The successful defense of Workers’ Compensation claims in the state of New York requires practitioners to utilize a myriad of different skills, strategies and legal tools. One of the most important elements of any successful claim defense will require the production of one or more Independent Medical Evaluations (IME) throughout the pendency of the claim.
The IME is a medical examination arranged and scheduled by the carrier or self-insured as a means to obtain a medical opinion with regard to the claimant’s degree of disability, permanent impairment, ability to work, and/or the medical necessity of a requested medical treatment. Such opinions will be critical to rebut or challenge the findings contained in the medical reports submitted by the claimant’s treating doctors. Although not common, claimant’s can also obtain IMEs and it is becoming more commonplace in New York for claimant’s to obtain an IME opinion for a Schedule Loss of Use opinion at permanency.
According to Workers’ Compensation Law (WCL) §13(a)(4) the carrier or self-insured is “entitled to have the claimant examined by a physician . . . and refusal by the claimant to submit to such independent medical examination” may bar the claimant from receiving Workers’ Compensation benefits.
Although the importance of obtaining IME reports cannot be understated careful attention to certain considerations with respect to IMEs need to be observed or the carrier or self-insured risk the possibility of having its medical evidence precluded. The laws and regulations that pertain to IMEs are codified in WCL § 137
Practical Considerations in Obtaining IMEs.
- Once a carrier or self-insured schedules an IME notice of the date and time of the examination must be provided to the claimant and her attorney or representative at least seven (7) days prior to the examination. This notice must be provided using a New York State Workers’ Compensation Board form specifically designed for this purpose. The form, called an IME-5 form can be viewed here.
- According to WCL §137(1), following the examination, the IME physician’s report must be provided to all parties at the same time in order to minimize the possibility of hiding or dismissing an unfavorable report.
- Under NYCRR § 300.2, a copy of the written IME report must be submitted to the New York Workers’ Compensation Board and all parties within 10 after the examination or risk preclusion. If the IME was performed outside of the state of New York, the report must be submitted to the Board and all parties within 20 days after the examination.
- A carrier or self-insured employer who is under court order (CCP) to provide a claimant with indemnity benefits may suspend those benefits based upon the results of an IME, such as a 0% disability determination and/or return to work recommendation, but must abide by WCL § 137(2) and request a hearing wherein the Board may direct suspension based upon the evidence presented.
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