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.”)


Medical provider cannot defeat IME non-cooperation defense through stating “discovery is outstanding”

South Nassau Community Hosp. v Kemper Independence Ins. Co., 2013 NY Slip Op 51384(U)(App. Term 2d Dept. 2013)

In support of its motion for summary judgment, defendant submitted an affidavit by the owner of Alternative Consulting and Examinations (ACE), the entity which had scheduled the IMEs involved herein on behalf of defendant. The affidavit established that the IME scheduling letters had been timely mailed in accordance with ACE’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also submitted an affidavit of its examining chiropractor, who stated that plaintiff’s assignor had failed to appear for the duly scheduled IMEs. As the District Court found, for all purposes in the action, that defendant had timely mailed the denials at issue, and as plaintiff does not challenge that finding, defendant established its prima facie entitlement to summary judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720[2006]).

In opposition to the motion, plaintiff “failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact” (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009])

This case is more important in the realm of Unitrin-Solorzano based declaratory judgment actions, when Defendant medical providers argue that the motion for summary judgment seeking a declaration of non-coverage is inappropriate because disclosure is outstanding.  This is the first appellate case that has been presented with this fact pattern.


Objective criterian is not necessary prior to seeking an IME

All County, LLC v Unitrin Advantage Ins. Co., 2011 NY Slip Op 50621(U)(App. Term 2d Dept. 2011)

“We note that, contrary to the finding of the District Court, while Insurance Department Regulations (11 NYCRR) § 65-3.5 (e) states that a no-fault insurer must base its request for an examination under oath upon “the application of objective standards so that there is specific objective justification supporting the use of such examination,” it does not impose such a standard on a request for an IME.”

When it comes to IME no-show cases, I must tip my hat to Unitrin.  They are the Mercury of IME no-show cases.

The performance of diagnostic testing as part of an IME

I could definitely see situations where it might be appropriate for an insurance carrier, as part of an IME, to demand that a claimant undergo a non-invasive diagnostic test at a facility of the insurance carrier’s choosing in order to assist the carrier to determine the medical reasonableness of future surgeries and other potentially invasive procedures.   For instance, many of you might remember the piece the New York Times wrote last year regarding outdated MRI machines that are still in use, which are unable to fully and accurately delimit the actual locus and extent of an injury.  If you forgot about that article, it is on this blog.  I also recall Judge Viscovich’s decision in Complete Medical Care Svs., P.C. v. State Farm Mut. Auto. Ins.Co., 21 Misc.3d 436 (Civ. Ct. Queens Co. 2008) in which he decided that an EMG/NCV test was determined to be medically necessary, notwithstanding the uncontroverted evidence that it was improperly performed.

Clearly, from the standpoint as to whether further surgeries or further invasive treatment is necessary, a properly performed diagnostic test, using a modern and functioning machine, with a competent technician, might very well be helpful in determining a Claimant’s true clinical picture.

Enter the matter of Rosario v BNS Bldgs., LLC 2009 NY Slip Op 08801 (2d Dept. 2009), which tangentially discussed this issue in the context of a third-party action:

“Under the circumstances, where, inter alia, the plaintiff established that the proposed medical testing was potentially dangerous (cf. Lefkowitz v Nassau County Med. Ctr., 94 AD2d 18, 21), the Supreme Court properly denied that branch of the defendants’ motion which was to compel her to submit to the proposed testing (see Santero v Kotwal, 4 AD3d 464, 465; Bobka v Mann, 308 AD2d 497, 498; Marino v Pena, 211 AD2d 668, 668-669).”

Read the bold case, supra, and you will see that under the appropriate circumstances, this type of an IME might be proper.