Unsure

Alleviation Med. Servs., P.C. v Maya Assur. Co., 2015 NY Slip Op 51238(U)(App. Term 2d Dept. 2015)

“Plaintiff correctly argues on appeal that defendant’s motion papers failed to establish that the letters scheduling the IMEs of plaintiff’s assignor had been timely mailed”

Why is every Maya IME no-show case getting reversed or ending up in disaster?

IME no-show from the First Department

S.A. Med., P.C. v Praetorian Ins. Co., 48 Misc 3d 128(A)(App. Term 2d Dept. 2015)

“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiffs’ assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). Contrary to the motion court’s conclusion, defendant submitted competent evidence of the assignor’s nonappearance, including the sworn affidavits of the scheduled examining physician and chiropractor/acupuncturist, attesting to the affiants’ personal knowledge of their office practices and policies when an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424; Harmonic Physical Therapy v Encompass Home & Auto Ins. Co., 47 Misc 3d 146[A], 2015 NY Slip Op 50733[U] [App Term, 1st Dept 2015]).”

The Alrof curse continues

Delta Diagnostic Radiology, P.C. v Auto One Ins. Co., 2015 NY Slip Op 51032(U)

“However, defendant’s motion for summary judgment dismissing the complaint should also have been denied. While defendant submitted properly sworn statements by the acupuncturist and doctor who had been scheduled to perform the IMEs, neither health care professional demonstrated personal knowledge of the nonappearance of plaintiff’s assignor for the examinations, and therefore defendant failed to establish its entitlement as a matter of law to the dismissal of the complaint (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154[A], 2012 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).”

Here is some trivia.  The same firm that lost Bright Medical, Alrof and Quality Medical lost this one.  I call this the Alrof curse…

Another IME no -show – but this was mine so it is blogworthy

S.A. Med., P.C. v Praetorian Ins. Co., 2015 NY Slip Op 50953(U)(App. Term 1st Dept. 2015)

It is one of the perks of maintaining this monster.  I chose the cases that land on here, although I allow almost all comments on here, even if directed towards me.

“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiffs’ assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). Contrary to the motion court’s conclusion, defendant submitted competent evidence of the assignor’s nonappearance, including the sworn affidavits of the scheduled examining physician and chiropractor/acupuncturist, attesting to the affiants’ personal knowledge of their office practices and policies when an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424; Harmonic Physical Therapy v Encompass Home & Auto Ins. Co., 47 Misc 3d 146[A], 2015 NY Slip Op 50733[U] [App Term, 1st Dept 2015]).”

The no-show affidavits did not specifically states that the healthcare professional (“hcp”) was present on the date of the examination.  It relayed the fact that the on day x, the healthcare professional was supposed to conduct the IME and assignor failed to appear.  It set forth the practice and procedure for recording no-shows and letting the vendor know.  This has been sufficient for years; however, in light of Alrof/Safeco mania, all of us have made sure the hcp states “I was present on the date and time and Assignor failed to attend”.  Civil Court denied the motion based upon Alfro/Safeco.

As we all know by now, Alrof and Bright Supply were problematic because counsel for the insurance carrier used indefinite prepositions in discussing the no-show, i.e., if the examinations went forward, I would have been there.  I hope that counsel has changed their no-show affirmations.

 

IME no-show defense folds

Bay Ls Med. Supplies, Inc. v Chubb Indem. Ins. Co., 2015 NY Slip Op 50790(U)(App. Term 2d Dept. 2014)

This is the first time I saw a spelling error cause an IME defense to fold.  But the error here is significant enough to raise an issue of fact on the issue as to proper notification and a poor case to appeal.

“As it cannot be said, as a matter of law, that the IME scheduling letters addressed to John Canela provided sufficient notice that plaintiff’s assignor, Jhonffi Canela (misspelled “Johnfi” by plaintiff in the summons and complaint), was to appear for the IMEs, the Civil Court properly denied defendant’s cross motion for summary judgment dismissing the complaint.”

IME letters do not need to be sent to provider

Pugsley Chiropractic PLLC v MVAIC, 2015 NY Slip Op 50718(U)(App. Term 1st Dept. 2015)

(1) Defendant MVAIC made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely denied plaintiff’s first-party no-fault claims based on a sworn independent medical examination (IME) report of its examining chiropractor, which set forth a factual basis and medical rationale for his stated conclusion that the assignor’s injuries were resolved and that there was no need for further chiropractic treatment (see Utica Acupuncture, P.C. v Interboro Ins. Co., 39 Misc 3d 139[A], 2013 NY Slip Op 50643[U] [App Term, 1st Dept 2013])

I am partial to Utica Acupuncture – nothing new there.

(2) “Contrary to the conclusion reached below, defendant was not required to provide notice of the scheduled IME to plaintiff provider (see 11 NYCRR 65-1.1; 65-3.5[b],[c]; 65-3.6[b]; BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 60632[U] [App Term, 2d, 11th and 13th Jud Dists 2014]), and the court therefore erred in declining to consider the report on this ground (see V.S. Care Acupuncture PC v MVAIC, 47 Misc 3d 126[A], 2015 NY Slip Op 50350[U] [App Term, 1st Dept 2015]).”

I am surprised that somebody countenanced this argument.

Affidavits of no show are insufficient

T & J Chiropractic, P.C. v Geico Ins. Co., 2015 NY Slip Op 50772(U)(App. Term 2d Dept. 2015)

“While defendant submitted properly sworn statements by the chiropractor and doctor who were scheduled to perform the IMEs, neither health care professional demonstrated personal knowledge of the nonappearance of plaintiff’s assignor for the examinations, and therefore defendant failed to establish its entitlement as a matter of law to the dismissal of these causes of action”

Without having seen the affidavits, I am assuming that that these are the one or two sentences that say “I am a doctor and Assignor failed to appear”.  These worked in ATIC v. Solorzano, but would most likely fail the Alrof and Bright Supply/IDS test.

First Department on Unitrin again

Priority Med. Diagnostics, P.C. v New York Cent. Mut. Fire, Ins. Co., 2015 NY Slip Op 50538(U)(App. Term 1st Dept. 2015)

“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff-provider’s claim for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). The affidavit of defendant’s third-party IME scheduler, who had personal knowledge of his office’s standard mailing practices and procedures, sufficiently established the mailing of the IME notices (see Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169 [2014]). Defendant also submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining chiropractor and acupuncturist, as well as the 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 (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424).”

I am seeing a trend where certain judges are requiring proof well in excess of the bolded passages to prove the fact of the no-show.  It also appears that these IME no show appeals on this particular issue are coming from Bronx.  If you want to see the absolute bear minimum necessary to prove a “no-show”, then check out the affidavit in Solorzano

Non-disruptive representative allowed at IME

Guerra v McBean, 2015 NY Slip Op 03046 (1st Dept. 2015)

“Defendants failed to establish that plaintiffs’ representative’s presence at their physical examinations deprived defendants of the ability to conduct meaningful examinations (see CPLR 3121[a])”

No-Show. Was it timely?

Acupuncture Solutions, P.C. v Lumbermans Mut. Cas. Co., 2015 NY Slip Op 50346(U)(App. Term 1st Dept. 2015)

“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear”

So here is the question.  Did the “timely and properly mail[ing] [of] the notices” include gearing the mailings to the receipt of Plaintiff’s bill?

I think the answer is no, as the basic construct of a first department no-show motion would not call for same.  But I need to read the record before I can give an answer.