IMEPeer ReviewRecords Review Tips for Obtaining a Useful Review

1
IME/Peer Review/Records Review Tips for
Obtaining a Useful Review

• Audrey A. Seeley, Esq.
• Hurwitz Fine, P.C.
• [phone]
• aas_at_hurwitzfine.com

2
First Things First What is the Standard?

• Before deciding whether
• medical exam or review
• is required need to understand
• what standard applies to your case.

3
Liability Case Involving Automobile Accident
Serious Injury Threshold

• New York State Insurance Law 5104(a) permits
  recovery of non-economic loss (pain and
  suffering) by or on behalf of a covered person
  against another covered person arising out of a
  New York motor vehicle accident if a serious
  injury is sustained.

4
What Is A Serious Injury

• A personal injury that results in
• Death
• Dismemberment
• Loss of a fetus
• Significant disfigurement
• A fracture

5
What Is A Serious Injury

• Permanent loss of use of a body organ, member,
  function or system
• Permanent consequential limitation of use of a
  body organ or member
• Significant limitation of use of a body function
  or system or
• A medically determined injury or impairment of a
  nonpermanent nature which prevents the injured
  person from performing substantially all of the
  material acts which constitute such persons
  usual and customary daily activities for not less
  than ninety days during the one hundred eighty
  days immediately following the occurrence of the
  injury or impairment.
• Ins. Law 5102(d).

6
No-Fault Claim Causation and Medical Necessity

• A no-fault insurer must only pay those
  first-party benefits to reimburse for basic
  economic loss sustained by an eligible injured
  person because of personal injuries caused by an
  accident arising out of the use and operation of
  a motor vehicle within the United States or
  Canada. (11 NYCRR 65-1.1)
• Basic Economic Loss consists of medical expenses,
  work loss, and other necessary expenses.
• With regard to medical expenses, the no-fault
  insurer must only pay for necessary expenses.
  (11 NYCRR 65-1.1)

7
Claims Practice Principles

• Basic goal is prompt and fair payment to all auto
  accident victims.
• 2. Assist the applicant in the claim. The
  applicant is not your enemy.
• Pick up the phone whenever possible and promptly
  respond to all communications.
• Demand verification of facts when there is a good
  reason.
• Clearly inform the applicant of your position.
• (11 NYCRR 65-3.2)

8
Verification IME/Peer Review

• Important timeframes
• 30 calendar days to schedule IME from receipt of
  verification. (11 NYCRR 65-3.5(d))
• 30 calendar days to complete peer review and
  issue denial, if warranted.

9
Serious Injury Threshold

• Pommells v. Perez, 4 NY3d 566 (2005) Trilogy
• Court of Appeals expresses displeasure with way
  system is working.
• Qualitative assessment and objective testing
  alone not enough in certain cases.
• Issues with treatment gaps, intervening medical
  problems, pre-existing conditions. Plaintiffs
  now have to explain to survive.

10
No-Fault Peer Reviews

• Peer reviewers opinion alone insufficient to
  establish lack of medical necessity.
• Peer reviewer MUST set forth evidence that
  service was inconsistent with generally accepted
  medical practice. (CityWide Social Work Psych.
  Servs. v. Travelers Indem. Co., 3 Misc3d608 (Civ.
  Crt. Kings Cty. 2004)).

11
No-Fault IMEs

• Maximum medical improvement is not lack of
  medical necessity. (Hobby v. CNA Ins. Co., 267
  A.D.2d 1084 (4th Dept. 1999))
• Phrases such as reached endpoint of treatment or
  improvement may not be lack of medical necessity.

12
IME Reports and Peer Reviews are Scrutinized!!

• What are the basics to ensuring comprehensive
• report?
• Make sure you have the right specialty.
• The report must be affirmed or certified.
• Physician or chiropractor has all records and
  films (not just reports).
• Avoid addendums.
• List all records, films, and documents reviewed.
• Send correspondence to physician or chiropractor
  explaining scope of review.

13
What If My Case Has A Pre-Existing Condition?

• Scour medical records to ascertain if condition
  existed prior to accident.
• Review the no-fault application and verification
  responses for evidence of pre-existing injury.
• Request authorizations for pre-existing
  treatment.
• Request Workers Compensation authorization.
• Request employment record authorization.
• Dont dismiss a pre-existing disease or illness.
  
• Consider conducting EUO.
• Request Social Security Disability authorization.

14
What If My Case Has A Subsequent Injury

• Careful review of medical records.
• Consider conducting an EUO.
• Request authorizations for all subsequent
  treatment.
• Request Workers Compensation authorization.
• Request employment record authorization.
• Obtain MV 104-A report if involved subsequent
  MVA.
• If slip and fall or trip and fall - is an
  incident report on file with the property owner?
• Consider obtaining IME to address exacerbations,
  disability, and activities after subsequent
  injury.

15
Checklist for Review Upon Receipt of Report

• Enumerate all objective tests performed.
• If range of motion is normal must state objective
  testing performed. McCrary v. Monique Street, 34
  AD3d 768 (2d Dept. 2006). Stay away from using
  full ROM.
• Must quantify range of motion and state what is
  normal. Kavanagh v. Singh, 34 AD3d 744 (2d Dept.
  2006).
• If positive objective findings, must address if
  any significance. Wadford v. Gruz, 35 AD3d 258
  (1st Dept. 2006). DONT GLOSS OVER.
• Enumerate normal daily activities.

16
Checklist for Review Upon Receipt of Report
Cont.

• Identify and address treatment gaps since
  plaintiff must reasonably explain a treatment
  gap. Black v. Regalado, 828 NYS2d 29 (2007).
• Document if the injured person returned to work,
  when returned to work and at what capacity.
• Be cognizant of treatment cessation. What
  particular body part, date treatment ceased, and
  why.

17
No Addendums - BUT

• New medical records obtained from subsequent
  injury post review.
• Agency delay in receiving records.
• Physician or chiropractor completely failed to
  address a major issue (i.e., apportionment
  between pre-existing injury and current injury or
  subsequent injury and current injury).