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No-Fault Insurer with Basis May Require Exam After Claim Denial Based on IME


A man who had no-fault automobile insurance was injured in a motor vehicle accident. He received treatment for the injuries sustained in the motor vehicle accident from a chiropractor and a physical therapist. He assigned his right to receive no-fault benefits for the treatment provided by each provider to that provider.

 

The insurer’s attorney requested the insured appear for an examination under oath. The insured’s attorney advised the insurer’s attorney that the insured would not be produced for an examination under oath because all no-fault benefits had previously been denied based upon an independent medical examination and there was already pending litigation. Despite the letter from the insured’s attorney advising the insurer's attorney that the insured would not be produced for an examination under oath, the insurer's attorney sent two additional letters requesting the insured appear for two subsequent examinations under oath. The insured did not appear for the examination under oath on any of the scheduled dates.

 

The chiropractor and the physical therapist submitted the claims for treatment provided to the man to his automobile insurer for payment. The insurer denied all of the claims on the grounds the insured failed to appear for three examinations under oath scheduled for three consecutive months.

 

The chiropractor and the physical therapist sued the insurer to recover no-fault insurance benefits. The insurer filed a motion for summary judgment arguing that it timely denied the claims on the grounds the insured failed to appear for an examination under oath.

 

The chiropractor and the physical therapist argued that since all no-fault benefits had been denied based upon on independent medical examination cut-off, the request for an examination under oath was abusive and improper. Since the insurer had already denied the insured all further no-fault benefits based upon an independent medical examination, the insurer did not have an objective basis to request the insured appear for an examination under oath. The chiropractor and the physical therapist also asserted that since the insured’s attorney timely objected to the insured being produced for an examination under oath the insurer must demonstrate it had an objective basis for seeking to conduct an examination under oath.

 

The Nassau County, New York, First District Court denied the insurer’s motion for summary judgment. The court held that the insurer that had denied no-fault benefits based upon an independent medical examination was allowed to request an examination under oath of the insured, the insurer timely denied the claims on the grounds the insured failed to appear for an examination under oath, the issue of whether the insurer had an objective basis for requesting an examination under oath was preserved, and the insurer failed to establish an objective basis for requesting such an examination.

 

An insurer that has denied no-fault benefits based upon an independent medical examination may request an examination under oath of the insured. The laws and regulations governing no-fault insurance claims do not prevent an insurer that has denied no-fault benefits based upon an independent medical examination from requesting an examination under oath of the insured if that insured continues to receive medical treatment after the independent medical examination cut-off and the provider continues to submit the no-fault claims for payment. Therefore, the court concluded that the chiropractor and physical therapist’s assertion that an insurer cannot request an insured appear for an examination under oath after the insured's medical benefits have been denied based upon an independent medical evaluation was without merit.

 

The insurer timely denied the claims on the ground the insured failed to appear for an examination under oath. An insured's appearance at an examination under oath is a condition precedent to no-fault benefits coverage. An insurer may deny all claims for no-fault insurance benefits after an insured fails to appear for an examination under oath if the insurer issues a timely denial asserting the failure to appear for the examination as the basis of the denial. The court found that the insurer timely denied the claims on the grounds the insured failed to appear for an examination under oath.

 

If an insured wants to contest or object to a no-fault insurer's request for an examination under oath, it must do so when the request is made. The issue of whether the insurer had an objective basis for requesting the examination of the insured under oath was preserved. The court found that the insured contested the insurer's request for an examination under oath when the request was made. Thus, the court concluded that the issue of whether the insurer had an objective basis for requesting that examination under oath was preserved.

 

The insurer failed to establish an objective basis for requesting an examination under oath of the insured. When an insured who is requested to appear for an examination under oath timely objects to appearing for the examination under oath, the insurer must establish it had an objective standard for requesting the examination under oath. The court found that the insurer offered no explanation or objective basis for its request that the insured appear for an examination under oath after the insured’s attorney objected to the examination under oath. Accordingly, the court concluded that the insurer failed to establish its defense that it timely denied the chiropractor’s and physical therapist’s claims on the grounds that the insured failed to appear for an examination under oath.

 

The Nassau County, New York, First District Court denied the insurer’s motion for summary judgment.

 

See: Hempstead Regional Chiropractic, P.C. v. Allstate Ins. Co., 2014 WL 4457282, 2014 N.Y. Slip Op. 24259 (N.Y.Dist.Ct., September 8, 2014).

 

See also Medical Law Perspectives, June 2013 Report: Independent Medical Evaluations: Legal Risks and Responsibilities

 

See also Medical Law Perspectives, December 2011 Report: When Pain is the Only Proof: Subjective Impairments

 

See also Medical Law Perspectives, September 2013 Report: Physical Therapy: Rehabilitation Services and Liability Risks

 

See also Medical Law Perspectives, April 2013 Report: Complementary and Alternative Medicine: Practitioner Liability

 

 

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