Tuesday, October 24, 2006

Dissed Miss1

On May 30, 2006, the Appellate Term, 2d Dep't, dismissed the plaintiff's appeal of the February 7, 2006 order in AVA Acupuncture P.C. v ELCO Admin. Servs. Co., 2006 NY Slip Op 50158(U) (Civ. Ct., Kings Cty., 2006). For whatever reason, on October 4, 2006 (and just published online today), the App. Term reiterated the previous dismissal.

It is perhaps a shame that Ava Acupuncture was untimely in their appeal. Judge Battaglia's February 7 order is quite interesting, and it tackles two recurring no-fault disputes: the level of proof required to create a presumption of the mailing of a no-fault denial of claim form (NF-10) by a carrier and the issue of the lack of a fee schedule for acupuncture performed by a licensed acupuncturist.

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Taking them in order, the specific dispute on proof of mailing in Ava Acu. was whether a presumption of mailing could be created by the affidavit of one who, although having knowledge of the standard practice and procedure of mailing by an office, was not in a supervisory position with regard to same. The problematic App. Term case law, relied upon by the plaintiff in Ava Acu., was Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co., 2005 NY Slip Op 50254(U) (App. Term, 2d Dep't, 2005 and Gribenko v Allstate Ins. Co., 2005 NYSlipOp 52201(U) (App. Term, 2d Dep't, 2005).

The Court in Contemp. Med., in holding that the defendant carrier failed to prove the mailing of its denial, noted that the affidavit of the claims examiner "was conclusory and failed to specify either that it was the duty of the claims examiner to ensure compliance with said office procedures or that the claims examiner had actual knowledge that said procedures were complied with." Out of sympathy to the Court, I'll decline to criticize the use of a preposition to end a sentence. However, there is a bigger problem. Shortly after the sentence I've just quoted, the App. Term cited generally to Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679 (2d Dep't, 2001). The problem is, though, Residential Holding says nothing about proof of mail coming from a deponent whose position it is to ensure compliance with the relevant practices and procedures. The App. Div. formulated the rule as being that "[t]he presumption [of mailing] may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed." Id. at 680, citing to Tracy v. William Penn Life Ins. Co., 234 A.D.2d 745 (3d Dep't, 1996) and Pardo v. Central Coop. Ins. Co., 223 A.D.2d 832 (3d Dep't, 1996).

The App. Term seemingly compounded the error in Gribenko by noting, when holding that the plaintiff had failed to create a presumption of the mailing of its claim forms, "the affidavits [did not] state that it was the duty of the affiants to ensure compliance with said office procedures or that the affiants had actual knowledge that said office procedures were complied with." 2005 NYSlipOp 52201(U), citing to Contemp. Med.

Subsequent to Gribenko, the Appellate Division issued its decision in New York & Presbyt. Hosp. v. Allstate Ins. Co., which quoted Residential Holding directly and held that "[t]he presumption [of mailing] may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed." 29 A.D.3d 547 (2d Dep't, 2006). Since that time, the App. Term has, curiously and without explicitly mentioning it, dropped the "ensure compliance with" rule from Contemp. Med. and Gribenko. Interestingly, the last time that the App. Term cited to Contemp. Med. or Gribenko, they found simply that "[t]he affidavit submitted by defendant's no-fault specialist was sufficient to establish that defendant followed a standard office practice or procedure designed to ensure that denial of claim forms were properly addressed and mailed," and failed to address the "ensured compliance with" rule at all. A.M. Med. Servs., P.C. v New York Cent. Mut. Ins., 2006 NYSlipOp 51662(U) (App. Term, 2d Dep't, 2006).

In Ava Acu., Judge Battaglia eloquently described the "ensured compliance with" issue and proof of mailing in general, and ultimately (and understandably) concluded that such a requirement did, indeed, exist. Judge Battaglia also found the affidavit submitted by the defendant carrier to be conclusory, anyway, so presumably the same result would have been reached whether or not the requirement existed. So, too, on appeal, the App. Term could have avoided even tackling the issue by finding it to be insufficient under any standard. Nevertheless, it would have been nice to have the App. Term explicitly disavow Gribenko, as plaintiffs' attorneys still argue for it throughout the Civil Courts with some success. See, e.g., Judge George Silver's opinion in Y&J Intertrade v. Utica Mut. Ins. Co., 236 N.Y.L.J. 41 (Civ. Ct., Kings Cty., 2006).

As for the second interesting portion of the Ava Acu. decision, the issue of the lack of a fee schedule for acupuncture performed by an acupuncturist has been a troubling one for some time. This is especially true in Civil Court, Kings County in acupuncture cases where plaintiff's counsel is the Law Offices of Gary Tsirelman, attorneys for Ava Acu. In short, Mr. Tsirelman's clients, along with many other acupuncturists, would have it that licensed acupuncturists are allowed to charge a rather substantial amount per modality, usually somewhere in the neighborhood of $120. However, there is a fee schedule for acupuncture rendered by chiropractors and physicians, and the resultant fees, at the high end, are about $43. Unfortunately for the acupuncturists, the Insurance Department issued an opinion letter on October 6, 2004 in which they opined that "licensed acupuncturists do not have a right to reimbursement at the prevailing regional fee rate in effect" prior to the physician and chiro fee schedules being put into effect, and that "it would be consistent with the regulation for an insurer to limit the reimbursable fee for necessary services provided by a licensed acupuncturist to the rates established for doctors and chiropractors performing a similar service."

Although he avoided doing so in Ava Acu., Judge Battaglia later tackled this issue on the merits in Power Acupuncture P.C. v State Farm Mut. Auto. Ins. Co., 2006 NY Slip Op 50393(U) (Civ. Ct., Kings Cty., 2006). I'm not quite sure how he pulled it off, but he both acknowledged the October 6, 2004 opinion letter and concluded that it "was wrong" for State Farm to reduce the bills submitted to a lower "fee [that] was calculated according to the...Schedule for Medical Fees." Id. I'm still mystified by the Power Acu. decision, and especially in light of the fact that Ava Acu. had its appeal dismissed, I hope that State Farm chose to prosecute an appeal in that matter.

1 The title of the post explained: it's a cheap pun, as Ava Acu. is owned by Valentina Anikeyeva. Actually, given that she is married to Andrey Anikeyev, I might have more approrpiately titled the post 'Dissed Mrs.,' but that misses (mrs.?) the point. Then again, I could have gone neutral - and also avoided embarrassing myself in case the pair has split - and called it 'Dissed Ms.' I chose not to use this version, as it removed the subtle reference to 'Swiss Miss,' but I digress. For more fun adventures with the Anikeyevas, I direct the reader to Circle Intl. Group, Inc. v Anikeyeva, 2005 NY Slip Op 50979(U) (Sup. Ct., Kings Cty., 2005).

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