Insurer Can Request Insured Appear for Examination Under Oath after Insured’s Benefits Denied Based on Independent Medical Evaluation

An insurer’s denial of benefits based on an independent medical evaluation usually indicates the beginning of the litigation. But if the insured’s health care providers continue to submit claims to the insurer, the insurer can still require the insured appear for an examination under oath as a condition of paying those post-IME cutoff claims.  If the insured refuses to submit to those examinations under oath, the insurer can deny the claims.  Thus, began the litigation considered by the Nassau County, New York, First District Court, last month in the case of 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).

A person who had no-fault automobile insurance was injured in a motor vehicle accident. He received treatment for the injuries sustained in the accident from a chiropractor and physical therapist. He assigned his right to receive no-fault benefits for the treatment provided by each provider to that provider. The insurer denied all no-fault benefits based on an independent medical examination (IME). The insured continued to receive treatment from the chiropractor and physical therapist.

Subsequently, the insurer’s attorney requested the insured appear for an examination under oath (EUO). The insured refused because all no-fault benefits had previously been denied based on the IME and there was already pending litigation. The insurer sent two additional letters requesting the insured appear for two subsequent EUOs. The insured did not appear for the EUO on any of the scheduled dates.

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

The chiropractor and 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 EUO. The chiropractor and the physical therapist argued that since all no-fault benefits had been denied based on the IME cut-off, the request for an EUO was abusive and improper.

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 on an IME was allowed to request an EUO of the insured. The laws and regulations governing no-fault insurance claims did not prevent an insurer that denied no-fault benefits based on an IME from requesting an EUO of the insured if that insured continued to receive medical treatment after the IME cut-off and the provider continued 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 EUO after the insured’s medical benefits have been denied based upon an IME was without merit.

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).

By Sarah Kelman, JD, and the experts and editors at Medical Law Perspectives.

For more details, see the Scalpel Weekly News, October 6, 2014.

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For more information on IME, see the Medical Law Perspectives, June 2013 Report: Independent Medical Evaluations: Legal Risks and Responsibilities

For more information on subjective medical proof difficulty, see the Medical Law Perspectives, December 2011 Report: When Pain is the Only Proof: Subjective Impairments

For more information on physical therapy liability, see the Medical Law Perspectives, September 2013 Report: Physical Therapy: Rehabilitation Services and Liability Risks

For more information on practitioner liability, see the Medical Law Perspectives, April 2013 Report: Complementary and Alternative Medicine: Practitioner Liability

The content of this blog is provided for informational purposes only, and does not constitute legal advice.
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