IME no-show/ failure to object during claims stage is fatal to later objection

The requirement for Independent Medical Examinations (IMEs) remains one of the most contentious aspects of New York no-fault insurance law. Insurance companies regularly schedule these examinations as part of their claims review process, and injured parties often object to their timing, location, or frequency. However, as demonstrated in recent court decisions, the timing of such objections is crucial to their validity.

New York’s no-fault regulations establish clear procedural requirements for IME scheduling and attendance. Under 11 NYCRR 65-1.1, eligible injured persons must submit to medical examinations “when, and as often as, the Company may reasonably require.” This regulatory language creates a condition precedent to insurers’ payment obligations, meaning that failure to attend properly scheduled IMEs can justify claim denials. The regulations reflect legislative judgment that carriers need opportunities to evaluate injuries and treatment necessity through independent medical assessments.

The reasonableness requirement embedded in the IME regulation provides important protections for injured parties. Carriers cannot schedule examinations at unreasonable times or locations, demand excessive numbers of examinations, or otherwise abuse the IME process to harass claimants or delay legitimate payments. When insurers schedule IMEs that violate reasonableness standards, claimants can object and refuse to attend without jeopardizing their coverage rights. However, the procedural mechanism for asserting such objections matters significantly.

A common scenario involves plaintiffs who fail to appear for scheduled IMEs without any prior communication or objection, only to later challenge the reasonableness of the examination requests when litigation ensues. This tactical approach has proven consistently unsuccessful in New York courts, as established precedent makes clear that procedural requirements must be followed during the initial claims process.

Case Background

In Parisien v Citiwide Auto Leasing, the defendant scheduled IMEs for the plaintiff’s assignor as part of the claims investigation process. The assignor failed to appear for the scheduled examinations and apparently provided no communication to the insurer regarding any objections to the timing, location, or other aspects of the IME requests. The defendant subsequently denied the claims based on the assignor’s failure to comply with the IME condition precedent.

When the provider brought suit to recover the denied benefits, the defendant moved for summary judgment based on the IME no-show defense. The plaintiff opposed the motion, arguing for the first time that the defendant had failed to demonstrate that the IMEs were scheduled at reasonably convenient times for the assignor. The Civil Court denied the defendant’s motion, finding a triable issue of fact regarding the reasonableness of the IME scheduling. The defendant appealed to the Appellate Term.

Jason Tenenbaum’s Analysis

Parisien v Citiwide Auto Leasing, 2017 NY Slip Op 50684(U)(App. Term 2d Dept. 2017)

“As limited by its brief, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion.

The Civil Court erroneously held that, because defendant had failed to establish that it had scheduled the examinations at a time that was reasonably convenient for the assignor, there is an issue of fact as to the reasonableness of the IME requests. The no-fault regulations provide that an eligible injured person “shall submit” to IMEs “when, and as often as, the Company may reasonably require” (11 NYCRR 65-1.1), as an assignor’s appearance for a duly scheduled IME is a condition precedent to the insurer’s liability on the policy. As plaintiff never alleged, let alone demonstrated, that he or his assignor had responded in any way to the IME requests, plaintiff’s objections to the reasonableness of the requests should not have been heard”

It is great when the same issue keeps popping it, Plaintiff expects a different result and, surprise, nothing changes.

Legal Significance

The Appellate Term’s decision establishes a clear procedural rule: parties challenging IME scheduling must raise objections during the administrative claims stage rather than waiting until litigation commences. By remaining silent when receiving IME scheduling letters, claimants waive their rights to later contest the reasonableness of examination requests. This rule serves important policy objectives by encouraging parties to communicate openly during claims processing and resolve scheduling disputes before litigation becomes necessary.

The decision reflects practical recognition that insurance carriers cannot defend against reasonableness challenges when claimants provide no contemporaneous indication of any objections. If an assignor receives an IME scheduling letter and believes the proposed time or location unreasonable, that individual must communicate the concern and request alternative arrangements. When carriers receive no response whatsoever, they reasonably interpret silence as acquiescence to the proposed examination schedule.

Practical Implications

For healthcare providers and their assignors, this decision mandates active participation in the claims process when IME requests are received. Assignors who cannot attend scheduled IMEs due to legitimate conflicts must communicate those issues promptly and work with carriers to identify mutually acceptable alternatives. Simply ignoring IME scheduling letters and failing to appear creates presumptions that the examinations were reasonably scheduled, making subsequent litigation challenges extremely difficult.

Insurance carriers benefit from clear documentation practices when scheduling IMEs. Carriers should maintain comprehensive records showing IME scheduling letters were properly mailed, included reasonable examination dates and locations, and provided adequate notice to assignors. When assignors fail to respond to scheduling letters or appear for examinations, carriers should document the complete lack of communication or objection. This documentation becomes crucial when defending IME no-show denials in subsequent litigation.

Key Takeaway

Courts consistently hold that parties cannot remain silent during the claims process and later challenge IME requests in litigation. The failure to respond to or object to examination scheduling during the administrative stage waives the right to contest reasonableness later, making timely communication essential for preserving objection rights under New York’s no-fault regulations.

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