SIU Investigator not Qualified to Determine Causality
Jean D. Miller MD and American Transit Insurance Company
AAA Case no. 412009044982 (Victor Moritz, awarded Feb 17, 2010)
At issue was an entire claim for various medical bills following an accident in which the insurer had denied benefits due to a lack of causality, mainly, that the person’s injuries were not “caused by accident” under 11 NYCRR 65-1.1.
In its defense of the denials, respondent presented an SIU investigator who stated that, based on his investigation, he believed the injured person had continued back and leg pain pre-existing the accident, and only claimed that the injuries were caused or exacerbated by said accident to receive medical payments for her continued care.
The Arbitrator rejected the investigator’s opinion, stating:
With all due respect to the special investigator, he’s in no position to make these conclusions. Had respondent wished to pursue such a defense then they should have obtained the services of a medical provider and perhaps an accident reconstruction expert to provide professional opinions as to what could or couldn’t have occurred as a result of this accident and its impact upon the patient. As mentioned above, I note that even if the EIP had a prior condition, an exacerbation of said condition would be a covered expense under the New York No-Fault regulations. Respondent’s evidence simply fails to establish any lack of proximate causation other than the opinion of one lay witness which falls far short of the necessary criteria to establish such a defense. Though the EIP received an epidural injection two weeks before the accident, she further testified she was not in any pain just prior to the impact and immediately after the accident she experienced pain in her leg and back.
Furthermore, the insurer had issued denials based upon “the verification of eligibility of the EIP.” Arbitrator Moritz therefore reminded us that an insurance company may not delay payment of a claim for the sole reason that the claim is under investigation. See, Queens Pain Medicine v. Clarendon Insurance Company, N.Y.L.J. April 30, 2001 (Judge Kerrigan). See also Opinion Letter, State of New York Insurance Department (April 12, 2000). Although the outstanding verification was simply a pending EUO of the injured person, the insurer did not properly advise the applicant under 11 NYCRR 65-3.6 of the reason for the delay.
Roy Mura
Bethany Mazur
Scott Mancuso
