How To Ensure Your IME is Compliant with Section 137

In order for an Independent Medical Examination (IME) report to be compliant with Section 137 of the Workers’ Compensation Law, a copy of each report must be submitted by the practitioner on the same day and to the Board, the insurance carrier, the claimant’s attending physician or practitioner, the claimant’s representatives, and the claimant themselves in the same manner (WCL Section 137(1)(a)). “If a practitioner who has performed or will be performing an independent medical examination of a claimant receives a request for information regarding the claimant, including faxed or electronically transmitted requests, the practitioner shall submit a copy of the request for information to the Board within ten days of receipt of the request” (WCL Section 137(1)(b)). However, under 12 NYCRR 300.2(d)(12), if a report of an IME does not substantially comply with the requirements of WCL Section 137 and 12 NYCRR 300.2(d)(12), then the report may not be admissible as evidence for any purpose (Matter of Evans Brant Central School District, 2012 NY Wrk Comp G0247627).

Some workers’ compensation law judges disallow an IME if the IME consultant failed to complete Section 10-A of an IME-3 regarding the date on which the carrier’s request for information was received by the consultant. However, our Workers’ Compensation Practice Group indicates that this is not a viable reason to preclude the IME-3 and, in turn, preclude an IME-4. If the workers’ compensation law judge precludes the IME-3/IME-4 based on the above grounds, it seems as if the judge intends to prejudice the carrier.

In most cases, the carrier’s consultants substantially comply with the requirements of WCL Section 137. Most IME doctors complete a majority of the necessary information but fail to provide a date on the report. Similarly, in Matter of Davis Aircraft Products Co Inc., the doctor completed all necessary information and executed a signature on each document, yet, he failed to provide a date on each report’s signature line such that some IME doctors do. However, although the IME-3 forms were not fully completed, the Board Panel found that the remaining information substantially complied with WCL Section 137, and that no prejudice was caused to the claimant by the doctor’s omissions (Matter of Davis Aircraft Products Co Inc., 2018 NY Wrk Comp G1395214). Thus, if no prejudice was caused to the claimant by the doctor’s omission of the date the information was received by the consultant, then remaining information on the IME-3 should be found to substantially comply with WCL Section 137.

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