§ 137 — Independent medical examinations

New York § 137

• Jurisdiction: New York
• Law WKC: Workers' Compensation
• Art. 7: Miscellaneous Provisions

Text

§ 137. Independent medical examinations. 1. (a) A copy of each report\nof independent medical examination shall be submitted by the\npractitioner on the same day and in the same manner to the board, the\ninsurance carrier, the claimant's attending physician or other attending\npractitioner, the claimant's representative and the claimant.\n (b) If a practitioner who has performed or will be performing an\nindependent medical examination of a claimant receives a request for\ninformation regarding the claimant, including faxed or electronically\ntransmitted requests, the practitioner shall submit a copy of the\nrequest for information to the board within ten days of receipt of the\nrequest. Nothing in this subdivision shall be construed to abrogate the\nattorney-client privilege.\n (c) Copies of all responses to such requests for information as are\ndescribed in paragraph (b) of this subdivision, including all materials\nwhich are provided in response to such a request, shall be submitted by\nthe responding practitioner to the board within ten days of submission\nof the response to the requestor. Nothing in this subdivision shall be\nconstrued to abrogate the attorney-client privilege.\n 2. In any open case where an award has been directed by the board for\ntemporary or permanent disability at an established rate of compensation\nand there is a direction by the board for continuation of payments, or\nany closed case where an award for compensation has been made for\npermanent total or permanent partial disability, a report of an\nindependent medical examination shall not be the basis for suspending or\nreducing payments unless and until the rules and regulations of the\nboard regarding suspending or reducing payments have been met and there\nis a determination by the board finding that such suspension or\nreduction is justified.\n 3. (a) Only a New York state licensed and board certified physician,\nsurgeon, podiatrist or any other person authorized to examine or\nevaluate injury or illness by the board shall perform such independent\nmedical examination. Where a claimant resides out of state a\npractitioner qualified to examine or evaluate injury or illness by the\nboard shall perform such independent medical examination.\n (b) Any practitioner performing the independent medical examinations\nshall be paid according to the fee schedule established pursuant to\nsection thirteen of this chapter.\n 4. All independent medical examinations shall be performed in medical\nfacilities suitable for such exam, with due regard and respect for the\nprivacy and dignity of the injured worker as well as the access and\nsafety of the claimant. Such facilities must be provided in a convenient\nand accessible location within a reasonable distance from the claimant's\nresidence.\n 5. All independent medical examinations shall be performed by a\npractitioner competent to evaluate or examine the injury or disease from\nwhich the injured worker suffers. Such examination shall be performed by\na practitioner who is licensed and board certified in the state of New\nYork or any other person authorized to examine or evaluate injury or\nillness by the board.\n 6. No practitioner examining or evaluating a claimant under this\nchapter nor any supervising authority or proprietor nor insurance\ncarrier or employer may cause, direct or encourage a report to be\nsubmitted as evidence in workers' compensation claim adjudication which\ndiffers substantially from the professional opinion of the examining\npractitioner. Such an action shall be considered within the jurisdiction\nof the workers' compensation fraud inspector general and may be referred\nas a fraudulent practice.\n 7. The claimant shall receive notice by mail of the scheduled\nindependent medical examination at least seven business days prior to\nsuch examination. Such notice shall advise the claimant if the\npractitioner intends to record or video tape the examination, and shall\nadvise the claimant of their right to video tape or otherwise record the\nexamination. Claimants shall be advised of their right to be accompanied\nduring the exam by an individual or individuals of their choosing.\n 8. Independent medical examinations shall be performed during regular\nbusiness hours except with the consent and for the convenience of the\nclaimant. Claimants subject to such examination shall be notified at the\ntime of the exam in writing of the available travel reimbursement under\nlaw.\n 9. A practitioner is not eligible to perform an independent medical\nexamination of a claimant if the practitioner has treated or examined\nthe claimant for the condition for which the independent medical\nexamination is being requested or if another member of a preferred\nprovider organization or managed care provider to which the practitioner\nbelongs has treated or examined the claimant for the condition for which\nthe independent medical examination is being requested.\n 10. The ability of a claimant to appear for an exam or hearing shall\nnot be dispositive in the determination of disability, extent of\ndisability or eligibility for benefits.\n 11. At the time of the independent medical examination the claimant\nshall receive a notice from the entity performing the independent\nmedical examination, on a form which shall be approved and promulgated\nby the chair, stating the rights and obligations of the claimant and the\npractitioner with respect to such exam, and such notice shall include\nbut not be limited to a statement that the claimant's receipt of\nbenefits could be denied, terminated, or reduced as a result of a\ndetermination which may be based upon the medical evaluation made after\nsuch independent medical examination, and the claimant's rights to\nchallenge or appeal such a determination.\n 12. The chair shall conduct a thorough study of the utilization of\nindependent medical examinations under this chapter, to occur within\ncalendar year two thousand eighteen, and shall convene and present a\npreliminary report based on the study to an advisory committee set to\ncommence on or about January first, two thousand nineteen. The advisory\ncommittee is to consist of representatives of organized labor, business,\ncarriers, self-insured employers, medical providers, and other\nstakeholders and experts as the chair may deem fit to include. The\nadvisory committee shall meet quarterly, or more frequently if directed\nby the chair. By December thirty-first, two thousand nineteen, the\ncommittee shall present detailed recommendations to the governor,\nspeaker of the assembly, and majority leader of the senate, regarding\nadministrative improvements, and regulatory and statutory proposals,\nthat will ensure fairness, and highest medical quality, while improving\nmethods of combatting fraud. The committee shall review and analyze\nleading studies, both in New York state and nationally. The compensation\ninsurance rating board shall provide data, and cooperate with the chair\nand committee in identifying potential abuse and fraud. The report shall\nconsider, among other items, the feasibility of new methods of assigning\nindependent medical examinations, such as through rotating providers or\npanels, statewide networks, or other arrangements.\n