Diagnostic Radiographic Imaging, P.C. v GEICO
Annotate this CaseDecided on May 8, 2013
Civil Court of the City of New York, Kings County
Diagnostic Radiographic Imaging, P.C. aao CRYSTAL DIAZ, Plaintiff,
against
GEICO, Defendant.
CV-133788/08
Attorneys for Plaintiff:
Michael P. Biancanello
500 Jericho Turnpike, Ste 2
Mineola, NY 11501
Attorneys for Defendant:
Teresa M. Spina
170 Froehlich Farm Blvd
Woodbury, NY 11797
Devin P. Cohen, J.
After trial for the above matter in which the court had sufficient opportunity to review exhibits and to assess the credibility of evidence offered at trial, the court finds as follows:
In this action to recover assigned first-party no-fault benefits, the parties stipulated to the plaintiff's prima facie case, including the timely, proper submission of bills for the services in question and that the bills remain unpaid and overdue. The parties also stipulated to the defendant's timely submission of properly formatted denials, and that the defendant had preserved a defense for trial of "IME no-show" (i.e. that the claim could not stand due to the non-appearance of the claimant at two no-fault independent medical exams). Based upon those stipulations, the plaintiff rested.
At this point, the burden of proof shifted to the defendant to affirmatively demonstrate that the plaintiff's assignor failed, without valid excuse, to appear at two duly scheduled IMEs. During the defendant's case-in-chief the parties stipulated a number of documents into evidence, including: scheduling letters for two exam dates sent to Crystal Diaz ("claimant"); and an internal business document of defendant's, known as a PIP Coverage Problem Worksheet ("worksheet"), as a business record, without stipulating to the truth of the opinions in it.
The parties stipulated certain facts, namely, that claimant was scheduled twice to appear for IMEs, and that she was not present or examined on either occasion. They stipulated that she was represented by counsel in a personal injury action at the relevant times, that she contacted the defendants herself prior to her second appointment to advise that she was three months pregnant and was having severe morning sickness, and that she requested to be scheduled for a third and final date [*2]for her IMEs. There is a note in the defendant's worksheet which indicates that the defendant's claims examiner believed the claimant had "no valid reason for missing [the] first IME" (Defendant's Exhibit C - worksheet). However, plaintiff did not stipulate that the claimant did not have a valid reason for missing the first appointment and the defendant apparently re-scheduled it without objection. Furthermore, the examiner's note is only an opinion, and is stated without elaboration. The parties also stipulated that no third and final date was scheduled, and that defendant's claims supervisor declined to offer such a further appointment.
"The appearance of the insured for IMEs ... is a condition precedent to the insurer's liability under the policy" (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006]). The mandatory personal injury protection endorsement of the insurance regulations provides that "[t]he eligible injured person shall submit to medical examinations by physicians selected by, or acceptable to, the Company, when, and as often as the Company may reasonably require" (11 NYCRR 65-1.1 [d] [Sec. I. Conditions, Proof of Claim [d]). The insurance regulations provide for IMEs as part of the additional verification process following receipt of the provider's statutory claim form (see 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]). Thus, if the claimant fails to appear for the first scheduled IME (which must be scheduled within 30 calendar days from the date of receipt of the prescribed verification forms [11 NYCRR 65-3.5 (d)]) the insurer must issue a follow up IME request within 10 days of the first non-appearance (see 11 NYCRR 65-3.5 [b], 65-3.6 [b]). Accordingly, an insurer asserting a defense based upon the claimant's failure to appear for post-claim IMEs must establish that both the initial and follow up requests were timely and properly mailed and that the claimant failed to appear on both scheduled dates (see Alev Medical Supply Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143 [A] [App Term, 2d, 11th & 13th Jud Dists 2013]; and see Stephen Fogel Psychological v Progressive Casualty Ins. Co., 35 AD3d 720 [2d Dept 2006]).
The fundamental goal of the no-fault regulatory scheme is "to promote prompt payment of legitimate claims" (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]), limit costs to consumers and alleviate unnecessary burdens on the courts (Pommells v Perez, 4 NY3d 566 [2005]). "To fulfill the intent of the no-fault statute and the insurance regulations, claimants, providers and carriers must each act in good faith to address each claim in an expeditious manner" (Five Boro Psychological and Licensed Master Social Work Services, PLLC v Geico General Ins. Co., 38 Misc 3d 354 [Civ Ct, Kings County 2012]). Thus, a duty of reasonableness and cooperation must be imposed on both parties in the verification process, including in scheduling and conducting of IMEs (see Canarsie Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 1228 [A] [Civ Ct, Kings County 2010] ["(a)ny questions concerning a communication should be addressed by further communication, not inaction"]). In accordance with this principle the regulations mandate that all IMEs "shall be held at a place and time reasonably convenient to the applicant...[and that] [t]he insurer shall inform the applicant at the time the examination is scheduled that the applicant will be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the request" (11 NYCRR 65-3.5 [e]).
Furthermore, where an insurer consents to reschedule an IME the claimant's failure to appear on the initial date is not considered a nonappearance for the purposes of a potential IME no-show defense (see Vitality Chiropractic, P.C. v Kemper, 14 Misc 3d 94, 97 [App Term, 2d Dept 2006] [*3][mutually agreed rescheduling of initial IME not equivalent of failure to supply requested verification]; see also Lender Medical Supply, Inc. v Hartford Ins. Co., 35 Misc 3d 1226 [A] [Civ Ct, Kings County 2012]). Moreover, evidence that the claimant made a good faith request to reschedule an IME appointment and that such request was denied, has been held sufficient to defeat an insurer's defense of non-appearance for scheduled IMEs (see A.B. Medical Services PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [App Term, 2d Dept 2005]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 22 [App Term, 2d Dept 2004] aff'd in pert part 35 AD3d 720 [2d Dept 2006] [where insurer raises defense of failure to appear for IME plaintiff may rebut the defense by offering a valid excuse for such nonappearance]).
In this case neither side disputes that claimant contacted the defendant on the date of the second scheduled IME and requested an adjournment due to her morning sickness. There is no indication that the defendant made any attempt to request documentation of the claimant's medical condition (i.e. as a condition of consenting to the further adjournment). There is no indication that defendant attempted to contact claimant's attorney following claimant's call, either to address the issue with counsel, or to request any documentation of claimant's condition. There is no indication that claimant requested a particularly long adjournment, one which might have given defendant concern about a deliberate attempt to delay the IME findings. In any event, any such concern could easily have been allayed by requesting a doctor's note or other documentation of claimant's illness.
It is well-established (and as a father of two, well-known to this court) that morning sickness can prove unpleasant, at best, and temporarily debilitating under some circumstances, to an expectant mother, particularly during the first three months of pregnancy. It is not unreasonable that one in that condition might seek to delay a detailed chiropractic and orthopaedic clinical exam while in the midst of such an episode. Of course, this court will never know what the actual condition of the claimant was on the date of her call, and unfortunately, having refused to re-schedule the appointments or to request medical documentation from the claimant, neither will defendant. It is clear to this court that the claimant took good-faith steps to communicate with the defendant on at least the second date. Under these circumstances, the court cannot find that the claimant unreasonably failed to appear for her second appointment date, and without further evidence, cannot determine even that she unreasonably failed to appear on the first occasion.
An insurer may require a claimant to appear for IMEs. However, an insurer may not unreasonably refuse to adjourn the exams where a good-faith request is made to re-schedule and the adjournment sought is not excessive. Based upon the preponderance of the evidence which the court found to be credible, the court finds that, under these circumstances, the defendant unreasonably refused to adjourn or re-schedule Ms. Diaz' IME and that the plaintiff offered a valid excuse for Ms. Diaz' failure to appear. The court finds further, that defendant failed to request any follow-up or verification of Ms. Diaz' claims of illness, and therefore waived any objection to her adjournment request. Accordingly, the defendant has failed to sustain its affirmative defense in this matter. Therefore, judgment is for the plaintiff in the amount of $901.41, together with statutory costs, disbursements, attorneys' fees and interest, such interest to be calculated from the date of filing of this action.
This constitutes the decision and judgment of the court. The clerk is directed to enter judgment, accordingly.
[*4]
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