as to whether defendant-insurer properly denied plaintiff’s no-fault claim billed under CPT code 97039, thus precluding summary judgment dismissing this claim. Defendant’s submissions failed to establish prima facie its contention that the service is not reimbursable because it is a “physical medicine modality” and “outside the provider’s specialty”

No acupuncture fee schedule estoppel September 21, 2017

Culex Acupuncture, P.C. v 21st Century Indem. Ins. Co., 2017 NY Slip Op 51145(U)(App. Term 2d Dept. 2017)

“Plaintiff’s sole argument on appeal, that the aforesaid branches of defendant’s motion [*2]should have been denied because defendant, without explanation, had paid the claims at issue at the rate for acupuncture services performed by a chiropractor, but paid other claims at the rate for acupuncture services performed by a medical doctor, is without merit (see Apple Tree Acupuncture, P.C. v Progressive Northeastern Ins. Co., 36 Misc 3d 153[A], 2012 NY Slip Op 51710[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012])”

Again, the court has held that all an L.AC is entitled to is the chiropractor fee schedule, regardless of what it bills.  Prior payment at the MD rate does not create an estoppel.