2023 New York Laws › WKC - Workers' Compensation › Article 7 - Miscellaneous Provisions. › 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.