It looks like someone did not include the fee schedule as an exhibit in their acupuncture motion

Apple Tree Acupuncture, P.C. v Allstate Ins. Co., 2013 NY Slip Op 50413(U)(App. Term 2d Dept. 2013)

“In the instant case, defendant failed to establish, as a matter of law, that the amount it had paid plaintiff was the maximum amount permitted by the workers’ compensation fee schedule for acupuncture services rendered by a chiropractor and that defendant had properly denied the remaining portion of each of the claims at issue.”

If you do not put the fee schedule in your papers or seek judicial notice of same, dire consequences may arise.

Verification again

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 2013 NY Slip Op 50199(U)(App. Term 2d Dept. 2013)

“With respect to the claims seeking the sums of $1,109.05, $3,227.26 and $1,153, the affidavit by defendant’s no-fault litigation supervisor established that the initial and follow-up verification requests for additional verification had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) and that plaintiff had failed to provide all of the requested additional verification”

There was a discussion regarding the failure to establish as a matter of law the fee schedule defense.  I suspect it was a code reduction that was not backed up with an expert affidavit.   Juast Keycite Rogy Medical v. Mercury…

See also: Viviane Etienne Med. Care, P.C. v GEICO Gen. Ins. Co., 2013 NY Slip Op 50196(U)(App. Term 2d Dept. 2013)

An interesting decision on a well known performer of enhanced MUA

CPT CODE 99455 and 99456.  The MOST abused CPT Codes that are billed.  Of course, leave it to someone who bills for MUA and does not believe in the 68.4% and 16% reduction to bill like this.  SeeFlatbush Chiropractic, P.C. v Metlife Auto & Home, 35 Misc.3d 1203(A)(Civ. Ct. Kings Co. 2012)

Below is the arb award:

I thank a friend at Liberty Mutual for informing me of this:

New York No-Fault Arbitration Tribunal:

In the Matter of the Arbitration between:

Bronx Chiropractic Services, PC / Precious Cooper (Applicant)

– and –

Liberty Mutual Insurance Company (Respondent)

AAA Case No. 412010065292; AAA Assessment No. 17 991 08906 11



I, Carolynn Terrell-Nieves, Esq., the undersigned arbitrator, designated by the American Arbitration Association pursuant to the Rules for New York State No-Fault

Arbitration, adopted pursuant to regulations promulgated by the Superintendent of Insurance, having been duly sworn, and having heard the proofs and allegations of the parties make the following AWARD:

Injured Person(s) hereinafter referred to as:

Claimant 1. Hearing(s) held on


and declared closed by the arbitrator on 5/11/11.

Marc Schwartz, Esq., for Gene Sigalov, Esq., participated in person for the Applicant. Robert Trestman, Esq., participated in person for the Respondent.

2. The amount claimed in the Arbitration Request, $350.00, was NOT AMENDED at the oral hearing. STIPULATIONS were not made by the parties regarding the issues to be determined.

3. Summary of Issues in Dispute

Whether the Applicant is entitled to a reimbursement of its claim?

4. Findings, Conclusions, and Basis Therefor

Applicant seeks payment in the amount of $350.00 for a chiropractic examination it performed on the Assignor on June 24, 2010. The Respondent timely denied the claim based

on its contention that the CPT code billed by the Applicant, 99456, is a By Report code without an assigned RVU. Further, as per the fee schedule rules, documentation must be

submitted supporting the provider’s charges. In addition, the Respondent argued that the fee charged far exceeds those of any chiropractic evaluation and management service.

The documents contained in the ECF were reviewed prior to/at the time of the hearing.

In support of its claim the Applicant has submitted a medical record memorializing the chiropractic examination in dispute. Of note, said examination was performed by Dr. Robert Super on June 24, 2010. In addition, the Applicant has submitted an Affidavit by Dr. Super concerning his examination of the Assignor and the amount billed for said service.

In support of its contentions, the Respondent has submitted its Explanation of Benefits for the claim in dispute and two pages from the Workers Compensation Fee Schedule. Based on the documents submitted and the arguments of counsel, I find in favor of the Applicant and award it $54.74 for the chiropractic examination performed on the Assignor on

June 24, 2010.

After reviewing the documents submitted and numerous arbitration decisions concerning this particular issue, I must agree with the Respondent’s contention that the amount billed by the Applicant for the chiropractic examination in dispute was excessive. As to Dr. Super’s Affidavit, initially I note that said document discusses the examination he performed on the Assignor, that he reviewed the Assignor’s medical records prior to/after the examination and why his examination was billed under CPT code 99456.

In Dr. Super’s Affidavit, Dr. Super noted that examinations such as the one in dispute “typically” consist of a thirty five to forty five minute face to face consultation and a

thirty to forty minute review of records. However, what Dr. Super “typically” does with other patients does not specifically state what he did with the Assignor in this matter. I also note that when Dr. Super quoted the Fee Schedule as to the components of a 99456 examination,

he failed to note that said examination, according to the Fee Schedule, is for a work related or medical disability examination. However, there has been no evidence submitted by the Applicant that the examination in dispute was work related or a medical disability examination. I also note that in his Affidavit, Dr. Super noted that the examination of June 24, 2010 was performed to see if the Assignor was a candidate for Manipulation under Anesthesia. However, the Applicant has failed to submit any documentary evidence which

demonstrates that a patient being considered for Manipulation under Anesthesia is required to have a work related or medical disability examination before said procedure is performed.  Notably, most disturbing regarding this Affidavit is that it is clearly boiler plate and used in every case before me submitted by this Applicant. Within the Affidavit, Dr. Super references the patient as a (he) when the patient is clearly a (she). Perhaps he is confusing the patient, but how am I to know. I further have had the pleasure of Dr. Super testifying before me and in that instance, he described exactly why and how such an exam was performed and the rationale as to why the exam was so detailed and exactly what he had to do with the patient that he specifically treated. This Affidavit clearly lacks the establishment of medical necessity for the treatment of the claimant in issue, nor does the Affidavit meet the credibility issue as well.

Although Dr. Super in his Affidavit contended that the examination he performed on the Assignor on June 24, 2010 was more comprehensive than an initial chiropractic examination, I still am not persuaded that the examination of June 24, 2010 is correctly billed under 99456. To wit, I have reviewed hundreds of No-Fault cases over the last several years and can’t recall a physician, even a specialist like an orthopedic surgeon who was examining a patient for a possible surgical intervention, who billed anything close to $350.00 for his/her examination of the patient. As such, and because CPT code 99456 specifically states that the examination to be performed is a work related or medical disability examination, I find that the examination performed by Dr. Super on June 24, 2010 should be reimbursed under CPT code 99203 which is the CPT code for an initial examination by a chiropractor. Therefore, the Applicant is entitled to a reimbursement in the amount of $54.74 for the examination o June 24, 2010.

Based on the aforestated, the Applicant is awarded $54.74 and the balance of its claim is denied.  This award is in full disposition of all No-Fault benefit claims submitted to this Arbitrator.


Oriental World Acupuncture, P.C. v GEICO, 2012 NY Slip Op 51062(U)(App. Term 2d Dept. 2012)

When one asks to be reversed, you have to figure someone will take you up.  I think pure Great Wall reversals should earn the treatment that Defendants in Aloi v. Ellis, 2012 N.Y. Slip Op. 04864 (4th Dept. 2012) received.

Article 28 of the PHL is not a bar for the recovery of no-fault benefits for office based surgeries

GEICO v. Ananguard (Index #: 16313/11)(Sup. Ct. Nassau Co. 2012)

At the end of the day, a Nassau County Supreme Court justice (Sher, J.S.C.), following the reasoning of Judge Murphy in Upper East Side Surgical v. State Farm Ins. Co., found that PHL 230-d, 2998-3 and Ed. Law 6530(48), granted an OBS  facility the right to perform office based surgical services.  Based upon this factual predicate, the Court then found, that this type of facility may collect no-fault benefits (65-3.16[a][12]), and may bill for medical necessary treatment.  Ins Law 5102(a)(1).

As such,Justice Sher 0concluded that an office based OBS does not need to possess an Article 28 license.   (10 NYCRR 86-4.40).

As to reimbursement, the Court held that 11 NYCRR 68.5(b) was the barometer of reimbursement.  In my mind, that would be the PAS code of an Article 28 in the same or adjacent geographical region.

Personally, I like the allure of Plaintiff’s arguments.  The problem, however, is that 5102(a)(1) is so broad as to who could be compensated for rendered services.

The attorneys were:  Plaintiff: Spina’s office.  Defendant: John Belesi, Esq of Abrams Festerman

Denial and EOB is sufficient to preserve fee schedule defense

W.H.O. Acupuncture, P.C. v AIG Auto Ins., 2012 NY Slip Op 50755(U)(App. Term 2d Dept. 2012)

“Contrary to plaintiff’s sole contention, defendant’s denial of claim forms and the accompanying explanation of benefit forms were sufficient to apprise plaintiff that defendant was partially paying and partially denying its bills on the ground that the unpaid portion exceeded the amount permitted by the workers’ compensation fee schedule. Accordingly, the order is affirmed”

I have to wonder if a “you failed to explicitly ask for judicial notice” argument would have worked?  It seems to be the flavor of the year at this Court.

The failure to affirmatively seek judicial notice of the fee schedule (again) proves fatal to a motion for summary judgment

MIA Acupuncture, P.C. v Praetorian Ins. Co., 2011 NY Slip Op 21480 (App. Term 2d Dept. 2012)

“With respect to the claims for acupuncture services rendered from May 31, 2007 through August 27, 2007, the affidavit of defendant’s claims examiner stated that these claims underwent a “fee schedule review” resulting in a reduction of the amount due therefor. This allegation alone was insufficient to establish defendant’s contention that the amounts charged by plaintiff for these acupuncture services exceeded the relevant rates set forth in the workers’ compensation fee schedule (see Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d, 11th & 13th Jud Dists 2011]) and, thus, defendant was not entitled to summary judgment with respect to these claims.”

The dissent.  I think we saw this in a prior dissent from Golia, J., but I think it probably makes sense.

“An advocate before any court need not supply it with physical copies of the laws upon which an argument is based to ensure that those particular laws are taken under consideration by this court. An advocate need only recite an argument involving a certain law; an attorney need only bring the relevant law to the attention of a court. Indeed, here it is enough that defendant alleged that the fee charged by plaintiff exceeded the relevant rates set forth in the fee schedule as prescribed by law. As such, I would remit this specific issue back to the lower court for a determination of the motion as to whether the proper fees were charged under the workers’ compensation fee schedule for the services rendered from May 31, 2007 through August 27, 2007, and whether appropriate payment was made thereon. I would also advise the motion court that it is obligated to take notice of the workers’ compensation fee schedule and all New York laws and regulations pertaining thereto.”

More MUA – this one is over the top

Flatbush Chiropractic, P.C. v Metlife Auto & Home, 2012 NY Slip Op 50541(U)(Civ. Ct. Kings Co. 2012).

The Plaintiff, Dr. Super’s brother runs a law firm about 2 floors up from me in my building here in Garden City.  His firm probably handles the lion’s share of his MUA enterprise.  I had a conversation with one of the attorneys who told me that Dr. Super does not believe in the fee schedule for MUA.  Civil Kings, true to form, never surprises me.

There are three passages from this case that intrigue me.  I am ignoring the medical necessity portion of this opinion because that is a whole different issue.

Passage one: “Defendant’s claims examiner testified that pursuant to the Workers Compensation Board chiropractors should only be compensated at a rate of 68.4% of the Fee Schedule. Through the testimony of Dr. Super, Plaintiff refuted this position stating that the Fee Schedule makes no such distinction.”

Passage two: “The Court takes judicial notice of an opinion letter (dated August 14, 2009) from Kenneth J. Munnelly, General Counsel of the Workers’ Compensation Board, which concludes that chiropractors who perform MUAs should be compensated at a rate of 68.4% of the allowable rate for medical doctors who perform the same procedure given the relative experience and training of a medical doctor versus that of a licensed chiropractor.”

So, now that it has been established that Dr. Super is greedy, you would think it would end here.  Nope.

Passage three: “Also at issue was the applicability of Ground Rules 5 and 12 of the Fee Schedule. Ground Rule 5, the multiple procedure rule, stands for the proposition that when multiple procedures are performed payment for the first procedure is paid at 100% and payment for additional procedures is reduced by 50%. Ground Rule 12(d), which Defendant applied, covers the apportionment of payment between two attending surgeons. Here, Defendant reduced Plaintiff’s bill according to Ground Rules 5 and 12. Plaintiff argued that Ground Rule 5 does not apply to MUAs because MUAs of the shoulders, hips, and cervical, thoracic, and lumbar spine are each distinct, stand-alone procedures involving separate body parts and as a result it was not appropriate to reduce payment pursuant to Ground Rule 5. Dr. Super compared MUAs to regular chiropractic manipulation procedures, where each part of the spine is billed as a separate and distinct procedure. Dr. Super also stated that Ground Rule 12 does not apply because according to the “Introduction and General Guidelines” of the Fee Schedule and Modifier 62, each chiropractor is entitled to separate and full [*4]payment for their services when two chiropractors work together as primary chiropractors and perform distinct parts of a procedure. Dr. Super maintained that both he and Dr. Klass are entitled to 100% of the fee billed because MUA guidelines require MUAs to be performed by two doctors, and here both he and Dr. Klass were co-attending chiropractors who each performed co-primary functions throughout the MUAs which entitled them each to full payment for the procedures independent of each other.The Court agrees and credits Dr. Super’s testimony and finds that the Plaintiff did not bill in excess of the Fee Schedule. Dr. Super has performed and billed MUAs for the past thirteen years. He was trained in the Fee Schedule by certified coding experts and has conducted research on the Fee Schedule in order to ensure that he bills according to the services performed and pursuant to the Fee Schedule. As the treating chiropractor, Dr. Super is in the best position to assess the treatment rendered and bill accordingly. Dr. Super’s testimony that each of the MUAs he performed are separate and distinct procedures coupled with the fact that MUA guidelines mandates two chiropractors justifies full compensation for each chiropractor.”

It is comical.  The court established that Dr. Super does not acknowledge the validity of the fee schedule and trims down his billing by about 50% at least.  After this, the Court finds Dr. Super to be a coding expert and allows him to ignore the 50% ground rule and multiple surgeon ground rule.

Falso in uno, falso in omnibis?  PJI 1:75 anyone?

Just remember this adage: “Pigs get fat and hogs get slaughtered.”

Renewal granted and Plaintiff loses.

Ashraf Ashour Physical Therapy, P.C. v Interboro Mut. Indem. Ins. Co., 2012 NY Slip Op 50491(U)(App. Term 1st Dept. 2012)

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), dated October 12, 2011, which denied its motion to renew its prior motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Margaret A. Chan, J.), dated October 12, 2011, reversed, without costs, renewal granted, and upon renewal, defendant’s motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly.

Defendant’s motion to renew should have been granted, where defendant offered a reasonable excuse (viz., law office failure) for its inadvertent submission of motion papers relating to a companion case, provided the correct moving papers, and demonstrated the merit of its defenses (see Joseph v Bd. of Educ. of City of New York, 91 AD3d 528 [2012]; Scannell v Mt. Sinai Med. Ctr., 256 AD2d 214 [1998]). On renewal, defendant demonstrated entitlement to summary judgment dismissing plaintiff’s complaint seeking recovery of first-party no-fault benefits. In opposition, plaintiff failed to raise an issue of fact requiring a trial of any of plaintiff’s no-fault claims. In this connection, plaintiff did not refute defendant’s showing that the claim for $177.37 was paid in full, rebut the independent medical examination (IME) report submitted by defendant with respect to the claim for $160.74, or seriously challenge defendant’s compliance with the workers’ compensation fee schedules applicable to the remaining claims.

This was my case.

Another motion to dismiss an initial acupuncture session is denied

Perfect Point Acupuncture, P.C. v Clarendon Ins. Co., 2012 NY Slip Op 50399(U)(App. Term 2d Dept. 2012)

“That affidavit, however, was sufficient neither to warrant the dismissal of plaintiff’s claim for the initial acupuncture visit of April 18, 2006 (see Raz Acupuncture, P.C. v [*2]AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]) nor to establish defendant’s contention that the amounts that had been charged by plaintiff for the acupuncture services rendered exceeded the relevant rates set forth in the workers’ compensation fee schedule”