|
A claimant may obtain an Independent Medical Examination (IME) from a medical provider other than their own treating provider for evidentiary purposes in a workers’ compensation proceeding. New York Codes Rules & Regulations (NYCRR) Title 12 Section 300.2(d)(2) provides that where a claimant can demonstrate they made a good faith effort to obtain an opinion from their attending provider prior to seeking an IME and the attending provider was either unable because
- they died or were absent from the State, or
- the provider unreasonably failed or refused to provide such opinion,
the carrier shall be liable for all reasonable fees and costs associated with such an examination.
A claimant may also elect to obtain an IME for strategic reasons, with the understanding that they will be liable for the cost of the examination. In these situations, the claimant does not need to demonstrate the provider could not, or failed or otherwise refused to render an opinion – they can simply obtain an IME and pay for it themselves. Such IMEs are not prohibited by the Workers’ Compensation Law (WCL).
Payment and reimbursement for elective IMEs – do not involve the Board
Claimants often pay for elective IMEs directly, but sometimes their attorney will pay for the IME initially and then request reimbursement from the claimant. Such requests and reimbursements are outside of the Board’s jurisdiction. While WCL Section 24(2) requires the Board to approve attorney’s fees before they can be paid to a claimant’s representative, the law does not address disbursements or otherwise require Board approval for the reimbursement of costs and disbursements by a claimant’s attorney from the claimant.
Accordingly, the Board will not direct reimbursement of costs and disbursements to a claimant’s attorney out of claimant awards, including costs associated with obtaining a claimant IME. Therefore, claimants’ attorneys should not request reimbursement of these costs using an Application for a Fee by Claimant’s Attorney or Licensed Representative (Form OC-400.1) or in an oral fee application. Likewise, parties should not include reimbursement of costs and disbursements to a claimant’s attorney in a Stipulation (Form C-300.5), Agreed Upon Findings and Awards for Proposed Conciliation Decision (Form C-312.5), or a Section 32 waiver agreement submitted to the Board for approval.
The Board may assess a penalty pursuant to WCL Section 114-a(3) against parties and counsel who execute or present to the Board a fee application, Form C-300.5 or 312.5, or Section 32 waiver agreement that provides for the reimbursement of costs and disbursements to a claimant’s representative.
Questions?
Contact the Board’s Office of General Counsel at officeofgeneralcounsel@wcb.ny.gov.
|
