The Rogak Report: 31 Dec 2005 ** No Fault - IME No-Shows **
- ATTENDANCE AT SOME IME'S BUT NOT OTHERS PROVES THAT CLAIMANT RECEIVED
ALL IME LETTERS; CHALLENGE TO SIGNATURES ON ASSIGNMENT OF BENEFITS
REQUIRES VERIFICATION REQUEST
A.B. Medical Services, D.A.V. Chiropractic, Daniel Kim's Acupuncture,
Square Synagogue Transportation a/a/o Marcos DeFrias v. Electric Ins.
Co., 7 Misc.3d 130(A), 801 N.Y.S.2d 229 (N.Y.Sup.App.Term)
In this action to recover first-party no-fault benefits, plaintiffs
moved for summary judgment in the sum of $11,139.79.
Plaintiffs established a prima facie entitlement to summary judgment
by proof that they submitted the claims, setting forth the fact and
the amount of the loss sustained, and that payment of no-fault
benefits was overdue.
In opposition to plaintiffs' motion, defendant argued that the claims
of A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., Daniel Kim's
Acupuncture P.C. and Square Synagogue Transportation Inc., in the sum
of $7,139.23, were properly denied on the ground that plaintiffs'
assignor failed to attend scheduled IMEs.
Where "an insurer timely asserts in its claim denial form an injured
person's failure to comply with a reasonable and proper pre-claim IME
request, and establishes such failure in admissible form in
opposition to a plaintiff's motion for summary judgment, the
presumption of medical necessity which attaches to the claim form is
rebutted . . . and such proof defeats the motion"
"It is undisputed that defendant issued timely denials based on the
nonattendance of plaintiffs' assignor at pre-claim IMEs scheduled by
defendant. Contrary to plaintiffs' contention, the letter of
Transcion Medical P.C., which schedules IMEs for defendant, and
defendant's denial of claim forms, which were submitted as part of
plaintiffs' moving papers, indicated that plaintiffs' assignor did
not appear for all of the scheduled IMEs listed in Transcion's
letter. Under the circumstances presented, in our opinion, such
selective attendance by plaintiffs' assignor established the
assignors' receipt of all IME requests listed in said letter."
"In the absence of any reasonable excuse for the nonappearance by
plaintiffs' assignor, defendant effectively rebutted the presumption
of medical necessity which ordinarily attaches to the claim forms.
This is so, even though it is uncontroverted that plaintiffs'
assignor attended some of the IMEs. Therefore, its defense of lack of
medical necessity of the services provided to plaintiffs' assignor
was still viable and raised a triable issue with respect thereto.
Accordingly, the court below properly denied said plaintiffs' motion
for summary judgment in the sum of $7,139.23."
"With regard to the additional claims of Daniel Kim's Acupuncture
P.C. in the amount of $3,475.55, which were timely denied, the stated
basis for denial was lack of medical necessity, rather than the
failure to appear for an IME. In opposition to the motion for summary
judgment, defendant was required to submit proof in admissible form
to rebut plaintiff's prima facie showing. Defendant submitted an
unsworn peer review report of an acupuncturist. Since said report was
not in admissible form, it was insufficient to warrant denial of said
plaintiff's motion for summary judgment."
"We note that to the extent that the decision of the court below
rests on the lack of authentication of the assignments, it is
erroneous. The lack of authentication of an assignor's signature, in
and of itself, does not constitute a defect in the absence of any
statutory and regulatory requirement for the same. Even assuming
arguendo that a lack of authentication constitutes a cognizable
defect, defendant's failure to seek verification of the assignments
and to allege any deficiency in the assignments in its denial of
claim forms constitutes a waiver of any defenses with respect
Summary judgment by plaintiff Daniel Kim's Acupuncture in the sum of
$3,475.56, the case was remanded for further proceedings on the other
Comment: The essential rules demonstrated by this decision are,
therefore: (1) attendance of some IMEs, but not others, establishes
that the claimant received all IME letters; (2) IME no-shows
establish the defense of lack of medical necessity; (3) IME letters
sent by an outside vendor are valid (some plaintiff's firms challenge
this); (4) if a peer review is the only basis for a denial, a sworn
statement from the doctor is necessary; and (5) if there is a
question as to the authenticity of the assignor's signature on an
assignment of benefits form, the insurer must send a verification
request to establish a defense on this groun.
Happy New Year!