137. Independent medical examinations. 1. (a) A copy of each report of independent medical examination shall be submitted by the practitioner on the same day and in the same manner to the board, the insurance carrier, the claimant's attending physician or other attending practitioner, the claimant's representative and the claimant.
(b) 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. Nothing in this subdivision shall be construed to abrogate the attorney-client privilege.
(c) Copies of all responses to such requests for information as are described in paragraph (b) of this subdivision, including all materials which are provided in response to such a request, shall be submitted by the responding practitioner to the board within ten days of submission of the response to the requestor. Nothing in this subdivision shall be construed to abrogate the attorney-client privilege.
2. In any open case where an award has been directed by the board for temporary or permanent disability at an established rate of compensation and there is a direction by the board for continuation of payments, or any closed case where an award for compensation has been made for permanent total or permanent partial disability, a report of an independent medical examination shall not be the basis for suspending or reducing payments unless and until the rules and regulations of the board regarding suspending or reducing payments have been met and there is a determination by the board finding that such suspension or reduction is justified.
3. (a) Only a New York state licensed and board certified physician, surgeon, podiatrist or any other person authorized to examine or evaluate injury or illness by the board shall perform such independent medical examination. Where a claimant resides out of state a practitioner qualified to examine or evaluate injury or illness by the board shall perform such independent medical examination.
(b) Any practitioner performing the independent medical examinations shall be paid according to the fee schedule established pursuant to section thirteen of this chapter.
4. All independent medical examinations shall be performed in medical facilities suitable for such exam, with due regard and respect for the privacy and dignity of the injured worker as well as the access and safety of the claimant. Such facilities must be provided in a convenient and accessible location within a reasonable distance from the claimant's residence.
5. All independent medical examinations shall be performed by a practitioner competent to evaluate or examine the injury or disease from which the injured worker suffers. Such examination shall be performed by a practitioner who is licensed and board certified in the state of New York or any other person authorized to examine or evaluate injury or illness by the board.
6. No practitioner examining or evaluating a claimant under this chapter nor any supervising authority or proprietor nor insurance carrier or employer may cause, direct or encourage a report to be submitted as evidence in workers' compensation claim adjudication which differs substantially from the professional opinion of the examining practitioner. Such an action shall be considered within the jurisdiction of the workers' compensation fraud inspector general and may be referred as a fraudulent practice.
7. The claimant shall receive notice by mail of the scheduled independent medical examination at least seven business days prior to such examination. Such notice shall advise the claimant if the practitioner intends to record or video tape the examination, and shall advise the claimant of their right to video tape or otherwise record the examination. Claimants shall be advised of their right to be accompanied during the exam by an individual or individuals of their choosing.
8. Independent medical examinations shall be performed during regular business hours except with the consent and for the convenience of the claimant. Claimants subject to such examination shall be notified at the time of the exam in writing of the available travel reimbursement under law.
9. A practitioner is not eligible to perform an independent medical examination of a claimant if the practitioner has treated or examined the claimant for the condition for which the independent medical examination is being requested or if another member of a preferred provider organization or managed care provider to which the practitioner belongs has treated or examined the claimant for the condition for which the independent medical examination is being requested.
10. 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.
11. At the time of the independent medical examination the claimant shall receive a notice from the entity performing the independent medical examination, on a form which shall be approved and promulgated by the chair, stating the rights and obligations of the claimant and the practitioner with respect to such exam, and such notice shall include but not be limited to a statement that the claimant's receipt of benefits could be denied, terminated, or reduced as a result of a determination which may be based upon the medical evaluation made after such independent medical examination, and the claimant's rights to challenge or appeal such a determination.
12. The chair shall conduct a thorough study of the utilization of independent medical examinations under this chapter, to occur within calendar year two thousand eighteen, and shall convene and present a preliminary report based on the study to an advisory committee set to commence on or about January first, two thousand nineteen. The advisory committee is to consist of representatives of organized labor, business, carriers, self-insured employers, medical providers, and other stakeholders and experts as the chair may deem fit to include. The advisory committee shall meet quarterly, or more frequently if directed by the chair. By December thirty-first, two thousand nineteen, the committee shall present detailed recommendations to the governor, speaker of the assembly, and majority leader of the senate, regarding administrative improvements, and regulatory and statutory proposals, that will ensure fairness, and highest medical quality, while improving methods of combatting fraud. The committee shall review and analyze leading studies, both in New York state and nationally. The compensation insurance rating board shall provide data, and cooperate with the chair and committee in identifying potential abuse and fraud. The report shall consider, among other items, the feasibility of new methods of assigning independent medical examinations, such as through rotating providers or panels, statewide networks, or other arrangements.
Last modified: February 3, 2019