The Appellate Division, 2nd Dept, has ended the Fogel/Inwood split between the Appellate Terms; holding that an IME no show violates a condition precedent in the contract and that an insurer may retroactively deny a claim to the date of loss for failure to appear for an IME, whether pre or post claim. The relevant part of the decision in Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604, App Div 2nd) reads:

“We disagree, however, with the Appellate Term that there is a distinction between the contractual remedies depending on whether the failure to appear for IMEs occurs before submission of the claim form or after its submission. There is no basis for such a distinction, and we decline to impose one. The appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy (see 11 NYCRR 65-1.1). This conclusion accords with the language of the mandatory endorsement and the interpretation given it by the State Insurance Department, which promulgated the regulations. The State Insurance Department’s interpretation is entitled to deference unless “irrational or unreasonable”. This conclusion furthers, as well, the policies underlying no-fault insurance, including, inter alia, the expeditious processing of claims.

Consequently, an insurer may deny a claim retroactively to the date of loss for a claimant’s failure to attend IMEs “when, and as often as, the [insurer] may reasonably require”.Thus, Fogel’s cross motion for summary judgment was properly denied.” (I’ve taken out most of the cites because they took up too much space. See the full decision here)

For those that don’t know the history, The Inwood decision (Inwood Hill Med., P.C. v General Assur. Co., 2005 NYSlipOp 25437, App Term 1st.) is substantially the same as the one here, while the Fogel decision (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 2004 NYSlipOp 24527, App Term 2nd.) held that failure to show for a pre-claim IME merely rebutted the presumption of necessity that attaches to Plaintiff’s prima facie case.

Unfortunately, this decision seems to render an appeal I argued before the Appellate Term moot (I didn’t write the appeal, my colleague Steven Palumbo did as his writing skills far exceed my own).

While the holding here is definitely a blow to Plaintiffs it does not make Defendant’s burden in motions or at trial any easier. This defense requires more witnesses/affidavits than on average, and at trial, from my experience, it has been a difficult burden to meet.

Last week a new Carothers case was published in the New York Law Journal. The decision is of interest to me not because it is a Carothers case, but because of what the attorney for Carothers decided to put into evidence. In Carothers v. Travelers (Index No.: 105406/05, Kings), Plaintiff’s attorney put the following items into evidence:

In this action Plaintiff’s evidence included the claim form (NF-3) (Exhibits 2, 6 & 10), the signed Assignment of Benefits form (NF-AOB) (Exhibits 4, 8 &12), proof of mailing (Exhibit 14), together with the a copy of the treating doctor’s referral (Exhibits 3, 7 & 11), and the MRI narrative (Exhibits 5, 9 & 13).

Plaintiff further strengthened its prima facie case by having Defendant’s denial form (NF-10) (Exhibit 25) admitted into evidence for the limited purpose of showing that the claim was received timely by the Defendant and that the denial was timely. (See A.B. Med. Serv., P.L.L.C. v. New York Central Mut. Fire Ins. Co., 3 Misc. 3d 136(A); see also Kings Medical Supply, Inc. v. Country-Wide Ins. Co., 5 Misc. 3d 767).

After Plaintiff rested Defendant attempted to argue lack of necessity using the Peer Review and Denial that Plaintiff had put into evidence. The Court found the argument unpersuasive. Defendant called no witnesses of their own and put nothing into evidence. (Defendant also argued that Plaintiff failed to establish prima facie, but it’s really not relevant to this post)

Now, back to my initial point of intrigue: Evidence.

After putting the NF-3, the AOB, and Proof of Mailing, its pretty clear that Plantiff had established prima facie case. Most if not all Courts would agree that nothing else is necessary. I can even understand putting Defendant’s denial into evidence, though I’m not sure I would do the same unless I needed it to establish Prima Facie.

Putting the Peer review in, on the other hand, doesn’t make much sense to me. Why put that into evidence if the Defendant could potentially use it, if for some reason the Court held that once Plaintiff put the denial into evidence that Defendant could use it to establish their prima facie case (I know that neither caselaw nor evidence support this, but I’ve seen it happen). If the Court did just that and Defendant then used the peer review, which is already in evidence to argue that necessity has been rebutted as they did here, a court could conceivably rule that they are correct. Why give that option to the court? Regardless of how strong you feel your argument is that the Court can’t do that, why put it in the hands of the Court? If it’s not in evidence the court can’t consider it. Moreover, If the denial isn’t in evidence, there is no defense available.

Having the ability to put something into evidence doesn’t always mean that you should. The same goes for witnesses: Just because you can ask a question doesn’t mean that you should. Anyone who has done a few trials knows the perils of asking one question to many or accidentally opening the door because they were a little overzealous.

This might not be the case here. I don’t represent Carothers or know anyone who does and they surely know more than I do about this case, the Judge who heard it, and the previous issues in other trials.

I was just curious.

Lately attorney fees have been at issue fairly often. Especially in those cases where bills were sent out on separate days. Plaintiff’s generally argue that they are entitled to attorney fees for each NF-3 and Defendant’s generally argue that attorney fees should attach to the lawsuit as a whole.

In cases where there are 10 causes of action for $50.00 dollars each, Plaintiff would expect 10×80=$800 ($80 being the statutory minimum according to plaintiff’s; $60 according to defendants). Defendant on the other hand would want ($50×10)x.20=$100.

Up until today there were two recent decisions regarding this issue. One from Judge Raffaele (A.M. Medical Services PC v. New York Central Mutual Fire Ins. Co.) in Queens and one from Judge Sweeney (Marigliano v NY Cent. Mut. Fire Ins. Co., 2006 NY Slip Op 26395) when he was in Richmond.

Another Judge from Queens has chimed in on this matter in:

Alpha Chiropractic P.C. v State Farm Mut. Auto Ins.
2006 NY Slip Op 26498
December 13, 2006
link

I’m not going to go into the specifics and reasoning of the decision until I have had a better opportunity to review it. Here is the important part.

Judge Siegel writes:

Therefore, this court, following Smithtown and its progeny, finds that the statutory attorney’s fees shall be awarded as per each NF-3 herein, rather than upon the total principle awarded by the court.

As you can see Judge Siegel disagreed with Judge Sweeney’s interpretation of the No-Fault Regulations (§ 65-4.6) and the Insurance Department Letter proffered by Defendant. It appears that, in Queens at least, the matter has been settled. That’s not to say that the issue won’t continue to come up until the issue is resolved at the appellate level.

Moreover the court held that interest accrues per each claim.

I will write more about this decision and the previous decisions later.

If you have dealt with no-fault for any period of time you know that the same items are in dispute over and over and over. I’m going to list the items that I’ve found to be at issue in the trials I’ve done. When I have more time I will add descriptions and uses for those items as well as cites to medical journals and othe texts have to say about them. Please keep in mind this list is not exhaustive and my understanding of all things medical is tentative at best.

Supplies

Thermophore: A device for applying heat to a body part

Knee Support/Knee Orthosis

Tens Unit: A device that sends electrical impulses to certain parts of the body to block pain signals.

In palliative care and pain medicine, TENS units are sometimes used in an attempt to alleviate neuropathic pain (pain due to nerve damage). Although results are modest, some patients benefit from this approach. A suitable cream should be used to increase conductivity from the electrode to the skin. The position of the electrodes on the skin determine which muscle is stimulated. (Wikipedia)

Hot/Cold Pack:

Cervical Collar: A cervical collar is a plastic, foam, or plastazole neck brace that can be rigid or soft and is used to secure the cervical vertebrae in the normal position. The term normal anatomical position, or neutral position is used to describe the position of the head, neck and spine in the manner in which they appear with a human body lying supine with palms facing upward. With the head, neck and spine aligned in such a manner, the potential for injuries to these organs is decreased.

Cervical collars are used on an emergency or long term basis to prevent cervical flexion, extension, or rotation. They are often used for herniated discs, pinched nerves, fractures, muscle strains and sprains (such as whiplash), or after an invasive procedure or injury. (Wikipedia)

Back Brace/LSO:

Whirlpool:

Bedboard:

Eggcrate mattress

Pillow

Heating Lamp

Massager

Heat massager

Tests

EMG/NCV: A nerve conduction study (NCS) is a test commonly used to evaluate the function, especially the ability of electrical conduction, of the motor and sensory nerves of the human body. Nerve conduction velocity (NCV) is a common measurement made during this test. The term NCV often is used to mean the actual test, but this is improper use of the term since velocity is only one measurement out of the entire test.

Nerve conduction studies are used mainly for evaluation of paresthesias (numbness, tingling, burning) and/or weakness of the arms and legs. The type of study is determined by the problem. Some of the common disorders which can be diagnosed by nerve conduction studies include:

* Peripheral neuropathy
* Carpal tunnel syndrome
* Ulnar neuropathy
* Guillain-Barré syndrome

The nerve conduction study consists of the following components:

* Motor NCS
* Sensory NCS
* F-wave study
* H-reflex study
(Wikipedia)

ROM(Range of Motion):

CROM (Computerized Range of Motion):

X-Ray:

MRI:

Videonystagmography test (VNG):

Medical Services

Acupuncture

Chiropractic Care:

How does it work?

Chiropractors use their hands to adjust the joints of your spine and extremities where signs of restriction in movement are found, improving mobility and relieving pain. Your body’s own healing processes (which we normally recognise in its ability to heal bruises, cuts and broken bones) will then be able to get on with the task of improving your health. This treatment is known as ‘adjustment’ or ‘manipulation’.

Poor, inadequate or incorrect function in the spine can cause irritation of the nerves that control our posture and movement. This spinal nerve stress (which may be caused by factors such as accident, poor diet, lack of exercise, poor posture and anxiety) can lead to the symptoms of discomfort, pain and even disease which are a warning that your body is not functioning properly.

By manipulating joints, chiropractors stimulate the joint movement receptors – your body’s position sensors which provide feedback to the brain on where the joint is in space. This stimulation can affect the way your nervous system works. Depending on where the nerve irritation has occurred in your spine, your symptoms may include the following:

• headache or migraine
• neck pain
• back pain
• chest or abdominal pain
• shoulder, arm, wrist and hand problems
• leg, knee, ankle and foot problems

This is because the irritation of the nerve in one area can sometimes lead to pain (known as ‘referred’ pain) in other parts of the body. Painful symptoms are a warning sign which should not be ignored; your chiropractor is trained to diagnose the cause, and if indicated treat using manipulation. Chiropractors do not prescribe drugs or use surgical procedures. (From Internal Health Library)

E-Stim

Massage

I made this list of issues that come up at trial consistently. The headings and sections come from Richardson on Evidence.

ARTICLE III

PRESUMPTIONS AND BURDEN OF PROOF

1. § 3-128 Mailing and Delivery
2. § 3-140 The “Missing Witness”

ARTICLE IV

RELEVANCY AND CIRCUMSTANTIAL EVIDENCE

3. § 4-101 Relevancy – The Primary Standard of Admissibility

ARTICLE VI

WITNESSES

4. § 6-110 Parties to the Suit or Interested Persons
5. § 6-114 The “Advocate-Witness Problem”
6. § 6-226 Questions Assuming Controverted Facts

ARTICLE VII

OPINION–EXPERT WITNESS

7. § 7-310 Where Expert Lacks Personal Knowledge – Hypothetical Question
8. § 7-312 Hearsay Sources
9. § 7-317 X-rays, MRI’s, etc.

ARTICLE VIII

HEARSAY

10. § 8-101 Hearsay Defined

ADMISSIONS-GENERAL

11. § 8-201 Admission—Defined

FORMAL JUDICIAL ADMISSIONS

12. § 8-215 Formal Judicial Admissions
13. § 8-219 Informal Judicial Admissions

BUSINESS RECORDS

14. § 8-301 Business Records Exception to the Hearsay Rule
15. § 8-303 The New York Statute – CPLR 4518
16. § 8-304 Production of Original Books
17. § 8-305 Foundation Requirements
18. § 8-306 Testimony Needed to Lay Foundation
19. § 8-308 Application of Business Rule—In General
20. § 8-309 Business Records – Hospital and Medical Records Generally

ARTICLE IX

AUTHENTICATION AND PROOF OF WRITINGS

21. § 9-101 Necessity of Showing Authenticity of Writing

ARTICLE X

THE BEST EVIDENCE RULE

22. § 10-101 Rule Stated
23. § 10-105 Rule Applies only to Proof of Contents
24. § 10-110 Photographic and Similar Reproductions

SECONDARY EVIDENCE

25. § 10-201 Foundation for Secondary Evidence
26. § 10-206 Destruction by Party Offering Secondary Evidence