IME issues

The first pure Unitrin Appellate Term holding

By Jason Tenenbaum | August 25, 2011 | 8 min read

Key Takeaway

Appellate Term ruling establishes precedent for IME no-show cases, showing how insurers can prove mailing and non-appearance to defeat no-fault claims.

Independent Medical Examinations (IMEs) represent a critical battleground in New York No-Fault Insurance Law. When patients fail to appear for scheduled IMEs, insurance companies often use this as grounds to deny coverage for ongoing treatment. The Harmonic Physical Therapy decision marks a significant development in how courts evaluate these IME no-show scenarios, establishing clear standards for what insurers must prove to successfully defend against no-fault benefit claims.

This case demonstrates the evolving jurisprudence around IME procedures, building on precedents like Unitrin Advantage to create a framework that courts continue to reference today. For healthcare providers seeking reimbursement and patients navigating the no-fault system, understanding these legal standards is essential for protecting their rights and ensuring proper coverage.

Jason Tenenbaum’s Analysis:

Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 2011 NY Slip Op 51597(U)(App. Term 1st Dept. 2011)

“In this action to recover assigned first-party no-fault benefits, defendant’s documentary submissions established prima facie that it mailed the notices of the independent medical examinations (IME) to the assignor and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 ; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 ; Apollo Chiropractic Care, P.C. v Praetorian Ins. Co., 27 Misc 3d 139, 2010 NY Slip Op 50911 ).”

Is a denial mentioned anywhere?

Key Takeaway

This Appellate Term decision establishes that insurance companies can successfully defeat no-fault claims by providing documentary proof that they properly mailed IME notices and that patients failed to appear. The court’s reliance on Unitrin precedent shows how IME no-show cases have become increasingly standardized, with clear evidentiary requirements for both proper notice and no-show substantiation.

Legal Update (February 2026): Since this 2011 decision, New York’s no-fault insurance regulations have undergone multiple revisions, including updates to IME scheduling procedures, notice requirements, and documentation standards under 11 NYCRR Part 65. The Appellate Term’s interpretation of Unitrin standards may have been refined through subsequent case law and regulatory amendments. Practitioners should verify current IME procedural requirements and burden-of-proof standards when handling no-fault benefit disputes.

Filed under: IME issues

About the Author

Jason Tenenbaum

Jason Tenenbaum is a personal injury attorney serving Long Island, Nassau & Suffolk Counties, and New York City. Admitted to practice in NY, NJ, FL, TX, GA, MI, and Federal courts, Jason is one of the few attorneys who writes his own appeals and tries his own cases. Since 2002, he has authored over 2,353 articles on no-fault insurance law, personal injury, and employment law — a resource other attorneys rely on to stay current on New York appellate decisions.

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Syracuse University College of Law

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Discussion

Comments (26)

Archived from the original blog discussion.

Larry Rogak Aug 26, 2011

No denial is mentioned, but I find it hard to believe that if there were no denials, that issue would have flown under the radar.

mitch lustig Aug 29, 2011

Jeff Siegel in my office believes that is good for the defense that no denials were mentioned. In his opinion, the Court is treating the faiure to appear for an IME as breach of a condition precedent that voids the policy in which case you do not need any denials. But I have a questions? Under a liability policy, the insured is required to give notice. Notice is a condition precedent to coverage such that the failure to comply voids the policy. However, the insurer is still required to disclaim coverage in a timely manner. Why is a breach of condition precedent in no-fault different wherein the insurer does not have to issue a denial. Any comments

JT Author Aug 29, 2011

I discussed that one awhile back. It is funny that nobody addressed that query. Jeff’s observation is quite astute.

mitchell lustig Aug 29, 2011

I agree that Jeff’s observation is astutue. But what about the answer to my inquiry regarding why no denial is needed under no-fault for a breach of a condition precedent to coverage while a timely disclaimer is needed under a liability policy for late notice and other conditions precedent to coverage. Basically I am questioning the validity of Unitrin and why a no-fault defense predicated on a breach of a condition precedent to coverage falls into the category of a lack of coverage defense where no denial or disclaimner is needed.

JT Author Aug 29, 2011

Keep questioning, and good luck finding an answer. I tried to find one, but to no avail.

Kurt LunDGREN Aug 30, 2011

Mitch, your analysis is astute. As for Jeff, he is equally astute – but you are more equally astute than he. You did answer your own question. Under any other insurance policy there must be some form of a disclaimer. For instance, in UM or SUM, the carrier must do something to disclaim coverage. The same for general liability. However, there seems to be special rules of disclaimer applies in no-fault. It doesnt matter that it is a prompt pay statute, that there exists a 30 day rule, or that the NF regs must be strictly applied. Unitrin is just a bad decision. It makes no sense in terms of insurance law. That is the answer.

Raymond Zuppa Aug 30, 2011

If anyone calls me astute I will be very upset

nycoolbreez Aug 30, 2011

the decision does not say anything about the timing of the requests either…. Does the timing of the IME demand really matter if the failure to attend “voids the policy”? Does it matter that the NO SHOW is by the person who pays the premium or a 3d party beneficiary? and lastly do partners in no fault defense firms really want this kind of ruling given how slim the margins for outside counsel are starting to get?

JT Author Aug 30, 2011

If the margins are slim, then beef up the Information Technology budget so you can do more with less. That way, you can (1) put out a more precise product at a fraction of the cost and can; (2) thrive off “reduced margins” and (3) prove that you are most cost efficient and better than in-house counsel.

mitch lustig Aug 31, 2011

JT, if we constantly continue to do more with less, many no-fault attorneys will find themselves unemployed. You can only reduce margins by so much. Too much cost efficiency is not such a good thing. I also agree with Coolbreeze that for the continued viability of defense counsel, the courts must strike a balance in thier decisions between medical providers and insurers. Finally, as to the timing of IME requests, often ignored by counsel is the fact that Court in Unitrin specifically stated that the insurers IME requests were timely demanded as per the no-fault regs.

JT Author Aug 31, 2011

Mitch, I agree with paragraph #2; kind of agree with paragraph #3; and have no empathy towards those who find themselves in paragraph #1. I would say that people who go to law school need to understand the risks of the employment market before they undertake such financial risks. On the good side, I think a portion of the 2005 let’s hurt the consumer Bankruptcy Reform Act will be amended soon to allow the dischargability in bankruptcy of private education loans. This will help law students who cannot find work. In light of what I have been through, I am not too sympathetic towards the person in paragraph #1. The fact that efficiency might cost people jobs should only motivate them even more to find acceptable employment. When there is a will, there is a way. Been there, done that.

Raymond Zuppa Sep 1, 2011

I graduated from Law School in 96. I had a job by March 96 and a number of offers. I never knew that No Fault existed. For the past 6 years it appears that No Fault has generated the largest segment of new employment of graduating attorneys. It has given them jobs but very little useful experience. Now the practice of law as degenerated to the string cite and a number of other external factors that I have been critical of. So No Fault lawyers could probably cut it in other areas. But you better know what you are doing in front of a jury. I don’t see much hope for the No Fault practitioner there. So I would not celebrate the pendulum swing to the defense side. Best for all would be no slant on the part of the judiciary. Provider attorneys cannot survive without denials and there will be less denials if the providers always win in court. Remember the commentator named cave man. He lost his job. I heard he’s working at a bait shop down in Sandy Hook.

Keep it simple Sep 1, 2011

This decision is from my company. The brief was submitted before Unitrin existed, I believe. The AT threw Unitrin in there with the kitchen sink. We would have won the appeal even if Unitrin didn’t exist. The IME requests were timely and proper, as were the additional verification requests and denials. I know a lot of carriers are demonized in these blogs. However, our policy is simple. If we don’t do something right, you get paid; and if we find something wrong with our defense, we settle. We have no interest in litigating cases that lack a proper defense. And while we’re a small company, this is why you see so many appeals in our name.

JT Author Sep 1, 2011

What is funny is that Praetorian’s appeals have picked up where the Mercury appeals left off. I have seen Praetorian’s papers, and they tend to be pretty solid. The denials, verification requests and IME letters are mailed using a mailing ledger and the affidavits are clean. So whoever you are Mr. simple, you are doing something right. I am proud to say that you will be seeing more Interboro and Mercury appeals soon. I just filed Mercury v. Encare, which will be heard in November before the Appellate Division, First Department, unless it gets bumped to the December term. A win in Encare will be a great way to neutralize the mess that we were left with in Fair Price. I will also feel that I have done something worthwhile since Fogel, Pan Chiro and to a lesser extent, Cornell.

Raymond Zuppa Sep 2, 2011

Oh God … this mushy mush love fest is making me sick and I long for real uncompromising men like Rogak. Praetorian. You know what that is. Why the very name means this company will fight to keep their policyholder’s money to the death. Look what they did to Russell Crowe’s family in Gladiator.

Raymond Zuppa Sep 3, 2011

Kurt I know you didn’t mean that. You know me to well to call me astute. Prolix Ray. Verbose Ray. Tedious Ray. As the Court in Nassau County just called me. That’s Ray. Great line from the Movie Angels and Demons. Near the end of the movie — the last 45 minutes. The paid killer (I would have cast me in the role) has killed everyone. He informs Hanks and the femme fatale that they have been unharmed because 1) he is not being paid to kill them; 2) they have been unarmed. He warns that if they follow him then it will be different. He offers Hanks a word of advise. “Be cautious. These are men of religion.” Could have just as easily been: “Be cautious. These are people of justice.”

Kurt LunDGREN Sep 4, 2011

Oh Ray, you know that I know, that you are a voice crying out in the wilderness. You are the Ralph Nader of no-fault. Call it a man crush. I would love to be a fly on the wall to see JT and Ray go at it in Court. As I know both, I would say that whatever the result, the real fight would be over who paid for lunch. JT, let him buy! Ray is bigger.

JT Author Sep 5, 2011

Did I ever tell any of you about the witness I had in a Family Offense proceeding who testified under oath that he (1) Consulted with private attorney generals; (2) Has been arrested and served time in Nassau County but did not know why; and (3) Might as well have said he was abducted by aliens? This was my star witness. I am not going to disclose how I got stuck trying this one, but I think going at it with Ray would probably be a more productive use of my time. And so the comment readers know, I have two appeals with Sun at the App. Term 1st Dept and one at the App. Term 2d Dept. He knows of one but does not know of the other two, because I haven’t sent the record to the printer. Without my disclosing the issues, does anyone want to place a wager on the outcome? By the way, happy labor day. Is anyone else besides me at the office? Kurt, Ray is going to be hosting a no-fault dinner outing, he just does not know it yet. All of us no-fault junkies will be coming out of the closet and will be in one room. He will pick a date, time and be paying for all of us who will be in attendance. All are welcome. Let the suggestions begin.

raymond zuppa Sep 6, 2011

I’m up for it. I’ll do it. But I want full participation from those of us who meet here at the Defender.

raymond zuppa Sep 6, 2011

Hey J.T. how is that proposed Law Review Article: What Does Unitrin Mean? — How is that going. I know you’ve written it but has any school expressed even the slightest interest in publishing it.

JT Author Sep 6, 2011

There was an interesting article in this month’s Florida Bar Journal discussing Paper IME’s… I will scan it and throw it on here this week. I am sure those of you who foam at the mouth when there is even a thought about rolling back Presbyterian preclusion will have a heart attack when you read this thriller.

Larry Rogak Sep 8, 2011

JT wrote: “If the margins are slim, then beef up the Information Technology budget so you can do more with less. That way, you can (1) put out a more precise product at a fraction of the cost and can; (2) thrive off ‘reduced margins’ and (3) prove that you are most cost efficient and better than in-house counsel.” With all due respect, I hope you don’t choose your own personal physicians using these criteria, my friend.

raymond zuppa Sep 8, 2011

I must say that no one has been tougher on Larry then me. But he got you J.T. Good one Larry. I expect you at the dinner. Also at the Dinner. A special treat. I am serious. Jimmy Hand and I do our presentation: “To Live and Die in Bethpage” It is all about our stint at the RPC.

Larry Rogak Sep 9, 2011

I hope my prior post was not misinterpreted. The point I was trying to make is that saving money through information technology should not be an end in itself. Cost efficiency is a good concept in the abstract, but there is a wide spectrum: at one end of that spectrum, there are lavish offices at fancy addresses with high overhead items that do nothing to enhance value to the client. At the opposite end of that spectrum, valuable personnel are being sacrificed so that documents can be produced by lawyers on the other side of the globe for a pittance. At the risk of sounding like a Luddite, I think that the overuse of IT in the legal field may take a valuable human element out of the practice and reduce insurance defense lawyers to little more than messengers who present documents to the court with a little allocution. Now I shall retire to my rocking chair on the front porch and smoke my pipe.

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The first pure Unitrin Appellate Term holding

Key Takeaway

Jason Tenenbaum

Comments (26)

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