Does No-Fault Pay Wages Lost Attending an EUO?

An examination under oath takes a day. The insurer picks the place and the time. Its lawyer asks the questions. You give up a shift, pay for the trip, and answer. Since the 2002 revision of the no-fault regulations the insurer has owed you something for that day. 11 NYCRR 65-3.5(e) states that the applicant “will be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the request.” The regulation never said where you go when the insurer does not pay.

On February 13, 2026, the Supreme Court, Kings County, answered that question in ENS Medical, P.C. v Nationwide Insurance Co., 2026 NY Slip Op 26033: the no-fault arbitration forum can hear the dispute. The practice still lost, and the reason is the lesson here. The wage benefit for the injury itself is a different claim, covered in the guide to lost wages after a car accident in New York.

Attendance is required, and the insurer pays for the day

Attendance is a condition of your coverage. The mandatory personal injury protection endorsement in 11 NYCRR 65-1.1 provides that, upon request by the insurer, the eligible injured person or that person’s assignee or representative shall “as may reasonably be required submit to examinations under oath by any person named by the Company and subscribe the same,” and that no action lies against the insurer “unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage.” Consequently, a claimant who does not appear hands the insurer a defense to every bill in the file; a basic EUO no-show shows how that defense is proved.

Subdivision (e) reads in full:

All examinations under oath and medical examinations requested by the insurer shall be held at a place and time reasonably convenient to the applicant and medical examinations shall be conducted in a facility properly equipped for the performance of the medical examination. The insurer shall inform the applicant at the time the examination is scheduled that the applicant will be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the request. When an insurer requires an examination under oath of an applicant to establish proof of claim, such requirement must be based upon the application of objective standards so that there is specific objective justification supporting the use of such examination. Insurer standards shall be available for review by department examiners.

The reimbursement carries the same “shall” as every other duty in that paragraph, and there is no application for it: the insurer must raise it when it schedules the examination. That makes the scheduling letter the first proof of the day’s pay. Keep it.

This is a separate claim from your lost-wage benefit

These are two different claims, proved two different ways.

The first is the first-party benefit for lost earnings. Insurance Law § 5102(a)(2) defines it as “loss of earnings from work which the person would have performed had he not been injured,” up to two thousand dollars per month for not more than three years from the date of the accident. Paragraph (b)(1) of the same section then deducts “twenty percent of lost earnings” from what the insurer pays. Under the endorsement, written proof of claim for work loss is due “as soon as reasonably practicable but, in no event, later than 90 days after the work loss is incurred.” That benefit compensates the injury.

The second is the reimbursement for the day. It compensates the insurer’s demand on your time, not the injury, and the court in ENS Medical said it is not a first-party benefit. The two are therefore proved on their own terms: the wage benefit by the 90-day proof of claim, the reimbursement by what the examination cost you.

Take an electrician from Hicksville, rear-ended on Route 107 and back at work on light duty when the insurer’s letter arrives scheduling his examination under oath at a law office in Garden City. He has both halves to prove: the shift he gives up, and the drive, the tolls and the parking. Neither is proved by the injury; each is proved by a document from that day.

What ENS Medical decided, and why the practice still lost

The facts

ENS Medical, P.C. held assignments of no-fault benefits from four people with claimed injuries from accidents between January 1, 2019 and March 3, 2019. Nationwide requested an examination under oath of the practice through its owner, a physician, who appeared on June 13, 2019 and testified. In December 2019 the practice’s attorneys sent Nationwide an invoice for $20,000 as reimbursement for his lost earnings. Nationwide asked for documentation supporting the figure. The opinion’s answer is six words: “It appears that none was provided.”

The practice filed for arbitration. On February 16, 2022, the first arbitrator dismissed the claim without prejudice because “the requested verification for the sum demanded remained outstanding.” The practice re-filed on August 18, 2022, and on December 1, 2023, a second arbitrator denied the claim on a different ground: “the reimbursement of loss of earnings for a physician’s time spent providing testimony at an EUO is not arbitrable before the American Arbitration Association.” A master arbitrator affirmed on January 24, 2024. The practice then petitioned under CPLR article 75 to vacate the award and to compel the Superintendent of Financial Services to write arbitration procedures for these claims.

The forum has jurisdiction

Insurance Law § 5106(b) requires every insurer to give a claimant the option of arbitrating “any dispute involving the insurer’s liability to pay first party benefits, or additional first party benefits, the amount thereof or any other matter which may arise pursuant to subsection (a) of this section.” Three regulations led the court to read “any other matter” to reach the day’s pay: the deemed-receipt rule (row four of the clock below) under which “in the case of an examination under oath or a medical examination, the verification is deemed to have been received by the insurer on the day the examination was performed,” so the examination is part of proving the claim; the reimbursement rule itself; and the endorsement’s arbitration clause, which covers “any matter relating to the claim.”

The holding is one sentence: subsection (b) “does encompass disputes concerning lost earnings incurred from attending an EUO demanded by the insurer as part of the additional verification process.” No reported case had answered the question before. Because the request form had no place for the claim, the court ordered the American Arbitration Association to add one (quoted in the card above); the question was “capable of repetition yet evading review,” and “No-Fault insurers are constantly demanding EUOs of No-Fault insurance claimants and their assignee health service providers.” The request to compel the Superintendent of Financial Services to issue arbitration procedures was denied as a matter within the Superintendent’s discretion.

The award stood anyway

Review under CPLR article 75 is narrow. The court quoted the Appellate Division, Second Department: “mere errors of law are insufficient to set aside the award of a master arbitrator.” The arbitrator’s reading was plausible, the court said, because the statute never mentions examinations under oath or reimbursement for appearing; the reimbursement exists only because the regulations were amended in 2002. Hence, “even if Arbitrator Philipson, and ergo Master Arbitrator Weiner, were incorrect on the law, such an error is insufficient to set aside the award of a master arbitrator,” and the court confirmed the award under CPLR 7511(e) (“upon the denial of a motion to vacate or modify, it shall confirm the award”). Indeed, the record gave the arbitrators a simpler basis than jurisdiction: a round-number invoice, a request for proof, and no answer. Consequently, the forum is open to the electrician from Hicksville, and the proof is still his to make.

How to make the claim and keep it alive

Read the scheduling letter first. If the reimbursement sentence is there, the insurer has already admitted the obligation. If it is missing, keep the letter; the omission is a fact an arbitrator can weigh, and ENS Medical did not decide what it is worth. Either way, attend; a missed examination costs far more than a day’s pay. If the letter is unclear about the place, the time, or who is being examined, send it to us before the date.

The reimbursement is the one row below with no clock; the others decide whether the bills and the wage benefit get paid.

Then build the proof.

1. The demand and your attendance: the scheduling letter, and the transcript cover page or the reporter’s confirmation that you appeared.
2. The hours lost, including travel, with the start and end times written down that day.
3. The earnings: a pay stub or an employer’s letter stating the hours and pay you lost; if you are self-employed, the appointment book showing what was cancelled and what a day earns.
4. The transportation: mileage, tolls, parking and fares, with the receipts.
5. A written demand to the claims office with all of it attached, and proof that it was sent.

It is incumbent upon the applicant to answer the insurer’s request for support. The regulations entitle the insurer “to receive all items necessary to verify the claim directly from the parties from whom such verification was requested” (11 NYCRR 65-3.5(c)). A request for documentation is not a denial, and silence in reply is how the claim dies.

In my experience the reimbursement claim is lost at the invoice stage, not at the hearing. A round number with nothing behind it reads as a fee the applicant made up for the occasion. You have to prove the day. Not describe it, prove it. Write the times down the same day, get the pay stub for the shift you missed, keep the parking stub, and send all of it behind a two-line letter that week. When the adjuster writes back and asks for more, answer. Silence killed a $20,000 invoice in ENS Medical. It will kill yours.

If the insurer denies the reimbursement or ignores a documented demand, file for arbitration with the American Arbitration Association, where the February 13, 2026 order put a line for this claim on the request form, and attach the same proof.

If the insurer scheduled your examination after a Long Island crash

The claim sits inside a larger file, and the insurer’s own deadlines decide far more cases than the reimbursement line. The New York no-fault insurance law guide sets out that sequence, and the post on the 30-day deadline to apply for no-fault benefits covers the application, and the post on lost wages, arbitrate or litigate covers the forum choice for the wage benefit.

Bring these to the first call:

• The insurer’s scheduling letter.
• Your pay stub or employer letter for that date, or your appointment book if you are self-employed.
• Your travel receipts.
• The insurer’s reply to your demand, if there was one.

Sources

• ENS Med., P.C. v Nationwide Ins. Co., 2026 NY Slip Op 26033 (Sup Ct, Kings County, February 13, 2026): nycourts.gov
• Insurance Law § 5106: nysenate.gov
• Insurance Law § 5102: nysenate.gov
• 11 NYCRR 65-1.1 (the policy endorsement): law.cornell.edu
• 11 NYCRR 65-3.5: law.cornell.edu
• 11 NYCRR 65-3.6: law.cornell.edu
• 11 NYCRR 65-3.8 (the 30-day rule): law.cornell.edu
• CPLR 7511: nysenate.gov

---

The electrician from Hicksville sends a pay stub, a parking receipt and a two-line letter, and answers when the adjuster asks for more; that is a claim an arbitrator can pay. The injury claim that runs alongside the no-fault file belongs with a Long Island car accident lawyer.

If a no-fault insurer scheduled your examination under oath after a Long Island car accident and has not paid for the day, call (516) 750-0595 or send us the scheduling letter. Bring the pay stub for that date to the first call.