Key Takeaway
A key New York no-fault case showing how IME reports can establish lack of medical necessity even when acknowledging ongoing disabilities and need for some treatment.
This article is part of our ongoing ime issues coverage, with 149 published articles analyzing ime issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
In New York’s no-fault insurance system, disputes over medical necessity frequently hinge on the quality and specificity of Independent Medical Examination (IME) reports. Healthcare providers seeking payment for services must demonstrate that their treatments are medically necessary, while insurance carriers often rely on IME examinations to challenge such claims.
The case discussed below illustrates an important principle: an IME doctor doesn’t need to conclude that a patient requires no treatment whatsoever to establish lack of medical necessity for specific services. Instead, the focus is on whether the particular treatment modality in question is necessary, even when other forms of treatment may be appropriate.
This distinction has become increasingly significant in the post-Arnica legal landscape, where courts have raised the bar for what constitutes sufficient rebuttal evidence against IME findings.
Understanding the evolving standards for medical necessity determinations is crucial for both providers and insurers. The Arnica v. Interboard decision fundamentally shifted the burden of proof in medical necessity disputes, requiring healthcare providers to present more than conclusory statements that treatment was beneficial. Providers must now meaningfully engage with and rebut the specific medical rationale articulated in IME reports.
Case Background
In Ji Sung Kim Acupuncture, P.C. v American Trust Insurance Co., the dispute centered on whether acupuncture treatments provided to an accident victim were medically necessary. The insurance carrier arranged for an independent medical examination conducted by Dr. Cole, who reviewed the patient’s medical records and conducted a physical examination. Dr. Cole’s IME report acknowledged that the patient continued to experience disabilities related to the accident and recommended that physical therapy would be appropriate for ongoing treatment.
However, Dr. Cole concluded that further acupuncture treatment was not medically necessary. This nuanced opinion—approving one treatment modality while rejecting another—became the central issue in the litigation. The acupuncture provider submitted an affidavit from its owner, who had treated the patient, arguing that acupuncture would help the patient and that the treatment records demonstrated the treatments had been beneficial.
Jason Tenenbaum’s Analysis:
Ji Sung Kim Acupuncture, P.C. v American Tr. Ins. Co., 2016 NY Slip Op 50873(U)(App. Term 2d Dept. 2016)
“The IME report set forth a factual basis and medical rationale for the doctor’s conclusion that there was a lack of medical necessity for further treatment. In opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner who had treated plaintiff, which failed to meaningfully refer to, [*2]let alone sufficiently rebut, the conclusions set forth in the doctor’s report”
This was my case so therefore I am posting it. More importantly, this case is interesting because the IME report stated that the person still had disabilities and that further PT was appropriate. Dr. Cole stated that further acupuncture would not be necessary. This was sufficient to prove lack of medical necessity.
The discusses why the IME is wrong; that acupuncture would help the patient and that upon a review of the chart, the acupuncture treatment was helpful. In years passed, this would have been enough to raise an issue of fact. I believe in the post Arnica v. Interboard world, things are different now.
Legal Significance
The Appellate Term’s decision in Ji Sung Kim Acupuncture illustrates the heightened evidentiary standards that emerged following Arnica v. Interboard Insurance Co., 137 AD3d 421. Under pre-Arnica standards, a treating provider’s assertion that treatment was beneficial and the patient showed improvement would often create a triable issue of fact sufficient to defeat summary judgment. Courts frequently gave treating providers the benefit of the doubt, reasoning that they had ongoing relationships with patients and observed treatment progress over time.
The Arnica decision changed this landscape by requiring providers to do more than assert disagreement with IME conclusions. Providers must now “meaningfully refer to” and “sufficiently rebut” the specific findings and medical rationale in IME reports. Generic statements about treatment benefits or patient improvement are insufficient when the IME doctor has provided a detailed medical explanation for why a particular treatment modality is not necessary.
The Ji Sung Kim Acupuncture case demonstrates how this standard applies when IME reports make nuanced distinctions between treatment modalities. Dr. Cole’s report did not claim the patient needed no treatment—such a conclusion would have been difficult to sustain given the acknowledged ongoing disabilities. Instead, the IME opinion focused specifically on whether acupuncture was necessary, concluding that physical therapy could address the patient’s needs without acupuncture. This modality-specific analysis provided sufficient medical rationale to establish lack of medical necessity for the acupuncture treatments.
The provider’s rebuttal failed because it did not engage with Dr. Cole’s specific reasoning for distinguishing between physical therapy and acupuncture. The affidavit asserted that acupuncture helped the patient and would continue to be beneficial, but it did not explain why acupuncture was necessary given that physical therapy could address the patient’s ongoing symptoms. This gap in the rebuttal proved fatal under the post-Arnica standards.
Practical Implications
For insurance carriers defending medical necessity claims, this decision provides a roadmap for structuring effective IME reports. IME doctors need not conclude that patients require no treatment whatsoever—a position that may be medically untenable in many cases. Instead, IME doctors can focus on whether the specific treatment modality being billed is necessary, particularly when alternative treatments could achieve similar therapeutic goals.
For healthcare providers, this case underscores the importance of detailed rebuttal evidence when opposing summary judgment on medical necessity grounds. Providers facing IME reports must carefully analyze the specific medical rationale offered by the IME doctor and craft responses that directly address those points. Simply asserting that treatment was helpful or that the patient improved will no longer suffice.
Treating providers should consider retaining medical experts who can provide detailed affidavits explaining why the specific treatment modality in question is medically superior to alternatives suggested by IME doctors. These expert affidavits should cite medical literature, explain the physiological basis for preferring one treatment over another, and address the specific patient characteristics that make the chosen treatment necessary rather than merely beneficial.
Key Takeaway
This case demonstrates that IME reports can successfully establish lack of medical necessity for specific treatments even when acknowledging ongoing disabilities. The court found that distinguishing between different treatment modalities—approving physical therapy while rejecting acupuncture—provided sufficient medical rationale. Healthcare providers must now present more robust rebuttal evidence than previously required to overcome IME determinations.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Frequently Asked Questions
What is an Independent Medical Examination (IME)?
An IME is a medical examination conducted by a doctor chosen by the insurance company to evaluate the claimant's injuries and treatment. In no-fault cases, insurers use IMEs to determine whether ongoing treatment is medically necessary, whether the injuries are causally related to the accident, and whether the claimant has reached maximum medical improvement. The results of an IME can form the basis for a claim denial or cut-off of benefits.
Can I refuse to attend an IME?
No. Under New York's no-fault regulations, attending an IME when properly scheduled is a condition precedent to receiving benefits. However, the insurer must follow specific scheduling procedures — including providing reasonable notice and accommodating certain scheduling conflicts. If the insurer fails to properly schedule the IME or you have a legitimate reason for missing it, the resulting denial may be challenged.
How should I prepare for an Independent Medical Examination?
Be honest and thorough when describing your symptoms, limitations, and treatment history. Arrive on time with photo ID and be prepared for a physical examination that may test your range of motion and functional abilities. The IME doctor works for the insurance company and may spend limited time with you, so clearly communicate your ongoing symptoms. Your attorney can advise you on what to expect and review the IME report for accuracy afterward.
What is maximum medical improvement (MMI) in no-fault cases?
Maximum medical improvement (MMI) means the point at which your condition has stabilized and further treatment is unlikely to produce significant improvement. When an IME doctor determines you have reached MMI, the insurer may cut off further no-fault benefits. However, reaching MMI does not necessarily mean you have fully recovered — you may still have permanent limitations. Your treating physician can dispute the MMI finding through a detailed rebuttal affirmation.
Can I challenge an IME doctor's findings in my no-fault case?
Yes. If an IME results in a denial or cut-off of benefits, your treating physician can submit a sworn affirmation rebutting the IME findings point by point. The rebuttal should reference specific clinical findings, objective test results, and range-of-motion measurements that contradict the IME conclusions. At arbitration or trial, the fact-finder weighs both the IME report and the treating physician's opinion. An experienced no-fault attorney can identify weaknesses in the IME report.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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