Avoiding Preclusion of the Defense IME Report

The Defense Independent Medical Evaluation (“IME”).

The defense medical examination is critically important in defending New York workers’ compensation claims. The evaluating physicians’ report is relied upon to challenge unnecessary medical care, to present evidence of the claimant’s work ability, and to establish the degree of permanent medical impairment (if any). In New York there are specific requirements which must be followed in relation to Independent Medical Examinations (“IME”). It is critical that the carrier, the IME physician and the IME vendor meet all the requirements of Section 137 or run the risk of having the IME report precluded by the Workers’ Compensation Law Judge.

The Law on Preclusion.

New York Workers’ Compensation Law §137 and 12 NYCRR §300.2 governs IMEs. Section 137 provides eleven specific requirements. Of the eleven requirements, the following are two basic requirements that can and are easily overlooked:

  1. A copy of each report of independent medical examination shall be submitted by the practitioner on the same day and in the same manner to the board, the insurance carrier, the claimant’s attending physician or other attending practitioner, the claimant’s representative and the claimant.
  2. The claimant shall receive notice by mail of the scheduled independent medical examination at least seven business days prior to such examination. Such notice shall advise the claimant if the practitioner intends to record or video tape the examination, and shall advise the claimant of their right to video tape or otherwise record the examination. Claimants shall be advised of their right to be accompanied during the exam by an individual or individuals of their choosing.

Based on the above, it is important that each and every one of the above parties (the Board, the carrier, the claimant’s attending physician or other attending practitioner, the claimant’s representative and the claimant) is served with a copy of the IME report. Keep in mind, the failure to send the report to even one of the parties could result in the IME report being precluded.

In addition, it is important to verify that the notice of examination was sent to the claimant’s correct mailing address.  If appropriate notice is not provided (i.e., seven days prior to the scheduled IME), then you can expect the report to be precluded. A simple step to avoid this mistake is to confirm the claimant’s correct address prior to scheduling the IME and serve the IME-5 immediately after it is scheduled.

There is not much that can be more frustrating than obtaining a favorable IME report only to discover that a basic requirement in serving the report was overlooked and likely have that report precluded. So it is important to keep the aforementioned two basic requirements in mind in relation to IMEs.

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