Opinion
2014-03-26
BOULEVARD MULTISPEC MEDICAL, P.C., a/a/o Phillip Sansone, Plaintiff, v. TRI–STATE CONSUMER INSURANCE COMPANY, Defendant.
Israel, Israel & Purdy, for Plaintiff. Law Office of Rhonda Barry, for Defendant.
Israel, Israel & Purdy, for Plaintiff. Law Office of Rhonda Barry, for Defendant.
FRED J. HIRSH, J.
This motion for summary judgment raises the issue of whether there must be a connection between an Independent Medical Examination (“IME”) that a claimant fails to attend and the treatment in question for the failure to attend the IME to serve as a basis for denying a no-fault claim and dismissing this action.
Boulevard Multispec Medical, P.C.(“Boulevard”) sues as assignee of Phillip Sansone (“Sansone”) to recover first party no-fault benefits for Functional Capacity Evaluation performed on March 11, 2013 and chiropractic and physical therapy treatment provided to Sansone on March 1 and March 8, 2013.
Defendant Tri–State Consumer Insurance Company (“Tri–State”) timely denied all three claims on the grounds the treatment was not medically necessary based upon the IME report of J. Serge Parisien, M.D. conducted on February 12, 2013. Dr. Parisien found Sansone had a resolved sprain/strain of the cervical spine and a resolved sprain of the left shoulder. Dr, Parisien concluded Sansone did not need any further orthopedic treatment, physical or message therapy and any further diagnostic testing.
Prior to the dates of the treatment in question, Tri–State had requested Sansone appear for an IME to be performed by Dr. Alain Delachapelle, a psychiatrist. Dr. Delachapelle states he was in his office on the dates the IMEs were supposed to be conducted, and Sansone never appeared for the IME.
Tri-state timely denied Boulevard's claims for the aforementioned services on the grounds the services were not medically necessary and on the grounds Sansone had failed to appear for the psychiatric IME to be conducted by Dr. Delachapelle.
Boulevard submits an affirmation from Gordon Davis, D.O. in opposition to the motion in which Dr. Davis states he has reviewed the medical reports for the treatment and testing involved in this action, prior treatment provided by Boulevard to Sansone and the IME report of Dr. Parisien and concludes the treatment and testing were medically appropriate.
DISCUSSION
A. Medical Necessity
An insurer establishes an entitlement to summary judgment on the grounds medical treatment and/or testing were not medically necessary by presenting proof in evidentiary form establishing a factual basis and medical rationale for concluding the treatment and testing was not medically necessary. Total Equipment, LLC v. Mercury Cas. Co., 42 Misc.3d 131(A), 2013 WL 6840278 (App.Term 9th & 10th Jud. Dists.2013); and Right Aid Diagnostic Medicine, P.C. v. Geico Ins. Co., 41 Misc.3d 140(A), 2013 WL 6360639 (App.Term 2nd 11th & 13th Jud. Dists.2013).
If the insurer presents such evidence, the burden of proof shifts to the plaintiff to present proof in evidentiary form rebutting the proof of lack of medical necessity. West Tremont Medical Diagnostic P.C. v. Geico Ins. Co., 13 Misc.3d 131(A), 2006 WL 2829826 (App.Term 2nd & 11th Jud. Dists.2006).
Even if the court finds Dr. Parisien's IME report sufficient to meet defendant's burden, the affirmation of Dr. Davis is sufficient to establish a factual basis and medical rationale for the testing and treatment. Bath Medical Supply, Inc. v. New York Central Mut. Fire Ins. Co., 30 Misc.3d 137(A), 2011 WL 565328 (App.Term 2nd, 11th & 13th Jud. Dists.2011); and Vincent Medical Services, P.C. v. Geico Ins. Co., 29 Misc.3d 141(A), 2010 WL 5116892 (App. Term 2nd, 11th & 13th Jud. Dists.2010).
The different opinions expressed by the medical experts regarding the medical necessity for the chiropractic treatment, physical therapy and medical testing are sufficient to raise questions of fact mandating denial of the motion for summary judgment on the grounds the treatment was not medically necessary. Vinings Spinal Diagnostic, P.C. v. Geico General Ins. Co., 29 Misc.3d 132(A), 2010 WL 4485453 (App.Term 9th & 10th Jud. Dists.2010).
B. Failure to Appear for an Independent Medical Examination
One of the primary purposes of the no-fault law is to ensure prompt payment of medical claims for necessary medical treatment or testing provided to persons injured in motor vehicle accidents. See, Medical Society of the State of New York v. Serio, 100 N.Y.2d 854, 860, 768 N.Y.S.2d 423, 800 N.E.2d 728 (2003). Insurance Law § 5102(a)(1) requires the insurer to pay for all necessary expenses incurred for medical treatment and testing incurred by one injured in a motor vehicle accident.
Despite this stated purpose, an insurer may deny a claim for medical services provided to a person injured in a motor vehicle accident without reaching the issue of the medical necessity of the treatment if the injure party fails to appear for a properly and timely scheduled IME. Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 A.D.3d 720, 827 N.Y.S.2d 217 (2nd Dept.2006). In order to deny a claim on the grounds the injured party failed to appear for an IME, the insurer must timely deny the claim asserting failure to appear for an IME as the grounds for the denial. Westchester Medical Center v. Lincoln General Ins. Co., 60 A.D.3d 1045, 877 N.Y.S.2d 340 (2nd Dept.2009), lv. dnd.13 N.Y.3d 714, 2009 WL 4797739 (2009)
This simplistic rule does not take into account the purpose and function of an IME. The provision of 11 NYCRR 65–1.1 requiring an injured party “... shall submit to medical examinations by physicians selected by, or acceptable to, the Company, when, and as often as the Company may reasonably require.” is the provision the court found made appearance at an IME a condition precedent to coverage. Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., supra.; and Concourse Chiropractic, PLLC v. State Farm Mutual Ins. Co., 42 Misc.3d 131(A), 2013 WL 6840281 (App.Term 9th & 10th Jud. Dists.2013).
However, other provisions of the regulations treat appearance at an IME as part of the process of verification of the claim. 11 NYCRR 65–3.5(d) provides if the additional verification demanded is a medical examination, the insurer must schedule the medical examination within 30 days of receipt of the claim. 11 NYCRR 65–3.8(a) requires an insurer to pay or deny all no-fault claims within 30 days of receipt including all verification requested under 11 NYCRR 65–3.5 Where the verification requested was an IME, the verification is deemed to have been received by the insurer on the date the IME was performed. 11 NYCRR 65–3.8(a).
The purpose of an IME is to permit the insurer to verify person's injuries, to determine the injured party's condition and to determine if the injured party needs any additional treatment or testing for those conditions and injuries. Mangione v. Jacobs, 37 Misc.3d 711, 950 N.Y.S.2d 457 (Sup.Ct. Queens Co.2012). In no-fault cases, the purpose of the IME is to assist the carrier in determining the extent of the injured party's disability and that person's need for additional and continued benefits. See, Rowe v. Wahnow, 26 Misc.3d 8, 891 N.Y.S.2d 584 (App.Term, 1st Dept.2009) (McKeon, P.J. dissenting). Thus, the purpose of an IME is not to determine whether coverage exists, but is to permit the insurer to determine the nature and extent of the injured party's injuries, whether the injured party needs additional treatment or testing for those injuries and for how longer such treatment might be needed.
In many if not most instances, the relationship between the IME and the treatment is apparent. For example, should the injured party fail to appear for a duly and timely noticed orthopedic IME, the insurer could deny all future benefits for orthopedic care and testing and treatment ordered by the orthopedist.
In this case, the insurer requested Sansone appear for a chiropractic, orthopedic, psychiatric and neurological IME within a one week period. Sansone appeared for the orthopedic IME conducted by Dr. Parisien. Sansone did not appear for the psychiatric examination to be conducted by Dr. Delachapelle.
If one of the fundamental purposes of the no-fault law is to provide for prompt payment of claims for persons injured in motor vehicle accidents, then that purpose is not served by cutting off all no-fault as a result of the injured parties failure to appear for an IME in a discipline or specialty unrelated to the treatment in issue.
Put in the context of this action, the IME that serves as the basis of the denial of the claim is the failure of the party to appear for an IME to be performed by a psychiatrist. There is no evidence in the record to establish Sansone sustained any psychiatric injuries or received any psychiatric treatment for the injuries cause by the motor vehicle accident that gives rise to this no-fault claim. The treatment in question is medical testing involving the patient's physical fitness to return to work as a bus driver, chiropractic treatment and physical therapy. None of this treatment or testing appears to be in any way related to Sansone's psychiatric condition.
In order for the failure to appear for an IME to provide a basis for the denial of the claim, there must be some relationship between IME for which the injured party failed to appear and the treatment in issue.
For the foregoing reasons, defendant's motion for summary judgment is denied.
SO ORDERED.