The Rogak Report: 01 Jul 2009 ** No Fault - IME No-Shows **
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CLAIMANT'S FAILURE TO BRING HIS OWN INTERPRETER TO IME IS NOT A VALID BASIS FOR DENIAL
In the Matter of the Arbitration between [Applicant] and Global Liberty Ins. Co. of New York, AAA Case No. 412009002091, AAA Assessment No. 17 991 03424 09, Insurer's Claim File No. 084698 (Lucille S. DiGirolomo, Esq., arbitrator)
Edited by Lawrence N. Rogak
The issue in this no fault arbitration was whether the denial based on alleged IME "no-shows" was valid.
The claim arose from a motor vehicle accident which occurred on August 19, 2008.
"There is no dispute as to the validity of the requests made by the Respondent for the IMEs. The Injured Party's counsel argues that the Injured Party did, in fact, appear for the examinations of November 17, 2008. As per the affidavit of Cinnamon Houston, a No-Fault Claims Supervisor for Global Liberty Insurance Company, this fact is not in dispute either. However, Ms. Houston's affidavit advises that the Injured Party 'did not appear with an interpreter as agreed the day before the examinations between Tracy Zane, the claims adjuster on the file, and Kathy at claimant's counsel's office'. The affidavit continues that the Injured Party's counsel was 'advised that the examinations could not take place without an interpreter'. The affidavit further advises that: 'Tracy Zane personally spoke with Kathy at the claimant's counsel's office and was advised that [Injured Party] would have an interpreter with him. When the interpreter did not appear, the examinations could not be conducted. Tracy Zane personally advised Kathy that it is not Global's responsibility or the doctors to arrange for an interpreter. The claimant must provide one and Tracy Zane was advised that he would.'"
"Ms. Houston then concludes that the Injured Party 'failed to appear for all of his medical examinations as scheduled'."
"I find this affidavit submitted by Ms. Houston of no value. It is based on hearsay alone. I was advised that Ms. Houston provided this affidavit because Tracy Zane was no longer employed at Respondent's office. However, Ms. Houston did not have the conversations with Kathy from the Injured Party's counsel's office and cannot state with any authority as to what the conversation was or may have been. Additional affidavits submitted by Respondent all refer to an 'understanding' from the Respondent that the Injured Party was to appear with an interpreter and the fact that he did not bring an interpreter equated to his failure to appear for the examinations."
"To the contrary, Cathy Xu appeared at the hearing to testify. After being duly sworn she advised that she is a paralegal at the Injured Party's counsel's office and she did have a conversation with a representative of MCMC, the company who arranges the IMEs for the Respondent. The conversation consisted of a confirmation that the Injured Party was to appear the following day for the examinations. She testified that there was no mention of the need for the Injured Party to bring an interpreter. In fact, Ms. Xu had dealt, on past occasions, with the office where the Injured Party was going to be examined and they usually have a person on staff who speaks Chinese and interprets for the patients."
"Ms. Xu further testified that she received a telephone call on November 17, 2008 from the Injured Party who then handed his cell phone to the office receptionist. Ms. Xu was advised there was no one in that day who could translate for the Injured Party. Ms. Xu offered to translate by way of telephone and the receptionist told her this would not be acceptable to the Doctor and the examination could not take place."
"When Ms. Xu received the denial she contacted Tracy Zane, listed as the Insurer Representative on the denial. Ms. Xu testified that this was the first conversation she had with Ms. Zane. Ms. Xu testified that she advised Ms. Zane of what had happened and requested that the IME be rescheduled. Ms. Zane insisted that the Injured Party failed to appear for his examinations and refused to reschedule them."
"I find Ms. Xu's testimony credible and convincing. Foremost, her testimony would take priority over affidavits from persons without first hand knowledge."
"The Regulations are clear, the claims practice principles to be followed by all insurers requires the insurer to assist in the processing of the claim and not to treat the applicant as an adversary. 11 NYCRR 65-3.2 . Here, the Respondent treated the Injured Party as an adversary."
"While the Regulations are silent on this issue, if the Respondent wanted the Injured Party to bring an interpreter, the scheduling letters should have advised of that fact. While Respondent insists that it was the Injured Party's responsibility to bring an interpreter to the examination, the scheduling letters make no such statement. In addition, here, there was a person willing to interpret for the Injured Party by way of telephone. The Doctor's office determined this was not acceptable and sent the Injured Party away. The Respondent's failure to re-schedule based on these facts was clearly adversarial."
"Finally, the denials issued are defective on their face as they represent that the Inured Party failed to appear for the examinations. He did in fact attend, as required by the Regulations. It was not his fault that he was turned away by the Doctor's office."
"Accordingly, the following claims are awarded in full satisfaction of this claim: Channel Acupuncture, P.C. in the amount of $812.00; David Cancel, D.C. in the amount of $471.80; Scolden Medical, P.C. in the amount of $2,421.03.
Comment: Hah! If the arbitrator thought this was adversarial, I wonder what he would have said about this insurer's conduct towards this claimant. As far as demanding that a claimant bring his own interpreter, well, that's "one for the books." Imagine! Turning a claimant away from an IME because he didn't bring his own interpreter! I wonder what the State Insurance Department would say about such behavior by an insurer?