The Office of General Counsel has issued the following informal opinion on March 12, 2001, representing the position of the New York State Insurance Department.
RE.:No-Fault Medical Examinations
Do the regulations implementing the New York Comprehensive Motor Vehicle Insurance Reparations Act ("No-Fault law") provide for any minimum time period that notice must be given to a claimant prior to requiring the claimant to attend a medical examination requested by an insurer?
An attorney represents an individual who was injured in a motor vehicle accident and filed a claim with his insurer for first-party personal injury protection ("PIP") benefits relating to medical expenses under the New York No-Fault law. The insurer scheduled a medical examination and notified the insured of the examination two days prior to the examination date. The attorney has stated that the insured was unable to attend the examination because of the short notice provided. The insurer subsequently denied the claim for benefits based upon the insureds failure to appear at the medical examination.
N.Y. Comp. Codes R. and Regs. tit. 11, § 65.12(e) (1992) (Reg. 68) sets forth the provisions of the Mandatory Personal Injury Protection Endorsement (New York) ("the Endorsement"), which, under N.Y. Comp. Codes R. and Regs. tit. 11, § 65.12(a) (1992) (Reg. 68), must be included in every owners policy of liability insurance in order to satisfy the minimum requirements of the New York No-Fault law. In Section I of the Endorsement, under the provisions entitled "Conditions," the provisions entitled "Proof of Claim; Medical, Work Loss, and Other Necessary Expenses" state 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.
N.Y. Comp. Codes R. and Regs. tit. 11, § 65.15(d) (1991) (Reg. 68) provides for claim procedure for the payment of claims for first party benefits under the No-Fault law. N.Y. Comp. Codes R. and Regs. tit. 11, § 65.15(d)(4) (1991) (Reg. 68) states that:
All medical examinations requested by the insurer shall be held at a place and time reasonably convenient to the applicant and in a facility properly equipped for the performance of the medical examination. The insurer shall inform the applicant at the time the examination is scheduled that the applicant will be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the request.
Nowhere in the Endorsement or in the claims settlement procedures is there a specified minimum time period required with respect to the notice given to an applicant of a medical examination requested by an insurer. The issue of whether a particular medical examination requested by an insurer has been held at a time reasonably convenient to the applicant requires a finding of fact as to what is considered to be reasonable under the specific circumstances of each situation. As such, it would be inappropriate for the Department to comment or opine upon such an issue. Rather, the issue is subject to resolution through arbitration or by a court of competent jurisdiction. The insured may also file a complaint with the Departments Consumer Services Bureau (Hotline # 800-342-3736).
For further information regarding this opinion, you may contact its author, Senior Attorney Ethan G. Wolfe, at the New York City Office.