Disability Law

New Workers Compensation IME Rule May Stop Brokers from Altering Reports in New York

By Turley, Redmond & Rosasco, LLP

Adding to an increasingly positive legacy, outgoing NY Workers' Comp Board Chairman Zachary S. Weiss has left injured workers a major tool to combat insurance company IME (independent medical exam) fraud in NY.  As I explained in a WorkersComp Central article discussing the new IME rule, IME "brokers" will no longer be able to have "secret" conversations with IME doctors regarding the results of their reports.

In New York State, many IME brokers actually write the report for the examining doctor and simply send the doctor the finished product for signature.  Some IME brokers (entities) have been caught red handed changing the findings and degree of disability of their own examining physicians.  I know - I've seen the changed reports! This was also proved in the scathing NY Times series earlier this year exposing IME Dr. Hershel Samuels.  As Dr. Samuels nonchalantly stated on video:

 "If you did a truly pure report....you'd be out on your ears and the insurers wouldn't pay for it.  You have to give them what they want, or your in Florida. That's the game, baby." (How's that for honesty!)

Now comes WCB Subject Matter Release No. 046-324 regarding broker oral communications with IME's which states: "[E]mployees 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 the IME report must always be submitted "as is"." All requests for "clarification must be submitted in writing on written notice to all parties of interest. Written "addendums" must be served on all parties require the signature of the IME. Even NY claimant's workers compensation lawyers can ask for clarification, as long as it is in writing.  Why wait for a deposition if you can ask your question now?

The poorly paid clerks employed by IME brokers should read this carefully so that they know the potential extent of their liability if they do not follow this rule. They can be criminally prosecuted under WCL Sec. 114 for failure to abide by this rule.  They can no longer write reports, format reports, type reports from dictation for the doctor's signature or put words in the IME's mouth.  The report must come in complete, prepared by the IME himself, and with the proper signature prior to the IME broker seeing the contents of the report. It must be sacrosanct and stand "as is" when delivered to all parties of interest. 

Now this is real workers' compensation reform! 

Full post as published by The New York Disability Law Blog on June 29, 2009 (boomark / email).