Section 137. Independent medical examinations

1. (a) A copy of each report
  of  independent  medical  examination  shall   be   submitted   by   the
  practitioner  on  the  same day and in the same manner to the board, the
  insurance carrier, the claimant's attending physician or other attending
  practitioner, the claimant's representative and the claimant.
    (b) If a practitioner who has  performed  or  will  be  performing  an
  independent  medical  examination  of  a claimant receives a request for
  information regarding the claimant, including  faxed  or  electronically
  transmitted  requests,  the  practitioner  shall  submit  a  copy of the
  request for information to the board within ten days of receipt  of  the
  request.  Nothing in this subdivision shall be construed to abrogate the
  attorney-client privilege.
    (c) Copies of all responses to such requests for  information  as  are
  described  in paragraph (b) of this subdivision, including all materials
  which are provided in response to such a request, shall be submitted  by
  the  responding  practitioner to the board within ten days of submission
  of the response to the requestor. Nothing in this subdivision  shall  be
  construed to abrogate the attorney-client privilege.
    2.  In any open case where an award has been directed by the board for
  temporary or permanent disability at an established rate of compensation
  and there is a direction by the board for continuation of  payments,  or
  any  closed  case  where  an  award  for  compensation has been made for
  permanent  total  or  permanent  partial  disability,  a  report  of  an
  independent medical examination shall not be the basis for suspending or
  reducing  payments  unless  and  until  the rules and regulations of the
  board regarding suspending or reducing payments have been met and  there
  is  a  determination  by  the  board  finding  that  such  suspension or
  reduction is justified.
    3. (a) Only a New York state licensed and board  certified  physician,
  surgeon,  podiatrist  or  any  other  person  authorized  to  examine or
  evaluate injury or illness by the board shall perform  such  independent
  medical   examination.   Where   a  claimant  resides  out  of  state  a
  practitioner qualified to examine or evaluate injury or illness  by  the
  board shall perform such independent medical examination.
    (b)  Any  practitioner performing the independent medical examinations
  shall be paid according to the  fee  schedule  established  pursuant  to
  section thirteen of this chapter.
    4.  All independent medical examinations shall be performed in medical
  facilities suitable for such exam, with due regard and respect  for  the
  privacy  and  dignity  of  the  injured worker as well as the access and
  safety of the claimant. Such facilities must be provided in a convenient
  and accessible location within a reasonable distance from the claimant's
  residence.
    5. All independent  medical  examinations  shall  be  performed  by  a
  practitioner competent to evaluate or examine the injury or disease from
  which the injured worker suffers. Such examination shall be performed by
  a  practitioner  who is licensed and board certified in the state of New
  York or any other person authorized to examine  or  evaluate  injury  or
  illness by the board.
    6.  No  practitioner  examining  or  evaluating  a claimant under this
  chapter nor  any  supervising  authority  or  proprietor  nor  insurance
  carrier  or  employer  may  cause,  direct  or  encourage a report to be
  submitted as evidence in workers' compensation claim adjudication  which
  differs  substantially  from  the  professional opinion of the examining
  practitioner. Such an action shall be considered within the jurisdiction
  of the workers' compensation fraud inspector general and may be referred
  as a fraudulent practice.

    7. The  claimant  shall  receive  notice  by  mail  of  the  scheduled
  independent  medical  examination  at least seven business days prior to
  such  examination.  Such  notice  shall  advise  the  claimant  if   the
  practitioner  intends to record or video tape the examination, and shall
  advise the claimant of their right to video tape or otherwise record the
  examination. Claimants shall be advised of their right to be accompanied
  during the exam by an individual or individuals of their choosing.
    8.  Independent medical examinations shall be performed during regular
  business hours except with the consent and for the  convenience  of  the
  claimant. Claimants subject to such examination shall be notified at the
  time  of the exam in writing of the available travel reimbursement under
  law.
    9. A practitioner is not eligible to perform  an  independent  medical
  examination  of  a  claimant if the practitioner has treated or examined
  the claimant  for  the  condition  for  which  the  independent  medical
  examination  is  being  requested  or  if  another member of a preferred
  provider organization or managed care provider to which the practitioner
  belongs has treated or examined the claimant for the condition for which
  the independent medical examination is being requested.
    10. The ability of a claimant to appear for an exam or  hearing  shall
  not  be  dispositive  in  the  determination  of  disability,  extent of
  disability or eligibility for benefits.
    11. At the time of the independent medical  examination  the  claimant
  shall  receive  a  notice  from  the  entity  performing the independent
  medical examination, on a form which shall be approved  and  promulgated
  by the chair, stating the rights and obligations of the claimant and the
  practitioner  with  respect  to such exam, and such notice shall include
  but not be limited  to  a  statement  that  the  claimant's  receipt  of
  benefits  could  be  denied,  terminated,  or  reduced  as a result of a
  determination which may be based upon the medical evaluation made  after
  such  independent  medical  examination,  and  the  claimant's rights to
  challenge or appeal such a determination.