Hamberger & Weiss LLP


Appellate Division Allows Use of WCL ยง137 to Preclude Treating Doctor's Report

On 2/8/18, the Appellate Division, Third Department, decided Esposito v. Tutor Perini CorporationThis decision holds that the opinion from a treating physician can be treated as an independent medical examination if it is obtained solely for the purpose of producing an opinion on disability and causal relationship as opposed to medical treatment.  If a treating doctor’s report is treated as an independent medical examination, it is subject to all WCL §137 requirements and the Board’s regulations in 12 NYCRR §300.2.  The court stated whether an employer/carrier or the claimant requested the examination is irrelevant when determining whether a medical examiner qualifies as an independent medical examiner.  The court affirmed the Board’s decision precluding one of claimant’s medical experts based on non-compliance with regulations governing submission of documents reviewed by independent medical examiners to the Board.

A report from a physician may be considered an independent medical examination if it is from a provider not treating the claimant for the injury or illness at issue who only provides an opinion without any intent to treat the claimant further. For example, a claimant may have shoulder surgery performed by an orthopedic surgeon but then sees a different physician a year later who only provides an opinion on schedule loss of use. This new physician may arguably be an independent medical examiner who is subject to the laws, rules, and regulations concerning same. Claimant’s attorneys will sometimes send claimants to physicians for an independent medical examination and although these physicians often indicate their role through use of the IME-4 cover sheet, that is not always the case. We invite you to contact us to review any claims in which you notice such a report to see if they should be deemed independent medical examinations.

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