The New York Disability Law Blog : New York Disability Lawyer & Attorney : Turley, Redmond & Rosasco : Brooklyn, Queens, Long Island, Nassau, Suffolk, Bronx, Staten Island

Adding to an increasingly positive legacy, outgoing NY Workers' Comp Board Chairman Zachary S. Weiss has left injured workers a major tool to combat insurance company IME (independent medical exam) fraud in NY.  As I explained in a WorkersComp Central article discussing the new IME rule, IME "brokers" will no longer be able to have "secret" conversations with IME doctors regarding the results of their reports.

In New York State, many IME brokers actually write the report for the examining doctor and simply send the doctor the finished product for signature.  Some IME brokers (entities) have been caught red handed changing the findings and degree of disability of their own examining physicians.  I know - I've seen the changed reports! This was also proved in the scathing NY Times series earlier this year exposing IME Dr. Hershel Samuels.  As Dr. Samuels nonchalantly stated on video:

 "If you did a truly pure report....you'd be out on your ears and the insurers wouldn't pay for it.  You have to give them what they want, or your in Florida. That's the game, baby." (How's that for honesty!)

Now comes WCB Subject Matter Release No. 046-324 regarding broker oral communications with IME's which states: "[E]mployees of all registered IME entities are prohibited from verbally discussing, instructing, or directing an IME provider as to his or her opinions or findings in the IME report. This means the IME report must always be submitted "as is"." All requests for "clarification must be submitted in writing on written notice to all parties of interest. Written "addendums" must be served on all parties require the signature of the IME. Even NY claimant's workers compensation lawyers can ask for clarification, as long as it is in writing.  Why wait for a deposition if you can ask your question now?

The poorly paid clerks employed by IME brokers should read this carefully so that they know the potential extent of their liability if they do not follow this rule. They can be criminally prosecuted under WCL Sec. 114 for failure to abide by this rule.  They can no longer write reports, format reports, type reports from dictation for the doctor's signature or put words in the IME's mouth.  The report must come in complete, prepared by the IME himself, and with the proper signature prior to the IME broker seeing the contents of the report. It must be sacrosanct and stand "as is" when delivered to all parties of interest. 

Now this is real workers' compensation reform! 

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I should have picked up the clues!  A few weeks ago I was speaking at the New York Social Security Disability Bar Association Annual Dinner in Manhattan.  This is always a great night for the Bench and the Bar break bread and have a few laughs.  I was there to speak about one of my favorite Social Security Judges, Andrew Weiss of the Long Island Office of Disability Adjudication and Review, who was receiving the prestigious Hon. Lester Rosen Award.  I have known Andy since his early days as a Workers Compensation Law Judge in Hempstead and he has a singularly unique blend of compassion and humor. 

Much to my surprise, in attendance was the current Chairman of the New York Workers' Compensation Board, Zachary S. Weiss (no relation).  Having attended these dinners for at least the last 15 years, I had never seen the Chair of the Workers' Comp Board enter the somewhat more calm sanctum of the Social Security Bar.  The Chair and I had a pleasant conversation over cocktails and it was my honor to introduce him later from the podium.  Other than that, I thought nothing more about the Chair's presence.

It all clicked  last Friday when the New York Times reported that Chairman Weiss was resigning from the Workers' Compensation Board to accept a position as a federal Administrative Law Judge (ALJ) for the Social Security Administration in the Jericho office.  My friends who are ALJ's had told me that offers went out to the new class of judges right about the same time as the Social Security Bar Dinner.  It was not a coincidence that Chairman Weiss was at the dinner - he was simply getting to know his future colleagues and the attorneys who might be appearing before him in the future!  Smart man!

As I said in an article published in WorkersComp Central regarding Chairman Weiss' resignation, he is quite simply a brilliant man.  I have spoken to him on many occasions. Although we have disagreed in the past on the substance of a few workers' compensation system issues, there is no question that his formidable intellect combined with compassion will directly benefit the individuals appearing before him in the future claiming Social Security Disability benefits.  Out of the often times murky waters of the NY workers' compensation system (click here for an interesting post from the Workers Comp Insider Blog), Zachary S. Weiss has emerged untarnished and renewed as a federal judge.  I wish him success and happiness in his new position adjudicating Social Security disability claims. 

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