The Appellate Term is starting to sound like a broken record. Yet, each time they play the record it seems that the message is more emphatic.
In New Wave Acupuncture v. Geico, 2009 NY Slip Op 52211(u)(App. Term 2d Dept. 2009), the Court stated the following: “For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive.”
Note: The court as of this case and Ava Acupuncture v. Geico does not require the carrier to provide evidence as to why it chose to pay chiropractor fee schedule rate as opposed to another rate. The chiropractor fee schedule amount is acceptable as a matter of law. Period, the end.
Now, let’s assume that you are in a stipped in trial and the sole issue is whether or not the billing was in accordance with the “fee schedule”. Based on New Wave Acupuncture v. Geico and Ava Acupuncture v. Geico, this is what the defendant’s portion of the trial should look like:
Exhibit “A” [Comes in through stip]
(1) Denial of claim form with explanation of benefits
Exhibit “B” [Comes in as a government document through judicial notice Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co, 61 AD3d 13 (2d Dept. 2009)].
(2) Fee schedule with CPT 97810, 97811, 97813, 97814;
Exhibit “C” [Comes in as a government document through judicial notice Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co, 61 AD3d 13 (2d Dept. 2009)].
(3) Chiropractor conversion factor [5.78];
Exhibit “D” for identification:
(4) Shiny Sharpe brand Calculator
Exhibit “E” for reference: New Wave Acupuncture v. Geico and Ava Acupuncture v. Geico
(5) Give copies to the Judge and Plaintiff’s counsel.
(6) Tell Plaintiff and judge: “No, I do not need to bring a claim rep. This is why…”
(7) With calculator, take the relative value, multiply by the Region IV conversion factor of 5.78 and announce the result to the court. If you want, read the portion of the fee schedule that tells the court that this is how you arrive at the compensable amount. You will find this in the introduction section of the fee schedule.
Now, do this for each billed for code. Does the amount you calculated match the amount paid on the denial of claim form? If yes, go to next step.
(7) Motion for directed verdict.
(8a) If win smile
(8b) If lose APPEAL and do not forget to enter a judgment for costs and disbursements including the prospective marshal fee after the judgment is reversed without costs. The without costs only refers to appellate costs.
(8c) Tell the marshal you want to enforce the $105 judgment you just entered. See what the marshal says. I know first hand what you will be told. But, insist that the marshal collects the judgment. He is duty-bound to do this. I guarantee you will have a check in the mail in no time. One warning however: the next time you call that marshal, you will be told that you have the wrong number. Don’t worry – there are plenty of marshals out there.
