IME No-Show Affidavits Require Personal Knowledge: Compas Med v NY Central Mutual

Key Takeaways

• Sworn statements from the doctors scheduled to perform IMEs were not enough to prove a no-show, because neither professional demonstrated personal knowledge of the nonappearance.
• Without that foundation, the insurer failed to establish entitlement to summary judgment on its IME no-show defense.
• The affidavit must explain how the affiant knows the patient failed to appear — presence at the office, review of contemporaneous records the affiant maintains, or similar facts.
• Long gaps between the missed IME and the affidavit heighten the need to spell out the basis of knowledge.

Understanding IME No-Show Documentation Requirements

Independent Medical Examinations (IMEs) are crucial tools in New York No-Fault Insurance Law cases, allowing insurance companies to assess the medical necessity and extent of claimed injuries. However, when a patient fails to appear for a scheduled IME, insurers must meet specific evidentiary standards to use that no-show as grounds for claim denial or case dismissal.

The Appellate Term’s decision in Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co. demonstrates a critical requirement: healthcare professionals submitting affidavits about IME no-shows must have personal knowledge of the nonappearance. This ruling builds upon established precedent requiring insurers to substantiate their claims with proper documentation, similar to cases involving IME notification requirements and proper mailing procedures.

The Decision

Jason Tenenbaum’s Analysis:

Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2016 NY Slip Op 50376(U)(App. Term 2d Dept. 2016)

“While defendant submitted properly sworn statements by the chiropractor and doctor who were scheduled to perform the IMEs, neither health care professional demonstrated personal knowledge of the nonappearance of plaintiff’s assignor for the examinations, and, therefore, defendant failed to establish its entitlement to judgment as a matter of law dismissing any causes of action on this ground”’

(The court cited to Alrof and Bright Supply)

We saw the Appellate Term First Department case holding that a 12 month gap between IME and affidavit required a showing in the affidavit as to the basis of personal knowledge. Having not seen the affidavit, I cannot opine on what the deficiency is.

The Legal Framework: Proving the No-Show

Attendance at a properly noticed IME is a condition precedent to no-fault coverage under 11 NYCRR Part 65. To win summary judgment under CPLR 3212 on a no-show defense, the carrier must prove two independent elements with admissible evidence: that the IME scheduling letters were properly mailed, and that the assignor failed to appear on the scheduled dates.

The second element is where Compas Med bites. Courts will not accept a bare sworn statement that “the patient did not appear.” The affiant — usually the examining doctor or someone at the IME facility — must lay a foundation showing how they know the patient failed to show up. Was the affiant present in the office that day? Does the affiant personally maintain a log of appearances and no-shows? Did the affiant review records made at the time, and if so, who made them and how?

In Compas Med, the carrier submitted properly sworn statements from the chiropractor and the doctor who were scheduled to conduct the examinations — the right witnesses, on paper. But the statements never demonstrated personal knowledge of the nonappearance itself, so the defense failed as a matter of law. Form was satisfied; foundation was not.

Why This Matters for Carriers, Vendors, and Providers

For insurers, the decision exposes a recurring weak point in template no-show affidavits. High-volume IME vendors often circulate fill-in-the-blank affirmations that recite the conclusion of nonappearance without the supporting facts. Compas Med — and the Alrof and Bright Supply line it relies on — means those templates lose motions.

For IME vendors and examining doctors, the fix is procedural: the examiner should record, on the day of the missed appointment, that they were present, waited for the assignor, and noted the no-show in records they keep in the ordinary course. The affidavit should then recite those facts, not just the bottom line. Where the affidavit is signed long after the missed examination — the First Department has flagged a 12-month gap — the basis-of-knowledge recital becomes even more important.

For provider-side counsel, the case is a checklist item: even when mailing proof is solid, scrutinize the no-show affidavit for foundation. A facially sworn but conclusory statement will not carry the carrier’s burden, and defeating it keeps the claim alive.

Practice Pointers

• Draft no-show affidavits around the affiant’s actual observations: presence at the facility, the time waited, and the contemporaneous record made.
• Identify the recordkeeping practice. If the affiant relies on office records, explain who creates them, when, and that the affiant is familiar with the practice.
• Mind the gap. The longer the delay between the missed IME and the affidavit, the more the affidavit must explain how the affiant still knows what happened.
• Carriers: pair the no-show proof with airtight mailing proof — both elements are required, and either defect is fatal on motion.

Frequently Asked Questions

Who should sign an IME no-show affidavit in a New York no-fault case?

Someone with personal knowledge of the nonappearance — typically the examining doctor or a facility employee who was present on the scheduled date. Critically, the affidavit must say how the affiant knows the patient failed to appear, not merely assert it.

Why did the insurer lose in Compas Med v New York Central Mutual?

Although the chiropractor and doctor scheduled to perform the IMEs submitted properly sworn statements, neither demonstrated personal knowledge of the assignor’s nonappearance. The Appellate Term held the carrier therefore failed to establish entitlement to summary judgment.

Does a conclusory no-show affidavit end the insurer’s case?

Not necessarily — it defeats summary judgment, but the carrier may still attempt to prove the no-show at trial with a witness who has personal knowledge. The motion-stage loss, however, sacrifices the leverage and economics of an early dismissal.

Related Resources

• IME no-show: it was not mailed — the firm’s cluster hub on IME no-show and mailing proof
• IME letters do not need to be sent to the provider
• Browse the firm’s Legal Encyclopedia for more New York no-fault doctrine
• No-Fault Defense practice — defending carriers in IME and EUO no-show litigation