IME no-show substantiated

AP Orthopedic & Rehabilitation, P.C. v Mercury Cas. Co., 2014 NY Slip Op 51794(U)(App. Term 2d Dept. 2014)

“The Civil Court denied defendant’s motion and plaintiff’s cross motion and held that the only remaining issue for trial was the propriety of defendant’s IME scheduling letters. Defendant argues on appeal that its motion for summary judgment dismissing the complaint should have been granted.

Contrary to the determination of the Civil Court, we find that defendant’s IME scheduling letters comply with the No-Fault Regulations (see 11 NYCRR 65-3.5 [e]).”

The objection to the letters in this case was that the letters advised the Claimant that they should call within 48 hours if they wished to cancel or reschedule their appointment.  The Civil Court found this reasoning persuasive; the Appellate Term felt otherwise, reversed and granted Defendant summary judgment.

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).”

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.

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.”

Assignor did not show up to his IME and EUO – double whammy

Unitrin has created this vacuum where the failure to control ones Assignor has spelled unabated doom to many a medical clinic.  Imagine having this conversation during that crazy period when the law was “the failure to attend an IME rebuts the presumption of medical necessity?” and the App. Term 1st Dept did everything in the power to avoid ruling on the merits of these cases?

(The commentator Captain America would probably think that it is unconstitutional to demand an innocent Assignor to be deposed and examined in accordance with the insurance policy upon which she is either the NI or the third-party beneficiary)

Dowd v Praetorian Ins. Co., 2012 NY Slip Op 51160(U)(App. Term 1st Dept. 2012)

“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) and examinations under oath (EUOs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). 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 at 560).”

IME no-show defense is a loser

Excel Radiology Serv., PC v Utica Mut. Ins. Co., 2011 NY Slip Op 50751(U)(App. Term 1st Dept. 2011)

“In this action to recover first-party no-fault medical benefits, defendant’s motion for summary judgment was properly denied since it failed to establish, prima facie, that the notices of the independent medical examinations (IMEs) were properly mailed to the assignor and that he failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]; cf. Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [2005]).”

How bad was the vendor affidavit?  Was there an affidavit from a healthcare professional attesting to the assignor’s failure to attend the IME?

Couldn't get it right the second time around

Central Radiology Servs., P.C. v MVAIC, 2010 NY Slip Op 50887(U)(App. Term 2d Dept. 2010)

“During oral argument, the Civil Court granted defendant leave to submit a supplemental affidavit with respect to the mailing of defendant’s denial of claim form. By order entered April 1, 2009, the court granted defendant’s motion for summary judgment and denied plaintiff’s cross motion.

This appeal by plaintiff ensued.   A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]). Defendant did not send IME scheduling letters to plaintiff’s assignor. Rather, defendant utilized a third party, Medical Consultants Network (MCN), to schedule IMEs on behalf of defendant. The letters upon which defendant relies were sent by MCN and addressed to defendant, not plaintiff’s assignor, and stated that the purpose of the letters was to “confirm” that defendant had requested examinations of plaintiff’s assignor on specified dates. MCN’s customer service representative averred that MCN had sent a “carbon copy” of this letter to plaintiff’s assignor. Contrary to defendant’s contention, such letters were not proper requests for verification which tolled defendant’s time to pay or deny plaintiff’s claim (Insurance Department Regulation [11 NYCRR] § 65-3.8).”

Mistakes happen.  We are all guilty of them.  Clearly, the wrong letters were placed in the MSJ, Defendant accidentally won and now the defendant is being called on it.  I would have settled this during the CAMP conference, paid the settlement myself and told the client: “sorry”.

Couldn’t get it right the second time around

Central Radiology Servs., P.C. v MVAIC, 2010 NY Slip Op 50887(U)(App. Term 2d Dept. 2010)

“During oral argument, the Civil Court granted defendant leave to submit a supplemental affidavit with respect to the mailing of defendant’s denial of claim form. By order entered April 1, 2009, the court granted defendant’s motion for summary judgment and denied plaintiff’s cross motion.

This appeal by plaintiff ensued.   A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]). Defendant did not send IME scheduling letters to plaintiff’s assignor. Rather, defendant utilized a third party, Medical Consultants Network (MCN), to schedule IMEs on behalf of defendant. The letters upon which defendant relies were sent by MCN and addressed to defendant, not plaintiff’s assignor, and stated that the purpose of the letters was to “confirm” that defendant had requested examinations of plaintiff’s assignor on specified dates. MCN’s customer service representative averred that MCN had sent a “carbon copy” of this letter to plaintiff’s assignor. Contrary to defendant’s contention, such letters were not proper requests for verification which tolled defendant’s time to pay or deny plaintiff’s claim (Insurance Department Regulation [11 NYCRR] § 65-3.8).”

Mistakes happen.  We are all guilty of them.  Clearly, the wrong letters were placed in the MSJ, Defendant accidentally won and now the defendant is being called on it.  I would have settled this during the CAMP conference, paid the settlement myself and told the client: “sorry”.