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IME No Shows

January 21, 2016
By: Scahill Law Group PC

In the No-Fault world, the failure to attend duly scheduled medical exams voids the policy ab initio (see Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 560, 918 N.Y.S.2d 473 [1st Dept.2011], lv. denied 17 N.Y.3d 705, 2011 WL 2535157 [2012] ), allowing the carrier to deny reimbursement to the provider. The regulations require the Eligible Injured Party (EIP) to receive proper notice of the examination. (11 NYCRR 65-1.1.) What if the EIP is represented by counsel. Will notice to the EIP and his/her attorney suffice?

No says the Third Department on December 3, 2015, at least not in the context of a motion to vacate a decision of a master Arbitrator from the American Arbitration Association. See In re Mercury Cas. Co. (Patient Care Associates), 20 N.Y.S.3d 728 (N.Y. App. Div. 2015) "We cannot agree with petitioner's argument that it was entitled to a presumption that the IME notification letters were received by the insured. Our review of a master arbitrator's award in an arbitration proceeding to resolve a disputed no-fault insurance claim requires us to determine whether the award "was arbitrary and capricious, irrational or without a plausible basis" (Matter of Farrell [Allstate Ins. Co.], 232 A.D.2d 934, 935 [1996] [internal quotation marks and citation omitted]; accord Matter of Steinauer [New York Cent. Mut. Fire Ins. Co.], 272 A.D.2d 771, 772, 707 N.Y.S.2d 706 [2000]; see Matter of Petrofsky [Allstate Ins. Co.], 54 N.Y.2d 207, 211, 445 N.Y.S.2d 77, 429 N.E.2d 755 [1981] ). The presumption of receipt of a properly mailed item attaches only if the fact finder first determines that sufficient evidence exists to show that the mailing was proper (see e.g. Preferred Mut. Ins. Co. v. Donnelly, 22 N.Y.3d 1169, 1170, 985 N.Y.S.2d 470, 8 N.E.3d 847 [2014]; Matter of Gallahue [Sweeney], 234 A.D.2d 881, 881, 651 N.Y.S.2d 692 [1996]; Matter of Rea [Hartnett], 175 A.D.2d 441, 442, 572 N.Y.S.2d 493 [1991] ). Here, the arbitrator correctly declined to apply this presumption in light of her rational factual determination that petitioner's evidence was insufficient to show that the IME notices were properly addressed. Indeed, none of the evidence related to the mailing correctly listed the insured's address."

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