Some substance to an IME cut off defense

Premier Health Choice v Praetorian is an insurer victory based on a completed examination, not a missed IME appointment. The chiropractor’s sworn report explained why the injuries had resolved and further chiropractic treatment was unnecessary. The provider’s response failed on both admissible form and medical substance.

Historical note — Last reviewed: September 2026. Premier Health Choice, October 30, 2013, decided the sufficiency of that motion record; current CPLR 2106 permits a qualifying affirmation under penalties of perjury, but does not turn an ordinary unsworn report into medical rebuttal.

What the insurer proved

Praetorian appealed after the Bronx Civil Court denied its summary-judgment motion. The Appellate Term, First Department, reversed and dismissed the provider’s complaint.

The insurer had shown timely denial and submitted its examining chiropractor’s sworn IME report. The report supplied a factual basis and medical rationale for concluding that the injuries had resolved and the disputed chiropractic treatment was not medically necessary. This was a finding about the proof offered on that motion, not a new regulation prescribing the contents of every IME report.

The court then identified two problems with the provider’s opposition. The doctor’s report was unsworn and attached to an attorney’s affirmation, so it lacked probative value. Even if considered, it failed to answer the contrary medical findings. Correcting the report’s form alone would not have cured the second problem.

Jason’s November 2013 observation

The original note focused on the court’s express reference to a factual basis and medical rationale:

Perhaps this is the first time that the Court has opined that a lack of medical necessity defense on an IME case requires proof that a factual basis and medical rational for showing that injuries were resolved.

That was a contemporary observation, not a verified claim that Premier Health was the first New York decision to apply the standard. The opinion supports the evidentiary point without requiring a claim of historical priority.

An IME cutoff is not a no-show defense

Here an examiner evaluated the assignor and gave a medical opinion about further care. An IME no-show case asks whether an examination was properly required and scheduled, and whether the person failed to appear. Proof of a scheduled appointment does not establish the medical conclusion reached after an examination.

That distinction also changes the response. A provider answering a cutoff report needs to identify the medical disagreement, not simply debate appointment notices. The report, service dates and treatment at issue must match before the parties can assess whether the medical reasoning addresses the billed care.

The short Premier Health opinion does not reproduce the examination findings or supply a list of tests the chiropractor performed. It should not be expanded into a claim that particular range-of-motion measurements, neurological tests or symptoms were documented. Those would need to come from the actual report.

Form and substance should be checked separately

The 2013 court’s reference to an unsworn report should be read with the law governing the document submitted today. CPLR 2106 now permits statements by any person, wherever made, in the qualifying affirmation form under penalties of perjury, subject to its stated exceptions.

That does not mean every signed medical letter qualifies. Nor does attaching a report to counsel’s affirmation supply the doctor’s missing explanation. The statutory form addresses how a statement is verified; the medical issue remains whether the witness responds to the opposing evidence.

Bronx Mega Care illustrates the substantive problem without relying on the same form defect. The provider submitted a doctor’s affirmation, but it still did not meaningfully address the IME conclusions. The insurer obtained summary judgment.

A sufficient response leads to a different result

In Westcan Chiropractic, the treating doctor’s affidavit answered a supported peer review and raised a factual dispute. The insurer’s motion was denied. That result does not depend on saying an examining or treating doctor always outranks a reviewer; it depends on the opposing evidence.

A trial presents a further question. In Metropolitan Diagnostic v Erie, the defense doctor was competent to testify, yet the trial court did not find him credible. The judgment for the provider survived appeal. Credentials, an admissible report and persuasive testimony are not interchangeable.

For a file review, identify the stage of the case first. Premier Health concerns whether the parties’ motion papers required a trial. Metropolitan concerns what happened after testimony was heard. Neither decision warrants a prediction about whether a particular patient’s treatment will be paid.

Read the cutoff against the actual claim

The useful documents are the IME report, the denial tied to it, the challenged bills and the provider’s response. Ask which services the examiner addressed and what medical explanation connects the examination to those services. A conclusory statement that care was unnecessary is not the same as the supported report described in Premier Health.

Also check denial timing before concentrating only on the doctor’s reasoning. The Five Boro Medical note shows that a medical-necessity motion can have different outcomes for different claims when the timing proof differs. These are separate parts of the claim record, even when the same insurer and provider are involved.

Connect to the Encyclopedia

The medical-necessity case directory connects this note with the archive’s report, rebuttal and trial decisions:

• Bronx Mega Care: an affirmed response that still failed
• Westcan: medical opposition that raised a factual dispute
• Metropolitan Diagnostic: credibility after the expert testifies
• Five Boro Medical: separate timing and medical issues

For review of a particular no-fault claim or motion record, contact the Law Office of Jason Tenenbaum, P.C. and read about our no-fault defense practice.