GL Acupuncture, P.C. v. Progressive Ins. Co.

GL Acupuncture, P.C., as Assignee of Gibson, Darrell, Appellant, against Progressive Insurance Company, Respondent. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. McCormack & Mattei, P.C. (Jamila Shukry and Stafford Harmitt of counsel), for respondent. Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered August 4, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of only $54.74. ORDERED that the judgment is affirmed, with $25 costs. In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks to recover the sum of $178.58 for acupuncture services rendered by a licensed acupuncturist. At a nonjury trial, the parties stipulated that plaintiff had established its prima facie case, that defendant had timely denied the claims at issue andthat defendant's witness was a certified coder. The Civil Court took judicial notice of the workers' compensation chiropractic fee schedule. In her testimony, defendant's coder explained how she had calculated the payments for the acupuncture services billed under CPT codes 97810 and 97811 based on the chiropractic fee schedule, and she testified that defendant was offering payment in the amount of $54.74 for an office visit billed under CPT code 99203. Plaintiff did not call a witness to rebut the coder's testimony. The Civil Court, finding the testimony by defendant's witness to be credible, determined that defendant had properly paid the claims billed under CPT codes 97810 and [*2]97811, and awarded plaintiff the principal sum of $54.74 for the office visit billed under CPT code 99203. A judgment was entered on August 4, 2016 pursuant to the decision. Upon a review of the record, we find that the Civil Court properly determined that defendant had established that it had fully paid plaintiff for the services billed under CPT codes 97810 and 97811 in accordance with the workers' compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]) and that plaintiff had failed to rebut defendant's showing. Accordingly, the judgment is affirmed. PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: April 12, 2019