Understanding the Board’s Guidance on Claimant-Requested IMEs

Understanding the Board’s Guidance on Claimant-Requested IMEs

Source: New York State Workers’ Compensation Board Notification (November 17, 2025)

The New York State Workers’ Compensation Board recently issued a bulletin clarifying when a claimant may obtain their own Independent Medical Examination (IME) and how the costs of such exams should be handled. The guidance draws a clear distinction between IMEs that a claimant obtains out of necessity and those requested for purely strategic reasons, and it underscores that the Board will not become involved in reimbursing attorneys for elective IME expenses.

When the Carrier Must Pay for a Claimant’s IME

Under 12 NYCRR 300.2(d)(2), a claimant can seek an IME by someone other than their treating provider if they first make a good-faith effort to secure an opinion from that provider. If the treating physician has died, is out of state, or simply refuses or fails to provide the opinion, the carrier becomes responsible for the reasonable cost of the claimant’s IME.

In these cases, the exam serves an evidentiary function and is treated similarly to required medical development in the claim.

For carriers and self-insured employers, this means close review of the claimant’s justification is essential. If the claimant cannot demonstrate an actual barrier to obtaining an opinion from the treating doctor, the responsibility for payment does not shift to the carrier.

Elective IMEs Are Permitted — but Claimants Must Pay Their Own Way

The Board also affirmed that a claimant may obtain an IME for strategic or litigation purposes even when their treating provider is available and willing to give an opinion. These elective IMEs are permissible under the Workers’ Compensation Law and can be used by the claimant to support litigation strategy or to challenge other medical opinions.

In these situations, however, the claimant — not the carrier — is responsible for the cost.

This distinction matters: carriers are frequently confronted with requests for reimbursement for IMEs obtained without any showing that the treating provider was unavailable. The Board’s bulletin makes it clear that such elective exams do not create any financial obligation for the carrier.

Attorney Reimbursement for IME Costs Is Outside the Board’s Authority

A major part of the bulletin addresses an issue that surfaces regularly: reimbursement of disbursements advanced by claimant attorneys. The Board clarified that while attorney’s fees must be approved, disbursements — such as IME costs paid up front by the attorney — are not subject to Board approval.

These expenses are considered a private matter between attorney and client. Accordingly, the Board will not authorize reimbursement for these expenses through awards, fee applications, stipulations, conciliations, or Section 32 agreements.

Submitting such requests to the Board is improper and may even expose parties to penalties under WCL § 114-a(3) for presenting a document that includes unauthorized reimbursement provisions.

For carriers, this provides a powerful point of reference in negotiations and hearings. It eliminates attempts by claimant counsel to shift responsibility for elective IME costs into a stipulation or settlement structure.

Practical Implications for Carriers and Self-Insured Employers

1. IME invoices should be examined for compliance with 12 NYCRR 300.2(d)(2). If the claimant cannot document a valid reason for bypassing the treating provider, the carrier is not responsible for the bill.

2. Any attempt by claimant counsel to insert IME-related reimbursement into stipulations, fee applications, or a Section 32 agreement should be rejected immediately as inconsistent with Board guidance.

3. This bulletin may reduce unnecessary litigation pressure by curbing improper reimbursement demands, particularly in cases where elective IMEs are used as leverage.

4. Claims handling teams and defense counsel should incorporate this guidance into hearing strategies, especially where claimant counsel asserts disbursements as part of a settlement proposal.

Conclusion

The Board has drawn a clear line: carriers must cover IMEs only when the claimant cannot reasonably obtain an opinion from their treating provider, and the Board will not involve itself in reimbursing attorneys for elective exam costs.

For insurance companies and self-insured employers, this clarification provides valuable protection against improper cost-shifting and offers a firm basis for contesting reimbursement requests that fall outside the rule.