Reasonableness – the new buzz word

In New York’s no-fault insurance litigation landscape, the defenses available to medical providers challenging IME no-show denials have shifted significantly over the years. What began as a battle over mailing proof has evolved into a more substantive inquiry into whether the underlying IME requests were reasonable in the first place.

The Center for Orthopedic Surgery Decision

Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 50473(U)

The Appellate Term’s ruling in this case captures the evolution of the IME no-show defense framework in compact but significant language:

“In this action to recover assigned first-party no-fault benefits, defendant’s documentary submissions established prima facie, that it duly mailed the notices of the independent medical examinations (IMEs) to the assignor and that the assignor failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 ). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignors’ failure to attend the IMEs (see Inwood Hill Med. P.C. v General Assur. Co., 10 Misc 3d 18, 20 ; Marina v Praetorian Ins. Co., 28 Misc 3d 132, 2010 NY Slip Op 51292 ). Plaintiff’s contention that defendant failed to prove the mailing of the IME notices to the assignor’s attorney is unavailing absent competent proof in the record establishing that the assignor was represented by counsel with regard to the subject no-fault claim.”

Jason Tenenbaum’s Analysis

It used to be “you cannot prove you mailed it.” Now, the new mantra is that the verification request/EUO request/IME request/etc. was unreasonable. In fact, if you look at the IME no-show decisions that are being decided, the appellate courts are now including as part of their standard order language that a triable issue of fact was not raised because plaintiff failed to demonstrate the lack of reasonableness of the demand. I think this will only become more a hot button issue in light of a Unitrin decision.

And how about the part regarding cc’ing counsel. The standard now is that the provider must provide competent evidence that the assignor had counsel.

From Mailing Proof to Reasonableness: A Doctrinal Shift

For much of the early history of New York no-fault IME litigation, providers challenging IME no-show denials focused almost exclusively on one argument: the insurer failed to prove it actually mailed the scheduling letters. Under New York law, mailing can be established through proof of standard office mailing practices and procedures, even without specific recollection of mailing a particular letter. Courts gradually made it easier for insurers to establish mailing through affidavits describing their scheduling company’s routine procedures.

As the mailing proof standard became easier for insurers to satisfy, that line of attack became less fruitful for providers. The legal battleground shifted. Providers and assignors began arguing not just that letters weren’t mailed, but that the underlying IME demands were themselves invalid because they were unreasonable.

This shift reflects a substantive expansion of the defense. Rather than a purely procedural challenge about whether notices were sent, “reasonableness” requires courts to evaluate the content and circumstances of the IME request itself.

What Makes an IME Request “Unreasonable”?

The reasonableness standard under no-fault regulations is not exhaustively defined, but courts and practitioners have identified several factors that can make an IME demand vulnerable to challenge:

• Location: Was the examination scheduled at a location reasonably convenient to the assignor? An IME scheduled far from the claimant’s home or workplace may be unreasonable.
• Frequency: Were multiple IMEs demanded within a short period without medical justification?
• Specialty mismatch: Was the assigned examiner’s specialty appropriate to the injuries claimed?
• Timing: Were demands made at unusual times, creating undue burdens?
• Bad faith: Was the demand made for purposes unrelated to legitimate medical verification?

The Center for Orthopedic Surgery decision confirmed that these reasonableness challenges must be raised with competent proof — not mere conclusory objections. A provider that simply fails to appear without raising a contemporaneous reasonableness objection, and then argues in litigation that the demand was unreasonable, may face skepticism from courts about the sincerity of the challenge.

The Counsel Notification Issue

The second key holding in Center for Orthopedic Surgery addresses a related procedural argument: the provider’s claim that IME notices should have been sent to the assignor’s attorney.

Under no-fault practice, scheduling letters are typically sent directly to the assignor (the injured party). If the assignor is represented by counsel, there is an argument that notices should also be sent to counsel. The court rejected this argument under the circumstances, holding that absent competent proof establishing that the assignor was represented by counsel for the no-fault claim at the time, the failure to copy counsel does not invalidate the IME notices.

This ruling places the burden on the provider or assignor to demonstrate representation. A blanket assertion that counsel was involved, without documentary proof such as a retainer agreement, representation letter, or appearance filed in the matter, will not suffice.

Legal Significance

The Center for Orthopedic Surgery decision is part of a broader doctrinal evolution in New York no-fault law. Several takeaways are important for practitioners:

Reasonableness is now standard appellate language. Courts routinely include in their decisions language about whether the plaintiff “failed to raise a triable issue regarding the reasonableness of the requests.” This is not boilerplate — it is a substantive requirement that providers must satisfy to survive summary judgment on IME no-show issues.

The Unitrin framework amplifies the stakes. Following Unitrin Advantage Ins. Co. v Bay Ridge Medical Imaging, a timely and proper IME no-show denial can void the insurer’s coverage obligation entirely. This makes reasonableness challenges critical: a successful challenge prevents coverage from being voided, while a failed challenge can eliminate the provider’s right to payment for all related claims.

Procedural and substantive defenses must work together. Providers challenging IME no-show denials need both procedural defenses (mailing proof challenges, timeliness objections) and substantive defenses (reasonableness arguments). Focusing on only one layer of defense may be insufficient in the face of well-documented insurer submissions.

Practical Implications

For insurance carriers defending IME no-show denials in New York, the Center for Orthopedic Surgery decision confirms that properly established IME procedures — with documented mailing and timely denial — will generally withstand provider challenges unless the provider can raise a genuine reasonableness issue.

For healthcare providers and their counsel, the decision signals that challenging IME no-show denials requires proactive engagement. Rather than simply failing to appear and raising procedural objections later, providers should:

• Document contemporaneous reasonableness objections in writing when an IME demand appears burdensome
• Request alternate examination locations or dates with a written explanation
• Preserve evidence about the assignor’s representation status at the time notices were sent
• Challenge the frequency, specialty, or location of IME demands with supporting documentation

The evolution from “you can’t prove mailing” to “your demand was unreasonable” reflects the courts’ increasing sophistication in evaluating IME disputes. Both sides of the no-fault bar must adapt their strategies to this evolving standard.

Related Articles

• Failure to attend IMEs voids coverage with Court of Appeals precedent
• IME no show results in summary dismissal
• MVAIC fails to prove mailing of IME letters
• Whether IME no-show was timely scheduled
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this post’s publication in 2011, New York’s no-fault regulations have undergone multiple amendments, including updates to IME scheduling requirements, notice provisions, and reasonableness standards under 11 NYCRR 65-3.5 and related sections. Additionally, subsequent case law may have further refined the “reasonableness” standard for IME requests and the burden of proof requirements discussed in this decision. Practitioners should verify current regulatory provisions and recent appellate decisions when evaluating IME compliance and reasonableness challenges.