September 8, 2014
Hempstead Regional Chiropractic, PC v Allstate Ins. Co. (2014 NY Slip Op 24259)
https://www.beynensonlaw.com/case-law/hempstead-regional-chiropractic-pc-v-allstate-ins-co-2014-ny-slip-op-24259/
- Judge
- Hirsh, J.
- Decided
- September 8, 2014
- Citation
- 2014 NY Slip Op 24259 · 45 Misc 3d 746
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Issues
- EUO no-show Medical necessity
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at Hempstead Regional Chiropractic, PC v Allstate Ins. Co. (2014 NY Slip Op 24259)
| Hempstead Regional Chiropractic, PC v Allstate Ins. Co. |
| 2014 NY Slip Op 24259 [45 Misc 3d 746] |
| September 8, 2014 |
| Hirsh, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, November 26, 2014 |
[*1]
| Hempstead Regional Chiropractic, PC, as Assignee of Cecilio Pablo-Rodriguez, Plaintiff, v Allstate Insurance Company, Defendant. |
District Court of Nassau County, First District, September 8, 2014
APPEARANCES OF COUNSEL
Robert P. Macchia & Associates for defendant.
Israel, Israel & Purdy, LLP for plaintiff.
{**45 Misc 3d at 747} OPINION OF THE COURT
Defendant moves for summary judgment in this action to recover first-party no-fault benefits.
Background
This motion raises the issue of whether a no-fault carrier that has previously denied the eligible injured party (EIP) all further no-fault benefits based upon an independent medical examination (IME) can request the EIP appear for an examination under oath (EUO) when a medical provider submits claims for payment of no-fault benefits for medical treatment provided after the IME cutoff.
Cecilio Pablo-Rodriguez was injured in a motor vehicle accident that occurred on January 9, 2011. He received treatment for the injuries sustained in the motor vehicle accident from Hempstead Regional Chiropractic, P.C. and Orthomed Care, P.C.
He assigned his right to receive no-fault benefits for the treatment provided by Hempstead to Hempstead and for treatment provided by Orthomed to Orthomed which submitted the claims for treatment provided to Rodriguez to defendant Allstate Insurance Company for payment.
The claims involved in this action and motion involve chiropractic treatment provided to Rodriguez by Hempstead during{**45 Misc 3d at 748} the period March 12, 2012 through April 23, 2012 and physical therapy treatment provided to Rodriguez by Orthomed during the period March 26, 2012 through April 23, 2012.
The parties do not dispute the claims were timely filed and timely denied.
The denials for the claims involved in this action all denied the claims on the grounds Rodriguez failed to appear for an EUO scheduled for July 28, 2011, August 15, 2011 and September 19, 2011. The denials also stated the claims were being denied because the amounts billed were not in accordance with the no-fault fee schedule and on the grounds of any previously issued denial.
By letter dated July 15, 2011, Allstate’s attorney requested Rodriguez appear for an EUO on July 28, 2011.
By letter dated July 27, 2011, Rodriguez’s attorney advised the attorney for
Allstate Rodriguez would not be produced for an EUO on July 28, 2011 or at any other time because all no-fault benefits had previously been denied based upon an IME.[FN*] The letter further stated Rodriguez would not be produced because there was already pending litigation. The letter stated if there was information relevant to the claim that was needed other than an EUO, Rodriguez’s attorney would work with Allstate’s attorney in obtaining or providing the information.
Despite the letter from Rodriguez’s attorney advising Allstate’s attorney Rodriguez would not be produced for an EUO on July 28, 2011, Allstate’s attorney sent two additional letters, one dated July 28, 2011 requesting Rodriguez appear for an EUO on August 15, 2011 and one dated September 2, 2011 requesting Rodriguez appear for an EUO on September 19, 2011.
The parties admit Rodriguez did not appear for the EUO on any of the scheduled dates.
Allstate asserts it is entitled to summary judgment because it timely denied the claims on the grounds Rodriguez failed to appear for an EUO.
Hempstead and Orthomed assert since all no-fault benefits had been denied based upon the IME cutoff, the request for an{**45 Misc 3d at 749} EUO was abusive and improper. Since Allstate had already denied Rodriguez all further no-fault benefits based upon an IME, Allstate did not have an objective basis to request Rodriguez appear for an EUO. Hempstead and Orthomed further assert since Rodriguez’s attorney timely objected to Rodriguez being produced for an EUO Allstate must demonstrate it had an objective basis for seeking to conduct an EUO.
Discussion
A person making application for no-fault benefits “may reasonably be required [to] submit to examinations under oath” upon request of the no-fault insurance carrier. (11 NYCRR 65-1.1 [d] [Section I, Conditions, Proof of Claim].)
Appearance at an EUO is a condition precedent to coverage. (IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005 [2d Dept 2014]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006]; Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co., 44 Misc 3d 132[A], 2014 NY Slip Op 51142[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014].) A carrier may deny all claims for no-fault benefits after a party fails to appear for an EUO if the carrier issues a timely denial asserting the failure to appear for the EUO as the basis of the denial. (Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009]; cf. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011].)
Allstate timely denied the claims on the grounds Rodriguez failed to appear for an EUO.
[1] However, Rodriguez objected to the EUO when it was demanded. (See Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011].) When the party who is requested to appear for an EUO timely objects to appearing for the EUO, the carrier must establish it had an objective standard for requesting the EUO. (See Hillside Open MRI, P.C. v Allstate Ins. Co., 44 Misc 3d 132[A], 2014 NY Slip Op 51143[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; 11 NYCRR 65-3.5 [e].) Allstate offers no explanation or objective basis for its request Rodriguez appear for an EUO after Rodriguez’s attorney objected to the EUO.
A carrier can assert multiple grounds for denying a no-fault claim. A carrier may assert both precludable and non-precludable defenses to a no-fault claim.
[2] {**45 Misc 3d at 750}Plaintiff’s assertion that a carrier cannot request an EIP appear for an EUO after the EIP’s medical benefits have been denied based upon an IME is without merit. The relevant provisions of the no-fault regulations (11 NYCRR 65-1.1) do not limit or condition in any way a carrier’s right to request an EUO. The only conditions on an EUO are it must be conducted at a time and place reasonably convenient to the applicant and the applicant must be advised that he or she will be reimbursed for any loss of earnings or travel expenses incurred in complying with the request. (11 NYCRR 65-3.5 [e].) The no-fault law and regulations do not prevent a carrier that has denied no-fault benefits based upon an IME from requesting an EUO of the EIP if the EIP continues to receive medical treatment after the IME cutoff and the provider continues to submit the no-fault claims for payment.
An IME cutoff is not a complete defense to the action. The testimony of the physician, chiropractor or other medical provider who performed the IME may be sufficient to rebut the presumption of medical necessity that attaches to a timely filed no-fault claim. (Amato v State Farm Ins. Co., 40 Misc 3d 129[A], 2013 NY Slip Op 51113[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013].) The testimony of the medical professional that performed the IME could be rebutted by testimony adduced on cross-examination and/or by testimony from a rebuttal witness that meaningfully refers to and rebuts the findings and conclusions of the medical professional who performed the IME. (See Promed Durable Equip., Inc. v GEICO Ins., 41 Misc 3d 19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Baybenson Chiropractic, LLC v Clarendon Natl. Ins., 39 Misc 3d 141[A], 2013 NY Slip Op 50756[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013].)
The testimony obtained from the EIP at a post IME cutoff EUO could be relevant to the defense of the claim submitted after the IME cutoff. The carrier could choose to pay the claims submitted after the IME cutoff based upon the testimony of the EIP at an EUO.
If a party wants to contest or object to a request for an EUO, it must do so when the EUO request is made. (Hillside Open MRI, P.C. v Allstate Ins. Co.; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U].) Since Rodriguez contested Allstate’s request for an EUO when it was made, the issue of whether Allstate had an objective basis for requesting an EUO has been preserved. (See Victory Med.{**45 Misc 3d at 751} Diagnostics, P.C. v Nationwide Prop. & Cas. Ins. Co., 36 Misc 3d 568 [Nassau Dist Ct 2012].)
Since Rodriguez objected to the request for the EUO and Allstate has not established it had an objective basis for requesting Rodriguez appear for an EUO, defendant’s motion for summary judgment is denied.
Footnotes
Footnote *:Neither party provided the court with copies of any claims relating to treatment provided by either Hempstead or Orthomed before the claims at issue in this action, copies of the denials issued in connection with those claims or a copy of the IME report that may have served as the basis of the denial of prior claims.
Legal questions (2)
Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer did not show its requests met the regulatory timing, follow-up or justification requirements
Denied the insurer summary judgment because the assignor's attorney timely objected to the EUO and the insurer offered no objective basis for requesting it, though an IME cutoff did not itself bar the request.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 102 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: Timely denial required as part of the no-show defense, and the insurer showed it (rules on the question, but another ground decided the case)
Applied the rule that an insurer may deny all claims after an EUO no-show only by a timely denial on that ground, and found the claims timely denied.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
Cited in this decision
A label shows how this decision treated the case it cites.
- IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C. (2014 NY Slip Op 02902)The providers' unexcused EUO nonappearances materially breached a condition precedent to indemnity and warranted summary judgment for the insurer.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604)An insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
- Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co. (2014 NY Slip Op 51142(U))An insurer's EUO scheduling notice need not specify why the EUO is required.
- Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
- Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) Contrasted (cf., but see)An assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
- Crescent Radiology, PLLC v American Tr. Ins. Co. (2011 NY Slip Op 50622(U)) FollowedThe insurer established timely mailing of EUO notices and denials and the assignor's failure to appear at two scheduled EUOs. The provider obtained summary judgment after the District Court found insufficient objective justification for the EUO request.
- Hillside OpenMRI, P.C. v Allstate Ins. Co. (2014 NY Slip Op 51143(U)) FollowedAn insurer's delay letters requesting no verification do not toll the 30-day period to pay or deny a no-fault claim.
- Amato v State Farm Ins. Co. (2013 NY Slip Op 51113(U)) FollowedThe insurer's IME testimony established lack of medical necessity, and the provider offered no evidence that later treatment was necessary.
- Promed Durable Equip., Inc. v GEICO Ins. (2013 NY Slip Op 23283)The provider rebutted one medical-necessity peer review but failed to address another review's finding that supplies were superfluous.
- Baybenson Chiropractic, LLC v Clarendon Natl. Ins. (2013 NY Slip Op 50756(U))The provider's chiropractor failed to rebut the insurer's peer review and IME findings that the chiropractic services were unnecessary.
- Victory Med. Diagnostics, P.C. v Nationwide Prop. & Cas. Ins. Co. (2012 NY Slip Op 22149) FollowedA provider's reasoned objection to a verification request preserves its propriety for determination by the trier of fact.
Similar decisions
- Prime Psychological Servs., P.C. v Nationwide Prop. & Cas. Ins. Co. (2009 NY Slip Op 29100)An insurer's preclaim EUO requests are not subject to the verification rule requiring notice to the assignor's attorney.
- Lender Med. Supply, Inc. v Hartford Ins. Co. (2012 NY Slip Op 50903(U))An insurer's consent to adjourn an EUO prevents it from counting nonappearance on that date as a no-show.
- Allstate Social Work & Psychological Servs., PLLC v Utica Mut. Ins. Co. (2008 NY Slip Op 28494)An IME by a licensed psychologist can satisfy the mandatory no-fault endorsement's requirement of examination by a physician.
- Flatbush Acupuncture P.C. v Repwest Ins. Co. (2025 NY Slip Op 25032)An insurer in the Second Department need not disclose its objective justification for an EUO to obtain summary judgment for nonappearance.
- Bayside Rehab & Physical Therapy, P.C. v GEICO Ins. Co. (2009 NY Slip Op 29145)An insurer need not notify a prospective provider of an IME cutoff determined before submission of the provider's claim.