Another Court Rejects Argument that IME Must Be Performed by Physician

NO-FAULT – PSYCHOLOGICAL IME – IME BY NON-PHYSICIAN
Five Boro Psychological Servs., P.C. v. Autoone Ins. Co.
(NYC Civil Ct., Kings Co., decided 12/8/2008)

I mentioned this decision in my December 16th post regarding the Allstate Social Work a/a/o Jocelyn v. Utica Mut. Ins. Co. case.   Same provider attorney.  Same argument.  Same result.

The IME condition found in the prescribed PIP endorsement provides that "[t]he insured shall submit to physical examinations by physicians we select when and as often as we may reasonably require."  Plaintiff provider argued that since New York Education Law defines a physician as only "a person licensed or otherwise authorized...[to] practice medicine", plaintiff's assignor did not violate the policy's IME condition because AutoOne scheduled the IME before a psychologist, rather than a physician.

In rejecting this argument, New York City Civil Court Judge Alice Fisher Rubin held:

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."

In so ruling, the court relied on the General Provisions of the Workers' Compensation Law, Section 300.2, which addresses independent medical examination, examiners, and entities, and provides:

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[.]

Ultimately, however, Judge Rubin granted summary judgment to plaintiff because AutoOne had not timely requested or scheduled the assignor's IME.