January 10, 2011
Allstate Social Work & Psychological Servs., PLLC v Utica Mut. Ins. Co. (2011 NY Slip Op 21010)
https://www.beynensonlaw.com/case-law/allstate-social-work-psychological-servs-pllc-v-utica-mut-ins-co-2011-ny-slip-op-21010/
- Decided
- January 10, 2011
- Citation
- 2011 NY Slip Op 21010 · 30 Misc 3d 90
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Earlier history
- Appeal from Allstate Social Work & Psychological Servs., PLLC v Utica Mut. Ins. Co. (2008 NY Slip Op 28494) (Affirmed)
- Issues
- IME no-show
- Legal questions
- No-show defense: insurer's proof · Proof of mailing (see the maps)
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 Allstate Social Work & Psychological Servs., PLLC v Utica Mut. Ins. Co. (2011 NY Slip Op 21010)
| Allstate Social Work & Psychological Servs., PLLC v Utica Mut. Ins. Co. |
| 2011 NY Slip Op 21010 [30 Misc 3d 90] |
| Accepted for Miscellaneous Reports Publication |
| AT2 |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, April 13, 2011 |
[*1]
| Allstate Social Work and Psychological Services, PLLC, as Assignee of Daniel Jocelyn and Another, Appellant, v Utica Mutual Insurance Company, Respondent. |
Supreme Court, Appellate Term, Second Department, January 10, 2011
Allstate Social Work & Psychological Servs., PLLC, 22 Misc 3d 723, affirmed.
APPEARANCES OF COUNSEL
Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for respondent. Gary Tsirelman, P.C., Brooklyn, for appellant.
{**30 Misc 3d at 91} OPINION OF THE COURT
Memorandum.
Ordered that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits for psychological services rendered to its assignors, defendant moved for summary judgment dismissing the complaint based upon, among other things, the failure of plaintiff’s assignors to attend independent medical examinations (IMEs) by a psychologist, which were scheduled by Hudson Valley Medical Consultants (HVMC). The Civil Court granted defendant’s motion, and this appeal by plaintiff ensued.
It is uncontested that defendant established that the IME requests were timely mailed in accordance with HVMC’s standard office practices and procedures and that the assignors failed to appear for the IMEs (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, plaintiff contends that defendant’s insurance policy, which incorporates the language of the mandatory personal injury protection endorsement (Insurance Department Regulations [11 NYCRR] § 65-1.1), requires that IMEs of eligible injured persons (EIPs) be conducted only by physicians, to the exclusion of other health care providers, even when the health services for which first-party no-fault benefits are sought were provided by nonphysicians. In rejecting [*2]plaintiff’s contention, the Civil Court relied on an opinion of the State Insurance Department, dated March 12, 2004 (see 2004 Ops Gen Counsel NY Ins Dept No. 04-03-10). We find that the Insurance Department Regulations Implementing the Comprehensive Motor Vehicle Insurance Reparations Act (11 NYCRR part 65), read as a whole, in accordance with the rules of construction, and the State Insurance Department’s opinion, to which we accord great{**30 Misc 3d at 92} deference, lead to the conclusion that the requirement that an EIP submit to medical examinations, as set forth in the mandatory personal injury protection endorsement (Insurance Department Regulations [11 NYCRR] § 65-1.1), should not be limited strictly to examinations by physicians. Thus, in the instant matter, we find that the psychologist retained by defendant could properly have conducted the IMEs of plaintiff’s assignors, who had received psychological treatment (see generally Stephen Fogel Psychological, P.C., 35 AD3d at 722; Meridian Acupuncture Care v Geico Ins. Co., 31 AD3d 509 [2006]). A contrary conclusion would frustrate the core objective of the no-fault scheme by limiting the universe of health care providers who can perform IMEs to physicians, thereby delaying the processing of no-fault claims (see also Stephen Fogel Psychological, P.C., 35 AD3d at 722). Therefore, we find that defendant properly denied plaintiff’s claims based on its assignors’ failure to satisfy a condition precedent to coverage.
Accordingly, the Civil Court’s order granting defendant’s motion for summary judgment dismissing the complaint is affirmed.
Golia, J.P., Pesce and Steinhardt, JJ., concur.
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 proved mailed, compliant requests and the nonappearance; claimant's answers rejected
Upheld the IME no-show defense, rejecting the objection that IMEs must be conducted by physicians because a psychologist could properly examine assignors who received psychological treatment.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (this one included) are in the same category.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)
Treated as uncontested that the scheduler's office-practice affidavit established timely mailing of the IME requests.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Allstate Social Work & Psychological Servs., PLLC v Utica Mut. Ins. Co. (2008 NY Slip Op 28494) AffirmedAn IME by a licensed psychologist can satisfy the mandatory no-fault endorsement's requirement of examination by a physician.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
- 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.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- Meridian Acupuncture Care v Geico Ins. Co. (2006 NY Slip Op 05599)A physician conducting an IME of an acupuncture patient need not hold an acupuncture license or certification.
Cited by
- Fine Healing Acupuncture, P.C., v Country-Wide Ins. Co. (2011 NY Slip Op 21361)An insurer's medical-necessity denial need not rest on an examination by a practitioner in the treating provider's specialty.
Similar decisions
- All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co. (2011 NY Slip Op 50949(U))The insurer's affidavits established timely mailing of IME requests and denials and the assignor's failure to attend the IMEs. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's complaint.
- Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51256(U))The insurer proved timely mailing of the IME notices and denial and the assignor's nonappearance, warranting dismissal of the provider's claim.
- All County, LLC v Unitrin Advantage Ins. Co. (2011 NY Slip Op 50621(U))An insurer's request for an IME is not subject to the objective justification requirement applicable to EUO requests.
- East 75th St. Diagnostic Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50564(U))The insurer proved mailing of the IME notices, timely mailing of the denials, and the assignor's failure to attend the scheduled IMEs. An employee of the scheduling company established mailing through its standard office practices and procedures.
- Quality Psychological Servs., P.C. v Auto One Ins. Co. (2011 NY Slip Op 52281(U))The insurer's IME nonappearance defense was precluded because its affidavit failed to establish timely mailing of the denial.