IME no-show viz Solorzano and Lucas

Sunrise Acupuncture, P.C. v Encompass Auto & Home Ins. Co., 2014 NY Slip Op 51082(U)(App. Term 1st Dept. 2014)

“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 his counsel, 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]). With respect to the appearance issue, defendant presented competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining physician and an employee of the defendant’s third-party biller attesting to the affiants’ “personal knowledge of the office procedures when a[n] [assignor] failed to appear for a medical exam” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424).”

Nothing new here to report.  I would only stress that the timeliness issue relates to the letters; not the letters as they relate to the bills.  I know certain plaintiff attorneys and defendants on no-show DJ’s seem to believe otherwise.

IME no-show (First Department)

Sunrise Acupuncture, P.C. v Encompass Auto & Home Ins. Co., 2014 NY Slip Op 51082(U)(App. Term 1st Dept. 2014)

“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 his counsel, 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]). With respect to the appearance issue, defendant presented competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining physician and an employee of the defendant’s third-party biller attesting to the affiants’ “personal knowledge of the office procedures when a[n] [assignor] failed to appear for a medical exam” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424).”

IME no-show upheld based upon DJ case law **correction**

Stracar Med. Servs. v New York Cent. Mut. Ins. Co., 2014 NY Slip Op 50263(U)(App. Term 1st Dept. 2014) (sorry – this was a first department case – perhaps it was wishful thinking that the judges at 141 Livingston Street would follow this)

Not only were the ATIC declaratory judgment actions that were filed en masse from 2011-2013 potent, but they created great case law.  Now, I am proud to say that the case law I created has now found its way into Appellate Term orders in Civil Court cases, where most non-arbitrated no-fault matters call home.

“Defendant-insurer demonstrated its entitlement to summary judgment dismissing this action for first-party no-fault benefits by submitting the affidavit of its no-fault litigation examiner demonstrating that the notices scheduling the assignor’s independent medical examinations (IMEs) were timely and properly mailed, as well as the sworn affidavits of the scheduled examining physician and her employee that the assignor failed to appear at the scheduled IMEs (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]). “Accordingly, when [plaintiff’s] assignor[] failed to appear for the requested medical exams, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424 [2013]; see Unitrin at 560).”

IME no show reversal based upon the new 800 pound guerilla: proof of the no show

Jacoby Chiropractic, P.C. v Redland Ins. Co., 2013 NY Slip Op 51998(U)(App. Term 2d Dept 2013)

“The Civil Court (Richard G. Latin, J. ) denied both motions, finding that plaintiff had established its prima facie entitlement to summary judgment, that defendant had timely denied the claims based upon plaintiff’s assignor’s failure to appear for independent medical examinations (IMEs), and that defendant had timely and properly requested IMEs. Thus, the only issue for trial was “the no-show of the assignor at the IMEs.”

In support of its cross motion, defendant submitted an affidavit by the healthcare professional retained to perform the IMEs which established that plaintiff’s assignor had failed to appear at IMEs on June 12, 2009 and June 25, 2009. As an appearance at an IME is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 [*2]NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) and plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted.”

How much do you want to bet that this particular judge, when confronted with the same no-show affidavit, will deny the motion for summary judgment and prompt another appeal?  He will say, well how do we know your healthcare professional was in the office that entire day and knew that the assignor failed to attend the IME.  I can see it already.

There is no end in sight.

See also: Vit Acupuncture, P.C. v Praetorian Ins. Co., 2013 NY Slip Op 52000(U)(App. Term 2d Dept 2013)

Medical provider needs to prove that Assignor was represented by counsel and that counsel failed to receive notification of IME

American Tr. Ins. Co. v Leon, 2013 NY Slip Op 08124 (1st Dept. 2013)

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason
Tenenbaum of counsel), for appellant.

“Order, Supreme Court, New York County (Ellen M. Coin, J.), entered March 26, 2013, which denied plaintiff’s motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and it is declared that plaintiff insurance company has no obligation to pay defendant Stand-Up MRI’s claims.

Plaintiff demonstrated its entitlement to judgment as a matter of law by submitting competent evidence that it mailed the notices scheduling the injured defendant’s independent medical examinations (IMEs) and that he failed to appear for the examinations (see American Transit Ins. Co. v. Lucas, __ AD3d __, 2013 NY Slip Op 07273 [1st Dept 2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449, 449 [1st Dept 2013]). Defendant provider’s contention that plaintiff failed to prove the mailing of IME notices to the assignor’s attorney, absent competent proof in the record establishing that the assignor was represented by counsel with regard to the subject no-fault claim, is unavailing (see Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins., 31 Misc 3d 128[A], 2011 N.Y. Slip Op. 50473[U] [App Term 1st Dept 2011]).

Attendance at a medical examination is a condition of coverage. Accordingly, there is no[*2]requirement that the claim denial be timely made (see American Transit Ins. Co. v. Lucas, __ AD3d __, 2013 NY Slip Op 07273; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2012]).”

By the way, this case now effectively overrules Infinity Health Prods., Ltd. v Redland Ins. Co., 2013 NY Slip Op 50751(U)(App. Term 2d Dept. 2013)(“ Furthermore, there is nothing in the record to suggest that plaintiff’s assignor was represented by the attorney to whom the IME scheduling letters were also sent. Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled.”)

 

Failure to attend IMEs voids coverage – with citation to Court of Appeals precedent

American Transit Ins. Co. v. Lucas, 2013 NY Slip Op 07273 (1st Dept. 2013)

 

American Tr. Ins. Co. v Lucas
2013 NY Slip Op 07273
Decided on November 7, 2013
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 7, 2013
Mazzarelli, J.P., Acosta, Saxe, Richter, Feinman, JJ. 10975-

152409/12 10976 152413/12

[*1]American Transit Insurance Company, Plaintiff-Appellant,vKeyana Lucas, et al., Defendants, Sky Acupuncture, P.C., Defendant-Respondent. American Transit Insurance Company, Plaintiff-Appellant, Tashuana Lucas, et al., Defendants, Sky Acupuncture, P.C., Defendant-Respondent.

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason
Tenenbaum of counsel), for appellant.
Law Offices of Melissa Betancourt, P.C., Brooklyn (Sam Lewis
of counsel), for respondent.

Orders, Supreme Court, New York County (Ellen M. Coin, J.), entered on or about February 26 and 28, 2013, which, to the extent appealed from as limited by the briefs, in the respective actions regarding the injured claimants Keyana Lucas and Tashuana Lucas, denied plaintiff’s motions for summary judgment seeking declarations of noncoverage for no-fault benefits as against defendant-respondent Sky Acupuncture, P.C., unanimously reversed, on the law, without costs, the motions granted, and it is declared that plaintiff owes no coverage obligation to Sky Acupuncture, P.C. for no-fault benefits for the injured claimants.

The failure to attend duly scheduled medical exams voids the policy ab initio (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2012]). Accordingly, when defendants’ assignors failed to appear for the requested medical exams, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued (see Insurance Department Regulations [11 NYCRR] § 65-3.8[c]; Unitrin, 82 AD3d at 560). [*2]

” [A] properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption'” (Matter of Ariel Servs., Inc. v New York City Envtl. Control Bd., 89 AD3d 415, 415 [1st Dept 2011]). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]).

Plaintiff submitted competent evidence that the notices scheduling the claimant’s medical examinations were mailed, as well as the failure to appear, based on the sworn affidavits of the scheduled examining physician and his employee (see American Tr. Ins. Co. v Solorzano, 108 AD3d 449, 449 [1st Dept 2013]). Contrary to defendants’ contention, the affidavits were not conclusory, as they established personal knowledge, the employee’s role in the physician’s no-fault department, and the physician’s personal knowledge of the office procedures when a claimant failed to appear for a medical exam (cfFirst Help Acupuncture, P.C. v Lumbermens Mut. Ins. Co., 9 Misc 3d 1127[A], *3 [Civ Ct, Kings County 2005], affd 14 Misc 3d 142[A] [App Term, 2d Dept 2007]).

There is no requirement to demonstrate that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense (see New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 593 [2011]; Unitrin Advantage Ins. Co., 82 AD3d at 560).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 7, 2013

CLERK

The IME no-show at trial – the eagle has arisen

Eagle Surgical Supply, Inc. v GEICO Gen. Ins. Co., 2013 NY Slip Op 51265(U)(App. Term 2d Dept. 2013)

“Defendant’s sole witness at trial was the scheduling supervisor for Empire Stat, an independent company which, the witness explained, scheduled IMEs and mailed IME notices for [*2]defendant. The witness testified that, based upon his review of the file, he had determined that plaintiff’s assignor had not appeared for two scheduled IMEs. Plaintiff correctly argues that defendant failed to submit evidence from a person with personal knowledge of the alleged nonappearances”

So again, we again learn that an individual with personal knowledge is necessary to substantiate the no-show at trial.  And again, an attempt to get around this reality allows for judgment to be entered.

The affidavits were unshakable

American Transit Ins. Co. v. Casas Sosa, 2013 NY Slip Op 31588(u)(Singh, J)*My Case*

Plaintiff moved for leave to enter a default against the non-answering Defendants and for summary judgment against the answering Defendant.  Appearing Defendant argued that the affidavits were insufficient.  The Court shot down each of these arguments.

“Defendant, Yager, argues that Plaintiff has failed to provide proof in admissible form sufficient to eliminate all material issues of fact. Yager opines that the ”’affidavit’ of Ms. Hershman is defective and cannot serve to establish that a notice for physical examination was “mailed” because there is no recitation that the statements are made under penalty of perjury.”

“Defendant contends that, because the affirmation of Dr. Winell is undated, it is unclear that it  was executed after the dates of the scheduled physical examinations. Defendant argues that,  because Dr. Winell identified an office procedure and referred to his records and notes, his documentation and his written correspondence to Plaintiff should be in evidence and that without  these documents Plaintiff cannot establish that there are no material issues of fact and the motion should be denied.”

“Defendant’s arguments are without merit. CPLR § 2309(b) provides that “An oath or  affirmation shall be administered in a form calculated to awaken the conscience and impress the  mind of the person taking it in accordance with his religious or ethical beliefs.  “There is no  specific form of oath required in this State” Collins v. AA Trucking Renting Corp., 209 A.D.2d  363 (1 st Dep’t 1994).”

“Ms. Hershman’s affidavit states that she was “duly sworn” and is notarized, with the  notary reciting that the affidavit was “sworn to before me this 23rd day of October, 2012.” As  such, her affidavit meets the requirement that an oath or affirmation be administered in a form  calculated to awaken the conscience, and this Court takes notice of her affidavit.”

“As to the argument that it is unclear as to when Dr. Winell’s affidavit was executed  relative to the scheduled dates of the physical examinations, this argument is unavailing. It is  clear from the use of the past tense in the affidavit that it was executed after the dates of the  scheduled examinations.”

“Regarding the argument that Dr. Winell is relying upon his office procedures, notes mid  records and that these should therefore be produced, this argument is without merit. Dr. Winell  clearly states that his affirmation is based upon personal knowledge. ”

“Yager further contends that Plaintiff did not properly provide Sosa’s attorney with notice  of the physical examinations. However, there is no evidence that Sosa had an attorney at the  time the notices were sent.”  Note the court here places burden on medical provider/ EIP to raise an issue of fact regarding existence of attorney.”

“In conclusion, Plaintiff has provided evidence in admissible form sufficient to eliminate  any question of fact. Plaintiff has shown that Mr. Sosa failed to appear for properly scheduled  medical examinations, a condition president to payment of no-fault benefits to him or his assigns.  Therefore, summary judgment is warranted. Plaintiff has further shown that the summons, complaint, and the present mot on were served upon each of the defendants.”

IME no-show with statement regarding quantum of proof regrding the “no-show”

Right Aid Diagnostic Medicine, P.C. v Travelers Ins. Co., 2013 NY Slip Op 51033(U)(App. Term 2d Dept. 2013)

One of the most contentious areas involving the IME no-show defense involves the proof necessary to show that Claimant failed to attend the examination.

“Defendant also submitted an affirmation by its examining physician and affidavits by its examining chiropractor, psychologist and acupuncturist, respectively, each of which stated that plaintiff’s assignor had failed to appear for the scheduled IMEs.”

I think this is all that is necessary on motion. Examining doctor says Claimant did not show.  That is it.

Alrof v. Safeco – its first application

Optimal Well-Being Chiropractic, P.C. v Hertz Co., 2013 NY Slip Op 50902(U)(App. Term 2d Dept. 2013)

“Since defendant did not submit evidence from anyone with personal knowledge of plaintiff’s assignor’s nonappearances, defendant’s cross motion for summary judgment dismissing the complaint was properly denied (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).”

Was this result ordained by Alfrof v. Safeco?  If it is, then the future of “personal knowledge” is just not looking too promising.