A common practice – communications with IME doctors by the contracting entities that send them cases – is falling under increased scrutiny after the WCB banned virtually all verbal communications between the doctors and the IME entities.
Employer IMEs have been facilitated by a group of regulated ‘Independent Medical Examination ‘brokers’ known as IME entities for years. These entities act as go-betweens – findings doctors to perform IMEs, collecting the relevant medical records for the doctor’s review, sending scheduling notices, and collecting the final reports of the physicians to provide those reports to the WCB and the employer (or carrier).
This process necessarily injects the IME entity into the mix: they coordinate communications with the doctors and are intimately involved in selecting physicians. The entities have also been called in question for practices where they are generating reports for the doctors to sign – commonly ‘transcribing’ the doctors own notes or taped exams. In some instances the IME entities have been accused of generating reports that differ from the doctor’s findings and “changing” IME reports after the doctor has signed off on the report.
This summer the WCB banned all oral communications between IME entities and the examining physicians – and allowing for all written communications between the parties to be part of the WCB record. This move, coupled with the new IME report form (discussed in out last newsletter) is expected to reduce claims that IME reports are ‘tampered with’ by the IME entities entrusted with facilitating those examinations.
In the case of Donovan v. BOCES Rockland County, 880 N.Y.S.2d 783 (June 11, 2009), the claimant alleged injuries to her left shoulder arising out a a physical altercation with a student (the claimant was a ‘speech therapist’). The Workers’ Compensation Law Judge (WCLJ) found that the ‘credible medical evidence’ established that the left shoulder injuries were work-related and the surgical repair was ‘necessary.’ Compensation was awarded. The parties appealed the the Workers’ Compensation Board (WCB), which exercised its discretion to review the case as per WCL Sect 123. The WCB found that the left shoulder claims were “not credible” in reversing her award.
The case was appealed to the Appellate Division by the claimant, who argued that the WCB erred in finding she lacked credibility.
On the credibility front, the appeals court granted deference to the findings of the WCB, stating that the Board decision would not be disturbed if it was supported by ‘substantial evidence, despite the evidence of evidence which may have supported a different result.’ The WCB had relied upon videotape evidence of the claimant’s condition, as well as a pattern of “exaggerations which lacked consistency and escalated in magnitude over time.” The Appeals panel found that the WCB’s decision – that the claimant lacked credibility- was amply supported by the record.
The claimant also objected that she did not have the opportunity to present her arguments the WCB before the Board reviewed (and reversed) the Workers’ Compensation law Judge’s decision. The Appellate Court informed the claimant that “it is well settled that the Board’s broad jurisdiction includes the power, on its own motion or on application, to modify or rescind a WCLJ’s decision.”
Practice tips: First, make use of the application to the WCB for review of unfavorable decisions rendered by a Workers’ Compensation law Judge. Next, the employer in this case was well-armed: videotapes can be powerful evidence of malingering. When added together with a penchant for exaggeration, a ‘credibility’ challenge may be possible. Finally, it is easier to defend a decision of the WCB – so long as it is based on ‘substantial’ material evidence- than it is to appeal such a decision to the Appeals Court.
The owner of a contracting company in Happauge faces up to four years in prison for cheating his workers’ compensation insurer. The owner of “Colt Contracting” allegedly concealed the payroll of eight of his employees in order to perpetrate the fraud. The fraud was discovered on September 9th by the New York Insurance Bureau, the New York Insurance Fund, and the office of the Inspector General of the Workers’ Compensation Fund.
A second contractor in Long Island (Stephen Schiavoni) was arrested by local police for allegedly hiding 900,000 in contracting sales to defraud his workers’ comp insurer of $44,000 in premiums in a one year period (Story from Sept 18, 2009).
A New York police officer lost his claim for compensation benefits and was indicted on one count of offering a false report for filing (a felony) when it was determined that he stabbed himself to collected WC benefits. Johnson City police officer Matthew Romano claimed to have been stabbed by “two men while investigating a suspicious car” on December 30, 2006. After investigation it was learned that the stab wounds were self-inflicted. The officer has been suspended without pay (Sept 11, 2009). He now faces charges of using the mail system to perpetrate a fraud against the employer city.
Finally, a story as old as time: Monica Martinez of Freeport is accused of working a full-time at dental offices while collecting $39,000 in total disability benefits for neck and back injuries which allegedly prevented her from working. (Story Sept 16, 2009). She is charged with violating the WCL and could face four years in prison if convicted.
In September the New York WCB released data on the 45,000 workers who filed 9/11-related claims and special affidavits. The ‘special affidavits’ are not claims but rather “placeholders” for future claims, allowing the affiants to bring workers’ comp cases at a later date, preserving their rights to benefits.
Nearly 14,000 claims are currently pending before the Board. Of these active claims, about 50% are for victims of the attacks and about 40% are rescue and clean-up workers.
Carriers have challenged about 40% of the WTC cases, which is approximately double the rate of other claims. 90% of the claims for rescue and clean-up workers are for respiratory-related conditions.
Until September, injured workers in New York State collected incremental payments for “loss-of-use” injuries (permanent partial disabilities). This practice followed a 2007 appeals court decision finding that a ‘periodic system of payments’ could not be paid as a lump-sum without a change to the law. Governor Paterson just signed legislation allowing loss-of-use injuries to be paid in one lump sum.
On August 28, 2009 the WCB released a revised set of C-4 forms. We recommend you utilize the new C-4, which now includes an item in the ‘Doctors Information’ section to include “billing group” and “practice name.” This is expected to reduce payment problems. Form C-4 AMR may now be used in place of a ‘regular’ C-4 report where a physician is only giving clearance for a surgery. For medical care providers, the new forms should be helpful as all the updated forms now include the “centralized” statewide fax number for the WCB: 877-533-0337. To encourage transition to the new forms, the Board will not enforce provider’s claims for payment using the old forms.