Substantial Compliance Under Workers’ Compensation Law § 137: IME Reports Not Precluded Where IME-5 and Examiner Instructions Were Filed Despite No IME-3

1. Introduction

Matter of Ebanks v Sing Sing Corr. Facility (2026 NY Slip Op 02490) concerns whether an independent medical examination (“IME”) report may be precluded (excluded from evidence) in a New York workers’ compensation proceeding due to alleged noncompliance with disclosure and filing obligations governing communications with IME examiners.

The claimant, Omar Ebanks, a correction officer, sustained work-related injuries in January 2023. His claim was established in July 2023. After his treating physician found maximum medical improvement (“MMI”) and assessed multiple schedule loss of use (“SLU”) ratings, the carrier (State Insurance Fund, “SIF”) sought a permanency IME. The carrier’s consultant examined claimant on April 26, 2024 and issued a report finding permanency at fewer sites with lower SLU values.

The dispute centered on a procedural compliance question: claimant argued the IME report must be precluded under Workers’ Compensation Law § 137 and 12 NYCRR 300.2 because an IME-3 form was never filed when SIF filed an IME-5 (notice of IME) scheduling the examination and providing examiner instructions. The Workers’ Compensation Law Judge refused preclusion, and the Workers’ Compensation Board affirmed, finding “substantial compliance.” The Appellate Division, Third Department, affirmed the Board.

2. Summary of the Opinion

  • The court held that the Board did not abuse its discretion in finding substantial compliance with Workers’ Compensation Law § 137 and 12 NYCRR 300.2, and therefore the April 2024 IME report (filed with an IME-4 cover sheet) was not subject to preclusion.
  • The court emphasized that SIF filed an IME-5 and detailed examiner instructions with the Board (and served the parties), giving notice of the examination’s purpose and the issues to be addressed (MMI, permanency, and SLU percentages).
  • The court noted that post-2014 regulatory amendments mean that, in this context, filing an additional IME-3 with the consultant’s IME report is not required and could be redundant; the rules do not expressly mandate IME-3 use to satisfy the statutory/regulatory requirements.
  • The court rejected (as unpreserved) any argument of improper influence under Workers’ Compensation Law § 13-a (6) because it was not raised before the Board.

3. Analysis

A. Precedents Cited

1) Matter of Petti v Asplundh Constr. Corp., 244 AD3d 1539 (3d Dept 2025)

The court cited Matter of Petti v Asplundh Constr. Corp. alongside Workers’ Compensation Law § 13-a (6) for the general policy against improper influence on medical opinions. Although Ebanks ultimately turns on § 137 and 12 NYCRR 300.2 (the IME-specific regime), the citation frames the broader context: New York’s workers’ compensation scheme protects medical independence through disclosure rules and anti-influence provisions. The reference helps explain why § 137 demands transparency about communications and materials provided to IME consultants.

2) Matter of Olczyk v Verizon N.Y., Inc., 33 AD3d 1109 (3d Dept 2006)

Matter of Olczyk v Verizon N.Y., Inc. was cited for the proposition that an IME report that does not substantially comply with governing requirements can be rendered inadmissible for specified purposes (here, SLU). The case supports the legal framework: preclusion is a recognized remedy, but it is triggered by a lack of “substantial compliance,” not by every technical defect. Ebanks applies this framework and determines the defect alleged (missing IME-3) did not defeat substantial compliance where notice and disclosure objectives were met.

3) Matter of Murrah v Jain Irrigation, Inc., 157 AD3d 1088 (3d Dept 2018)

The court relied on Matter of Murrah v Jain Irrigation, Inc. to enforce preservation principles: appellate review is limited to issues raised before the Board. This is doctrinally important in workers’ compensation appeals, where the administrative process is the primary forum for factual development and issue framing. In Ebanks, the claimant’s attempt to recharacterize the dispute as “improper influence” under § 13-a (6) failed because it was not advanced below.

4) Board-level decisions cited as consistent administrative practice

While not binding precedent in the same way as appellate decisions, the court relied heavily on the Board’s consistent approach reflected in:

  • Employer: New York City Tr. Auth., 2026 WL 124802 (WCB No. G345 2976, Jan. 13, 2026)
  • Employer: FOJP Serv. Corp., 2024 WL 294045, 2024 NY Wrk Comp LEXIS 344 (WCB No. G151 1069, Jan. 18, 2024)
  • Employer: Tishman Speyer Props. LP, 2026 WL 200333, 2026 NY Wrk Comp LEXIS 301 (WCB No. G343 2971, Jan. 16, 2026)

These decisions were used to demonstrate an established administrative interpretation: when the carrier files an IME-5 plus sufficiently detailed instructions disclosing the purpose and scope of the IME, the Board generally declines to preclude IME reports solely because an IME-3 was not filed. The Third Department treated that practice as a reasonable application of “substantial compliance,” reinforcing judicial deference to the Board’s procedural administration where the regulatory objectives (notice and transparency) are satisfied.

5) Board Subject Releases and regulatory materials

The opinion cited Board guidance, including Workers' Compensation Bd Release Subject No. 046-1749 [Mar. 21, 2025], Workers' Compensation Bd Release Subject No. 046-124 [Nov. 24, 2003], and Workers' Compensation Bd Release Subject No. 046-769 [July 9, 2015]. These releases were used to contextualize (i) transparency requirements for IME-related communications and (ii) the post-amendment filing practice under 12 NYCRR 300.2. The court’s analysis treats these materials as persuasive indicators of how the system is designed to function in practice.

B. Legal Reasoning

The court’s reasoning proceeds from the purpose of § 137 and 12 NYCRR 300.2: ensuring transparency and preventing undisclosed substantive communications with IME examiners, while creating administrable filing rules.

  1. Identify the governing standard: “substantial compliance.”
    Under 12 NYCRR 300.2 (d) (12), a report that does not substantially comply with Workers’ Compensation Law § 137 is inadmissible for enumerated purposes, including SLU determinations. The question is not whether every form was filed, but whether the statutory and regulatory requirements were met in substance—especially regarding notice and disclosure of communications/materials.
  2. Confirm what was filed and whether the Board and parties received disclosure.
    The record showed SIF filed an IME-5 plus detailed instructions (and job-duty attachments) and served those materials on the parties. The instructions specified the body parts to examine and requested findings on MMI, permanency, and SLU percentages. Claimant did not contend he lacked notice of the IME scheduling or scope.
  3. Evaluate the significance of the missing IME-3.
    Claimant’s preclusion theory hinged on the absence of an IME-3. The court responded in three ways:
    • No express mandate: neither Workers’ Compensation Law § 137 nor 12 NYCRR 300.2 expressly requires using an IME-3 form to satisfy the statute/rules.
    • Redundancy after amendments: citing Employer: FOJP Serv. Corp. and the 2014 amendments referenced in the opinion, the court accepted the Board’s view that filing an additional IME-3 with the consultant’s report is not necessary where IME-4 covers the required report submission and the disclosure objectives are otherwise met.
    • Form language supports the outcome: the opinion pointed to the IME-3 form’s own instructions indicating that if the request is limited to scheduling, the examiner “need not file this form,” but a copy of IME-5 must be sent— aligning with what occurred here.
  4. Confirm proper submission of the report and disclosed materials reviewed.
    The IME report was filed with a timely IME-4 cover sheet, served on parties, and listed the documents supplied to the examiner—supporting compliance with transparency aims (including disclosure of what the examiner reviewed).
  5. Apply deferential review to the Board’s discretionary compliance determination.
    The court framed the result as an absence of “abuse of discretion” in the Board’s substantial-compliance finding, emphasizing that the Board’s established practice and the record facts supported admission rather than the severe sanction of preclusion.

C. Impact

The decision’s practical effect is to narrow the circumstances in which IME reports will be precluded for form-based omissions, particularly when:

  • the carrier files IME-5 and sufficiently detailed examiner instructions with the Board,
  • the parties receive notice and do not claim surprise or lack of access,
  • the IME report is properly filed with IME-4 and lists the materials reviewed.

Going forward, claimants seeking preclusion under § 137 are incentivized to focus on substantive non-disclosure (e.g., undisclosed communications, missing identification of materials, or proof of off-the-record influence) rather than the absence of a particular form where the same information was effectively disclosed by other filed documents. For carriers and IME vendors, the case underscores that the safest practice remains full and timely filing, but it also provides litigation support for defending IME admissibility when the record shows transparent notice and disclosure.

4. Complex Concepts Simplified

IME (Independent Medical Examination)
An evaluation by a physician who is not the claimant’s treating doctor, often arranged by the carrier/employer, to assess issues like disability, MMI, causation, and permanency.
SLU (Schedule Loss of Use)
A statutory measure assigning a percentage loss of function for specific body parts (e.g., arm, leg), used to calculate benefits. Competing medical opinions often drive the SLU percentage.
MMI (Maximum Medical Improvement)
The point at which the claimant’s condition is considered stable and unlikely to substantially improve with further treatment—often a prerequisite for permanency and SLU evaluation.
Preclusion / Inadmissibility
A procedural remedy that prevents an IME report from being used as evidence for specified determinations (including SLU) when statutory/regulatory compliance is lacking.
“Substantial compliance”
A standard asking whether the rule’s essential purpose (here, transparent disclosure and notice concerning IME-related communications and materials) was met, even if there was a technical defect.
IME-5, IME-4, IME-3 (Forms)
  • IME-5: notice scheduling the IME (the “when/where/why” of the exam, often with instructions).
  • IME-4: cover sheet filed with the IME report.
  • IME-3: a form used to report requests for information to an IME examiner and/or responses; in this case, its absence did not require preclusion where IME-5/instructions and IME-4/report satisfied the disclosure function.

5. Conclusion

Matter of Ebanks v Sing Sing Corr. Facility cements a pragmatic, transparency-focused application of Workers’ Compensation Law § 137 and 12 NYCRR 300.2: an IME report will not be precluded merely because an IME-3 was not filed where the carrier filed and served an IME-5 with detailed instructions identifying the IME’s purpose and scope, and the IME report was timely filed with an IME-4 and disclosed the materials reviewed.

The decision reinforces (i) deference to the Board’s administration of IME procedures, (ii) preservation requirements for appellate review, and (iii) the guiding idea that preclusion is a serious sanction aimed at real non-disclosure or compromised integrity—not at technical formality where the record shows meaningful notice and disclosure.