Court Rejects Argument that IME Must Be Performed by Physician

NO-FAULT – PSYCHOLOGICAL IME – IME BY NON-PHYSICIAN
Allstate Social Work a/a/o Daniel & Sonya Jocelyn v. Utica Mut. Ins. Co.
(NYC Civil Ct., Kings Co., decided 11/5/2008)

The mandatory personal injury protection endorsement provides, in pertinent part, that an "eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require." Does this mean that only physicians or medical doctors may perform IMEs? No, says this court.

Using an IME intermediary company, Utica Mutual twice scheduled the plaintiff's assignors for psychological IMEs with Moses Weksler, Ph.D. Plaintiff's assignors no-showed for those IMEs, and Utica denied no-fault benefits on that basis.

Plaintiff provider brought this suit for payment of its denied bills. Among other grounds, plaintiff argued that Utica Mutual had failed to establish that the assignors violated the policy conditions by failing to appear for the psychological IMEs because, under the express unambiguous terms of the insurance contract, the assignors were only obligated to submit to a medical examination by a physician. Plaintiff contended that licensed psychologists like Dr. Weksler are not physicians as the term is defined by the Educational Law, therefore the assignors' failure to appear for the scheduled IMEs was not a violation of the insurance policy and Utica Mutual's denial of plaintiff's claims was improper.

In rejecting that argument and dismissing the complaint, Kings County New York City Civil Court Judge George Silver relied on a 2004 New York State Insurance Department Office of General Counsel opinion letter and ruled:

"Pursuant to Insurance Law § 5103(d) the Legislature empowered the Superintendent of Insurance to promulgate regulations establishing minimum benefit standards for policies of insurance providing coverage for the payment of first-party benefits and to set standards for the payment of first-party benefits by self-insurers. Pursuant to this authority, the Superintendent promulgated Insurance Department Regulation § 65-1.1, which sets forth the basic form of the Mandatory Personal Injury Protection Endorsement' which must be included in every owner's policy of liability insurance issued on a motor vehicle in this state" (Alleviation Supplies, Inc. v. Enter. Rent a Car, 2006 NY Slip Op 26177 [Civ Ct, Kings County]). The mandatory personal injury protection endorsement (hereinafter endorsement) provides, in pertinent part, that the "eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require" (11 NYCRR 65-1.1). The appearance of the insured for IMEs at any time is a condition precedent to the insurer's liability on the policy (Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006]). The term physician is not defined in the endorsement but the Education Law provides that "only a person licensed or otherwise authorized under this article shall practice medicine or use the title physician'" (Education Law § 6522). Defendant concedes in its reply that a licensed psychologist such as Dr. Weksler is not a physician. The question then is may any health provider perform an IME of an eligible injured person or, as the endorsement appears to require, only a physician?

Though there appears to be no case law addressing the point, in an opinion letter dated March 12, 2004, the State Insurance Department (hereinafter Insurance Department) answered the following question: "When a No-Fault eligible person is being treated by a chiropractor and the person's insurer has requested a medical examination ("IME") of that person in order to evaluate the medical necessity of the chiropractic services performed, must the medical examination be performed by a chiropractor, or may it be performed by a medical doctor?" (2004 Ops Ins Dept No. 04-03-10). In holding that an "insurer's medical examination of an eligible injured person to evaluate the medical necessity of health services provided by a chiropractor may be performed by a medical doctor, and need not be performed by a licensed chiropractor" (id.) the Insurance Department stated "there is no requirement in the regulation that a claim denial must be based upon a medical examination conducted by a health provider of the same specialty area as the treating health provider" (id.). Implicit in the Insurance Department's interpretation, which is entitled to great deference unless it is "irrational or unreasonable" (Matter of John Paterno, Inc. v Curiale, 88 NY2d 328, 333, 668 NE2d 395, 645 NYS2d 424 [1996], quoting Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 448, 488 NE2d 466, 497 NYS2d 645 [1985]; cf. Matter of Gaines v New York State Div. of Hous. & Community Renewal, 90 NY2d 545, 548 549, 686 NE2d 1343, 664 NYS2d 249 [1997]), is that an independent medical examination of an eligible injured person may be performed either by a physician, as the term is defined in the Education Law and used in the endorsement, or by any other licensed health provider selected by or acceptable to the insurer. It is for the court or an arbitrator to "consider the qualifications of the health provider performing the IME in determining the validity of a claim denial" (2004 Ops Ins Dept No. 04-03-10). A contrary conclusion would frustrate the core objective of the no-fault scheme by limiting the universe of health providers who could perform IMEs, thereby delaying the processing of no-fault claims (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006]).

Given his decision on the assignors' IME no-shows, Judge Silver did not reach plaintiff's arguments regarding Utica Mutual's allegedly defective and ineffective EUO requests.

Over at/in No-Fault Paradise, Dave Gottlieb reported another decision in which New York City Civil Court Judge Alice Fisher Rubin, relying on section 300.2(5) of the General Provisions of the New York Workers' Compensation Law, also found that a non-physician (psychologist) could perform a no-fault IME. Five Boro Psychological Services PC v. Autoone Ins. Co., 29347/07 (NYC Civil Ct., Kings Co., decided 10/31/2008).