Key Takeaways

• Judges have disqualified carrier medical reports for not containing the appropriate certification language

• Ensuring the certification language is present should prevent a law judge from disqualifying carrier medical reports, in whatever form, on the basis of 12 NYCRR 300.2(d)(4)(e) and force them to make a consideration on the merits

Recently, we have seen three cases in which a Workers’ Compensation Law Judge disqualified carrier medical reports for failure to adhere to 12 NYCRR 300.2(d)(4)(e), which states, in relevant part, that the doctor has to certify that they have reviewed the report, that it is a true and accurate opinion, and that no one has influenced them. Notably, we have seen this in two different districts (i.e., Syracuse and Binghamton) leading to the concern that this is a point of emphasis across the state.

The regulation in question applies to IME reports. One judge applied it to a utilization review, and while there is ambiguity as to whether it should apply in that situation, the best practice is to ensure that the necessary certification is there. If indeed this is a point of emphasis for law judges going forward, the remedy is simple.

Our recommendation is to ensure that language like the below is included with every IME report, utilization review, and records review: “I, Doctor (Blank) certify that this report is a full and truthful representation of my professional opinion with respect to the claimant’s condition in accordance with WCL Sec. (Blank). I further certify that no person or entity has caused, directed, or encouraged me to submit a report that differs substantially from my professional opinion and that I have reviewed this report and attest to its accuracy.”

Ensuring the certification language is present should prevent a law judge from disqualifying carrier medical reports, in whatever form, on the basis of 12 NYCRR 300.2(d)(4)(e) and force them to make a consideration on the merits.

If you have any questions about this recommendation, please contact:

• S. Philip Unwin
• Kristen L. Romano
• Christina M. Hassler
• Damon M. Gruber
• Sean J. McKinley
• Esther F. Omoloyin
• Or another member of our Workers’ Compensation practice