Insufficient Proof of Mailing Defeats an IME No-Show Defense

Key Takeaways

• An IME no-show defense collapses if the insurer cannot first prove the IME scheduling letters were actually mailed.
• Mailing is usually proven by an affidavit describing a standard office practice or procedure designed to ensure letters are properly addressed and mailed.
• In Faith Acupuncture v Maya Assurance, the affidavit failed that test — the carrier lost the presumption of receipt and the case headed to trial.
• The mailing element is independent of the no-show element; both must be established with admissible proof.

Mailing: The Forgotten Half of the IME No-Show Defense

Independent Medical Examinations (IMEs) are a cornerstone of New York no-fault insurance law, serving as a critical tool for insurers to evaluate the medical necessity and reasonableness of treatments. However, the procedural requirements surrounding IME scheduling can create significant challenges for insurance companies. One fundamental requirement is proving that IME appointment letters were properly mailed to claimants. While most disputes center on whether a patient actually appeared for their scheduled examination, a recent Appellate Term decision highlights a less common but equally important issue: proving the letters were sent in the first place.

The case of Faith Acupuncture, P.C. v Maya Assurance Co. demonstrates how inadequate documentation of mailing procedures can undermine an insurer’s defense, even when no-show issues are typically the focus of litigation.

The Decision

Jason Tenenbaum’s Analysis:

Faith Acupuncture, P.C. v Maya Assur. Co., 2014 NY Slip Op 51863(U)(App. Term 2d Dept, 2014)

“Plaintiff correctly argues on appeal that the affidavit submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) had been properly addressed and mailed ”

This is something you do not see too often nowadays: a court stating that the IME letters were not mailed. Most reversals or issues seems to involve the proof of no show. Of course, this only invites a trial where the vendor will have to prove that the letters were mailed.

The Legal Framework: How Mailing Is Proven in No-Fault Cases

Attendance at a properly scheduled IME is a condition precedent to coverage under the no-fault regulation (11 NYCRR Part 65). To win on an IME no-show defense, an insurer must establish two distinct facts with admissible evidence: (1) that the scheduling letters were mailed to the assignor, and (2) that the assignor failed to appear on the scheduled dates.

New York law gives carriers two routes to prove mailing. The first is direct proof — testimony or an affidavit from someone with personal knowledge who actually mailed the letters. The second, far more common in high-volume no-fault practice, is proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed. A sufficient procedural affidavit triggers a presumption that the letters were received.

The catch is in the details. The affidavit must describe the actual mechanics: who generates the letters, how addresses are verified, how letters get from the desk to the postal service, and what safeguards confirm the process was followed. A bare assertion that “letters were mailed in the ordinary course of business” describes a conclusion, not a practice — and that is what doomed the carrier’s papers in Faith Acupuncture.

Why This Matters for Carriers, Vendors, and Providers

For insurers, the decision is a reminder that the no-show defense is built on a foundation of paperwork. Most carriers outsource IME scheduling to vendors, which means the mailing affidavit often must come from the vendor’s employee, describing the vendor’s procedures. Mismatched affidavits — a claims examiner attesting to a vendor’s mailing practices, or vice versa — are a recurring source of failure.

For IME vendors, losing on mailing at the summary judgment stage does not end the case; it sends it to trial, where a live witness will have to establish the office practice under oath. That is expensive and risky, particularly years after the fact when personnel have turned over.

For medical providers and their counsel, Faith Acupuncture shows that the mailing affidavit should be scrutinized line by line before conceding the no-show defense. A denial that is otherwise airtight on proof of nonappearance still fails if the scheduling letters cannot be placed in the mail. The firm’s hub on IME no-show mailing defects collects the cases on both sides of the line.

Practice Pointers

• Draft mailing affidavits around the procedure, not the conclusion. Walk through each step from letter generation to deposit with the post office, and identify the affiant’s role and basis of knowledge.
• Match the affiant to the mailer. If a vendor mailed the letters, the procedural affidavit must come from someone familiar with the vendor’s practice.
• Keep contemporaneous mailing records — logs, certificates of mailing, or ledger entries — and reference them in the affidavit.
• Plaintiffs: attack the mailing proof first; it is frequently the weakest link in an otherwise routine no-show motion.

Frequently Asked Questions

How does an insurer prove IME letters were mailed in New York?

Either by an affidavit from someone with personal knowledge of the actual mailing, or by an affidavit describing a standard office practice and procedure used to ensure letters are properly addressed and mailed. A sufficient affidavit creates a presumption that the letters were received.

What happens if the insurer cannot prove the IME letters were mailed?

The IME no-show defense fails as a matter of law on motion, as in Faith Acupuncture v Maya Assurance. The carrier may still try to prove mailing at trial, but it loses the presumption of receipt and the leverage of summary judgment.

Is proof of mailing different from proof of the no-show itself?

Yes. They are independent elements. Mailing is typically proven by the scheduling entity’s procedural affidavit, while nonappearance must be established by someone with personal knowledge that the assignor failed to appear — often the examining doctor or facility staff.

Related Resources

• Unsure
• Insufficient proof that the IME letters were not received
• IME no show results in summary dismissal
• IME no-show: it was not mailed — the firm’s cluster hub on mailing and proof of service
• Browse the firm’s Legal Encyclopedia for more New York no-fault doctrine
• No-Fault Defense practice — defending carriers in IME and EUO no-show litigation