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This entry was published on 2020-01-10
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SECTION 13-A
Selection of authorized physician by employee
Workers' Compensation (WKC) CHAPTER 67, ARTICLE 2
§ 13-a. Selection of authorized physician by employee. (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. 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.

(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.

(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.