UPDATE: Judge Silver’s decision made its way to the Slip Ops. You can read the full decision here: (Allstate Social Work v Utica Mut. Ins. Co., 2008 NY Slip Op 28494).
UPDATE x2: Judge Fisher Rubin’s decision made its way to the Slip Ops as well. You can read the full decision here: (Five Boro Psychological Servs., P.C. v Autoone Ins. Co., 2008 NY Slip Op 28510).
In the past two weeks the Law Journal selected two Decisions of Interest, where two Brooklyn Civil Court judges found themselves forced to address an unusual argument. In Five Boro Psychological Services PC v. Autoone Ins. Co., 29347/07 and Allstate Social Work and Psychological Svcs PLLC v. Utica Mut. Ins Co., 70353/04 both Courts had to answer this question: Whether a physician and only a physician can conduct an IME?
In Allstate Social Work, Judge Silver explains the argument:
“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)2. 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?
In the next paragraph, he answers the question:
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 speciality 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]).
Judge Fisher Rubin addressed the same issue in Five Boro Psych. She came to the same conclusion, but took a different route:
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.”The General Provisions of the Worker’s Compensation Law, Section 300.2, which addresses independent medical examination, examiners, and entities, sets forth the following:
Section 300.2(5). “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 . . . .”
The fee schedules are determined by the Worker’s Compensation Law, and the services rendered by a provider are determined under the New York No-fault fee schedule. The Workers’ Compensation fee schedules were adopted by the Superintendent of Insurance for use by those making and processing claims for no-fault benefits.
If there is an issue as to whether or not the fees charged by the provider, which in this case is a psychologist, a hearing would be necessary to determine how much should have been billed. The court would look to the Worker’s Compensation Fee Schedule, and the fees applicable to a psychologist, not a physician. Therefore, this court finds that the EIP, Jose Lora, was required to appear for the scheduled IME.
I’m sure there is an appeal in the works. Look for something from the Appellate Term in the not so near future.