IME no-show not sustained

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.

IME no show disclaimer substantiated

Longevity Med. Supply, Inc. v Citiwide Auto Leasing, 2017 NY Slip Op 51880(U)(App. Term 2d Dept. 2017)

“In support of its motion, defendant established that, before it had received the claim at issue, it had mailed letters scheduling an initial and follow-up IME (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that the assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Defendant further demonstrated that, upon receipt of the claim at issue, it had timely mailed initial and follow-up requests for written [*2]verification (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). Finally, defendant established that, upon receiving the requested verification, it had timely denied the claim at issue based upon the assignor’s failure to appear for IMEs (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Plaintiff failed to raise a triable issue of fact in opposition.”

This is the famous fact pattern.  Bill is delayed for delayed for verification.  The IME is timely scheduled and there is a double no-show.  Eventual denial comes when the verification is received.  Plaintiff argues that the denial is late because the disclaimer should have been issued when grounds to disclaim existed.  The carrier argues that the bill is tolled until verification is received.  Again, the court held that  a disclaimer is timely when it is issued following receipt of late verification notwithstanding the grounds existing prior,


Subsequent IME not allowed

Kolodziejski v Jaskolka, 2017 NY Slip Op 07851

“While there is no restriction in CPLR 3121 limiting the number of examinations to which a party may be subjected, a party seeking a further examination must demonstrate the necessity for it” (Rinaldi v Evenflo Co., Inc., 62 AD3d 856, 856 [2d Dept 2009]). Here, the examining physician was able to reach a definitive conclusion as a result of the initial independent medical examination, and she never indicated that her analysis and/or conclusion were affected by plaintiff’s alleged refusal to perform certain tests. The court therefore properly declined to compel plaintiff to undergo a second independent medical examination “

30-days to hold the IME from the receipt of the billing

Irina Acupuncture, P.C. v Nationwide Affinity Ins. Co., 2017 NY Slip Op 51461(U)(App. Term 2d Dept. 2017)

“Contrary to defendant’s argument, the Civil Court properly granted the branches of plaintiff’s motion seeking summary judgment on the first two causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action on the ground that the first independent medical examination had not been scheduled to be held within 30 days of defendant’s receipt of the claims underlying those causes of action, as required by 11 NYCRR 65-3.5 (d) (see W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co., 36 Misc 3d 152[A], 2012 NY Slip Op 51707[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; see also O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).”

This is settled law, not necessarily blog worthy.  But, this is a holding that the Appellate Division, First Department and this Court share.  Why not cite the 2 cases from the Appellate Division on this topic?  Precedent from the Appellate Division, First Department, if not contradictory to precedent from the Appellate Division, Second Department is more binding on the Appellate Term, Second Department than that Court’s own holdings.


IME no-show – it was not mailed

K.O. Med., P.C. v Mercury Cas. Co., 2017 NY Slip Op 51158(U)(App. Term 2d Dept. 2017)

I reviewed the papers.  The IME vendor changed the affidavit that was sent and inter-changed the defunct “Crosslands” with “Examworks” (the successor) entity.  There was no discussion regarding the jural relationship between the two entities.   I only realized that when I reviewed the papers after receiving the decision.  Ironically, I was not the only one to miss that salient point.  The Appellate Time signed an OSC granting us a stay of trial and granted the application motion to stay.  Neither of these are easy feats.  More finely tuned eyes saw the mistake.  I will say this: they have a good set of proof-readers at that court.  They find things all the time I never find.

“The Civil Court properly denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims that had been denied based upon plaintiff’s assignor’s failure to appear for the IMEs, as the proof submitted by defendant was not sufficient to give rise to a presumption that the IME scheduling letters at issue had been properly mailed”

Can a mailing to the attorney on the IME n/s defense be dispositive on the proof and fact of the no-show?

Alleviation Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 2017 NY Slip Op 50952(U)(App. Term 2d Dept. 2017)

” To the extent that copies of the IME scheduling letters were sent to an attorney, there is nothing in the record to suggest that plaintiff’s assignor was represented by that attorney. Consequently, defendant’s moving papers failed to demonstrate that the IMEs had been properly scheduled (see Great Health Care Chiropractic, P.C. v Citiwide Auto Leasing, 43 Misc 3d 127[A], 2014 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Infinity Health Prods., Ltd., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U]; cf. Star Med. [*2]Servs., P.C. v Allstate Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50344[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]) and, thus, that it is entitled to summary judgment dismissing the complaint.”

It looks like upon proof in the record showing that the Assignor is represented by counsel, mailing of the letter to counsel will proof a no-show defense.  This would be in accordance with Marte-Rosario.

EUO letter to Assignor did toll time to pay or deny

Doctor Goldshteyn Chiropractic, P.C. v ELRAC, Inc., 2017 NY Slip Op 50923(U)(App. Term 2d Dept. 2017)

“Plaintiff’s contention that defendant failed to establish that its time to pay or deny claims seeking to recover the sums of $241.30, $1,310.94, and $1,019.62 was tolled because defendant had not timely mailed EUO scheduling letters to plaintiff’s assignor lacks merit. While plaintiff correctly asserts that the letter from defendant dated January 27, 2011 is a delay letter, defendant established that the first EUO scheduling letter had been timely and properly mailed to plaintiff’s assignor on January 4, 2011 (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Great Health Care Chiropractic, P.C. v Nationwide Ins., 46 Misc 3d 130[A], 2014 NY Slip Op 51812[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014])”

This is an interesting case because (I think) it lays out what is necessary to timely delay a bill for pending EUOs/IMEs and, afterwards, denying the same.  Most of the caselaw that has discussed the issue has not been favorable to the carriers.

Here, the carrier presented (1) EUO letter to Assignor; and (2) Timely delay letter to medical provider stating that bill is delayed pending EUO.

I would note that if the EIP attended and the bill was denied on other grounds, you would still need the same proof to show the time to pay or deny is tolled.  Oftentimes (and I have seen it accidentally out of here), the motion-writer thinks that you only need to present the delay to the provider to prove a toll.  This is not the case – do not fall into that trap.

You always need (1) the underlying EUO/IME letter with proof of mailing and (2) proof of attendance to prove the toll.

IME no show trial defense – reversed

Progressive Orthopedics, PLLC v Hertz Corp., 2017 NY Slip Op 27193 (App. Term 2d Dept. 2017)

(1) “The Civil Court did not allow defendant to present any evidence in support of its defense that plaintiff’s assignor had failed to appear for duly scheduled IMEs, which would constitute a failure to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), because the court held that a prior order of the same court (Wavny Toussaint, J.), which had denied defendant’s summary judgment motion based on that failure to appear, had already determined that defendant could not establish that defense.”

(2) As per Vitality Chiropractic, P.C., the denial of a motion for summary judgment in and of itself establishes nothing

(3) Decision reversed

IME no-show/ failure to object during claims stage is fatal to later objection

Parisien v Citiwide Auto Leasing, 2017 NY Slip Op 50684(U)(App. Term 2d Dept. 2017)

“As limited by its brief, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion.

The Civil Court erroneously held that, because defendant had failed to establish that it had scheduled the examinations at a time that was reasonably convenient for the assignor, there is an issue of fact as to the reasonableness of the IME requests. 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), as an assignor’s appearance for a duly scheduled IME is a condition precedent to the insurer’s liability on the policy. As plaintiff never alleged, let alone demonstrated, that he or his assignor had responded in any way to the IME requests, plaintiff’s objections to the reasonableness of the requests should not have been heard

It is great when the same issue keeps popping it, Plaintiff expects a different result and, surprise, nothing changes.


No show and non receipt

Progressive Health Chiropractic, P.C. v American Tr. Ins. Co., 2017 NY Slip Op 50603(U)(App. Term 2d Dept. 2017)

(1)  “we do not consider a mutual rescheduling, which occurs prior to the date of that scheduled IME, to constitute a failure to appear”

(2) “although the affidavit of defendant’s no-fault examiner was sufficient to show that defendant had never received that claim, the affidavit of plaintiff’s employee, in which the affiant stated that he had personally generated and mailed plaintiff’s $1,019.62 claim to defendant, was sufficient to give rise to the presumption that the claim had been received by defendant”