N.Y. Workers' Compensation Law § 137: Independent medical examinations

§ 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.