Opinion
16560/07
12-4-2009
PRIME PSYCHOLOGICAL SERVICES, PC A/A/O BRENT HORNE, Plaintiff v. ELRAC, INC., D/B/A ENTERPRISE RENT A CAR, Defendant.
Brand, Glick & Brand, Esqs., Garden City, New York, Attorneys for Defendant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Esqs., Mineola, NY, Attorneys for Plaintiff.
This case presents raises a new twist to this court's previous ruling that the notification requirements for verification requests, as contained in 11 NYCRR §§65-3.5 and 3.6, do not apply to examinations under oath ("EUOs") and independent medical examinations ("IME") that are scheduled prior to the insurance company's receipt of claim forms ("pre claim EUO" or "pre-claim IME"). Here, the insurance company seeks summary judgment based upon the assignor's failure to appear at both a pre-claim IME and an IME noticed and scheduled subsequent to the insurance company receipt of a claim from the medical services provider which, under precedent, triggers strict regulatory time deadlines for compliance with verification requests.
Plaintiff Prime Psychological Services, P.C. ("plaintiff" or "Prime Psychological"), a medical services company, brought this action to be reimbursed in the amount of $1,036.41 for medical treatment it provided to its assignor Brent Horne ("assignor" or "Horne"). Defendant ELRAC, Inc ("defendant" or "ELRAC") moves for summary judgment based upon its timely denial that the assignor failed to appear for two IMEs, one scheduled for a date prior to the defendant's receipt of the claim and another scheduled right after its receipt of the claim. Plaintiff opposes defendant's motion on the grounds that the IME request was unreasonable because the assignor was scheduled for a neurological IME while plaintiff presented a claim for psychological treatment. In the alternative, plaintiff alleges that defendant has not established a proper mailing of the denial and the IME notices.
Plaintiff provided medical treatment to its assignor from April 25 to May 2, 2007 for injuries he allegedly suffered as a result of an motor vehicle accident on April 10, 2007. Prior to its receipt of the claim, defendant, by letter dated May 15, 2007, scheduled the assignor for an IME to be held on May 25, 2007. The assignor failed to appear on May 25, 2007. After receiving the claim from plaintiff on May 29, 2007, defendant, by notice dated May 30, 2009, scheduled the assigner for a second IME to be held on June 8, 2007. After the assignor again failed to appear at the scheduled IME, the defendant mailed out its denial on June 29, 2007, within 30 days after its receipt of the plaintiff's claim on May 29th, 2007, citing the assignor's failure to attend two scheduled IMEs.
As a condition to coverage under the revised Personal Injury Endorsement ("PIP"). "the eligible injured person ...shall...as may reasonably be required submit to examinations under oath by any person named by the [insurer] and subscribe the same." [11 NYCRR § 65-1.1(d) (Sec. I. Conditions, Proof of Claim (b) ). Another condition to coverage under this section sets forth that "an eligible person shall submit to medical examination by physicians selected by or acceptable to the insurer as often as the insurer may reasonably require."
11 NYCRR § 65-3.5 details the verification procedures to be followed after the insurer receives the completed application for no fault benefits (NYS form N-F2,) The insurance regulations provide for IMEs (and EUOs) as part of an insurer's "entitlement to additional verification" following receipt of a provider's statutory claim forms. Stephen Fogel Psychological v. Progressive Casualty Ins. Co., 7 Misc 3d 18, 19 (App. Term. 2d Dept. 2004) aff'd in pert part 35 AD3d 720 (2d Dept. 2006). See 11 NYCRR 65-1.1(d) and 65-3.5(d). See also, All-Boro Medical Supplies, Inc. v Progressive Ins. Co., 20 Misc 3d 554 ( Civil Ct., Kings Co,. 2008); Lumbermen's Mutual Casualty Company v. Inwood Hill Medical P.C., et al, 8 Misc 3d 1014(A), 801 N.Y.S. 2d 778 (Sup. Ct., NY Co. 2005); Inwood Hill Medical P.C., v. Allstate Ins. Co., 3 Misc. 1110(A), 787 N.Y.S. 2d 678 (Civil Ct.,NY Co. 2004) . An insurer may toll the 30 day period it has in which to deny a claim by properly requesting verification within 15 days from the receipt of the proof of claim form or bill (11 NYCRR 65.3.5).See, Psych. & Massage Therapy Assoc., PLLC v. Progressive Casualty Ins. Co., 5 Misc 3d 723 (Civ Ct, Queens Co., 2004).
Where an EUO or IME is requested as additional verification after receipt of the claim, the insurer must schedule the IME within the same time frame as medical examinations — within 30 days from the date of receipt of the prescribed verification form (§65-3.5(d)) — and must schedule an EUO within a reasonable time frame and as "expeditiously as possible." Eagle Surgical Supply, Inc. v. Progressive Cas. Ins. Co., 21 Misc 3d 49, 51 (App. Term, 2d Dept. 2008). See Bayside Rehab. & Physical Therapy P.C., v, GEICO, 24 Misc 3d 542, 546 ( Civil Ct., Richmond Co. 2009). If the "requested verification has not been supplied to the insurer 30 calendar days after the original receipt, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested, either by a telephone call or by mail. 11 NYCRR § 65-3.6(b). "A claim need not be paid or denied until all demanded verification is provided." New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 569, 570 (2d Dept. 2004). See, Insurance Law § 5106(a); 11 NYCRR §§65-3.5(c), 65-3.8(a)(1).
However, failure to submit a timely follow up request will void the tolling of defendant's time in which to submit a denial, and will preclude a defendant from asserting the defense based on failure to produce requested verification, including failure to appear for a post-claim IME. See, All-Boro Medical Supplies supra at 557; Kings Medical Supply Inc. V. Kemper Auto & Home Ins. Co., 2005 NY Slip Op 51450U, 7 Misc 3d 128A ( App. Term, 2 & 11th Dist. 2005). Therefore, in order for an insurer to take advantage of the tolling provisions and submit a defense based upon failure to appear for a post claim IME, it must prove that it sent both an original and follow up request and that the injured party failed to appear for both scheduled IMEs. See, Advanced Medical, P.C. v. Utica Mutual Ins. Co., 2009 NY Slip Op 51023U, 23 Misc 3d 141A (App. Term, 2d Dept. 2009).
The "detailed and narrowly construed verification procedures" contained in 11 NYCRR 65-1.1(d) and 65-3.5(d) governing IMEs and EUOs that are requested after receipt of a claim do not apply to IME s scheduled prior to the submission of a claim form. Stephen Fogel Psychological, P.C. v. Progressive Ins. Co., 7 Misc 3d 18, 21 (App. Term, 2nd Dept. 2004). This is because the the right to an IME or an EUO prior to an insurer's receipt of the claim is "not afforded by the verification procedures and timetables," but rather by the mandatory personal injury protection, "which is independent of the verification procedures." Id. Furthermore, these detailed verification procedures are "not amenable to application at a stage prior to the submission of a claim form." Id at 21. See, Prime Psychological Services, P.C. v. Nationwide Property and Cas. Ins. Co., 24 Misc 3d 230 (Civil Ct., Richmond Co. 2009) ( an insurer was not required to send pre-claim EUO requests to the provider's attorney, as required by the verification procedures for post-claim EUO requests); Bayside Rehab., supra (post-claim notification procedures do not apply to pre claim IMEs and hence, the insurer need not notify the assignee medical services provider of a pre claim IME cut off notice).
Here, defendant timely denied the claim based upon the assignor's failure to appear for two scheduled IMEs, one pre-claim and one post claim. Defendant provided detailed affidavits from employees with personal knowledge as to its procedures in scheduling and mailing out the IME notices as well as the procedures at the doctor's office to determine nonappearances . It therefore would be entitled to summary judgment.
The question thus presented is whether, by basing its denial in part upon the assignor's failure to attend a post-claim IME, the insurance company forfeited its right to deny the claim based solely upon the assignor's failure to attend the pre-claim IME. If so, the insurer would have to have sent out a follow up request for the post-claim IME within 10 days after the initial 30 day period had passed after the IME no-show, before it could properly deny the claim. The court answers this question in the negative.
It is clear that after the assignor failed to appear for the pre-claim IME, the defendant was not obliged to send out a follow up request since the only mandate for a follow up request is contained in the regulations governing post-claim verification. 11 NYCRR § 65-3.6(b). As such, defendant could have properly denied the claim, retroactive to the date of loss, for the assignor's failure to attend the one scheduled pre claim IME, so long as it mailed the denial within 30 days of its receipt of the claim, which it did in the instant matter. Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 722 (2d Dept. 2006); Amaze Medical Supply, Inc., 2006 NY Slip Op 50909U, 12 Misc 3d 127A (App. Term, 2d Dept. 2006); All-Boro, supra, 20 Misc 2d at 556.
The language in the denial setting forth that the assignor failed to appear for two IMEs does not negate defendant's right to submit its denial based solely upon the non-appearance at the one pre-claim IME. To require the defendant to abdicate its right to submit a denial, and start the process anew after receiving the claim by sending out both an initial IME request and follow up request, would frustrate the fundamental goal of the no-fault regulatory scheme, which is designed to promote the "prompt payment of legitimate claims" Nyack Hosp. v. General Motors Acceptance Corp., 8 NY3d 294, 300 (2007), and the prompt resolution of injury claims (Pommells v. Perez, 4 NY3d 566 (2005). See also Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d 274, 285(1997); Prime Psychological Servs., PC v. Am. Tr. Ins. Co., 20 Misc 3d 844, 847-48 (Civil Ct., Richmond Co. 2008); Marigliano v. New York Cent. Mutual Fire Ins. Co., 15 Misc 3d 766, 774 (Civ Ct. NY County 2007) .
The court also finds no merit to plaintiff's contention that the IME request was unreasonable because the defendant scheduled the assignor for a neurological IME while plaintiff presented a claim for psychological treatment. Statutory construction must be sought which is "consistent with achieving [the statute's] purpose and with justice and common sense." Freeman v; Kiamesha Concord, Inc., 76 Misc 2d 915, 920-21(Civil Ct., NY Co. 1974). "The common mandate of statutory construction is to assume that the Legislature "did not intend a patently absurd result." Covington v. Walker, 307 AD2d 908 ((2d Dept 2003). See, McKinney's Statutes § 141, 145; In re Adamo, 619 F.2d 216, 219 (2d Cir. 1980).
This court has previously held that an insurance company can not prophesize which medical services entity, out of the hundreds which exist in the metropolitan area, an injured party might seek services from. " Bayside Rehab. & Physical Therapy P.C., supra, 24 Misc 3d at 542 ( it would be an exercise in futility to require an insurance company to send a pre-claim IME cut-off notice to an assignee). Here, it would be patently absurd to foreclose an insurer from pursuing its right to demand that an insured attend a pre-claim IME in a medical speciality that it deems pertinent because at some point in the future, the assignor might seek treatment at a medical provider in a different specialty.
Accordingly, summary judgment is granted to defendant.
The foregoing shall constitute the Decision and Order of the Court.