Legislation

Search OpenLegislation Statutes
This entry was published on 2016-06-17
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
SECTION 13
Treatment and care of injured employees
Workers' Compensation (WKC) CHAPTER 67, ARTICLE 2
§ 13. Treatment and care of injured employees. (a) The employer shall
promptly provide for an injured employee such medical, dental, surgical,
optometric or other attendance or treatment, nurse and hospital service,
medicine, optometric services, crutches, eye-glasses, false teeth,
artificial eyes, orthotics, prosthetic devices, functional assistive and
adaptive devices and apparatus for such period as the nature of the
injury or the process of recovery may require. The employer shall be
liable for the payment of the expenses of medical, dental, surgical,
optometric or other attendance or treatment, nurse and hospital service,
medicine, optometric services, crutches, eye-glasses, false teeth,
artificial eyes, orthotics, prosthetic devices, functional assistive and
adaptive devices and apparatus, as well as artificial members of the
body or other devices or appliances necessary in the first instance to
replace, support or relieve a portion or part of the body resulting from
and necessitated by the injury of an employee, for such period as the
nature of the injury or the process of recovery may require, and the
employer shall also be liable for replacements or repairs of such
artificial members of the body or such other devices, eye-glasses, false
teeth, artificial eyes, orthotics, prosthetic devices, functional
assistive and adaptive devices or appliances necessitated by ordinary
wear or loss or damage to a prosthesis, with or without bodily injury to
the employee. Damage to or loss of a prosthetic device shall be deemed
an injury except that no disability benefits shall be payable with
respect to such injury under section fifteen of this article. Such a
replacement or repair of artificial members of the body or such other
devices, eye-glasses, false teeth, artificial eyes, orthotics,
prosthetic devices, functional assistive and adaptive devices or
appliances or the providing of medical treatment and care as defined
herein shall not constitute the payment of compensation under section
twenty-five-a of this article. All fees and other charges for such
treatment and services shall be limited to such charges as prevail in
the same community for similar treatment of injured persons of a like
standard of living.

The chair shall prepare and establish a schedule for the state, or
schedules limited to defined localities, of charges and fees for such
medical treatment and care, and including all medical, dental, surgical,
optometric or other attendance or treatment, nurse and hospital service,
medicine, optometric services, crutches, eye-glasses, false teeth,
artificial eyes, orthotics, prosthetic devices, functional assistive and
adaptive devices and apparatus in accordance with and to be subject to
change pursuant to rules promulgated by the chair. Before preparing such
schedule for the state or schedules for limited localities the chair
shall request the president of the medical society of the state of New
York and the president of the New York state osteopathic medical society
to submit to him or her a report on the amount of remuneration deemed by
such society to be fair and adequate for the types of medical care to be
rendered under this chapter, but consideration shall be given to the
view of other interested parties. In the case of physical therapy fees
schedules the chair shall request the president of a recognized
professional association representing physical therapists in the state
of New York to submit to him or her a report on the amount of
remuneration deemed by such association to be fair and reasonable for
the type of physical therapy services rendered under this chapter, but
consideration shall be given to the views of other interested parties.
The chair shall also prepare and establish a schedule for the state, or
schedules limited to defined localities, of charges and fees for
outpatient hospital services not covered under the medical fee schedule
previously referred to in this subdivision, to be determined in
accordance with and to be subject to change pursuant to rules
promulgated by the chair. Before preparing such schedule for the state
or schedules for limited localities the chair shall request the
president of the hospital association of New York state to submit to him
or her a report on the amount of remuneration deemed by such association
to be fair and adequate for the types of hospital outpatient care to be
rendered under this chapter, but consideration shall be given to the
views of other interested parties. In the case of occupational therapy
fees schedules the chair shall request the president of a recognized
professional association representing occupational therapists in the
state of New York to submit to him or her a report on the amount of
remuneration deemed by such association to be fair and reasonable for
the type of occupational therapy services rendered under this chapter,
but consideration shall be given to the views of other interested
parties. The amounts payable by the employer for such treatment and
services shall be the fees and charges established by such schedule.
Nothing in this schedule, however, shall prevent voluntary payment of
amounts higher or lower than the fees and charges fixed therein, but no
physician rendering medical treatment or care, and no physical or
occupational therapist rendering their respective physical or
occupational therapy services may receive payment in any higher amount
unless such increased amount has been authorized by the employer, or by
decision as provided in section thirteen-g of this article. Nothing in
this section shall be construed as preventing the employment of a duly
authorized physician on a salary basis by an authorized compensation
medical bureau or laboratory.

(b) In the case of persons, injured outside of this state, but
entitled to compensation or benefits under this chapter, the provisions
as to selection of authorized physicians shall be inapplicable. In such
cases the employer shall promptly provide all necessary medical
treatment and care but if the employer fail to provide the same, after
request by the injured employee such injured employee may do so at the
expense of the employer. The employee shall not be entitled to recover
any amount expended by him for such treatment or services unless he
shall have requested the employer to furnish the same and the employer
shall have refused or neglected to do so, or unless the nature of the
injury required such treatment and services and the employer or his
superintendent or foreman having knowledge of such injury shall have
neglected to provide the same; nor shall any claim for medical or
surgical treatment be valid and enforceable, as against such employer,
unless within twenty days following the first treatment, the physician
giving such treatment, furnish to the employer and the chairman a report
of such injury and treatment, on a form prescribed by the chairman. The
board may, however, by the unanimous vote of a panel of not less than
three members qualified to act, excuse the failure to give such notice
within twenty days when it finds it to be in the interest of justice to
do so, and may, subject to the limitations contained in section
twenty-eight of this chapter, make an award for the reasonable value of
such medical or surgical treatment. All fees and other charges for such
treatment and services, whether furnished by the employer or otherwise,
shall be subject to regulation by the board as provided in section
twenty-four of this chapter, and shall be limited to such charges as
prevail in the same community for similar treatment of injured persons
of a like standard of living.

(c) The liability of an employer for medical treatment as herein
provided shall not be affected by the fact that his employee was injured
through the fault or negligence of a third party, not in the same
employ. The employer shall, however, have an additional cause of action
against such third party to recover any amounts paid by him for such
medical treatment, in like manner as provided in section twenty-nine of
this chapter.

(d) (1) In the event that an insurer or health benefits plan makes
payments for medical and/or hospital services for or on behalf of an
injured employee they shall be entitled to be reimbursed for such
payments by the carrier or employer within the limits of the medical and
hospital fee schedules if the board determines that the claim is
compensable. For the purposes of this section, an insurer or health
benefits plan includes a medical expense indemnity corporation, a health
or hospital service corporation, a commercial insurance company licensed
to write accident and health insurance in the state of New York, a
health maintenance organization operating in accordance with article
forty-three of the insurance law or article forty-four of the public
health law, or a self-insured or self-funded health care benefits plan
operated by, or on behalf of, any business, municipality or other entity
(including an employee welfare fund as defined in article forty-four of
the insurance law or any other union trust fund or union health benefits
plan). Notwithstanding any other provision of law, in no event shall the
carrier or employer be required to reimburse the insurer or health
benefits plan in an amount greater than the amount paid for medical and
hospital services for or on behalf of the injured employer by such
corporation or company; provided, however, if the carrier or employer
does not reimburse the insurer or health benefits plan within thirty
days after the board determines that the claim is compensable, the
carrier or employer shall reimburse the insurer or health benefits plan
at the amount the carrier or employer would be obligated to reimburse
the hospital or other provider of medical services if the carrier or
employer made payment directly to the provider of medical and/or
hospital services pursuant to this chapter (or, in the case of inpatient
hospital services, pursuant to paragraphs (b) and (b-1) of subdivision
one of section twenty-eight hundred seven-c of the public health law).
Upon reimbursement to the insurer or health benefits plan pursuant to
this subdivision, the carrier or employer shall be relieved of liability
for the medical and/or hospital services for which payment has been made
by the insurer or health benefits plan.

(2) An insurer or health benefits plan entitled to reimbursement
pursuant to paragraph one of this subdivision shall receive copies of
the hearing and decision notices and shall develop with the carrier or
employer its own mechanisms and standard operating procedures for
payment of undisputed claims for reimbursement. In cases of disputed
claims for reimbursement that are filed with the board within three
years of the date of payment for services rendered by the health care
provider or within ninety days of the effective date of a chapter of the
laws of nineteen hundred ninety-two, entitled "AN ACT to amend the
workers' compensation law, in relation to reimbursement of insurers and
health benefit plans", whichever is later, the sole remedy of the
insurer or health benefit plan to recover on a claim arising pursuant to
this subdivision shall be the submission of the controversy to mandatory
arbitration or other alternative dispute resolution procedures as
defined by rules and regulations promulgated by the chair in accordance
with subdivision (h) of this section.

(e) The board, on its own motion, or a referee, upon the
recommendation of the compensation medical director for the board,
hearing a claim for compensation may require examination of any
claimant, or of the testimony, reports and exhibits, or both, by a
physician especially qualified with respect to the diagnosis or
treatment of the disability for which compensation is claimed; and may
require a report from such physician on the diagnosis, the causal
relationship between the alleged injury and subsequent disability or
death, proper treatment, and the extent of the disability of such
claimant. The employer or his or her insurance carrier shall pay for
such examination in an amount to be directed by the chairman.

The chairman may in his discretion designate physicians of outstanding
qualifications in such fields of medicine as he deems essential in order
to ascertain the diagnosis, the causal relationship between the alleged
injury and subsequent disability, the type of medical care and operative
procedure requisite in particular cases where such matters are not
readily determinable by the regularly employed medical examiners of the
board. Each of such physicians shall have had, prior to his or her
designation, at least five years of practice in the field with respect
to which he or she is designated, and shall receive a fee for each case,
or shall be paid on a per diem basis, as determined by the chairman.
Claimants maybe required to submit to examination by such physicians in
the manner hereinbefore specified. The contents of reports of designated
physicians when introduced in evidence shall constitute prima facie
evidence of fact as to the matter contained therein, and the makers of
such reports shall be subject to examination upon demand and shall be
paid an additional fee, as determined by the chairman, for testifying in
each case.

(f) Copies of medical reports of claimant's attending physician or
medical consultant, made pursuant to this chapter subsequent to the date
of the request provided for in this subdivision and antedating not more
than thirty days, shall be transmitted by the physician or consultant to
the claimant's licensed representative or attorney representing the
claimant before the board upon his written request therefor accompanied
by a notice of his retainer and consent to such transmittal signed by
the claimant.

(g) Every hospital operating in the state shall, within twenty days of
receiving a written request by a claimant, claimant's representative,
employer, carrier or special fund created under this chapter, provide to
such claimant, claimant's representative, employer, carrier or special
fund for use in board proceedings the medical records of an employee who
has received treatment in such hospital and who is claiming benefits
under this chapter. Each hospital shall designate at least one officer
or employee who shall be responsible for provision of such records on
written request, and to whom the board, claimant, claimant's, employer,
carrier representative or special fund may address informal inquiries
regarding provision of such records.

No hospital shall be required to produce the records of any claimant
pursuant to this section without receiving the cost of copying such
records as determined by the chair. Such cost shall be paid by the
requesting party except that the employer or carrier or special fund
shall reimburse a claimant or claimant's representative the cost of an
initial set of such records where the request is made by a claimant or
claimant's representative. Should the hospital not be able to provide
the requested records within twenty days, they shall notify in writing
the party requesting the records of the reason why the records were not
provided and the date on which they will be provided. Such date shall be
within a reasonable period of time, but shall not exceed thirty days.
Failure to either provide the records within twenty days or to provide a
reason why the records have not been provided shall subject the hospital
to a fine of two hundred dollars which shall be imposed by the chair
payable to the board upon finding that this subdivision has not been
complied with. No hospital shall be required to produce the records of
any claimant without receiving its customary fees or charges for
reproduction of such records.

(h) (1) The chair shall require the performance of computer searches
to identify injured employees who, with respect to the same injury or
illness, have filed claims under the provisions of this chapter and made
claims to, or on their behalf with, a payor of medical payments eligible
for reimbursement pursuant to this section. Such searches shall be done
at least quarterly upon request of payors and upon submission to the
board of computer tapes containing the information the chair shall need
to identify injured employees who file dual claims under this section.
At least quarterly, the chair shall identify injured employees who have
filed dual claims by social security number and workers' compensation
board number and shall notify the payor of such results.

(2) Such payor shall use the information of dual filings solely for
the purpose of reimbursement from the carrier or employer. The chair,
upon a finding that such entity has used the information for purposes
other than reimbursement from the carrier or employer, may, after
hearing, impose a penalty of not more than ten thousand dollars and may
prohibit such entity from receiving information under this subdivision
for up to three years.

(3) The chair shall adopt rules and regulations to carry out the
provisions of this section, which rules and regulations shall provide
for alternative dispute resolution procedures for settlement of disputed
claims for reimbursement under subdivision (d) of this section including
but not limited to referral and submission of disputed claims to
mandatory arbitration with private arbitration associations. Such rules
and regulations may provide for a reasonable fee to be charged to payors
for computer searches. Claims for computer searches submitted to the
board prior to March thirty-first, nineteen hundred ninety-two, may be
submitted with a payment date on or after April first, nineteen hundred
eighty-eight. Claims for reimbursement submitted after March
thirty-first, nineteen hundred ninety-two, shall have a payment date
that is no later than three years prior to the date of submission of the
claim for matching purposes to the board. If disputed, these claims
shall be resolved through the dispute resolution procedures set forth in
this section. Upon resolution of the reimbursement dispute in accordance
with this section, the amount paid to the prevailing party shall be
increased by the amount of any fee paid to the arbitrator or incurred by
reason of any other alternate dispute resolution procedure.

(i) (1) When a claimant or pharmacy submits a claim to the employer or
its carrier for payment of prescribed medicine or for reimbursement of
the cost of prescribed medicine which the employer is required to
provide under this section, the employer or carrier shall pay the amount
prescribed by the fee schedule adopted under section thirteen-o of this
article, or if the prescribed medicine is not included on the current
fee schedule, the usual and customary charges for such prescribed
medicine, within forty-five days of receipt of the claim, unless the
liability of the employer or carrier on the claim for which the claimant
seeks payment or reimbursement of payment for the prescribed medicine is
not established, or the prescribed medicine is not for a causally
related condition.

(2) Where the liability of the employer or carrier on the claim for
which the claimant seeks payment or reimbursement of payment for the
prescribed medicine or reimbursement for payment of prescribed medicine
is not established, or is not for a causally related condition, the
employer or carrier shall pay any undisputed portion of the claim in
accordance with this section and notify the claimant or pharmacy, as
appropriate, in writing within forty-five days of receipt of the claim:

(i) that the claim is not being paid and explaining the reasons for
nonpayment; or

(ii) to request all additional information reasonably needed to
determine the employer's or carrier's liability for the claim. Upon
receipt of the information requested in this subparagraph, the employer
or carrier shall comply with paragraph one of this subdivision.

(3) Each claim for payment of prescribed medicine or reimbursement for
payment of prescribed medicine that is processed in violation of this
section shall constitute a separate violation. In addition to the other
penalties provided in this chapter, any employer or carrier that fails
to reimburse the claimant or pay the pharmacy, as appropriate and as
required in this section shall be obligated to pay to the claimant or
pharmacy the amount prescribed on the fee schedule adopted under section
thirteen-o of this article, or if the prescribed medicine is not
included on the current fee schedule, the usual and customary charges
for the prescribed medicine plus simple interest at the rate set forth
in section five thousand four of the civil practice law and rules.

(4) Nothing in this subdivision shall prohibit employers or carriers
from agreeing to or arranging for direct billing by the pharmacy to the
employer or carrier for the cost of prescribed medicine, in order for
claimants to more promptly receive prescribed medicine for which
employers and carriers are liable under this section.

(5) Notwithstanding any other provision of this chapter, if an
employer or carrier has contracted with a pharmacy to provide prescribed
medicine to claimants, then such employer or carrier may require
claimants to obtain all prescribed medicines from the pharmacy with
which it has contracted, except if a medical emergency occurs and it
would not be reasonably possible to obtain immediately required
prescribed medicine from the pharmacy with which the employer or carrier
has a contract. An employer or carrier that requires claimants to obtain
prescribed medicines from a pharmacy with which it has a contract must
notify claimants of the pharmacy or pharmacies with which it has a
contract, the locations and addresses of the pharmacy or pharmacies, if
applicable, how to initially fill and refill prescriptions through the
mail, internet, telephone or other means, and any other required
information that must be supplied to the pharmacy or pharmacies. If the
pharmacy or pharmacies with which the employer or carrier contracts does
not offer mail order service and does not have a physical location
within a reasonable distance from the claimant, as defined by regulation
of the board, the claimant may obtain prescribed medicines at the
pharmacy or pharmacies of his or her choice and the employer or carrier
will be liable for such charges in accordance with the fee schedule
prescribed in section thirteen-o of this chapter.