GOOD CAUSE FOR IME ESTABLISHED

THE INDEPENDENT MEDICAL EXAMINATION AS A TOOL TO DEFEAT FRAUD

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In Costa Rwagasore v. Grange Property & Casualty Insurance Co., No. 2022-CA-0413-MR, Court of Appeals of Kentucky (January 27, 2023) the insurer sought an Independent Medical Examination (IME) of the claimant, Rwagasore and the claimant claimed there was no good cause for an IME.

FACTS

After the insurer sought a medical examination of the claimant. Costa Rwagasore appealed from an order of the Jefferson Circuit Court granting the petition of Grange Property and Casualty Insurance Company (Grange) to appear for a medical examination by a physician of its choice as a part of its investigation of Rwagasore’s insurance claim. Rwagasore argued that Grange failed to present evidence showing “good cause” in support of its petition as required by the provisions of Kentucky’s Motor Vehicle Reparations Act (MVRA), KRS 304.39-010 et seq. KRS 304.39-270(1).

On October 19, 2020, Rwagasore was driving in Louisville. While he was stopped at a traffic signal, his vehicle was rear-ended by a vehicle that immediately fled the scene. The accident report prepared by an officer of the Jeffersontown Police Department indicated: “no injuries, no pictures taken, and no vehicles were towed.”
Eleven days later, Rwagasore sought treatment at a medical clinic. He complained of pain in his back, chest, neck, shoulder, left knee, right leg, and right foot. Ultimately, Rwagasore received extensive medical care and treatment from numerous medical providers.

Upon evaluating the claim, Grange suspected that the injuries allegedly sustained were not caused by the motor vehicle accident. After reviewing medical records submitted by Rwagasore, Grange requested that Rwagasore participate in an examination under oath to which he participated. Grange then requested an expert peer review of Rwagasore’s medical records. After it received the results of the peer review of the records, Grange requested that the court order Rwagasore to appear for a medical examination.

Grange argued that Rwagasore put his physical condition at issue and that a real dispute surrounded whether the allegedly significant injuries arose from the minor motor vehicle accident.

It observed that Rwagasore had an extensive medical history of pre-existing issues with his right knee; that he had been involved in four prior motor vehicle accidents in a short span of time; that his alleged injuries appeared inconsistent with the nature of the motor vehicle accident of October 2020; and that a peer review of his medical records indicated that an examination of the medical records alone was insufficient to determine the cause of the alleged injuries or the necessity of the care and treatment provided.

Following a hearing, the trial court found that Grange had demonstrated good cause to warrant a physical examination pursuant to the statute and ordered the examination.

THE APPEAL

Rwagasore contended that the circuit court erred by ordering him to submit to a physical examination because Grange failed to show that it had utilized less intrusive means of evaluating his claim and failed to show that an in-person physical examination was warranted. However, the statute expressly permits an insurer to require a claimant to submit to a medical examination, it cannot compel the examination without a showing of “good cause.”

DISCUSSION

Good Cause is more than a mere suspicion that the insured’s care was unnecessary or unreasonable. The insurer must present some proof that it has taken measures to determine the validity or extent of the insured’s injuries that were less intrusive than an unwanted medical examination.

In this case, Grange employed numerous measures to evaluate Rwagasore’s claim before it petitioned the court to compel him to appear for a physical examination. Grange set forth specific reasons supporting its suspicions concerning the nature of Rwagasore’s treatment and care and explained to the trial court how the physical examination could be expected to address its suspicions about the cause of his alleged injuries. Following his review of the available medical records, the insurer’s expert Dr. Best reported to Grange that:

"the only objective means by which this patient can be evaluated is with a hands-on physical examination with functional testing. A simple records review, without examining the patient, would fail to adequately identify pathology and need for treatment. We could not adequately determine the cause of a gap in treatment, the necessity of 30 physical therapy visits and whether all treatment was provided secondary to the effects of the motor vehicle accident. Therefore, an independent medical evaluation with functional capacity testing should be performed in order to adequately assess this patient’s injuries."

The Court of Appeal concluded that Grange amply explained the basis of its doubts concerning the nature of Rwagasore’s alleged injuries and cited evidence sufficient to place causation at issue. Moreover, as noted above, a peer review of the insured’s medical records by an independent medical expert may be sufficient to establish good cause for a physical examination.

Under the circumstances of this case Grange satisfied its burden to show good cause.
The Court of Appeal found that the trial court did not err by ordering Rwagasore to submit to the medical examination sought by Grange.

ZALMA OPINION

Kentucky statutes allow insurers, on a showing of good cause, to compel a claimant to submit to an IME. Based on the facts of the case: (1) a minor collision with little impact; (2) a history of multiple claims of injuries due to auto accidents; and (3) a review of records by a physician that concluded it was impossible to evaluate the alleged injuries without the physical presence of the claimant, the court ordered the IME. An IME is an important tool in discovering and/or defeating attempts at fraud by people who over-treat alleged injuries. The state should consider making the process easier since the cost of a motion and then a response to an appeal may exceed the entire value of the claim.

(c) 2023 Barry Zalma & ClaimSchool, Inc.

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Barry Zalma, Esq., CFE, is available at http://www.zalma.com and [email protected]
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Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and [email protected]

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