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Net of Section 137 Widens, Threatening Admissibility of IME Reports in New York

August 6, 2015

Employers and carriers facing workers’ compensation claims in New York must now be extra careful with their submissions of independent medical examination (IME) information to the New York State Workers’ Compensation Board. As a recent communication from the board shows, the penalty for filing duplicative IME information, even simply accidentally, may be preclusion of those IME reports or records reviews as evidence — a result that could be disastrous for what otherwise might be a successful defense of the claim.

Last year, the Chair of the Workers’ Compensation Board adopted amendments to the regulations governing the conduct and reporting of IMEs, which broadly fall under Section 137 of the New York Workers’ Compensation Law. The amended regulation added a requirement that every record, document, or test result supplied to an IME examiner for review in connection with an IME or records review must be a part of the board file. Any information that is not already part of the board file must be submitted before or at the time the IME or records review is arranged. However, this information should not be submitted to the board via a request for information using an IME-3.

In conjunction with the requirement that records considered by the IME examiner be part of the board file, the amended regulation includes new language regarding requests for information. Specifically, the amended 12 NYCRR §300.2 (b)(11) states (emphasis added):

When any substantive communication consists of documents, records, reports, and items that are part of the official Board file and available to all parties at the time they are provided to the independent medical examiner, or his or her office, the documents, records, reports, and items or copies thereof shall not be filed with the Board.

A recent Board Bulletin highlighted the penalty for filing duplicative documents and information with the Workers’ Compensation Board. It explained that information filed with the board prior to an IME or records review that is duplicate of information already in the board file will result in preclusion of the IME report or records review.

This is a very harsh consequence for simply filing duplicative information with the board; however, it is important to be compliant to ensure the IME reports and record reviews may be admitted into evidence and considered by the board.

Here are a few tips to ensure compliance:

  1. Make sure every record or document supplied to an IME examiner for review in connection with an IME or records review is in the board file. Any document or record that is not in the board file should be submitted before or at the time the IME or records review is arranged.
  2. If records from a previous accident are received via subpoena, reach out to your defense counsel to see if they should be included in the IME-3 packet or submitted to the board’s file in advance of the exam.
  3. While it may take a few minutes of your time to review the documents to ensure no duplicative records are filed with the board, it is well worth the extra effort to ensure your report is in compliance with the requirements of Workers’ Compensation Law Sections 137 and 300.2.

For more information on the practical implications of this development, please contact: