OPINION OF THE COURT
Background
This motion for summary judgment raises the issue of whether there must be a connection between an independent
Boulevard Multispec Medical, EC. (Boulevard) sues as assignee of Phillip Sansone (Sansone) to recover first-party no-fault benefits for a functional capacity evaluation performed on March 11, 2013 and chiropractic and physical therapy treatment provided to Sansone on March 1 and March 8, 2013.
Defendant Tri-State Consumer Insurance Company (TriState) timely denied all three claims on the grounds the treatment was not medically necessary based upon the IME report of J. Serge Parisién, M.D. conducted on February 12, 2013. Dr. Parisién found Sansone had a resolved sprain/strain of the cervical spine and a resolved sprain of the left shoulder. Dr. Parisién concluded Sansone did not need any further orthopedic treatment, physical or massage therapy and any further diagnostic testing.
Prior to the dates of the treatment in question, Tri-State had requested Sansone appear for an IME to be performed by Dr. Alain Delachapelle, a psychiatrist. Dr. Delachapelle states he was in his office on the dates the IMEs were supposed to be conducted, and Sansone never appeared for the IME.
Tri-State timely denied Boulevard’s claims for the aforementioned services on the grounds the services were not medically necessary and on the grounds Sansone had failed to appear for the psychiatric IME to be conducted by Dr. Delachapelle.
Boulevard submits an affirmation from Gordon Davis, D.O. in opposition to the motion in which Dr. Davis states he has reviewed the medical reports for the treatment and testing involved in this action, prior treatment provided by Boulevard to Sansone and the IME report of Dr. Parisién and concludes the treatment and testing were medically appropriate.
Discussion
A. Medical Necessity
An insurer establishes an entitlement to summary judgment on the grounds medical treatment and/or testing were not medically necessary by presenting proof in evidentiary form establishing a factual basis and medical rationale for concluding the treatment and testing was not medically necessary. (Total Equip., LLC v Mercury Cas. Co.,
If the insurer presents such evidence, the burden of proof shifts to the plaintiff to present proof in evidentiary form rebutting the proof of lack of medical necessity. (West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co.,
Even if the court finds Dr. Parisien’s IME report sufficient to meet defendant’s burden, the affirmation of Dr. Davis is sufficient to establish a factual basis and medical rationale for the testing and treatment. (Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co.,
The different opinions expressed by the medical experts regarding the medical necessity for the chiropractic treatment, physical therapy and medical testing are sufficient to raise questions of fact mandating denial of the motion for summary judgment on the grounds the treatment was not medically necessary. (Vinings Spinal Diagnostic, P.C. v GEICO Gen. Ins. Co.,
B. Failure to Appear for an Independent Medical Examination
One of the primary purposes of the No-Fault Law is to ensure prompt payment of medical claims for necessary medical treatment or testing provided to persons injured in motor vehicle accidents. (See Matter of Medical Socy. of State of N.Y. v Serio,
Despite this stated purpose, an insurer may deny a claim for medical services provided to a person injured in a motor vehicle accident without reaching the issue of the medical necessity of the treatment if the injured party fails to appear for a properly and timely scheduled IME. (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co.,
This simplistic rule does not take into account the purpose and function of an IME. The provision of 11 NYCRR 65-1.1 (d) (Section I, Conditions, Proof of Claim) requiring an injured party “shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require,” is the provision the courts found made appearance at an IME a condition precedent to coverage. (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co.; Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co.,
However, other provisions of the regulations treat appearance at an IME as part of the process of verification of the claim. 11 NYCRR 65-3.5 (d) provides if the additional verification demanded is a medical examination, the insurer must schedule the medical examination within 30 days of receipt of the claim. 11 NYCRR 65-3.8 (a) requires an insurer to pay or deny all no-fault claims within 30 days of receipt including all verification requested under 11 NYCRR 65-3.5. Where the verification requested was an IME, the verification is deemed to have been received by the insurer on the date the IME was performed. (11 NYCRR 65-3.8 [a].)
The purpose of an IME is to permit the insurer to verify the person’s injuries, to determine the injured party’s condition and to determine if the injured party needs any additional treatment or testing for those conditions and injuries. (Mangione v Jacobs,
In many if not most instances, the relationship between the IME and the treatment is apparent. For example, should the
In this case, the insurer requested Sansone appear for a chiropractic, orthopedic, psychiatric and neurological IME within a one-week period. Sansone appeared for the orthopedic IME conducted by Dr. Parisién. Sansone did not appear for the psychiatric examination to be conducted by Dr. Delachapelle.
If one of the fundamental purposes of the No-Fault Law is to provide for prompt payment of claims for persons injured in motor vehicle accidents, then that purpose is not served by cutting off all no-fault benefits as a result of the injured party’s failure to appear for an IME in a discipline or specialty unrelated to the treatment in issue.
Put in the context of this action, the IME that serves as the basis of the denial of the claim is the failure of the party to appear for an IME to be performed by a psychiatrist. There is no evidence in the record to establish Sansone sustained any psychiatric injuries or received any psychiatric treatment for the injuries caused by the motor vehicle accident that gives rise to this no-fault claim. The treatment in question is medical testing involving the patient’s physical fitness to return to work as a bus driver, chiropractic treatment and physical therapy. None of this treatment or testing appears to be in any way related to Sansone’s psychiatric condition.
In order for the failure to appear for an IME to provide a basis for the denial of the claim, there must be some relationship between the IME for which the injured party failed to appear and the treatment in issue.
For the foregoing reasons, defendant’s motion for summary judgment is denied.