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IME doctor potentially on the hook for malpractice June 8, 2019

Goldson v Mann, 2019 NY Slip Op 04329 (1st Dept. 2019)

” Defendant failed to meet his prima facie burden of demonstrating that he did not depart from good and accepted medical practice in examining plaintiff during an independent medical examination (IME), or that any such departure was not a proximate cause of plaintiff’s injury to her left shoulder (see Scalisi v Oberlander, 96 AD3d 106, 120 [1st Dept 2012]). Defendant’s expert affirmation, which relied on defendant’s testimony regarding his custom and practice of examining patients during his IMEs, was insufficient. Defendant’s testimony did not establish a deliberate and repetitive practice sufficient to show evidence of his behavior during plaintiff’s examination, as he testified that his examination varied depending on the examinee”

Proof of lost wages: Job abandonment June 2, 2019

Ross v Geico Indem. Co., 2019 NY Slip Op 04242 (3d Dept. 2019)

” In October 2014, defendant denied plaintiff any additional no-fault insurance lost wage benefits after receiving notification from Walmart that plaintiff was terminated from employment due to her lack of compliance with Walmart’s leave of absence guidelines. Plaintiff thereafter commenced this action against defendant claiming her continued entitlement to no-fault lost wage benefits. Following a nonjury trial, at which plaintiff was the sole witness, Supreme Court determined that defendant had properly denied plaintiff additional no-fault lost wage benefits and dismissed plaintiff’s complaint.”

There is no dispute that plaintiff sustained disabling injuries as result of the accident that prevented her, at least initially, from returning to work at Walmart. Based thereon, she obtained a leave of absence from Sedgwick, short-term disability benefits through Walmart’s disability carrier through July 7, 2014 and no-fault lost wage benefits from defendant through September 2014. Plaintiff acknowledges that Sedgwick approved her initial request for a leave of absence and that she thereafter twice communicated her status to Sedgwick by providing copies of doctor’s notes excusing her absence from work. However, the last doctor’s note that plaintiff provided prior to her termination, dated January 17, 2014, only excused her absence from work until March 1, 2014, and there is unrefuted record evidence that she had been advised of the need to provide updates regarding her status. By separation notice dated May 6, 2014, Walmart notified plaintiff that her employment was to be terminated as of May 23, 2014 based upon her “failure to return from leave [of absence].” Walmart also provided plaintiff an exit interview document, wherein it reiterated the basis for plaintiff’s termination and further indicated that plaintiff had failed to file for an extension of her leave of absence after March 26, 2014 and had not otherwise been in contact with Walmart’s personnel manager since such time.

“This is not an action for wrongful termination, and it was not defendant who terminated plaintiff’s employment. To the extent that plaintiff believes that she was wrongfully terminated, she may pursue any legal remedies that she may have against Walmart and/or Sedgwick. Defendant, however, was entitled to rely on the documentation it received from Walmart indicating that plaintiff was terminated from employment for reasons unrelated to her injuries (cf. State Farm Mut. Auto Ins. Cos. v Brooks, 78 AD2d 456, 459 [1981], appeal dismissed 54 NY2d 753 [1981]). Moreover, contrary to plaintiff’s assertion, there is nothing in the record demonstrating that her termination from employment and subsequent denial of no-fault insurance benefits was deliberately intended to circumvent defendant’s obligation to provide plaintiff with lost wage benefits. Accordingly, giving deference to Supreme Court’s factual findings, we find that defendant properly denied plaintiff continuing no-fault lost wage benefits.”

It has always been interesting because under established precedent, the injured person gets a pass if he or she gets fire while disabled. Thus, leaving a job while disabled was never an issue. Here, the Court has held that job abandonment ends the inquiry.

Causation June 2, 2019

Black v Gordon, 2019 NY Slip Op 04032 (1st Dept. 2019)

“The chiropractor acknowledged that the MRI film showed preexisting degenerative conditions, and therefore he was required to address the issue of causation and explain the basis for his conclusions that the conditions were caused by the accident (Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043, 1044 [1st Dept 2014], affd 24 NY3d 1191 [2015]). Instead, the chiropractor provided only a conclusory opinion, which provided no basis for his opinion that the preexisting disc bulges were aggravated by the accident, or for assessing the extent of any exacerbation (Shu Chi Lam v Wang Dong, 84 AD3d 515, 516 [1st Dept 2011]).”

Another gem of a causation case.

Can’t backdoor the Master award through a DJ June 2, 2019

Hereford Ins. Co. v Iconic Wellness Surgical Servs., LLC, 2019 NY Slip Op 50801(U)(App. Term 1st Dept. 2019)

“Civil Court erred in vacating the master arbitrator’s no-fault award on the ground that it is contrary to a subsequent order rendered by the Supreme Court, New York County, which declared that petitioner-insurer is not liable for no-fault benefits arising from the underlying automobile accident. While the preclusive effect of a pre-arbitration judicial decision may be sufficient to vacate an arbitral award (see Matter of Tokio Mar. & Fire Ins. Co. v Allstate Ins. Co., 8 AD3d 492 [2004]), a post-arbitration judicial determination concerning the insurer’s liability is not one of the limited grounds for vacating an arbitration award (see Matter of Hirsch Constr. Corp. [Cooper], 181 AD2d 52 [1992], lv denied 81 NY2d 701 [1992]). Indeed, if a motion to vacate an arbitration award on this ground could be entertained, “the arbitration award would be the beginning rather than the end of the controversy and the protracted litigation which arbitration is meant to avoid would be invited” (Matter of Mole [Queen Ins. Co. of Am.], 14 AD2d 1, 3 [1961]).”

“We have considered petitioner Hereford’s alternative grounds for vacating the award and find them unavailing. The master arbitrator’s affirmance of the lower arbitration award was not irrational (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 [1981]), nor did it ignore controlling law (see Matter of Global Liberty Ins. Co. v ISurply, LLC, 163 AD3d 418 [2018]).”

I think the smarter approach would have been to consolidate the DJ action with the Article 75 action (COA #1 DJ; COA #2 Art 75) and to move by Notice of Petition. This assumes the the DJ had merit and was not one to force a default in an attempt to create unfounded res judicata.

New evidence in reply? June 2, 2019

Valdan Acupuncture, P.C. v 21st Century Advantage Ins. Co., 2019 NY Slip Op 50822(U)(App. Term 2d Dept. 2019)

Defendant also submitted affirmations and affidavits from medical providers who were to perform the IMEs, which sufficiently established that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel [*2]Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims representative demonstrated that the denial of claim forms, which denied the claims based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123).

[In opposition Plaintiff presented evidence showing that the address was wrong]

“In reply, defendant submitted a copy of the NF-2 which was sworn to on July 29, 2011, and the police report from the July 17, 2011 accident. Both the police report and the sworn NF-2 stated that the assignor’s address was on Van Siclen Avenue. The Civil Court denied defendant’s motion for summary judgment dismissing the complaint, holding that plaintiff’s claims forms which were annexed to defendant’s moving papers raised an issue of fact as to the mailing of the IME scheduling letters and that defendant could not cure the defect in reply.

While a party moving for summary judgment generally cannot meet its prima facie burden by submitting evidence for the first time in reply, there is an exception to this general rule where, as here, the evidence is submitted in response to allegations raised for the first time in the opposition papers (see Central Mtge. Co. v Jahnsen, 150 AD3d 661 [2017]; Conte v Frelen Assoc., LLC, 51 AD3d 620 [2008]). As a result, the Civil Court erred when it held that the NF-2 and police report annexed to defendant’s reply papers could not be considered in support of defendant’s motion for summary judgment dismissing the complaint. Those documents established that, at the time the IME letters had been mailed to plaintiff’s assignor, the letters had been mailed to the assignor’s address as set forth in the sworn NF-2 and the police report, which was the only address known to defendant at that time.”

The new evidence in reply rule has always been amorphous. What I found strange is that I always through the Appellate Term, Second Department required an NF-2 or LOR in the moving papers to make out a no-show case. Thus, providing this evidence in Reply would be making a prima facie case in Reply. The First Department has clearly held that the medical provider or EIP has the burden to prove the wrong evidence in opposition.

So, this case confuses me in various ways.