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Five Boro Psychological Services, P.C. v. Autoone Insurance Co.

Civil Court Of The City Of New York, Kings County

December 8, 2008


The opinion of the court was delivered by: Alice Fisher Rubin, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Plaintiff commenced this action against the defendant to recover first party no-fault benefits pursuant to CPLR 5102(a)(1) of the Insurance Law and Regulation of the New York State Insurance Department (11 NYCRR Sect. 65-1.1 et. seq.), for medical services rendered.

Defendant moves for an order pursuant to CPLR §3212 granting summary judgment and dismissing plaintiff's complaint on the grounds that the plaintiff-assignor failed to appear for scheduled independent medical examinations, or in the alternative, partial summary judgment on the grounds that the denials are timely. Plaintiff opposes the motion on the grounds that the defendant has failed to substantiate any defenses or establish that it properly denied plaintiff's claims.

After careful review of the moving papers, supporting documents and opposition thereto, the court finds as follows:

Defendant argues that the assignor, Jose Lora failed to appear for scheduled independent medical examinations, which is a condition precedent to coverage under the insurance policy and no-fault regulations. In support of its argument, defendant annexes as Exhibit "I" to its moving papers, a copy of the insurance policy. The policy states in part:

3. Medical Reports. The insured shall submit to physical examinations by physicians we select when and as often as we may reasonably require. [Emphasis added]

Plaintiff argues that the policy requires the assignor, Jose Lora to appear before a physician, which pursuant to New York State Education Law, Article 131, is defined as "[only] a person licensed or otherwise authorized under the article shall practice medicine..." Therefore, the defendant's insurance policy, which it reads to be clear and unambiguous only requires that the assignor submit to an examination by a physician only, and not any other healthcare provider.

Plaintiff contends, that as a result of the IME being scheduled before a psychologist, as opposed to a physician, the assignor was not required to attend, and no condition precedent was violated. Plaintiff further argues that any ambiguity with the use of the term "physician" must be construed against the insurer, the drafter of the policy.

The argument raised by plaintiff appears to be one of first impression. This court has researched the issue, having read and written many no fault decisions, and did not find a case addressing the issue of whether a policy which states "physician," means that any other healthcare provider is excluded, and only a physician can conduct the independent medical examination of an EIP.

This court answers in the negative.

In the case before this court, the insurance company sent verification requesting that the injured party appear before an independent psychologist. The court finds that although the policy states physician, the term itself is not ambiguous where it would or should allow the EIP to circumvent the requirement of an independent examination, to determine whether the services rendered were medically necessary. The assignor was seen by a psychologist and therefore, there is no reason why a verification which requests that he appear before an independent psychologist, should not be held as a valid request when the policy states "physician."

The General Provisions of the Worker's Compensation Law, Section 300.2, which addresses independent medical examination, examiners, and entities, sets forth the following:

Section 300.2(5). "Independent medical examiner means a physician, surgeon, podiatrist, chiropractor or psychologist who is authorized to conduct independent medical examinations as defined in paragraph (4) of this subdivision...."

The fee schedules are determined by the Worker's Compensation Law, and the services rendered by a provider are determined under the New York No-fault fee schedule. The Workers' Compensation fee schedules were adopted by the Superintendent of Insurance for use by those making and processing claims for no-fault benefits.

If there is an issue as to whether or not the fees charged by the provider, which in this case is a psychologist, a hearing would be necessary to determine how much should have been billed. The court would look to the Worker's Compensation Fee Schedule, and the fees applicable to a psychologist, not a physician. Therefore, this court finds that the EIP, Jose Lora, was required to appear for the scheduled IME.

In addition, this court finds plaintiff's argument that Dr. Yakov Burstein is not qualified to state whether EIP, Jose Lora appeared for an IME, without merit. The suggestion that a doctor is unaware of or unqualified to assert which patient or patients are scheduled to appear at a scheduled date and or time in his office, because he is without "personal knowledge" is presumptuous.

Next, this court will address the issue of the timeliness of the verification.

The claim for no-fault benefits begins when an injured party provides notice to the insurer within thirty days after the date of the accident. See 11 NYCRR § 65-2.4(b). The injured party is required to submit an application for no-fault benefits, and the written proof of claim is submitted within forty-five days after the date of services are rendered.

Within ten (10) business days after receipt of the completed no fault application, the insurer must forward verification forms for health care or hospital treatment to the injured party or that party's assignee. After receipt of the completed verification, the insurer may seek additional verification or further proof of claim from the injured party or that party's assignee within (15) fifteen business days thereof. See, 11 NYCRR §65-3.5(b). For example, the insurer may seek an independent medical examination ("IME") of the injured party which must be held within (30) thirty calendar days from receipt of the initial verification form.

In the case at bar, the defendant states that it received the claim for no-fault benefits, in the amount of $1,061.63 on December 29, 2005, and an additional claim for $120.00 on January 9, 2006. On February 17, 2006 the defendant sent a notice to the injured party scheduling an independent medical examination for March 1, 2006. A second notice re-scheduling the IME was sent on March 29, 2006 which scheduled the IME for April 10, 2006.

Plaintiff argues that the defendant's request for verification was untimely, and therefore the statutory prescribed 30-day period within which to issue a denial of the submitted claims was not tolled, and thus the defense of failure to attend an IME has been waived. In response to plaintiff's argument that the insurer was required to request a verification within 15 days, the defendant argues that the amendment to the statute states as follows: "If additional verification required by the insurer is a medical examination, the insurer shall schedule the examination to be held within 30 calendar days from the date of receipt of the prescribed verification forms."

The time in which an insurer has to pay or deny a claim is extended only upon a proper request for verification pursuant to 11 NYCRR § 65.3.5(a). Since the defendant did not serve its verification within ten (10) business days after receipt of the plaintiff's completed application for no-fault benefits, the thirty (30) day payment or denial period was not tolled. The initial verification request comes before the additional verification request for an independent medical examination. Section 65.3.5(d) clearly states, an IME is a request for "additional information." The insurer's requests for independent medical examinations in connection with a healthcare provider's claim for first party no-fault benefits, made as an initial verification request, rather than an additional verification request did not extend the time in which to issue a denial of the claims. Consequently, the defendant is precluded from raising the defense of lack of medical necessity, and/or failure to attend a scheduled IME.

Accordingly, defendant's motion for summary judgment is denied, and the court finds that summary judgment is warranted in favor of plaintiff in the amount of $1,181.63 [the amount of the two claims], with statutory interests, costs and attorney's fees.

This constitutes the order of this Court.

Court Attorney to notify.


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