Substantial Compliance with Workers’ Compensation Law § 137: IME-5 Plus Filed Instructions Can Preserve Admissibility of an IME Report Absent IME-3, and Preclusion Objections Must Be Timely

1. Introduction

Matter of Figueroa v Sing Sing Corr. Facility (2026 NY Slip Op 02314 [248 AD3d 1537] [3d Dept Apr. 16, 2026]) addresses when an independent medical examination (“IME”) report may be precluded for alleged noncompliance with Workers’ Compensation Law (“WCL”) § 137 and the Board’s implementing regulation, 12 NYCRR 300.2.

The claimant, Karen Figueroa, suffered a work injury to her left shoulder/arm and later presented a permanency opinion supporting a 40% schedule loss of use (“SLU”). The carrier (State Insurance Fund, for Sing Sing Correctional Facility) obtained an IME whose consultant opined a 22.5% SLU. The litigation posture centered on whether the carrier’s IME report should be excluded because, although the carrier filed an IME-5 and attached instructions, no IME-3 was filed to separately disclose the “request for information” allegedly contained in those instructions.

Two procedural filters were decisive: (1) the claimant’s delay in seeking preclusion, and (2) whether the filing of IME-5 plus filed instructions constituted substantial compliance with WCL § 137 and 12 NYCRR 300.2 despite the absence of IME-3.

2. Summary of the Opinion

The Appellate Division, Third Department affirmed the Workers’ Compensation Board’s decision denying the claimant’s request to preclude the IME report. The Court held:

  • The Board did not abuse its discretion in finding the claimant’s preclusion request was not raised in a “timely manner” under 12 NYCRR 300.2(d)(12).
  • In any event, the Board did not abuse its discretion in finding substantial compliance with WCL § 137 and 12 NYCRR 300.2 where the carrier filed the IME-5 and the examiner instructions together, and the rules did not expressly mandate use of IME-3 in these circumstances.

The Court also noted issue-preservation limits: any argument about improper influence under WCL § 13-a(6) was unpreserved, and arguments challenging the SLU determination were deemed abandoned on appeal.

3. Analysis

3.1. Precedents Cited

A. Timeliness and preclusion procedure

  • Matter of Page v Liberty Cent. Sch. Dist., 188 AD3d 1373 (3d Dept 2020): Cited for the rule that a party seeking preclusion of an IME report under the Board’s IME regulations must do so in a “timely manner.” The Court used Page to support deference to the Board’s discretionary determination that waiting seven months (until a post-hearing written summation) was too late.

B. Substantial compliance / admissibility and Board regulation

  • Matter of Olczyk v Verizon N.Y., Inc., 33 AD3d 1109 (3d Dept 2006): Cited in connection with the admissibility consequence in 12 NYCRR 300.2(d)(12)—an IME report that does not substantially comply with WCL § 137 is not admissible for enumerated issues (including SLU). The Court relied on this framework but concluded substantial compliance existed here.

C. Preservation and scope of appellate review

  • Matter of Murrah v Jain Irrigation, Inc., 157 AD3d 1088 (3d Dept 2018): Used to reinforce that arguments not advanced before the Board are not properly before the Court (here, the claimant’s attempt to recast the dispute as “improper influence” under WCL § 13-a[6]).
  • Matter of James v Premier Home Health Care, 232 AD3d 1017 (3d Dept 2024): Cited for the principle that issues not substantively argued in the appellate brief are abandoned (here, any challenge to the SLU selection/credibility determination).

D. The IME communication/influence backdrop

  • Matter of Petti v Asplundh Constr. Corp., 244 AD3d 1539 (3d Dept 2025): Cited for the statutory prohibition against improper influence over treating/examining physicians under WCL § 13-a(6)(a). The Court referenced this policy backdrop but ultimately treated it as distinct from the technical IME disclosure rules in WCL § 137.

E. Board-level authorities relied upon as consistent administrative practice

While not judicial precedents, the Court emphasized the Board’s consistent approach in Board decisions declining to preclude IME reports where an IME-3 was not filed, so long as the carrier filed an IME-5 and instructions describing the IME purpose and questions. The Court cited:

  • Employer: NYC Transit Auth., 2026 WL 124802, 2026 NY Wrk Comp G3452976 (WCB No. G345 2976, Jan. 13, 2026)
  • Employer: Tishman Speyer Prop. LP, 2026 WL 200333, 2026 NY Wrk Comp LEXIS 301 (WCB No. G343 2971, Jan. 16, 2026)
  • Employer: FOJP Serv. Corp., 2024 WL 294045, 2024 NY Wrk Comp LEXIS 344 (WCB No. G151 1069, Jan. 18, 2024)
  • Employer: FOJP Service Corporation, 2024 WL 294045, 2024 NY Wrk Comp LEXIS 344 (WCB No. G151 1069, Jan. 18, 2024)

These citations served two functions: (1) to show what the Chair has “prescribed” as the proper form in general (IME-3), and (2) to support the conclusion that the Board’s “substantial compliance” determination here was consistent with established administrative handling of similar filings.

F. Board Releases (policy and interpretive guidance)

  • Workers' Compensation Bd Release Subject No. 046-1749 (Mar. 21, 2025) (referenced regarding WCL § 137 requirements)
  • Workers' Compensation Bd Release Subject No. 046-124 (Nov. 24, 2003) (referenced with WCL § 13-a[6] improper influence concerns)
  • Workers' Compensation Bd Release Subject No. 046-769 (July 9, 2015) (referenced to clarify that additional filing is not required when the substantive communication documents are already in the Board file and accessible)

3.2. Legal Reasoning

A. The statutory and regulatory structure

The Court framed the dispute within the IME-specific disclosure rules:

  • WCL § 137(1)(b): If an IME practitioner receives a “request for information” about the claimant, the practitioner must submit a copy to the Board within 10 days of receipt.
  • WCL § 137(1)(c): The practitioner must submit copies of all responses and materials provided in response within 10 days of responding.
  • 12 NYCRR 300.2(b)(11): Defines “request for information” broadly as “any substantive communication” with the IME examiner outside the IME, including a request/referral and any communication related to it.
  • 12 NYCRR 300.2(d)(12): Provides the remedy—non-substantial compliance can render an IME report inadmissible for certain issues (including SLU), but the request for preclusion must be timely.

B. Timeliness as an independent ground to deny preclusion

The Court deferred to the Board’s discretionary management of litigation and deadlines. The carrier filed the IME-5 and instructions on August 31, 2023; the IME report was filed September 25, 2023. The claimant did not seek preclusion until April 18, 2024, in a written summation after depositions and a hearing.

Applying 12 NYCRR 300.2(d)(12) and Matter of Page v Liberty Cent. Sch. Dist., the Court found no abuse of discretion in concluding the objection was not timely. This holding signals that preclusion under the IME rules is not a “wait-and-see” remedy to be deployed only after the evidentiary record is developed.

C. Substantial compliance despite absence of IME-3

The claimant’s core theory was formalist: the “instructions” attached to IME-5 constituted an additional “substantive communication” requiring the filing of an IME-3—and the absence of IME-3 required exclusion. The Court rejected that approach for several interlocking reasons:

  1. Same-time filing and disclosure: The IME-5 and the examiner instructions were filed and received by the Board at the same date and time. This undercut any claim of undisclosed ex parte communications.
  2. Substance of the instructions: The instructions identified the body parts to be examined and asked for findings on maximum medical improvement, permanency, and impairment percentage—i.e., the very topics the IME was scheduled to address. The Court treated this as consistent with the ordinary scheduling/authorization function of an IME notice, not as a concealed attempt to steer the medical opinion.
  3. No express “IME-3-only” mandate: The Court emphasized that neither WCL § 137 nor 12 NYCRR 300.2 expressly requires using an IME-3 form to satisfy the notice and filing requirements in all circumstances.
  4. No lack of notice claimed: The claimant did not argue she lacked notice of the IME scheduling—an important practical marker of prejudice (or lack thereof) in procedural compliance disputes.
  5. Consistency with Board practice: The Court endorsed the Board’s established approach reflected in Employer: Tishman Speyer Prop. LP, Employer: NYC Transit Auth., and Employer: FOJP Serv. Corp. declining preclusion when the carrier’s filings effectively disclosed the purpose and questions of the IME.

The Court also pointed to the IME-3 form’s own instruction (quoted in footnote 5) indicating that where the request is limited to scheduling an IME, filing IME-3 is not necessary so long as IME-5 is sent to the Board—further supporting the conclusion that strict IME-3 filing is not invariably required.

D. Separation of “improper influence” (WCL § 13-a[6]) from IME disclosure (WCL § 137)

The opinion implicitly distinguishes two compliance regimes:

  • WCL § 13-a(6) is a substantive anti-influence rule (policing attempts to improperly sway medical opinion).
  • WCL § 137 / 12 NYCRR 300.2 are procedural transparency rules (ensuring the Board receives copies of requests/responses and related substantive communications).

By holding the WCL § 13-a(6) theory unpreserved (via Matter of Murrah v Jain Irrigation, Inc.), the Court confined the dispute to whether the IME was procedurally disclosable and timely challenged—rather than litigating medical-ethics influence allegations on appeal.

3.3. Impact

  • Practical rule for admissibility disputes: An IME report will not necessarily be precluded merely because an IME-3 was not filed, where the carrier filed an IME-5 and the accompanying instructions describing the IME’s purpose/questions, enabling transparency and notice. The operative concept is substantial compliance, not perfection of form.
  • Timeliness as gatekeeper: Parties should raise WCL § 137/12 NYCRR 300.2 objections promptly after the IME materials are filed. Delay may independently defeat preclusion even if technical defects are later identified.
  • Reduced “gotcha” litigation over forms: The decision discourages strategic exclusion efforts grounded in form selection (IME-3 vs. attachments to IME-5) absent a real notice failure or undisclosed communication.
  • Encouragement of transparent filing practices: While forgiving in outcome, the opinion also implicitly validates the Board’s disclosure expectations: carriers who file the IME-5 together with detailed instructions reduce the risk of later admissibility challenges.
  • Appellate discipline: The discussion of abandonment (Matter of James v Premier Home Health Care) reinforces that appellants must brief the actual merits they seek to overturn—here, the SLU credibility/weight determination was left undisturbed.

4. Complex Concepts Simplified

  • Independent Medical Examination (IME): A medical evaluation arranged by the carrier/employer (not the treating doctor) to assess issues such as diagnosis, causation, permanency, and impairment.
  • Schedule Loss of Use (SLU): A statutory method of compensating permanent impairment to certain body parts (e.g., arm) by assigning a percentage loss, which translates into a set number of benefit weeks.
  • WCL § 137 “request for information”: Broadly includes substantive communications sent to the IME doctor outside the examination (questions, materials for review, referrals, and related communications), which must be copied to the Board on set timelines.
  • IME-5 / IME-3 (forms): IME-5 is the claimant-facing notice of the scheduled IME. IME-3 is used by the practitioner to report receipt of a request for information and/or the practitioner’s response. This case clarifies that the statutes/regulations do not make IME-3 an absolute prerequisite to admissibility in every situation.
  • Substantial compliance: A legal standard meaning the party’s actions satisfied the core purpose of the rule (here, transparency and notice), even if every technical formality was not followed.
  • Issue preservation / abandonment: Appellate courts generally will not consider arguments not raised below (preservation), and will treat issues as waived if not properly argued in the appellate brief (abandonment).

5. Conclusion

Matter of Figueroa v Sing Sing Corr. Facility reinforces two governing principles in New York workers’ compensation IME litigation: (1) preclusion objections under 12 NYCRR 300.2(d)(12) must be raised timely, and (2) an IME report may remain admissible under a substantial compliance analysis even when an IME-3 is not filed, where the carrier files the IME-5 and accompanying instructions together such that the Board receives the substance of the IME request and the claimant has notice. The decision thus prioritizes the transparency purpose of WCL § 137 over hyper-technical form enforcement—while still incentivizing prompt procedural challenges and disciplined issue preservation on appeal.