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The Rogak Report: 31 Dec 2005 ** No Fault - IME No-Shows **

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  • Lawrence Rogak
    ATTENDANCE AT SOME IME S BUT NOT OTHERS PROVES THAT CLAIMANT RECEIVED ALL IME LETTERS; CHALLENGE TO SIGNATURES ON ASSIGNMENT OF BENEFITS REQUIRES VERIFICATION
    Message 1 of 1 , Dec 31, 2005
      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
      thereto."

      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
      claims.

      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!

      Larry Rogak
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