Month – March 2014

New York WCB Announces Amendments to IME Regulations

IME Practice Tips WCB Announcements

Section 137 of the New York Workers’ Compensation Law and 12 NYCRR §300.2 governs Independent Medical Examinations. As we previously discussed, it is imperative that you, the IME physician and your vendor meet the requirements of Section 137 or you run the risk of having your IME report precluded by the WC Law Judge.

The amendments affect not only physical examinations but also record reviews (peer review).

The significant changes are detailed on the WCB website [direct link].

The two biggest amendments pertain to the documenting of medical records reviewed by the examiner.

A new requirement has been added to the regulation that requires 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. Information submitted to the Board before or at the time the IME is arranged should not be submitted to the Board as a Request for Information using an IME-3.

This is important because often times the insurance carrier will obtain records (e.g. records received from treating provider in response to subpoena) and provide these along with the IME-3 to the IME for their review. The regulations now specifically note that this is not allowed and instead, the records the carrier wishes for the examiner to review, must be submitted to the Board file.

Additionally, “the submitting IME examiner must list all documents, reports, and other items reviewed in the IME or records review report.” This change is not as significant because the majority of IME reports already contain a comprehensive list of all medical records and diagnostic studies that the examiner reviewed at the time of their examination.

Is There a Statute Of Limitations in an Occupational Disease Claim?

FAQs Occupational Disease

Yes, the specific time frame for filing an occupational disease claim is outlined in New York WCL § 28.

According to the statute:

The right to claim compensation under this chapter shall be barred, except as hereinafter provided, unless within two years after the accident, or if death results therefrom within two years after such death, a claim for compensation shall be filed with the chairman.

The statute begins to run “from the date of disablement and within two years from the date the claimant knew or should have known that the disease is due to the nature of the employment.” This is important because determining the claimant’s knowledge of the alleged occupational condition is critical to defending against these claims.

When a claimant files an occupational disease claim it is important to seek any documentation showing that the claimant was advised of the alleged condition and the relationship of the condition to their work. Often, the claimant will file a claim but their medical records will indicate they were aware of the injury/condition several years earlier. It will then be up to a judge to determine whether the claimant should have known at that time the injury was potentially work-related and filed a claim within two years of having that knowledge.