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Undocumented alien eligible for no-fault benefits.

Can an illegal alien be denied no-fault benefits for "refusing" to provide his Social Security number when in fact he does not have one? The insurer in this case made that argument, and lost.

"The accident occurred on April 20, 2006. Applicant, 42 years old, was riding a bicycle when he was struck by a taxi. He fell to the ground and injured his nose, teeth, and back. He did not immediately go to a hospital emergency room, but was taken home by the taxi that hit him. Later in the day, he went to the hospital," wrote the arbitrator.

"At the hearing the parties stipulated that applicant has no identification except for his birth certification by the Peruvian Consul. The parties also agreed that applicant was the same man who appeared for three insurance medical evaluations (IME) and at the examination under oath (EUO).

"The applicant submitted an arbitration request seeking medical reimbursement and lost earnings as a day laborer from the date of the accident to the present. Applicant withdrew these claims because of outstanding assignments from medical providers and because he felt he could not prove lost earnings.

"After the subject accident, the applicant ... went to ... doctors in Westchester. His nose was broken and required surgery. Some of his teeth were broken and he went to a dentist. Most painful was his back where Dr. Lee determined screws were loose and necessitated repair surgery. The surgery was not done when respondent denied all no-fault benefits on the basis of the IME reports. Applicant said he last saw Dr. Lee a few months ago."

Denial Based on Lack of ID, Cooperation

"The EUO transcript of August 16, 2006, provided [at the hearing] by both parties, shows that applicant appeared with no identification. Applicant answered questions as to his address, cell phone number, and previous addresses. He lived in N.Y. more than 10 years. He answered that he had no Social Security number (he admitted that he gave two false Social Security numbers to the dentist and to White Plains Hospital because he feared that they would not otherwise treat him), but refused, on the advice of his counsel, to answer a question 'what is your status in the U.S.' The SIU investigator for respondent, who was conducting the EUO, immediately ended it, saying applicant 'is not answering the questions that are required for him to answer today.

"Respondent issued a denial on August 24, 2006 based on the EUO, contending (1) 'lack of cooperation ... (applicant) refused to answer questions relevant to our investigation. After repeated warnings ... the (EUO) was busted. The willful non-cooperation of the claimant and/or their legal representative is a violation of policy conditions and accordingly all benefits are denied ab initio,' and (2) 'No form of identification could be presented by the claimant at the (EUO). The identity of the claimant could not be confirmed or verified.'

At the hearing, the applicant was quite specific about the names of the persons and entities that had helped him in the last four years. "I instructed applicant," wrote the arbitrator, "to provide proofs from people who knew him and whom he said would vouch for him. Post hearing time was given to applicant, and for respondent (for reply).

"After the hearing, applicant submitted an affidavit from Rev. J.P. Duffell who said he knew applicant for a very long period and identified an annexed photograph of applicant. Applicant also provided a signed letter on police stationery from Capt. F. Bruno of the Yonkers Police who stated he knew applicant for four years, and that applicant has worked with the captain and his officers in an attempt to foster cooperation among the workers, residents, and business owners in the area where the workers assemble. Applicant included a note from the Peruvian Consulate stating that applicant had applied for an identity card on August 15, 2007, the date of the arbitration hearing. Applicant was told it would take at least 60 days to receive the card."

SSN Not Required for No-Fault

Beginning his conclusions, the arbitrator held, "The denials contend he is ineligible because he has no Social Security number, because he refused to cooperate with respondent's questioner, because he as applicant is not the person who was injured and treated, and because the IME doctors concluded he was fully recovered and needed no further care.

"The Office of General Counsel of the Insurance Department issued an Opinion Letter dated August 17, 2004 stating an insurer may require a claimant to provide his/her Social Security number on no-fault claim forms. The underlying facts were that the inquirer was asked to provide his Social Security number and refused to do so. The prescribed application form (NF-2) requires the applicant's Social Security number by leaving a space for it.

"I view the above opinion as addressing a refusal to provide a Social Security number where the claimant/applicant actually has one. An applicant who has a Social Security number may not refuse to provide it to the insurer pursuant to the reasoning of the Opinion Letter which finds the requirement does not violate federal or state law.

"In this arbitration, we are dealing with an applicant who has no Social Security number. Applicant left a blank space on the NF-2 where the Social Security number is called for. Applicant clearly answered at the SIU that he had no Social Security number. There is no question of refusal here to provide required information.

"I cannot find anything in no-fault law or in the opinions of General Counsel which forbid no-fault benefits to applicants who are NYS residents, who are injured by motor vehicle accidents in NYS, but who do not possess a Social Security number.

"... [T]he Insurance Law and the regulations do not further qualify 'an injured person' as being required to have legal status under U.S. law, or having to possess a valid Social Security number.

"I take notice of the well accepted fact that at present there are at least 12 million persons in the U.S., who are termed illegal immigrants, and who do not possess valid Social Security numbers. There is great diversity of opinion among the states, as to the necessity of a Social Security number when applying for certain services such as a driver's license.

"... I am unable to find similar policies, rulings or requirements, which make a valid Social Security number, if the applicant does not have one, a prerequisite for obtaining no-fault benefits. And given the policy behind no-fault law to compensate persons injured in N.Y. motor vehicle accidents where N.Y. drivers insured by N.Y. insurers are involved, I do not see how the genuine lack of a Social Security number voids policy benefits....

"And here too, the applicant is an innocent victim, albeit one without a Social Security number, whom the policies behind the law, in this case no-fault, were designed to benefit.

"I find it unfortunate but understandable that applicant gave two false Social Security numbers to two different medical providers (the dentist who billed applicant for $50 for treatment and the pathology group associated with applicant's surgery), neither of whom billed very much for services. I believed applicant when he testified that he was desperate to be treated, was very sorry, and would not do it again. I find applicant was genuinely conflicted.

"It is to his credit that he answered honestly on the NF-2, at the EUO, and to two providers, St. John's Hospital Ambulance Service and ENT & Allergy Associates that he did not have a Social Security number.

"I find respondent had the right to inquire as to applicant's Social Security number. When applicant did not provide a Social Security number on the NF-2, and two bills came in with inconsistent Social Security numbers, I believe respondent had the right to hold a EUO to determine what was going on. At the EUO, respondent found out that applicant, truly, does not possess a valid Social Security number."

Respondent Took Improper Adversarial Stance

"However, I find respondent's further questions at the EUO as to applicant's 'status; legal or illegal, in the U.S. were irrelevant to the issue of applicant's eligibility for no-fault benefits.

"There is nothing in the no-fault law or regulations which makes status or citizenship a prerequisite for eligibility. Applicant refused to answer on the advice of counsel, after which respondent's investigator, peremptorily, and in my view wrongly, ended the EUO for 'non-cooperation'. The EUO should have continued with that question reserved for objection to a court or arbitrator. I do not find that in the circumstances, applicant was engaging in non-cooperative behavior.

"In the end, respondent falls back on the argument that it cannot prove, and applicant cannot prove, that the person who appeared at the IMEs and EUO and arbitration hearing was the same person who was knocked off his bicycle by respondent's insured, and who was treated by the providers whose bills are in the record before me. But applicant here has provided all the necessary information, except for a Social Security number, on the NF-2 form to respondent. His treating doctors submitted extensive narrative medical reports to respondent. The burden passed to respondent to dispute the veracity of applicant that he was the one who was injured and treated.

"... In conclusion, I find that this applicant who does not have a valid Social Security number is not barred by no-fault law from receiving no-fault benefits. I further find that respondent's questions at the EUO and in its denials as to applicant's status in the U.S. were irrelevant for no-fault eligibility, and moreover took on an improper, adversarial stance that is a violation of the spirit of cooperation which is required of respondents.

"In addition I find that respondent failed to meet its burden to disprove that applicant was not the same person who was injured and treated as the person who appeared for the IMEs, EUO and the arbitration hearing. I find that applicant has been truthful and consistent. His treating doctors' descriptions of him are consistent with those in the IME reports. Applicant is the injured patient whose claims underlie this dispute ...

"... Accordingly, I find that applicant has standing to pursue the subject arbitration as to respondent's defenses of lack of identification and non-cooperation, and the cut-off denial based on the IME reports and lack of medical necessity ..."

Comment: This is a significant decision--even though arbitration decisions have no precedential effect--on the important issue of a claimant's lack of a Social Security number, and what measures a no-fault insurer may take when faced with such a claimant. As the arbitrator held here, this insurer took on an "improper, adversarial stance" towards the claimant, which violates the spirit of the no-fault regulations. This arbitrator's comments about how the insurer might have gone about verifying the claimant's identity are worth noting for future reference.

[Unnamed Applicant] and Global Liberty Ins. Co. of New York, AAA Case No. 412007012742, AAA Assessment No. 17 991 08009 07 (Brynne L. Haines, Arbitrator)
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Author:Rogak, Lawrence N.
Publication:Insurance Advocate
Date:Oct 22, 2007
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