June 17, 2009
The New York State Workers' Compensation Board (Board) is aware that there is confusion within the Independent Medical Examination (IME) entity industry as to what communications with independent medical examiners are acceptable in the New York State workers' compensation system. Previously, Subject Number 046-124 was published by the Office of the Chair on November 24, 2003, in an effort to establish guidelines as to what communications are allowed, a copy of which can be obtained at http://www.wcb.ny.gov/content/main/SubjectNos/sn046_124.jsp. The Board has determined that further clarification of the process that IME entities may employ in communicating with examiners is warranted.
In order for an IME to be truly independent, no verbal requests for clarification by the IME entity or any party are permitted by law. Findings of an IME provider that are inconsistent with the carrier's request will occur and the Board regards verbal requests to address any such inconsistencies as an attempt to alter the IME report, which violates Workers' Compensation Law Section 13-a  and, with regard to IME entities, violates Workers' Compensation Law Section 13-n .
Accordingly, employees of all registered IME entities are prohibited from verbally discussing, instructing, or directing an IME provider as to his or her opinions or findings in the IME report. This means that the IME provider's report must always be submitted "as is." If the IME provider does not address all of the issues requested by the carrier, or addresses issues which were not requested by the carrier, the IME entity, only if requested by the carrier, or any party of interest on their own initiative, may make a written request for clarification to the IME provider for an addendum. The request for an addendum will require an IME-3 submission with the examiner's signature. This request procedure is the extent of the communication permitted by law as to the content of the IME report. Copies of such requests and the addendum must be filed with the Workers' Compensation Board and served on all parties of interest simultaneously.
If upon receipt of an IME report a clerical or ministerial error is noticed by the IME entity, the carrier or its authorized IME entity can provide a cover letter indicating the error and submit it along with the report to the Board and all parties of interest as required by law. IME entities can arrange for blanket permission from their insurance carriers to act on the carrier's behalf. The IME report, however, must still be submitted "as is." In this instance, too, the IME-3 process noted in the paragraph above should be followed.
All IME entities should share this information with their employees and incorporate it into their written policies and statements as a standard procedure. Providing new employees with this information and periodic reminders will also help ensure compliance with the law.
Any questions regarding this matter should be referred to the Office of General Counsel at (518) 486-9564.
Zachary S. Weiss