Maya failed to prove mailing of the IME scheduling letters

Sharp View Diagnostic Imaging, P.C. v Maya Assur. Co., 2015 NY Slip Op 51721(U))(App. Term 2d Dept. 2015)

“Plaintiff correctly argues on appeal that the affidavit submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) had been properly addressed and mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that plaintiff’s assignor had failed to appear at duly scheduled IME”

It seems that Maya gets into trouble on these IME no show cases often.

Lincoln General citing

Compas Med., P.C. v Praetorian Ins. Co., 2015 NY Slip Op 51667(U)(App. Term 2d Dept. 2015)

“However, with respect to the third cause of action, the record establishes that the claim at issue was not denied within 30 days of its receipt (see 11 NYCRR 65-3.8 [a] [1]) and defendant did not demonstrate that the 30-day claim determination period (see 11 NYCRR 65-3.8) had been tolled. As a result, since defendant is precluded from asserting, with respect to this claim, its defense that plaintiff’s assignor had failed to appear for the duly scheduled IMEs and EUOs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), plaintiff is entitled to summary judgment upon its third cause of action.”

No-show troubles

Compas Med., P.C. v Geico Ins. Co., 2015 NY Slip Op 51590(U)(App. Term 2d Dept. 2015)

” In support of a claim that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs), defendant submitted affidavits and an affirmation from the medical professionals who were to perform the IMEs which stated in a conclusory manner that plaintiff’s assignor had failed to appear at the duly scheduled IMEs. These affidavits and affirmation were insufficient to establish defendant’s entitlement to summary judgment”

Alleviation Med. Servs., P.C. v Allstate Ins. Co., 2015 NY Slip Op 51591(U)(App. Term 2d Dept. 2015)

“The doctor 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, 11th & 13th Jud Dists 2012]), the nonappearance of plaintiff’s assignor for both of the IMEs. Therefore defendant failed to establish its entitlement as a matter of law to summary judgment dismissing the complaint”

Village Med. Supply, Inc. v Travco Ins. Co., 2015 NY Slip Op 51599(U)(App. Term 2d Dept. 2015)

“However, as plaintiff notes, defendant’s motion papers do not unequivocally demonstrate that defendant’s counsel was present on the dates of the scheduled EUOs. As a result, defendant’s motion should have been denied because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question”

 

Unitrin citing that hits upon the Longevity factors

Easy Care Acupuncture P.C. v Praetorian Ins. Co., 2015 NY Slip Op 51524(U)(App. Term 1st Dept. 2015)

“Contrary to plaintiff’s specific contention, defendant was entitled to request the IMEs prior to its receipt of plaintiff’s claim forms (see 11 NYCRR 65-1.1 [an insurer has a right to request IMEs “when, and as often as [it] may reasonably require”]; Steven Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006] [an insurer is entitled to request IMEs “before . . . or after the claim form is submitted” (emphasis supplied)]; see also Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [2005]).”

In American Transit v. Longevity, we learned for the first time that 65-3.5(d) plays into the calculus of whether an IME letter is timely relative to the claim.  It would seem to me that scheduling IME’s prior to receipt of the claim forms would be the best way of complying with this regulation and avoiding a Longevity issue.  This regulation and 65-1.1 come into disharmony when the IME is scheduled more than 30-days after receipt of the billing,  The timing element of 3.5(d) takes second fiddle to the notion that “an insurer has a right to request IMEs “when, and as often as [it] may reasonably require”

So be it.  Disharmony is what keeps the law fluid and most of us employed.

Personal knowledge and other appropriate means

Acupuncture Pain Mgt., P.C. v Kemper Cas. Ins. Co., 2015 NY Slip Op 51522(U)(App. Term 1st Dept. 2015)

The Court limited the issue to following: “Contrary to Civil Court’s determination, defendant submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining acupuncturist and defendant’s third-party IME scheduler setting forth facts sufficient 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”

Many have been down this road with Judge Capella (the judge who was reversed).  The no-show must either be based upon personal knowledge or by other appropriate means.  that is from Compas v. Travelers and is quite asute.  And, practice and procedure where there is indicia that someone was there to record the no-show will suffice is “appropriate means”.

What is “other appropriate means”?

Compas Med., P.C. v Travelers Ins. Co., 2015 NY Slip Op 51568(U)(App. Term 2d Dept. 2015)

“While defendant submitted a sworn statement by the attorney who was assigned to conduct the EUOs, plaintiff correctly argues on appeal that counsel 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, 11th & 13th Jud Dists 2012]), that plaintiff had failed to appear for both of the EUOs. Therefore, defendant failed to establish its entitlement as a matter of law to summary judgment dismissing the complaint”

 

Proof of no show can be proved by (1) Personal knowledge; and (2) Other appropriate means.  Now the question is what is “other appropriate means”?  I cannot wait to see how that plays out…

EUO & IME no show

Compas Med., P.C. v Praetorian Ins. Co., 2015 NY Slip Op 51467(U)(App. Term 2d Dept. 2015)

“The Civil Court denied plaintiff’s motion, granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s third cause of action as premature because plaintiff had failed to provide requested verification, and granted the branches of defendant’s cross motion seeking summary judgment dismissing the remaining causes of action due to the failure of plaintiff’s assignor to appear for independent medical examinations (IMEs) and examinations under oath (EUOs).

In support of the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s third cause of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant demonstrated prima facie that it had not received the requested verification and thus that plaintiff’s third cause of action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). As plaintiff failed to raise a triable issue of fact, the Civil Court properly granted the branch of defendant’s cross motion seeking summary judgment dismissing this cause of action.”

My case.  Thank you.  On this one, there was no affidavit attempting to explain the verification compliance.

Additional verification not produced is probative of nothing

Compas Med., P.C. v Praetorian Ins. Co., 2015 NY Slip Op 51403(U)(App. Term 2d Dept. 2015)

“In support of the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s fifth cause of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s fifth cause of action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492[2005]). As plaintiff failed to raise a triable issue of act, the Civil Court properly granted the branch of defendant’s cross motion seeking summary judgment dismissing this cause of action.

Contrary to plaintiff’s contention, defendant established that the independent medical examination (IME) and examination under oath (EUO) scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16), that plaintiff’s assignor had failed to appear for the duly scheduled IMEs and EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16) the claims underlying the first, third and fourth causes of action on that ground. Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (Stephen Fogel[*2]Psychological, P.C., 35 AD3d at 722) and plaintiff failed to raise a triable issue of fact, defendant was entitled to summary judgment dismissing these causes of action.”

The same caveat holds true as before.  The affidavit that promises responses to verification without the actual verification is insufficient to raise an issue of fact.  My case.  Thank you.

The backtracking of Unitrin

IME no-show case #1

American Tr. Ins. Co. v Clark, 2015 NY Slip Op 06759 (1st Dept. 2015)

“Here, although plaintiff established that the notices of the scheduled IMEs were properly mailed and that Clark did not appear, plaintiff failed to show that the scheduling of the IMEs complied with Insurance Department Regulations (11 NYCRR) § 65-3.5(d), which prescribes a 30-calendar-day time frame for the holding of IMEs (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 2012])”

The court in Who stated as follows:

However, defendant was not entitled to summary judgment dismissing plaintiff’s claims for $728.28, for dates of service July 21, 2008 through August 14, 2008, and for $171.36, for dates of service August 20, 2008 through August 25, 2008, because, according to the proof submitted by defendant in support of its motion, the first IME had not been scheduled to be held within 30 days of defendant’s receipt of those claims, as required by Insurance Department Regulations (11 NYCRR) § 65-3.5 (d).

Ime no-show case #2
American Tr. Ins. Co. v Longevity Med. Supply, Inc., 2015 NY Slip Op 06761 (1st Dept. 2105)
“Here, although plaintiff established that the notices of the scheduled IMEs were properly mailed and that Estrella did not appear, plaintiff failed to show that the scheduling of the IMEs complied with Insurance Department Regulations (11 NYCRR) § 65-3.5(d), which prescribes a 30-calendar-day time frame for the holding of IMEs”
The dissent is interesting and lest it be me to argue with the Appellate Division, but footnote #7 explains why Unitrin has been a touchy issue: “I note that section 65-3.5(d), ostensibly requiring that an IME be scheduled to be held within 30 days of the insurer’s receipt of the prescribed verification forms, is in tension with the mandatory personal injury protection endorsement prescribed by 11 NYCRR 65-1.1(d), which provides: “The eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require” (emphasis added).”  My  thought was consistent with that since you cannot void a policy ab initio if you apply 65-3.5(d).  Notice the concept of voiding the policy is toast.
Footnote #9: “The majority can hardly fault plaintiff for not making an alternative request for partial summary judgment in its brief, considering that the majority’s decision turns on an issue that was never even mentioned in Supreme Court.”
Voiding a policy will only apply when IME’s are scheduled immediately after notice of a loss.  It is in that postulate that the 30-day requirement will be achieved.  Is this a proper way to handle claims, however?
EUO no-show case
National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 2015 NY Slip Op 06763 (1st Dept. 2015)
“Plaintiff no-fault insurer moved for summary judgment declaring that its policy does not provide coverage to the individual defendant for the subject accident based on her failure to appear for scheduled examinations under oath (EUO). Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent vitiating coverage (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]), here defendants-respondents, assignees of the defaulting individual defendant, opposed plaintiff’s summary judgment motion on the ground that plaintiff had not established that it had requested the EUO within the time frame set by the no-fault regulations (see 11 NYCRR § 65-3.5[b]). In its reply, plaintiff failed to supply evidence bearing on whether the EUO had been requested within the appropriate time frame. Accordingly, plaintiff’s motion for summary judgment was properly denied.”
The EUO’s must be requested within 15 business days (no more than 30-calendar days) from receipt of the billing.   Similar to above, the concept of voiding a policy does not seem to exist anymore.  What is also interesting is the Court allowed Plaintiff (in reply) to present evidence for the first time in its reply to present evidence relative to when bills were received.

An appeal is not a second chance to right what once went wrong.

Mind & Body Acupuncture, P.C. v Elrac, Inc., 2015 NY Slip Op 51219(U)(App. Term 2d Dept. 2015)

“With respect to the bills that were denied based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs), the only other argument plaintiff makes on appeal is that the address to which the IME scheduling letters were addressed improperly included an apartment number. However, that argument is not properly before this court as it is being raised for the first time on appeal, and we decline to consider it”