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Independent Medical Examination

One the most difficult aspects of the Workers' Compensation Law in New York is that the claimant's doctor may not get the last word when the legal determination is made regarding any important medical question. Important medical questions include: whether a claimant's work was the cause of his/her injury or illness; what treatments or tests are medically necessary; and what degree of disability should be assigned in a particular claim during any particular period of time. Thus, the outcome of medical questions largely determines whether a Workers’ Compensation claim will be successful and for how much money.
In New York, the insurance companies who are held liable for the costs of wage replacement benefits and necessary medical treatments have Constitutional, Due Process rights to dispute the opinions of the claimant's doctor(s) through legal process conducted at the Workers’ Compensation Board. Among these Due Process rights is the right to have a claimant examined by a so-called “Independent Medical Expert”.

The IME physician’s report may control the outcome of your claim. The judge may have some questions for the insurance carrier’s doctor, and will also allow you to ask that doctor any "relevant" questions you wish during open court proceedings if you are unrepresented. However, without experience, most claimants don’t know how to properly cross-examine the carrier’s physician (who has been cross-examined many times by trained professionals) for greatest effect. If you do obtain an attorney, on the other hand, your attorney will be granted permission by the court to depose the insurance carrier’s doctor and ask all the tough questions necessary to undercut or shatter the credibility of the doctor’s stated medical opinion. In that way, it is more likely that your own doctor’s opinion will control the judicial determinations to be made in your claim (and these, in turn, determine what medical attention and monetary benefits you will receive).
Please Contact Us now if you need help preventing the insurance company’s doctor from impeding your access to medical procedures or defeating the full monetary value of your claim.



QUESTIONS & ANSWERS:

Question:

Do I really have to disclose my prior medical records or execute a HIPAA-Compliant Medical Information Release form and then provide same to the insurance carrier for review by the carrier's IME physician, adjusters, and lawyers?
Answer:

No, you do not. However, if you fail to disclose your complete medical history, the insurance carrier will make motions to the Workers' Compensation Board which a Workers' Compensation Law Judge will almost certainly grant. Those motions include suspending your right to receive bi-weekly benefit checks unless or until you disclose your prior health history, or even disallowing payment for necessary medical treatments. So, if you want to claim Workers' Compensation benefits or treatment, your best option is to disclose everything. Remember, the Workers' Compensation Law requires the insurance carrier to maintain your privacy to a similar extent as the staff in your doctor's office must do so. Specifically, it is unlawful for the insurance carrier or any other person to disclose your health information to any party not involved with your claim (see, Workers' Compensation Law Section 110-a(4)). Furthermore, the carrier likely has no interest in your healthcare information other than to utilize same to analyze or contest the liabilities in your Workers' Compensation claim. However, for those who need more convincing, we've linked to a Third Department, Appellate Division court case here which illustrates how the courts treat stubborn or hyper-sensitive claimants who falsely believe there is a privacy right to prevent disclosures of healthcare information during a legal battle in which the claimant demands to recover based on an injury or occupational disease. In fact, the law provides no such privacy, either in Supreme Court personal injury actions, or in Workers' Compensation claims. If you want to claim healthcare or money benefits, be prepared to disclose (including executing a HIPAA-Compliant Release).
Question:

Can I prevent my doctor from telling the insurance carrier, the carrier's doctor, or the Workers' Compensation Board about my healthcare information by invoking my privacy rights under the Health Insurance Portability and Accountability Act of 1996 (HIPAA, Public Law 104-191)?
Answer:

No, you cannot prevent your doctor from disclosing your healthcare information to the parties in your Workers' Compensation claim as the HIPAA law does not apply as against those parties or the Board. In other words, by making a Workers' Compensation claim, you are waiving your doctor-patient privilege. Thus, even if you do not willingly authorize your doctor to speak about your medical history, typically the defense insurance carrier in your claim will just obtain an order for your doctor's testimony. This means that the insurance carrier can typically just depose your doctor and ask your doctor what information is contained in your medical records.