IME no show – complied with Neptune, AT v. Vance and 3.5(b); 3.6(b)

“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 [2006]). 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.


Another Article 75 needed to be taken against AAA

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 [1981]; 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 [2014]). 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.

IME/EUO no-show substantiated (First Department).

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)”

Medical necessity

Ji Sung Kim Acupuncture, P.C. v American Tr. Ins. Co., 2016 NY Slip Op 50873(U)(App. Term 2d Dept. 2016)

“The IME report set forth a factual basis and medical rationale for the doctor’s conclusion that there was a lack of medical necessity for further treatment. In opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner who had treated plaintiff, which failed to meaningfully refer to, [*2]let alone sufficiently rebut, the conclusions set forth in the doctor’s report”

This was my case so therefore I am posting it.  More importantly, this case is interesting because the IME report stated that the person still had disabilities and that further PT was appropriate.  Dr. Cole stated that further acupuncture would not be necessary.  This was sufficient to prove lack of medical necessity.

The discusses why the IME is wrong; that acupuncture would help the patient and that upon a review of the chart, the acupuncture treatment was helpful.  In years passed, this would have been enough to raise an issue of fact.  I believe in the post Arnica v. Interboard world, things are different now.

The IME doctor is in numerous places

MB Advanced Equip., Inc. v New York Cent. Mut. Fire Ins. Co., 2016 NY Slip Op 50863(U)(App. Term 2d Dept. 2016)

“However, in opposition, plaintiff submitted affidavits in which the doctor and chiropractor had previously sworn, under penalty of perjury, that when the IMEs were scheduled to occur, they were at a location other than the address set forth in the IME scheduling letters. To the extent defendant’s counsel asserted in a reply affirmation that the discrepancy was due to typographical errors in the prior affidavits, counsel did not demonstrate that she possessed personal knowledge sufficient to establish, as a matter of law, that the doctor and chiropractor were at the correct location when the IMEs were to be held.

This is terrific.  Really?  Heaven forbid this is true; this would be the predicate of a bad faith action.

Unitrin has been back-doored into the Second Department

Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C., 2016 NY Slip Op 04156 (1st Dept. 2016)

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered July 10, 2015, which denied the petition to vacate a master arbitrator’s award, unanimously reversed, on the law, without costs, the petition granted, and the award vacated. The Clerk is directed to enter judgment accordingly.

The Master Arbitrator’s award was arbitrary because it irrationally ignored the law, which petitioner insurer had presented to the Master Arbitrator, that the no-fault policy issued by petitioner was void ab initio due to respondent’s assignor’s failure to attend duly scheduled independent medical exams (see American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]). The alleged error in petitioner’s denial of claim form is of “no moment” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]), and was not a sufficient or rational basis for the award (see Auto One Ins. Co. v Hillside Chiropractic, P.C., 126 AD3d 423, 424 [1st Dept 2015], citing Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 [1981]).

This was one of my appeals.  The case began as three no-fault arbitrations on Franklin Avenue.  The carrier prevailed.  The lower arbitrator noted that there were errors in the denial (the dates of the no-shows) were wrong, but held in favor or the carrier.  The provider appealed and the master arbitrator REVERSED all three arbitration awards based upon the errors in the denials.

We filed a Petition (consolidated all three awards) in  Bronx Supreme Court and sought to vacate the award of the master arbitrator.  Supreme Court in a published decision denied the Petition, applied the extremely deferential Second Department “no-fault does not belong in the courts” standard.  I appealed, the Petition was granted and the claims were denied.

You want to know the lesson of this case is?  Know where you are filing these Petitions and have confidence in your position.  Admittedly, the Second Department would have probably affirmed saying that mistakes of law are not sufficient to vacate an arbitration award.  Moreover, the First Department believes that Unitrin is the correct statement of law.

Also, after Hillside came out, I realized that the First Department would follow the law without the Second Department’s anti-no-fault impediments.  And this decision and Hillside prove my theory right.  While I might be guilty of forum shopping, I am also guilty of trying to maximize my successes on an eventual appeal that I knew I would have to file.



Incarceration is a valid excuse for no-show EUO

Omega Diagnostic Imaging, P.C. v Praetorian Ins. Co., 2016 NY Slip Op 50762(U)(App. Term 1st Dept. 2016)

“[t]he limited record so far developed presents triable issues as to whether the assignor’s failure to appear was excusable” (see IDS Prop. Cas. Ins. Co. v. Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2014]). In this regard, defendant’s moving submission, which contains letters from its no-fault examiner and no-fault supervisor acknowledging the assignor’s incarceration, creates rather than eliminates genuine triable issues.”

The EUO should have taken place – if anywhere – at the prison or jail.  For what its worth, if someone is incarcerated, they are probably not treating and billing no-fault.

Ime no show loses on lack of personal knowledge allegatiob

Sutphin Complete Med. Care v Hereford Ins. Co., 2016 NY Slip Op 50763(U)(App. Term 1st Dept. 2016)

“the record raises triable issues as to whether the assignor failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U] [App Term, 1st Dept 2016]).”

The triable issue of facts mirror what we saw starting in the Westmed v. State Farm case: how can somebody aver to an act performed 12 months ago without establishing a foundation for the fact?  This Court seems to be running with the line of cases unique to this court.

Affidavit issues once again invade Hertz’ motion practice

Alleviation Med. Servs., P.C. v Hertz Co., 2016 NY Slip Op 50399(U)(App. Term 2d Dept. 2016)

Yesterday, we read about the partner who could not assert personal knowledge of the EUO no show in their affidavit.  Today, we read about the healthcare practitioner whose affidavit was unpersuasive.

“Plaintiff correctly argues that defendant’s cross motion should have been denied. In support of its claim that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs), defendant submitted an affirmation from the doctor who was to perform the orthopedic IMEs and an affidavit from the chiropractor who was to perform the chiropractic and acupuncture IMEs. The doctor and the chiropractor each failed to demonstrate by personal knowledge (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), or by any other appropriate means (see e.g. Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), the nonappearance of plaintiff’s assignor for the IMEs”

The acupuncture was medically necessary and then some

Friedman v Allstate Ins. Co., 2016 NY Slip Op 50390(U)(App. Term 2d Dept. 2016)

(1) “Defendant’s expert medical witness, Dr. Chiu, who had performed an independent medical examination (IME) of plaintiff’s assignor on July 17, 2007, testified that, at the time of the IME, the assignor’s injuries had resolved and that there was no further need for acupuncture treatment. Dr. Friedman, who had commenced treatment of the assignor in June 2007, testified that he was of the opinion that the assignor’s injuries had not resolved at the time of the IME and that further acupuncture treatment was necessary. He had examined and treated the assignor after the IME had been conducted and had concluded that the assignor’s condition was sometimes better and sometimes worse, but that the assignor still often suffered from pain arising from his injuries. It was his opinion that the assignor’s injuries were caused by the accident, but that the injuries were exacerbated by the nature of his job as a parking valet, which “impeded . . . the progress of the treatment.”

  • On these facts, the trial court and the appellate court found the acupuncture services were medically necessary.

(2) It is undisputed that defendant denied plaintiff’s claims solely on the basis of Dr. Chui’s IME, which concluded that the services rendered were not medically necessary, and not on the basis of the assignor’s possible eligibility for workers’ compensation benefits, which is a defense subject to preclusion (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046 [2009]). Since defendant did not deny plaintiff’s claims based upon the assignor’s possible eligibility for workers’ compensation benefits, defendant is precluded from raising that defense.”

  • Not sure where Allstate was going here.  I really do not get it.

(3) Conclusion: “With respect to defendant’s contention that it demonstrated at trial that the acupuncture services in question lacked medical necessity, we find that, after defendant made its showing that the services in question were not medically necessary, plaintiff met its burden of demonstrating, by a preponderance of the credible evidence, that the services at issue were, in fact, medically necessary

  • Affirmed with costs,