Independent Medical Exams

Independent Medical Exams, often referred to as “IME’s”, are used by the Carrier at various times in a case, such as:

• In controverted cases to obtain an opinion on causal relationship,
• To obtain an opinion on additional body sites and consequential conditions,
• To obtain an opinion on your degree of impairment before permanency,
• To obtain an opinion about further treatment,
• To obtain an opinion on Maximum Medical Improvement (“MMI”), or
• To obtain an opinion on permanent disability and Loss of Wage Earning Capacity (“LWEC”).

An Independent Medical Examiner must be approved by the New York State Workers’ Compensation Board. However, Carrier’s may choose from the approved list, as they see fit. The law requires that notice of the exam be given within eight days and that the location be reasonably convenient for the claimant.

Often, the Carrier will have more than one IME during the course of a case and many times it is not the same doctor. The Carrier will present certain questions to the Independent Medical Examiner, which are disclosed in a filing with the Workers’ Compensation Board.

The law requires that the Independent Medical Examiner submit a report within 10 days of the examination. The report must be mailed to all parties at the same time. Failure to comply with the rules and regulations may result in the IME being precluded in the case.

Sometimes, the Carrier will choose to have the Independent Medical Examiner do a Record Review only, meaning that there is no physical examination or meeting with the injured worker. Rather, the Independent Medical Examiner reviews the records submitted by the Carrier and renders an opinion. This often happens where the issue is whether the injured worker should be allowed a specific type of treatment or medication.

It must be remembered that the Independent Medical Examiner is working for the Carrier/Employer and, despite the label of “Independent,” brings a certain bias to the exam and the report.

Maximum Medical Improvement

As your case evolves, there should be a strategic conversation regarding how the medical and Lost Wage portion of your case will be concluded. This is especially important as you reach Maximum Medical Improvement (“MMI”).

Once you are found to have reached MMI, the Court will impose a permanency proceeding that is likely to stop or limit your benefits in the future. It is at this time that many injured workers start to think about concluding their case by one of the three methods which we will discuss.

The New York State Workers’ Compensation Board defines MMI as when:

• You have recovered from the work injury to the greatest extent that is expected; and
• No further improvement in your condition is reasonably expected.

Rather, you are still entitled to certain palliative care, such as Chiropractic care and pain medications. There are, however, significant guidelines on future care and use of medications.

MMI is a medical determination, typically found one year from the date of injury or surgery in cases that involve the extremities. In cases involving the neck, back, and body systems or functions, MMI is usually found two years from the date of injury or surgery. If MMI is found, the Board places your case on the Permanency calendar.

How is my Case Resolved?

The law allows for your case to be concluded in three important, but separate, ways:

• A finding of a Schedule Loss of Use (“SLU”),
• A finding of a Permanent Partial Disability (“PPD”) or Temporary Total Disability (“TTD”), or
• A Section 32 settlement.

As your case evolves, it is important to consider what resolution will best serve your needs and desires. It is important to have a strategic conversation with your attorney before your case reaches permanency, so as to allow that appropriate steps are taken.

Schedule Loss of Use

A Schedule Loss of Use is awarded for injuries to the extremities, as well as eyes and ears. Generally, an SLU is awarded approximately one year after surgery or the date of injury. An SLU is meant to compensate you for your loss of use, not necessarily a loss of earnings. Therefore, an SLU can be awarded even if:

• You have not lost time from work,
• You have returned to work without Reduced Earnings, or
• You are out of work.

How is My Schedule Loss of Use Calculated?

The New York State Workers’ Compensation Law sets forth a schedule that establishes the number of weeks payable for a 100% Loss of Use of an extremity, eye, or ear. An SLU is calculated by determining what percentage use you have lost. Your doctor will file an opinion using the Board form C-4.3 “Doctors Report of MMI/Permanent Impairment,” when he or she believes you have reached Maximum Medical Improvement.

The doctor must follow the New York State Workers’ Compensation Board 2012 Permanency Guidelines when completing the form. You can review the Guidelines at the New York State Workers’ Compensation Board’s website.

Often, once your doctor comments on your percentage of loss of use, the Carrier will chose to have you examined by their IME. If there is a difference of opinion, a hearing or other proceedings may be held to resolve the difference. Many times, the dispute is resolved by negotiation and compromise.

Once the percentage loss of use is agreed upon, there is a mathematical calculation to determine the number of weeks of benefits that it equals. For example, the arm is worth 312 weeks. If it is agreed that you have a 10% SLU of the arm, you are entitled to 31.2 weeks of benefits (312 X 10% = 31.2). You then multiply your total rate by 31.2 weeks to determine the gross amount of the SLU. From that sum, you deduct what has been previously paid. The balance is then typically paid in one lump sum.

Example

Using our example of a worker with an AWW of $900.00, 10% of the arm equals $18,720 ($600.00 X 31.2). The amount paid would be determined after deducting the amount of money paid during the period of disability. In this example, we will assume that the injured worker was out of work for 10 weeks and paid the 100% rate for 7 weeks and the 50% rate for 3 weeks. The amount paid is $5,100.00 ($600.00 [temporary total] X 7 = $4,200 + $900.00 [temporary partial 50%] X 3 = $900.00; Total of $5,100.00). Thus, the amount moving from the SLU would be $13,620 ($18,720-$5,100=$13.620). Again, this is typically paid in a lump sum.

What if my Condition Worsens after I receive an SLU?

The Carrier remains liable for causally related medical treatment. If there is a material change in circumstances, such as a further surgery, you may make an application to increase the SLU. The request must be made within 18 years of the date of injury or within 8 years of the last payment of Workers’ Compensation benefits.

In the event that the same injury takes you out of work in the future, before you would be entitled to further weekly benefits, you would have to exhaust the payment made to you in the sum of $13,620. In our example, you would have to be out of work at temporary total for 22.7 weeks before you would be entitled to additional money.