Great Wall Acupuncture, P.C. a/a/o Maria Gonzalez v. Geico Ins. Co.
(App. Term, 2d Dept., 2d, 11th & 13th Dists., decided 11/17/2009)
Geico paid plaintiff acupuncture PC for acupuncture services using the the workers' compensation fee schedule for acupuncture services performed by chiropractors. Plaintiff claimed that its licensed acupuncturists were not limited to the fee schedule for acupuncture services performed by chiropractors -- there being no separate fee schedule for for acupuncture services performed by licensed acupuncturists -- and commenced this action to recover additional payment. The parties stipulated to all but the propriety of the fees charged. Following a non-jury trial on that issue, Civil Queens granted judgment to Geico, dismissing the complaint. Plaintiff appealed.
In AFFIRMING the judgment dismissing the complaint, the Appellate Term held:
A person who seeks to practice acupuncture must be either licensed (Education Law § 8214) or certified (Education Law § 8216) to do so (see Education Law § 8212). The training to obtain a license remains the same even if the person seeking to practice acupuncture has a license in a different profession, such as a chiropractic license (see 8 NYCRR 52.16[b]; cf. 8 NYCRR 52.16[a]). Indeed, at trial, plaintiff's witness, who was both a licensed acupuncturist and a licensed chiropractor, so testified. Accordingly, in light of the licensure requirements, we hold, as a matter of law, that an insurer may use the workers' compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services (see Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]; see also AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51017[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]; 2004 Ops Gen Counsel NY Ins Dept No. 04-10-03 [Oct 2004] [http://www.ins.state.ny.us/ogco2004/rg041003.htm]). Consequently, since it is undisputed that the instant defendant reimbursed plaintiff pursuant to the workers' compensation fee schedule for acupuncture services rendered by a chiropractor, plaintiff is not entitled to any additional reimbursement.