PRACTICE TIP: Do not assume that a physician practicing at an Occupational Health Clinic Network (OHCN) is exempt from the requirements of Section 137 if the physician is evaluating the claimant for purposes of a permanency or other opinion outside of a continuing doctor/patient relationship.
New York State Workers’ Compensation Law Section 137 sets forth the obligations of an IME physician regarding properly scheduling, conducting, and issuing a written report arising out of an Independent Medical Examination. Board Rule 300.2(b)(4) exempts from the requirements of Section 137 an examination conducted at a clinic that is a member of the Occupational Health Clinic Network (OHCN). However, a recent Board Panel Decision determined that an OHCN physician who is consulted at the request of a claimant solely for purposes of a permanency determination even though the claimant had already established treatment with another physician is still subject to the statutory requirements of Section 137.
In CMP Advanced Mechanical Solutions, WCB G1575865 (8/26/20), a Board Panel held that the claimant sought an evaluation by an OHCN physician solely for purposes of a schedule loss of use (SLU)/permanency opinion, not for treatment. The Board Panel held that the OHCN physician was obligated to follow the procedural requirements set forth at WCL Section 137. Given the physician’s failure to do so, the Board Panel precluded the report due to lack of compliance with WCL Section 137. (The case is currently pending discretionary Full Board review).
As a report of an OHCN physician who is consulted solely on the issue of permanency/schedule loss of use outside of the treating physician role is subject to being stricken from the record particularly where an attending physician is available and able to issue a permanency opinion, this issue should be raised to preclude an unfavorable report.
If you have any questions about this or any other issue, contact Edmond Morreall at firstname.lastname@example.org 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.