Henderson v Ross, 2017 NY Slip Op 01186 (2d Dept. 2016)
For some reason, American Transit (AT) has this inchoate fear of visitors at IMEs that their doctors perform. This fear has materialized into rampant litigation on the issue of whether a Plaintiff’s attorney or paralegal/support staff that is affiliated with a Plaintiff’s attorney is allowed to to attend an IME. I would say that in light of the Dr. Katz and Dr. Israel events of 3-4 years ago (and there is a myriad of interpretations of what really happened that I am not going to opine upon on this blog), one would think that more transparency is better than less.
How many times has a Claimant stated the “IME was 3 minutes”? Do I believe that Claimant? Without proof, who is to say. I know many really awesome IME practitioners who I have referred friends to treat with because their integrity and acumen is second to none. I also know a few IME practitioners that downright scare me and I cringe when I see them in Court (on a PIP or a BI case).
AT disagrees in transparency and the First Department in a prior post on here agreed with AT. The Second Department has now said otherwise, and I think the Second Department got it right.
“A plaintiff “is entitled to be examined in the presence of [his or] her attorney or other legal representative, as well as an interpreter, if necessary, so long as they do not interfere with the conduct of the examination[ ]” (Ponce v Health Ins. Plan of Greater N.Y., 100 AD2d 963, 964; see Guerra v McBean, 127 AD3d 462, 462; A.W. v County of Oneida, 34 AD3d 1236, 1237-1238; see also Bermejo v New York City Health & Hosps. Corp., 135 AD3d 116, 143). Here, the defendant failed to meet his burden of establishing that the plaintiffs’ representative would improperly interfere with the conduct of the injured plaintiff’s physical examination (see Guerra v McBean, 127 AD3d [*2]at 462; Flores v Vescera, 105 AD3d 1340, 1340-1341; A.W. v County of Oneida, 34 AD3d at 1238; see also Lamendola v Slocum, 148 AD2d 781, 781-782; cf. Kattaria v Rosado, _____ AD3d _____, 2017 NY Slip Op 00091 [1st Dept 2017]). Accordingly, the Supreme Court should have denied that branch of the defendant’s motion which was for a protective order precluding any non-attorney from accompanying the injured plaintiff in the examination room during his physical examination.”
Expect this to go to the Court of Appeals.
Maiga Prods. Corp. v Unitrin Auto & Home Ins. Co., 2017 NY Slip Op 50113(U)(App. Term 2d Dept. 2017)
“In papers submitted in support of defendant’s cross motion, it was alleged that defendant had requested that the assignor appear for scheduled EUOs and that, although several EUOs had been rescheduled at the request of the assignor’s attorney, the assignor had ultimately failed to appear at the EUO scheduled on August 28, 2012, which EUO had not been rescheduled. Defendant’s papers further stated that defendant had subsequently mailed a denial of claim form to plaintiff which denied plaintiff’s claim on the ground that its assignor had failed to appear at EUOs. Inasmuch as defendant’s papers did not establish that plaintiff’s assignor had failed to appear for two duly scheduled EUOs, the Civil Court correctly found that defendant had failed to establish its entitlement to summary judgment dismissing the complaint”
That word: “reschedule”. I never had so much trepidation when I encountered tht word until recently. Assume EIP attorney states that client cannot attend and continues to make this statement. At what point can that carrier say it is not on consent? That fact pattern is looming. And assuming that a carrier has the right state the reschedule is not on consent (which the carrier does I think in light of Stracar), does the failure to give consent contain a reasonableness prong? In IDS Prop. Cas. Ins. Co. v. Stracar Med. Servs., P.C., 116 AD3d 1005 (2d Dept. 2014), where the Court stated: “In view of the assignees’ unexcused and willful failure to comply with the demands for examinations under oath, and the lack of evidence of partial performance, the Supreme Court, upon renewal, should have unconditionally awarded summary judgment to the plaintiff .”
IME Watchdog, Inc. v Baker, McEvoy, Morrissey & Moskovits, P.C., 2016 NY Slip Op 08174 (1st Dept. 2016)
(1) “There has been no showing that the alleged tortious conduct which plaintiff seeks to enjoin, Baker McEvoy’s exclusion of non-attorneys from IMEs (except under certain [*2]circumstances), exceeds its professional duty to defend its clients (see Fried v Bower & Gardner, 46 NY2d 765, 767 ) or was tainted by fraud, collusion, malice or bad faith (see Purvi Enters., LLC v City of New York, 62 AD3d 508, 509-510 [1st Dept 2009]), especially since several Supreme Court decisions are in Baker McEvoy’s favor on the issue of a non-attorney’s presence at IMEs.”
(2) “Additionally, plaintiff has not established that Baker McEvoy’s conduct was without excuse and/or justification, an element of the claims for tortious interference with a contract (Lama Holding Co. v Smith Barney, 88 NY2d 413, 424 ), abuse of process (see Board of Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397, 403 ), and prima facie tort (see Burns Jackson Miller Summit & Spitzer v Linder, 59 NY2d 314, 332 ), or was accompanied by the use of wrongful means or motivated solely by malice, a necessary element of its cause of action for tortious interference with contract (see Snyder v Sony Music Entertainment, 252 AD2d 294, 299-300 [1st Dept 1999]).”
(3) “Plaintiff’s claims of irreparable injury are belied by the fact that business has grown every year, and the testimony of plaintiff’s three witnesses reflects that their firms’ change in position, on the use of watchdogs, was made in response to adverse court rulings in their cases. The proper remedy, in those instances, would be to appeal the adverse decisions, and not commence a separate action against the attorneys who secured those rulings”
This was another interesting case. The crux of what I am gathering is that non attorneys can be barred from witnessing IMEs. It is an interesting proposition, and this case does not resolve the issue. I am curious what the answer, however, really is to that question.
Harvard Med., P.C. v Maya Assur. Co., 2016 NY Slip Op 51529(U)(App. Term 2d Dept. 2016)
Liberty Chiropractic, P.C. v Maya Assur. Co., 2016 NY Slip Op 51531(U)(App. Term 2d Dept. 2016)
Sharp View Diagnostic Imaging, P.C. v Maya Assur. Co., 2016 NY Slip Op 51534(U)(App. Term 2d Dept. 2016)
Prime Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2016 NY Slip Op 51523(U)(App. Term 2d Dept. 2016)
“Plaintiff’s argument, that the address used on the IME scheduling letters improperly included an apartment number that does not appear on plaintiff’s claim forms, will not be considered, as it is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 ; Gulf Ins. Co. v Kanen, 13 AD3d 579 ; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In any event, the affidavit of defendant’s litigation examiner stated that defendant used the address set forth on the assignor’s application for no-fault benefits.”
This case seems to suggest that an affidavit attesting to what is on an NF-2 is sufficient evidence to prove the basis of the address on an IME scheduling letter.
Stracar Med. Servs., P.C. v Allstate Prop. & Cas. Ins. Co., 2016 NY Slip Op 51431(U)(App. Term 2d Dept. 2016)
The court found that there was a question as to the reasonableness of the IME requests because there was evidence that plaintiff’s assignor had appeared for other IMEs. However, the no-fault regulations provide that an eligible injured person “shall submit” to IMEs “when, and as often as, the Company may reasonably require” (11 NYCRR 65-1.1; see also Power Supply, Inc. v Praetorian Ins. Co., 46 Misc 3d 146[A], 2015 NY Slip Op 50218[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2015] [“an assignor’s appearance for any duly scheduled IME or EUO is a condition precedent to the insurer’s liability on the policy”]). Contrary to the finding of the Civil Court, the record does not raise any question as to the reasonableness of the IME requests at issue, which were for an orthopedic examination. While, in its cross motion and opposition to defendant’s motion, plaintiff attached reports from other IMEs of the assignor, most of those IMEs were in different specialties, such as acupuncture. The only other orthopedic IME report attached, which is dated about four weeks before the first scheduled IME at issue in this case, specifically states that treatment should continue for four weeks, at which time the claimant “should be re-evaluated.”
In any event, plaintiff’s objections regarding the IME requests should not have been [*2]considered by the Civil Court, as plaintiff did not allege, much less prove, that its assignor had responded in any way to the IME requests.
This is rough because the EIP showed up to quite a few but then missed the specified two in the same specialty. The only rub here is that to the extent that law can extrapolate a retroactive cancellation of the policy, that would be limited the time period of 30-days prior to the first IME and moving forwad. 65-3.5(d)
Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co., 2016 NY Slip Op 51381(U)(App. Term 2d Dept. 2016)
“The conclusory affidavits of defendant’s IME doctors lacked probative value, since they failed to state the basis of their recollection, some 8 years later, that the assignor did not appear on the scheduled IME dates”
Hard for me to fathom the type of proof, short of check-in-sheets to meet this exacting standard of proof that the Court has set forth when the no-show is more remote in time. But again, this is why the contemporaneous affidavit/affirmation is a must have.
“Defendant also established that the assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ). Defendant further demonstrated that, upon receipt of the claims, it had timely mailed initial and follow-up requests for written verification (see 11 NYCRR 65-3.5 [b]; 65-3.8 [l]; St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). Finally, defendant established that, upon receiving the requested verification, it had timely denied the claims at issue based upon the assignor’s failure to appear for IMEs”
This is a case where it appears the first IME date was scheduled within 30-days of receipt of the billing. Also, the billing was delayed pending verification and the carrier properly waited for the verification prior to denying the billing on the policy violation.
Global Liberty Ins. Co. v. Electrophysiological Medical, P.C., Index #: 21167/2016E (Sup. Ct. Bronx Co. 2016)
I think one of the weakest parts of the AAA no-fault dispute resolution services is the lack of depth that exists within the pool of the master arbitration panel. With the death of Normal Dachs, Esq., I feel we are left with “rubber stamps” who cite Petrofsky and affirm awards that are legally infirm. This case is a prime example:
AAA case #:41-14-1002-2571. Standard IME no show case. Presented were affidavits of no show and affidavits of non-appearance. Applicant argued the affidavit of mailing was not specific enough. Lower arbitrator agreed. I shook my head in disgust and appealed. I was not surprised when the award was affirmed. Of course, the affirmance is sent to the lower arbitrator, Larry Fuchsberg and Chris Maloney, which makes me look like a consistent overzealous “appealer” of NFA awards. I filed an Article 75. Respondent sought an adjournment and then shrugged her shoulders. Court granted the Petition and said the following:
“[t]he petitioner established without opposition that the decision of the master arbitrator, affirming the lower arbitrator, was arbitrary (see In re Petrofsky [Allstate Ins. Co.}, 54 N.Y.2d 207 ; Auto One Ins. Co. v. Hillside Chiropractic, P.C., 126 A.D.3d 423 [1st Dept. 2015]). The affidavit of Karin Bruford adequately demonstrated that IME letters were mailed to the respondent assignor in accordance with the petitioner’s standing and appropriate office mailing practices and procedures (see Preferred Mut. Ins. Co. v. Donnelly, 22 N.Y.3d 1169 ). The master arbitration award dated January 19, 2016 is hereby vacated, and the petitioner is entitled to costs and disbursements, including petitioner’s $325 master arbitration fee.”
Since Judgment was granted, AAA will never know that their system failed again. Why do I post this? The system is broken. Do I have more of these in the Courts? Yes, too many. But, I will admit the petitions and appeals are entertaining and the vindication proves that I have not lost my mind totally.
I will condition the above statement on the fact that I have cases that are not as clear cut as this and a few others, and I cannot predict what the Appellate Division will do.
Urban Well Acupuncture, P.C. v Nationwide Gen. Ins. Co., 2016 NY Slip Op 50906(U)(App. Term 1st Dept. 2016)
“Contrary to plaintiff’s contention, defendant submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining chiropractor/acupuncturist and an employee of defendant’s third-party IME scheduler, setting forth sufficient facts to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear for a scheduled IME”
Metro 8 Med. Equip., Inc. v Esurance Ins. Co, 2016 NY Slip Op 50904(U)(App. Term 1st Dept. 2016)
Contrary to plaintiff’s contention, defendant submitted competent evidence of the assignor’s nonappearance in the form of the affirmation of defendant’s attorney who was assigned to the file and the affidavit of defendant’s employee who was responsible for the scheduling of the EUOs, setting forth sufficient facts to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the EUOs and the office practices and policies when an assignor fails to appear for a scheduled IME (sic)”