IME no-show not sustainedFebruary 27, 2018

Thomas J. Tesi, M.S., D.C., P.C. v Hereford Ins. Co., 2018 NY Slip Op 50252(U)(App. Term 2d Dept. 2018)

“However, contrary to defendant’s further argument, defendant did not demonstrate that it is entitled to summary judgment dismissing the complaint based on plaintiff’s assignor’s failure to appear for IMEs, as the initial IME had not been scheduled to be held within 30 calendar days after defendant’s receipt of plaintiff’s claims (see 11 NYCRR 65-3.5 [d]).

Defendant’s remaining contentions lack merit.”

I sense the lack merit is the 65-3.5(p) argument this law firm usually makes.  This argument in First Department parlance is unavailing or, in Second Department parlance, lacks merit.  This is why.

Regulations are read like statues.   See the following:

(1) “The legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction.  (Statute Sec. 94)

(2) “A basic consideration in the interpretation of a statute is the general spirit and purpose underlying its enactment, and that construction is to be preferred which furthers the object, spirit and purpose of the statute.”  (Statute Sec 96)

(3) “A statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent  *Stat. Law § 97 )

If 3.5(d) states that the carrier has 30-days  to schedule the IME and 3.5(p) says “an insurer’s non-substantive technical or immaterial defect or omission, as well as an insurer’s failure to comply with a prescribed time frame, shall not negate an applicant’s obligation to comply with the request or notice”, how can you harmonize the two?

The first regulation is on point.  The second regulation discuses non-substantive defects or omissions and the failure to to comply with geberal time frames not negating the obligation to comply with a notice.

The two regulations are at complete odds with each other, if read literally.

3.5(p) would literally destroy every verification time frame and be at odds with the 30-day pay or deny rule.  I cite to statute 145: “A construction which would make a statute absurd will be rejected.”

Under Statutes 94, 96 ,97, and 145, 11 NYCRR 65-3,5 (p) would have to yield to the regulations that are on point (11 NYCRR 5- 3.5[b][f]; 3.6[b]; 3.8).

This is why the line of reasoning I see from this firm as probably incorrect.

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