A recent Board Panel Decision addresses the termination of benefits where a claimant fail to attend to repeated IME exams.
The carrier or employer is “entitled to have the claimant examined by a physician authorized by the chair…at a medical facility convenient to the claimant and in the presence of the claimant’s physician, and refusal by the claimant to submit to such independent medical examination at such time or times as may reasonably be necessary in the opinion of the [Board, bars] the claimant from recovering compensation for any period during which he or she has refused to submit to such examination.” See WCL § 13-a(4)(b) see also 12 NYCRR 300.2(d)(8).
When a claimant frustrates the employer’s right to engage an independent medical consultant, a suspension of payments for the challenged injuries is warranted. See Matter of Jasmine v Rainbow Grill, 115 AD2d 862 (1985). In contrast, there is no basis to bar payments where the claimant’s failure to attend an IME is not due to a refusal to submit to such examination, or where the claimant’s refusal is reasonable. See Matter of Ferguson v Fruehauf Corp., 156 AD2d 880 (1989).
If the claimant simply fails to appear for an exam, benefits can not be terminated (as WCL § 137(10) states as follows: “The ability of a claimant to appear for an exam or hearing shall not be dispositive in the determination of disability, extent of disability or eligibility for benefits.”) Instead, the exam should be rescheduled. if the claimant fails to attend a rescheduled exam, an RFA-2 (“Request for Further Action on behalf of the Carrier/Employer” – warning, links to a PDF) should be filed to get the matter listed for a hearing. At the hearing, counsel should request that benefits be suspended until the claimant attends to an exam.