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.”
One Response
If counsel for the insurer attached a copy of the fee schedule to its motion for summary judgment, I agree with Judge Golia’s dissent. But if defense counsel did not attach the fee schedule and merely relied upon the affidavit of the claims examiner, I agree with the Court. Althouhg there is no doubt that as a matter of law a licensed acupuncturist is ony enttiled to the chiropractic rate, it appears that defendant’s motion was not properly drafted.