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

December 8, 2008

FIVE BORO PSYCHOLOGICAL SERVICES, P.C., A/A/O JOSE LORA, PLAINTIFF,
v.
AUTOONE INSURANCE COMPANY, DEFENDANT.



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 ...


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