Employers, carriers, and third-party administrators are all too familiar with Section 137 of the New York Workers’ Compensation Law and 12 NYCRR Section 300.2, as they govern Independent Medical Examinations (IMEs). Failure to meet or substantially comply with the necessary requirements of Section 137 puts you at risk of having your IME report precluded by a workers compensation law judge. The same holds true for injured workers when they are the party that produces an IME report. As such, it is important to recognize when an injured worker has also produced an IME report and to litigate any WCL Section 137 violation. Successful litigation could lead to preclusion of an IME report and testimony of a doctor. It could also lead to the disallowance of a site of injury or to the claim altogether.
It is important to determine if an injured worker has actually produced an IME report. An injured worker will usually try to argue any report in question is from a treating physician and thus not subject to WCL Section 137. However, as the Appellate Division, Third Department, recently upheld in Esposito v. Tutor Perini Corp., 158 A.D.3d 912 (3d Dept. 2018), an Injured worker’s doctor who renders only an opinion on disability and causal relationship, but does not treat the Injured worker, will be bound by the board rules regarding reports of IME and subject to preclusion if the report does not comply with the rules.
In Esposito, the board, among other things, precluded from consideration the reports and testimony of one of the injured worker’s medical experts due to a lack of compliance with statutory and regulatory provisions governing IME reports. The board ultimately found insufficient credible evidence to warrant establishment of the claim for workers’ compensation benefits. The injured worker appealed to the Appellate Division, Third Department, who agreed with the board. They found that the record established that this doctor examined the injured worker for the purpose of providing an opinion with respect to the injured worker’s diagnosis of a disability and causal relationship, rendering them an independent medical examiner. They explicitly pointed out that “whether the workers’ compensation carrier or claimant requested the examination is irrelevant in determining whether a medical examiner qualifies as an independent medical examiner.”
It is also important to determine why the injured worker has produced an IME report. A common reason is that the injured worker’s treating physician does not officially treat workers’ compensation injuries and illnesses. Often then, at the time of permanency, an injured worker will produce an IME report for the sole purpose of obtaining a permanency award in the form of a schedule loss of use or a loss of wage earning capacity. This is because this is the injured worker’s only recourse, as their treating physician cannot or will not assist them. Sometimes this IME report is from a doctor well versed in treating workers’ compensation patients but not as familiar in completing IME reports and substantially complying with WCL Section 137.
In this scenario, a strong practice point is to carefully review all the records and reports the IME doctor indicated they reviewed in rendering their opinion. This is because any record or report they reviewed has to already be in the official file (eCase) or attached to an IME-3. If they are not, WCL Section 137 has been violated and we can seek to have the report precluded. Furthermore, 12 NYCRR Section 300.2(d)(3) further provides that where an independent medical examiner is “provided with information, such as documents, reports, records, and/or test results, for review in connection with an [IME] or a review of records,” that information must also be submitted to the board for inclusion in the official file. While this might not seem too difficult to comply with, often an injured worker will simply bring their treatment records, which were never previously submitted to the official file, to the IME doctor who then fails to submit these records with their IME report, despite reviewing and commenting on them while rendering their opinions. One can see how quickly WCL Section 137 can be violated.
Again, in Esposito, the IME reports referenced documents, including x-ray reports and reports from the injured worker’s treating physician, which were not contained in the board’s file. Therefore, they found there was not substantial compliance with WCL Section 137 and 12 NYCRR Section 300.2 and that the board had properly precluded the IME reports and testimony of the doctor.
In sum, mistakes happen. IMEs in and of themselves contains lots of potential pitfalls. As such, when an injured worker is the party producing the IME, it is always best to do your due diligence and ensure that their IME has substantially complied with the necessary rules and requirements. Failure to do so could allow an IME report into evidence that should otherwise be precluded and drastically alter outcomes throughout the remainder of the claim.