IME No-Show Defense: What Counts as Timely Mailing of IME Notices in New York?

When insurance companies deny no-fault benefits based on a patient’s failure to appear for an Independent Medical Examination (IME), the timing and proper mailing of the IME notice becomes crucial. The court must determine whether the insurer followed proper procedures in scheduling the examination and notifying the patient.

In New York No-Fault Insurance Law cases, insurers often use no-show defenses to deny claims. However, they must prove they complied with all procedural requirements, including proper notice. This case from the First Department raises an interesting procedural question about what constitutes “timely” mailing of IME notices.

The distinction matters because if an insurer fails to properly schedule an IME or provide adequate notice, they cannot use the patient’s non-appearance as grounds for denial. Courts have previously addressed various aspects of IME notice requirements and have been strict about procedural compliance in no-show cases.

The Decision

Jason Tenenbaum’s Analysis:

Acupuncture Solutions, P.C. v Lumbermans Mut. Cas. Co., 2015 NY Slip Op 50346(U)(App. Term 1st Dept. 2015)

“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 that the assignor failed to appear”

So here is the question. Did the “timely and properly mail the notices” include gearing the mailings to the receipt of Plaintiff’s bill?

I think the answer is no, as the basic construct of a first department no-show motion would not call for same. But I need to read the record before I can give an answer.

The IME No-Show Defense: Legal Background

An IME — independent medical examination — is a physical examination of the injured person (the “assignor,” once benefits are assigned to a treating provider) conducted by a doctor the insurance carrier selects. Under New York’s no-fault scheme, 11 NYCRR 65, appearing for properly demanded IMEs is a condition of coverage. If the eligible injured person fails to appear for duly scheduled examinations, the carrier may deny the claims — and because the failure goes to a condition precedent, the defense can defeat the provider’s case entirely.

To win summary judgment on the defense, the carrier must prove two things: that the IME notices were timely and properly mailed to the assignor (and counsel, where applicable), and that the assignor failed to appear on both scheduled dates. Proof of mailing typically comes from an affidavit establishing either actual mailing or a standard office practice and procedure used to ensure proper mailing; proof of non-appearance comes from someone with personal knowledge — usually the examining doctor or the facility’s records custodian.

The wrinkle this case surfaces is the word “timely.” The no-fault regulation builds IMEs into the claim-verification timeline, and verification requests are generally keyed to the carrier’s receipt of the claim form. So when the First Department’s Appellate Term says the carrier “timely and properly mailed” its IME notices, does that finding require the carrier to have geared the IME scheduling to its receipt of the plaintiff’s bill? Or is it enough — at least where the IMEs were demanded before the bills arrived — that the notices were promptly issued and reasonably scheduled? As noted above, my read of the basic construct of a First Department no-show motion is that bill-receipt coordination is not part of the prima facie case, but the decision itself does not spell out the record.

This is one of the areas where practice between the First and Second Departments has historically diverged, with the departments articulating the carrier’s prima facie burden in different levels of detail. Practitioners litigating no-show motions need to know which department’s formulation governs their case.

Why This Matters

For carriers, the decision is favorable: a clean mailing affidavit plus competent proof of two non-appearances made out a prima facie case, and summary judgment dismissing the provider’s action followed. But the unresolved timing question counsels caution. A carrier that schedules IMEs without regard to the regulatory verification timeline invites the argument that the notices were not “timely” — an argument that may land differently depending on the department and the state of the record.

For medical providers and their counsel, the case maps the pressure points. If the carrier’s motion papers do not establish when the notices went out relative to the claim, or rely on a conclusory mailing affidavit, those gaps are where the opposition lives. And for injured patients, the practical message is blunt: skipping a carrier’s scheduled medical exam can forfeit no-fault benefits for the patient and every provider treating them.

Practical Takeaways

• An IME no-show defense requires proof of timely, proper mailing of the IME notices and proof of the assignor’s failure to appear on two scheduled dates.
• The First Department upheld summary judgment for the carrier on exactly that showing.
• Whether IME scheduling must be geared to the carrier’s receipt of the provider’s bill remains an open question on this decision’s face.
• Providers opposing no-show motions should scrutinize the mailing proof and the timeline; carriers should paper both meticulously.

Related Resources

• IME no-shows in New York no-fault insurance cases — our cluster hub on the IME no-show defense
• The firm’s Legal Encyclopedia — plain-language explainers on New York no-fault practice
• No-Fault Defense practice — how we defend carriers in no-fault litigation and arbitration
• IME no show results in summary dismissal
• IME no-show defense is a loser
• IME no-show – complaint dismissed