Key Takeaway
New York court ruling highlights the importance of proper documentation when proving IME no-shows in no-fault insurance cases, requiring specific basis of knowledge.
Understanding IME No-Show Documentation Requirements
In New York’s no-fault insurance system, Independent Medical Examinations (IMEs) play a crucial role in claim processing. When a claimant fails to appear for a scheduled IME, insurance carriers must properly document this non-appearance to deny benefits. However, as a recent appellate court decision demonstrates, not all documentation methods meet the legal standard required for proof.
The challenge lies in establishing a proper “basis of knowledge” when proving a no-show occurred months after the fact. This issue frequently arises in New York No-Fault Insurance Law disputes, where insurance carriers attempt to use generic affidavits that lack sufficient detail about how the affiant knows the claimant didn’t appear.
Jason Tenenbaum’s Analysis:
Metro 8 Med. Equip., Inc. v ELRAC, Inc., 2016 NY Slip Op 50174(U)(App. Term 1st Dept. 2016)
“The affidavit of defendant’s chiropractor/acupuncturist, who affirmatively stated that she does not maintain records of a claimant’s nonappearances at IMEs scheduled with her office, lacked probative value, since it failed to state the basis of her recollection, some 18 months later, that the assignor did not appear on the scheduled IME dates (see Westmed Physician, P.C. v State Farm Auto Ins. Co., 17 Misc 3d 133, 2007 NY Slip Op 52113 )”
The test for “basis of knowledge” requires a statement that I have reviewed my records and Assignor did not appear. Other verbiage is necessary, but a review of records is required. The providers advocate for production of these records on motion, but we are not there yet.
The better solution to avoid all of this is for the insurance carrier to require contemporaneous affidavits of no-shows. This solves the above issue.
Key Takeaway
Insurance carriers must ensure IME no-show affidavits include a clear statement that records were reviewed to establish the basis of the affiant’s knowledge. Generic affidavits stating someone doesn’t maintain no-show records fail to meet legal standards. The most effective approach is obtaining contemporaneous documentation immediately when a no-show occurs, rather than relying on after-the-fact recollections months later.
