1. The Laws of New York
  2. Consolidated Laws
  3. Workers' Compensation
  4. Article 2: Compensation


Section 13-A Selection of authorized physician by employee

Workers' Compensation (WKC)

(1) An injured employee may, when care is required, select to treat him or her any physician authorized by the chair to render medical care, as hereafter provided. If for any reason during the period when medical treatment and care is required, the employee wishes to transfer his or her treatment and care to another authorized physician, he or she may do so, in accordance with rules prescribed by the chair. In such instance the remuneration of the physician whose services are being dispensed with shall be limited to the value of treatment rendered at fees as established in the schedule for his or her location, unless payment in higher amounts has been approved as authorized in section thirteen, paragraph a. If a claimant shall receive treatment in any hospital or other institution operated in whole or in part by the state of New York, the employer shall be liable for food, clothing and maintenance furnished by the hospital or other institution to such employee. If the employee is unable due to the nature of the injury to select such authorized physician and the emergency nature of the injury requires immediate medical treatment and care, or if he or she does not desire to select a physician, and in writing so advises the employer, the employer shall promptly provide him or her with the necessary medical care, provided however, that nothing herein contained shall operate to prevent such employee, when subsequently able to do so, from selecting for continuance of any medical treatment or care required, any physician authorized by the chair to render medical care as hereinafter provided.

  (2) The chairman shall prescribe the form of a notice informing employees of their privilege under this chapter, and such notice shall be posted and maintained by the employer in a conspicuous place or places in and about his place or places of business.

  (3) The employer shall have the right to transfer the care of an injured employee from the attending physician, whether chosen originally by the employee or by the employer, to another authorized physician (1) if the interest of the injured employee necessitates the transfer or (2) if the physician has not been authorized to treat injured employees under this act or (3) if he has not been authorized under this act to treat the particular injury or condition as provided by section thirteen-b (2). An authorized physician from whom the case has been transferred shall have the right of appeal to an arbitration committee as provided in subdivision two of section thirteen-g and if said arbitration committee finds that the transfer was not authorized by this section, said employer shall pay to the physician a sum equal to the total fee earned by the physician to whom the care of the injured employee has been transferred, or such proportion of said fee as the arbitration committee shall deem adequate.

  (4) (a) No claim for medical or surgical treatment shall be valid and enforceable, as against such employer, or employee, unless within forty-eight hours following the first treatment the physician giving such treatment furnishes to the employer and directly to the chair a preliminary notice of such injury and treatment, within fifteen days thereafter a more complete report and subsequent thereto progress reports if requested in writing by the chair, board, employer or insurance carrier at intervals of not less than three weeks apart or at less frequent intervals if requested on forms prescribed by the chair. The board may excuse failure to give such notices within the designated periods when it finds it to be in the interest of justice to do so.

  (b) Upon receipt of the notice provided for by paragraph (a) of this subdivision, the employer, the carrier, and the claimant each shall be entitled to have the claimant examined by a physician authorized by the chair in accordance with sections thirteen-b and one hundred thirty-seven of this chapter, at a medical facility convenient to the claimant and in the presence of the claimant's physician, and refusal by the claimant to submit to such independent medical examination at such time or times as may reasonably be necessary in the opinion of the board, shall bar the claimant from recovering compensation for any period during which he or she has refused to submit to such examination. No hospital shall be required to produce the records of any claimant without receiving its customary fees or charges for reproduction of such records.

  (c) Where it would place an unreasonable burden upon the employer or carrier to arrange for, or for the claimant to attend, an independent medical examination by an authorized physician, the employer or carrier shall arrange for such examination to be performed by a qualified physician in a medical facility convenient to the claimant.

  (d) The independent medical examiner shall provide such reports and shall submit to investigation as required by the chair.

  (e) In order to qualify as admissible medical evidence, for purposes of adjudicating any claim under this chapter, any report submitted to the board by an independent medical examiner licensed by the state of New York shall include the following:

  (i) a signed statement certifying that the report is a full and truthful representation of the independent medical examiner's professional opinion with respect to the claimant's condition:

  (ii) such examiner's board issued authorization number;

  (iii) the name of the individual or entity requesting the examination;

  (iv) if applicable, the registration number as required by section thirteen-n of this article; and

  (v) such other information as the chair may require by regulation.

  Any report by an independent medical examiner who is not authorized, and who performs an independent medical examination in accordance with paragraph (c) of this subdivision, which is to be used as medical evidence under this chapter, shall include in the report such information as the chair may require by regulation.

  * (5) No claim for specialist consultations, surgical operations, physiotherapeutic or occupational therapy procedures, x-ray examinations or special diagnostic laboratory tests costing more than one thousand dollars shall be valid and enforceable, as against such employer, unless such special services shall have been authorized by the employer or by the board, or unless such authorization has been unreasonably withheld, or withheld for a period of more than thirty calendar days from receipt of a request for authorization, or unless such special services are required in an emergency, provided, however, that the basis for a denial of such authorization by the employer must be based on a conflicting second opinion rendered by a physician authorized by the board. The board, with the approval of the superintendent of financial services, shall issue and maintain a list of pre-authorized procedures under this section.

  * NB Effective until January 1, 2020

  * (5) No claim for specialist consultations, surgical operations, physiotherapeutic or occupational therapy procedures, x-ray examinations or special diagnostic laboratory tests costing more than one thousand dollars shall be valid and enforceable, as against such employer, unless such special services shall have been authorized by the employer or by the board, or unless such authorization has been unreasonably withheld, or withheld for a period of more than thirty calendar days from receipt of a request for authorization, or unless such special services are required in an emergency, provided, however, that the basis for a denial of such authorization by the employer must be based on a conflicting second opinion rendered by a physician authorized by the board. The board, with the approval of the superintendent of financial services, shall issue and maintain a list of pre-authorized procedures under this section. Such list of pre-authorized procedures shall be issued and maintained for the purpose of expediting authorization of treatment of injured workers. Such list of pre-authorized procedures shall not prohibit varied treatment when the treating provider demonstrates the appropriateness and medical necessity of such treatment.

  * NB Effective January 1, 2020

  * (6) Any interference by any person with the selection by an injured employee of an authorized physician to treat him, except when the selection is made pursuant to article ten-A of this chapter, and the improper influencing or attempt by any person improperly to influence the medical opinion of any physician who has treated or examined an injured employee, shall be a misdemeanor; provided, however, that it shall not constitute interference or improper influence if, in the presence of such injured employee's physician, an employer, his carrier or agent should recommend or provide information concerning rehabilitation services or the availability thereof to an injured employee or his family.

  * NB Effective until January 1, 2020

  * (6) (a) Any interference by any person with the selection by an injured employee of an authorized physician to treat him, except when the selection is made pursuant to article ten-A of this chapter, and the improper influencing or attempt by any person improperly to influence the medical opinion of any physician who has treated or examined an injured employee, shall be a misdemeanor; provided, however, that it shall not constitute interference or improper influence if, in the presence of such injured employee's physician, an employer, his carrier or agent should recommend or provide information concerning rehabilitation services or the availability thereof to an injured employee or his family.

  (b) Except as otherwise permitted by law, an employer, carrier, or third-party administrator shall not interfere or attempt to interfere with the selection by an injured employee of, or treatment by, an authorized medical provider, including by directing or attempting to direct that the injured employee seek treatment from a specific provider or type of provider selected by the employer, carrier, or third-party administrator. It shall not constitute improper interference under this paragraph if the direction or attempt to direct the injured employee to receive treatment from a specific provider or type of provider originates from the authorized medical provider while in the course of providing treatment to the injured employee.

  (i) Notwithstanding any other provision in this chapter, the chair shall by regulation establish a performance standard concerning the subject of any penalty imposed under this paragraph against an employer, carrier or third-party administrator. The performance standard established by the chair shall be used to measure compliance with this paragraph by employers, carriers and third-party administrators. The chair shall apply the performance standard based on multiple factors, including but not limited to, findings of improper interference submitted as complaints to the board's monitoring unit, unreasonable objections to medical care, unwarranted objections to variances, medical billing disputes, case delays brought about by employers, carriers and third-party administrators, and the unreasonable denial of medical care.

  (ii) Upon validating an allegation that the employer, carrier or third-party administrator has failed to meet the promulgated performance standard, a penalty shall be assessed by the board upon notice to the employer, carrier or third-party administrator. The board shall impose such penalty against the carrier, employer or third-party administrator in the amount of fifty dollars per violation identified in subparagraph (i) of this paragraph. The penalties for violations identified in subparagraph (i) of this paragraph, may be aggregated into a single penalty upon a finding that an employer, carrier or third-party administrator has interfered with an injured employee's necessary medical treatment and care. Such aggregate penalty or assessment shall be based upon the number of violations as multiplied against the applicable penalty or assessment, but may be negotiated by the chair's designee in full satisfaction of the penalty or assessment. Any aggregate penalty or assessment issued under this paragraph shall be issued administratively, and the chair shall, by regulation, specify the method of review or redetermination, and the presentment of evidence and objections shall occur solely upon the documentation. Any final determination shall be subject to review under section twenty-three of this article but penalties may not be subject to a stay. A final determination that an employer, carrier or third-party administrator has engaged in a pattern of interference with an injured worker's access to medically necessary medical care shall result in the imposition of an aggregate penalty and publication of notice of such finding on the board's web page.

  * NB Effective January 1, 2020

  (7)(a) Notwithstanding any other provision of this chapter to the contrary, any insurance carrier authorized to transact the business of workers' compensation insurance in this state, self-insurer or the state insurance fund may contract with a network or networks, legally and properly organized, to perform diagnostic tests, x-ray examinations, magnetic resonance imaging, or other radiological examinations or tests of claimants and may require claimant to obtain or undergo such diagnostic test, x-ray examinations, magnetic resonance imaging or other radiological examinations or tests with a provider or at a facility that is affiliated with the network or networks with which the carrier contracts, except if a medical emergency occurs requiring an immediate diagnostic test, x-ray examination, magnetic resonance imaging or other radiological examination or test or if the network with which the insurance carrier, self-insurer or the state insurance fund contracts does not have a provider or facility able to perform the examination or test within a reasonable distance from the claimant's residence or place of employment, as defined by regulation of the board.

  (b) Any insurance carrier, self-insurer or the state insurance fund which requires claimants to obtain or undergo diagnostic tests, x-ray examinations, magnetic resonance imaging or other radiological examinations or tests with a provider or at a facility affiliated with a network or networks with which it contracts, must notify the claimant of the name and contact information for the network or networks at the same time the written statement of the claimant's rights as required by subdivision two of section one hundred ten of this chapter or immediately after imposing such requirement if the time period within which the written statement of the claimant's rights as required by subdivision two of section one hundred ten of this chapter has expired.

  (c) At the time a request for authorization for special diagnostic tests, x-ray examinations, magnetic resonance imaging or other radiological examinations or tests costing more than one thousand dollars as required by subdivision five of this section is approved, the insurance carrier, self-insurer or state insurance fund, or if so delegated the network with which the insurance carrier, self-insurer or state insurance fund has contracted, shall notify the physician requesting authorization of the requirement that the claimant obtain or undergo the special diagnostic test, x-ray examination, magnetic resonance imaging or other radiological examination or test with a provider or at a facility affiliated with the network or networks with which it has contracted, the contact information for the network and a list of the providers and facilities within the claimant's geographic location, as defined by regulation of the board. The claimant, in consultation with the provider who requested the special diagnostic test, x-ray examination, magnetic resonance imaging or other radiological test or exam, will determine the provider or facility from within the network which will perform such diagnostic test, x-ray examination, magnetic resonance imaging or other radiological examination or test.

  (d) The results of the special diagnostic test, x-ray examination, magnetic resonance imaging or other radiological test or exam must be sent to the physician who requested the test or exam immediately upon completion of the report detailing the results.