Date: Apr 24, 2026

IME-3 Is Not an Absolute Prerequisite to Admissibility When IME-5 Plus Filed Instructions Substantially Comply with Workers’ Compensation Law § 137

Case: Matter of Martinez v. Sing Sing Corr. Facility, 2026 NY Slip Op 02493 (3d Dep’t Apr. 23, 2026) (published)
Court: Appellate Division, Third Department (Clark, J.P.)
Subject: Workers’ Compensation; preclusion of IME report; WCL § 137; 12 NYCRR 300.2

1. Introduction

This appeal arose from a Workers’ Compensation Board (WCB) ruling refusing to preclude an independent medical examination (IME) report used to address maximum medical improvement (MMI), permanency, and schedule loss of use (SLU) for the claimant’s bilateral wrists, elbows, and shoulders. The claimant, Michael Martinez, was injured in January 2023 while manually cranking an inner gate at work at Sing Sing Correctional Facility. After treatment, his physician issued SLU findings. The carrier (through the State Insurance Fund, SIF) scheduled an IME and filed an IME-5 (Claimant’s Notice of Independent Medical Examination) accompanied—though separately scanned—by written instructions describing the exam’s purpose and the questions to be answered.

The central issue was procedural but consequential: whether the IME report must be precluded under Workers’ Compensation Law § 137 because the file lacked an IME-3 (Independent Examiner’s Report of Request Regarding Independent Medical Examination), even though the carrier had timely filed the IME-5 and detailed written instructions communicating the IME’s scope and objectives.

2. Summary of the Opinion

The Third Department affirmed the WCB’s decision and held that preclusion was not warranted. Although an IME-3 was not filed, the court found no abuse of discretion in the Board’s determination that the timely filed IME-5 together with the accompanying written instructions substantially satisfied Workers’ Compensation Law § 137 and the Board’s rules (12 NYCRR 300.2) by disclosing the body parts to be examined and the issues the IME physician was asked to address (including MMI, permanency, and SLU percentages).

Critically, the court emphasized that neither the statute nor the rules expressly require the use of the IME-3 form to satisfy the notice and filing requirements, and it noted the absence of any claim that the claimant lacked notice or suffered prejudice.

3. Analysis

3.1 Precedents Cited

The opinion builds its reasoning on three interlocking strands of authority: (i) the anti-influence policy embedded in the Workers’ Compensation Law, (ii) the “substantial compliance/admissibility” framework in the Board’s regulations, and (iii) consistent WCB administrative practice declining preclusion where the carrier’s filings effectively disclosed the IME communications.

A. Anti-influence policy and transparency around medical opinions

Matter of Petti v Asplundh Constr. Corp., 244 AD3d 1539 (3d Dept 2025): Cited for the broader statutory prohibition against improperly influencing a medical opinion (Workers’ Compensation Law § 13-a [6] [a]). In Martinez, this principle contextualizes why § 137 demands disclosure of substantive communications with IME physicians: transparency is a safeguard against “back-channel” steering of medical conclusions.
Workers' Compensation Bd Release Subject No. 046-1749 (Mar. 21, 2025) and Workers' Compensation Bd Release Subject No. 046-124 (Nov. 24, 2003): These releases are referenced to reinforce the compliance culture around disclosure and the Board’s continuing emphasis on preventing improper influence, framing § 137 as an operational transparency regime rather than a purely technical trap.

B. Admissibility turns on “substantial compliance,” not form absolutism

Matter of Olczyk v Verizon N.Y., Inc., 33 AD3d 1109 (3d Dept 2006): Invoked for the regulatory proposition that IME evidence that does not “substantially comply” with § 137 “shall not be admissible” for enumerated purposes (12 NYCRR 300.2 [d] [12]). In Martinez, the court reads this as directing attention to the sufficiency of disclosure and timing—i.e., whether the parties and the Board got the pertinent information—rather than insisting on one exclusive document (IME-3) in all cases.

C. Consistent WCB practice: no preclusion where IME-5 + instructions supply the required disclosure

Employer: New York City Tr. Auth., 2026 WL 124802 (WCB No. G345 2976, Jan. 13, 2026): Cited twice for the proposition that the Chair has prescribed the IME-3 as the “proper” form for reporting requests and responses, but also as an example where the Board nevertheless declined preclusion when the carrier filed an IME-5 and instructions identifying the IME purpose/questions.
Employer: FOJP Serv. Corp., 2024 WL 294045, 2024 NY Wrk Comp LEXIS 344 (WCB No. G151 1069, Jan. 18, 2024): Used similarly to show a stable administrative line: the Board’s core concern is that substantive communications be disclosed; the mechanism can be satisfied where the IME-5 packet effectively contains that communication.
Employer: Tishman Speyer Props. LP, 2026 WL 200333, 2026 NY Wrk Comp LEXIS 301 (WCB No. G343 2971, Jan. 16, 2026): Reinforces the same pattern and provides the immediate administrative backdrop for the Board’s approach adopted here.
Workers' Compensation Bd Release Subject No. 046-769 (July 9, 2015): Cited (via footnote) for the practical rule that additional filing is not required when documents constituting the substantive communication are already in the Board file and accessible to all parties—supporting the opinion’s functional focus on disclosure and access.

Bottom line on precedent: The Third Department aligns itself with the Board’s consistent “substantial compliance” approach: where the filed IME-5 materials reveal the IME’s purpose and questions, an IME-3 omission does not automatically compel preclusion.

3.2 Legal Reasoning

The opinion’s reasoning proceeds in three steps.

Step 1: Identify what § 137 and 12 NYCRR 300.2 are trying to accomplish

Workers’ Compensation Law § 137 imposes disclosure obligations when an IME practitioner receives a “request for information” about the claimant and when the practitioner responds. The Board’s rules define “request for information” broadly to include “any substantive communication” outside the exam, including requests/referrals, related communications, questions/inquiries, and provision of information for the examiner’s professional opinion (12 NYCRR 300.2 [b] [11]). The admissibility sanction is severe: non-substantial compliance renders the IME report inadmissible for purposes including SLU, disability degree, causation, MMI, return-to-work, permanency, and other Board-recognized purposes (12 NYCRR 300.2 [b] [4]; 12 NYCRR 300.2 [d] [12]).

Step 2: Determine whether the governing law mandates IME-3 as the exclusive compliance method

While acknowledging that the Chair has “prescribed the IME-3 form as the proper form” (as stated in Employer: New York City Tr. Auth.), the court makes the decisive doctrinal move: it observes that neither Workers’ Compensation Law § 137 nor 12 NYCRR 300.2 “expressly require” using IME-3 to satisfy the notice and filing requirements. The court thus treats IME-3 as an administratively preferred tool, not an absolute statutory/regulatory condition of admissibility.

Step 3: Apply “substantial compliance” to the actual filings and assess prejudice

The record showed that SIF filed (i) the IME-5 form and (ii) separately scanned instructions on the same day. Although the IME-5 itself minimally said “see attached,” the instructions specifically identified the body parts to be examined and asked the examiner to address accident/treatment history, MMI, permanency, and—if appropriate—SLU findings for each site.

On those facts, the court held the Board could reasonably find compliance: the materials timely gave the parties “all of the pertinent information” about the scope and issues. The absence of any asserted lack of notice or prejudice further supported the decision not to impose the harsh remedy of preclusion. In effect, Martinez treats preclusion as a remedy tied to meaningful nondisclosure (or resulting unfairness), not a purely formalistic penalty.

3.3 Impact

1) Reinforces a “functional compliance” approach to § 137. The decision signals that appellate review will generally defer to the Board’s judgment where the record shows timely, accessible disclosure of the IME’s purpose and questions, even if the disclosure appears in IME-5 instructions rather than an IME-3.

2) Narrows the practical reach of preclusion arguments based solely on missing IME-3 forms. Claimants will likely need to show more than a missing form—e.g., that substantive communications were not disclosed, were untimely, or caused concrete prejudice affecting the ability to prepare, object, or litigate.

3) Encourages carriers and IME physicians to ensure transparency through the file. Although the court does not require IME-3 in every instance, it implicitly underscores that carriers must still get the “request for information” content into the Board file in a way that is accessible to all parties. IME-5 filings that merely schedule an exam without disclosing scope/issues may not suffice; here, the detailed instructions did the substantive work.

4) Provides guidance for Board practice in SLU/permanency litigation. Because SLU and permanency determinations often hinge on IME reports, Martinez may reduce satellite litigation over technical filing defects and refocus disputes on whether the disclosure goal of § 137 was actually met.

4. Complex Concepts Simplified

IME (Independent Medical Examination): A medical evaluation arranged by the carrier/employer (not the treating doctor) to provide opinions on issues like diagnosis, disability, MMI, and permanency.
SLU (Schedule Loss of Use): A percentage-based measure of permanent functional loss of certain “statutory members” (e.g., arm, shoulder, wrist), used to calculate benefits under New York’s schedule.
MMI (Maximum Medical Improvement): The point at which a condition has stabilized and is unlikely to improve substantially with further treatment; often a gateway finding for permanency/SLU evaluation.
Workers’ Compensation Law § 137: A transparency statute requiring disclosure to the Board of substantive requests sent to IME doctors and the doctors’ responses, aimed at preventing hidden communications that could shape medical opinions.
“Request for information” (12 NYCRR 300.2 [b] [11]): Broadly includes substantive communications to an IME doctor outside the exam, including the referral, questions to be answered, and materials provided for review.
Preclusion / inadmissibility: A sanction that bars an IME report from being used as evidence for specified purposes if the statutory/rule requirements are not substantially satisfied.
Substantial compliance: A practical standard: did the filings accomplish the essential purpose of the rule (timely, accessible disclosure), even if a preferred form was not used?

5. Conclusion

Matter of Martinez v. Sing Sing Corr. Facility solidifies an important procedural principle in New York workers’ compensation IME practice: the absence of an IME-3 form does not automatically require preclusion of an IME report where the carrier timely files an IME-5 and accompanying instructions that disclose the IME’s purpose, examined body parts, and the questions posed—thereby achieving substantial compliance with Workers’ Compensation Law § 137 and 12 NYCRR 300.2.

The decision aligns appellate doctrine with consistent WCB administrative precedent and frames preclusion as a remedy aimed at meaningful nondisclosure or unfair surprise, not a strict formality divorced from notice and access.