From the Desk of Attorney David L. Niefer
PRACTICE TIP: The service and filing requirements with regard to a report generated after a physical examination are not the same for a record review. Knowing the difference will help prevent a record review from being precluded from evidence.
In 2000, the New York State Workers’ Compensation Board enacted WCL § 137 to standardize and regulate the conduct of independent medical examinations. The Appellate Division has held that the provisions of § 137 governing an “independent medical examination” do not apply to an expert report issued without a physical examination. See, Coratti v. Jon Josef Hair & Colour Group, 17 A.D.3d 768 (3d Dept. 2005).
After the enactment of WCL § 137, the Board issued regulations regarding the conduct of independent medical examinations. The regulations defined both an “independent medical examination” at Board Rule 300.2(b)(4) and a “record review” at Board Rule 300.2(b)(12). The subsequent provisions of the regulations must be read carefully to distinguish between reports issued after a physical examination and reports issued without a physical examination.
For instance, Board Rule 300.2(d)(4)(iv) provides that written reports without a physical examination to be utilized at a hearing “must be filed with the Board and submitted to all other parties or their representatives, if any, three business days prior to the hearing.” The regulation does not reference the service of a record review upon an attending physician. Thus, if you are presented with an argument that your record review report should be precluded due to the failure to serve it upon an attending physician, an argument should be made distinguishing the service requirements regarding a record review at 300.2(d)(4)(iv) versus those applying to a report issued after a physical examination as set forth at 300.2(d)(4)(iii). You should further keep in mind that if the record review is being sought in response to an authorization request, then different service/filing requirements must be met.
If you have any questions about this or any other issue, contact David L. Niefer at dniefer@gittolaw.com or (607) 723-0600 or any of the attorneys in our office. If you would like a training session on this or any area of the Workers’ Compensation Law, please do not hesitate to contact our firm.
This information is provided for general guidance only. This information should not be used as a substitute for consultation with legal counsel. Each case presents unique facts requiring individual analysis.
