July 9, 2015
On February 11, 2014, the Chair of the Workers’ Compensation Board (Board) adopted amendments to the regulations governing the conduct and reporting of Independent Medical Examinations (IMEs) (12 NYCRR §300.2). The amended regulation became effective on February 26, 2014.
Provision of Information
The amended regulation added a requirement that every record, document, or test result supplied to an IME examiner for review in connection with an IME or records review must be a part of the Board file. Any information that is not already part of the Board file must be submitted before or at the time the IME or records review is arranged. This information should not be submitted to the Board via a Request for Information using an IME-3.
Information Already in the Board File
In conjunction with the requirement that records considered by the IME examiner be part of the Board file, the amended regulation includes new language regarding Requests for Information. The new language is consistent with the Board’s holding in Matter of Orchard Earth and Pipe Corp., 2006 NY Wrk. Comp. 90404451 . Specifically, the amended 12 NYCRR §300.2 (b)(11) states:
When any substantive communication consists of documents, records, reports, and items that are part of the official Board file and available to all parties at the time they are provided to the independent medical examiner, or his or her office, the documents, records, reports, and items or copies thereof shall not be filed with the Board.
In accordance with regulation 12 NYCRR § 300.2(b)(11), the Board will return to the sender IMEs that contain documents, records, reports and items or copies that are already part of the official Board file.
Preclusion of IMEs and Records Reviews
As stated in the regulation, a report of an examination that does not substantially comply with the requirements of Workers' Compensation Law Sections 137 and 300.2, shall not be admissible as evidence. Accordingly, information filed with the Board prior to an IME or records review that is a duplicate of information already in the Board file will result in preclusion of the IME report or records review.
Robert E. Beloten