Boulevard Multispec Medical, P.C. v. Tri-State Consumer Insurance, 43 Misc. 3d 802

Boulevard, as Sansone's assignee, seeks first-party no-fault benefits for a functional capacity evaluation (March 11, 2013) and chiropractic/physical therapy (March 1 and March 8, 2013).
Tri-State timely denied the claims, asserting medical necessity was lacking based on an IME by Dr. Parisién (February 12, 2013) finding resolved cervical spine and left shoulder sprains.
Sansone was scheduled for an IME with Dr. Delachapelle (psychiatry); Sansone appeared for the orthopedic IME but did not appear for the psychiatric IME.
Tri-State argued the IME results, combined with Sansone’s non-appearance for the psychiatric IME, supported denial of all claimed services.
Boulevard submitted an opposition affirmation by Dr. Gordon Davis contending the treatment and testing were medically appropriate.
The court addressed whether failure to attend an IME can support denial where the IME is in a discipline unrelated to the treatment at issue and whether the evidence supports medical necessity.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether lack of medical necessity can support summary judgment.	Boulevard contends the conflicting medical opinions raise questions of fact on necessity.	Tri-State asserts lack of necessity based on the IME report.	Disputed medical necessity facts precluded summary judgment.
Whether failure to appear for an IME can support denial where the IME relates to a different discipline than the treatment at issue.	Sansone’s non-appearance for a psychiatric IME should not bar benefits for physical testing/treatment.	A failure to appear for an IME can justify denial if timely and properly denied.	denial based on psychiatric IME absence could not justify denial of unrelated treatment; motion denied.

Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 (2d Dept 2006) (appearance at IME can be grounds for denial)
Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 42 Misc 3d 131[A] (App Term, 2d Dept, 9th & 10th Jud Dists 2013) (IMEs as part of verification; related to claim processing)
Mangione v Jacobs, 37 Misc 3d 711 (Sup Ct, Queens County 2012) (purpose of IME to verify injuries and need for treatment)
Rowe v Wahnow, 26 Misc 3d 8 (App Term, 1st Dept 2009) (IME used to determine extent of disability and benefits)
Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 137[A] (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011) (affirms reliance on expert affirmation to support testing)
Vincent Med. Servs., P.C. v GEICO Ins. Co., 29 Misc 3d 141 [A] (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010) (affirms use of medical opinions to establish necessity)
Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 (2d Dept 2009) (procedural requirement for denial based on IME appearance)
Total Equip., LLC v Mercury Cas. Co., 42 Misc 3d 131[A] (App Term, 2d Dept, 9th & 10th Jud Dists 2013) (burden shifts on medical necessity in no-fault claims)
Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co., 41 Misc 3d 140[A] (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013) (summary judgment on lack of medical necessity)