§ 13 — Treatment and care of injured employees

New York § 13

• Jurisdiction: New York
• Law WKC: Workers' Compensation
• Art. 2: Compensation

Text

§ 13. Treatment and care of injured employees. (a) The employer shall\npromptly provide for an injured employee such medical, dental, surgical,\noptometric or other attendance or treatment, nurse and hospital service,\nmedicine, optometric services, crutches, eye-glasses, false teeth,\nartificial eyes, orthotics, prosthetic devices, functional assistive and\nadaptive devices and apparatus for such period as the nature of the\ninjury or the process of recovery may require. The employer shall be\nliable for the payment of the expenses of medical, dental, surgical,\noptometric or other attendance or treatment, nurse and hospital service,\nmedicine, optometric services, crutches, eye-glasses, false teeth,\nartificial eyes, orthotics, prosthetic devices, functional assistive and\nadaptive devices and apparatus, as well as artificial members of the\nbody or other devices or appliances necessary in the first instance to\nreplace, support or relieve a portion or part of the body resulting from\nand necessitated by the injury of an employee, for such period as the\nnature of the injury or the process of recovery may require, and the\nemployer shall also be liable for replacements or repairs of such\nartificial members of the body or such other devices, eye-glasses, false\nteeth, artificial eyes, orthotics, prosthetic devices, functional\nassistive and adaptive devices or appliances necessitated by ordinary\nwear or loss or damage to a prosthesis, with or without bodily injury to\nthe employee. Damage to or loss of a prosthetic device shall be deemed\nan injury except that no disability benefits shall be payable with\nrespect to such injury under section fifteen of this article. Such a\nreplacement or repair of artificial members of the body or such other\ndevices, eye-glasses, false teeth, artificial eyes, orthotics,\nprosthetic devices, functional assistive and adaptive devices or\nappliances or the providing of medical treatment and care as defined\nherein shall not constitute the payment of compensation under section\ntwenty-five-a of this article. All fees and other charges for such\ntreatment and services shall be limited to such charges as prevail in\nthe same community for similar treatment of injured persons of a like\nstandard of living.\n The chair shall prepare and establish a schedule for the state, or\nschedules limited to defined localities, of charges and fees for such\nmedical treatment and care, and including all medical, dental, surgical,\noptometric or other attendance or treatment, nurse and hospital service,\nmedicine, optometric services, crutches, eye-glasses, false teeth,\nartificial eyes, orthotics, prosthetic devices, functional assistive and\nadaptive devices and apparatus in accordance with and to be subject to\nchange pursuant to rules promulgated by the chair. Before preparing such\nschedule for the state or schedules for limited localities the chair\nshall request the president of the medical society of the state of New\nYork and the president of the New York state osteopathic medical society\nto submit to him or her a report on the amount of remuneration deemed by\nsuch society to be fair and adequate for the types of medical care to be\nrendered under this chapter, but consideration shall be given to the\nview of other interested parties. In the case of physical therapy fees\nschedules the chair shall request the president of a recognized\nprofessional association representing physical therapists in the state\nof New York to submit to him or her a report on the amount of\nremuneration deemed by such association to be fair and reasonable for\nthe type of physical therapy services rendered under this chapter, but\nconsideration shall be given to the views of other interested parties.\nThe chair shall also prepare and establish a schedule for the state, or\nschedules limited to defined localities, of charges and fees for\noutpatient hospital services not covered under the medical fee schedule\npreviously referred to in this subdivision, to be determined in\naccordance with and to be subject to change pursuant to rules\npromulgated by the chair. Before preparing such schedule for the state\nor schedules for limited localities the chair shall request the\npresident of the hospital association of New York state to submit to him\nor her a report on the amount of remuneration deemed by such association\nto be fair and adequate for the types of hospital outpatient care to be\nrendered under this chapter, but consideration shall be given to the\nviews of other interested parties. In the case of occupational therapy\nfees schedules the chair shall request the president of a recognized\nprofessional association representing occupational therapists in the\nstate of New York to submit to him or her a report on the amount of\nremuneration deemed by such association to be fair and reasonable for\nthe type of occupational therapy services rendered under this chapter,\nbut consideration shall be given to the views of other interested\nparties. The amounts payable by the employer for such treatment and\nservices shall be the fees and charges established by such schedule.\nNothing in this schedule, however, shall prevent voluntary payment of\namounts higher or lower than the fees and charges fixed therein, but no\nphysician rendering medical treatment or care, and no physical or\noccupational therapist rendering their respective physical or\noccupational therapy services may receive payment in any higher amount\nunless such increased amount has been authorized by the employer, or by\ndecision as provided in section thirteen-g of this article. Nothing in\nthis section shall be construed as preventing the employment of a duly\nauthorized physician on a salary basis by an authorized compensation\nmedical bureau or laboratory.\n (b) In the case of persons, injured outside of this state, but\nentitled to compensation or benefits under this chapter, the provisions\nas to selection of authorized physicians shall be inapplicable. In such\ncases the employer shall promptly provide all necessary medical\ntreatment and care but if the employer fail to provide the same, after\nrequest by the injured employee such injured employee may do so at the\nexpense of the employer. The employee shall not be entitled to recover\nany amount expended by him for such treatment or services unless he\nshall have requested the employer to furnish the same and the employer\nshall have refused or neglected to do so, or unless the nature of the\ninjury required such treatment and services and the employer or his\nsuperintendent or foreman having knowledge of such injury shall have\nneglected to provide the same; nor shall any claim for medical or\nsurgical treatment be valid and enforceable, as against such employer,\nunless within twenty days following the first treatment, the physician\ngiving such treatment, furnish to the employer and the chairman a report\nof such injury and treatment, on a form prescribed by the chairman. The\nboard may, however, by the unanimous vote of a panel of not less than\nthree members qualified to act, excuse the failure to give such notice\nwithin twenty days when it finds it to be in the interest of justice to\ndo so, and may, subject to the limitations contained in section\ntwenty-eight of this chapter, make an award for the reasonable value of\nsuch medical or surgical treatment. All fees and other charges for such\ntreatment and services, whether furnished by the employer or otherwise,\nshall be subject to regulation by the board as provided in section\ntwenty-four of this chapter, and shall be limited to such charges as\nprevail in the same community for similar treatment of injured persons\nof a like standard of living.\n (c) The liability of an employer for medical treatment as herein\nprovided shall not be affected by the fact that his employee was injured\nthrough the fault or negligence of a third party, not in the same\nemploy. The employer shall, however, have an additional cause of action\nagainst such third party to recover any amounts paid by him for such\nmedical treatment, in like manner as provided in section twenty-nine of\nthis chapter.\n (d) (1) In the event that an insurer or health benefits plan makes\npayments for medical and/or hospital services for or on behalf of an\ninjured employee they shall be entitled to be reimbursed for such\npayments by the carrier or employer within the limits of the medical and\nhospital fee schedules if the board determines that the claim is\ncompensable. For the purposes of this section, an insurer or health\nbenefits plan includes a medical expense indemnity corporation, a health\nor hospital service corporation, a commercial insurance company licensed\nto write accident and health insurance in the state of New York, a\nhealth maintenance organization operating in accordance with article\nforty-three of the insurance law or article forty-four of the public\nhealth law, or a self-insured or self-funded health care benefits plan\noperated by, or on behalf of, any business, municipality or other entity\n(including an employee welfare fund as defined in article forty-four of\nthe insurance law or any other union trust fund or union health benefits\nplan). Notwithstanding any other provision of law, in no event shall the\ncarrier or employer be required to reimburse the insurer or health\nbenefits plan in an amount greater than the amount paid for medical and\nhospital services for or on behalf of the injured employer by such\ncorporation or company; provided, however, if the carrier or employer\ndoes not reimburse the insurer or health benefits plan within thirty\ndays after the board determines that the claim is compensable, the\ncarrier or employer shall reimburse the insurer or health benefits plan\nat the amount the carrier or employer would be obligated to reimburse\nthe hospital or other provider of medical services if the carrier or\nemployer made payment directly to the provider of medical and/or\nhospital services pursuant to this chapter (or, in the case of inpatient\nhospital services, pursuant to paragraphs (b) and (b-1) of subdivision\none of section twenty-eight hundred seven-c of the public health law).\nUpon reimbursement to the insurer or health benefits plan pursuant to\nthis subdivision, the carrier or employer shall be relieved of liability\nfor the medical and/or hospital services for which payment has been made\nby the insurer or health benefits plan.\n (2) An insurer or health benefits plan entitled to reimbursement\npursuant to paragraph one of this subdivision shall receive copies of\nthe hearing and decision notices and shall develop with the carrier or\nemployer its own mechanisms and standard operating procedures for\npayment of undisputed claims for reimbursement. In cases of disputed\nclaims for reimbursement that are filed with the board within three\nyears of the date of payment for services rendered by the health care\nprovider or within ninety days of the effective date of a chapter of the\nlaws of nineteen hundred ninety-two, entitled "AN ACT to amend the\nworkers' compensation law, in relation to reimbursement of insurers and\nhealth benefit plans", whichever is later, the sole remedy of the\ninsurer or health benefit plan to recover on a claim arising pursuant to\nthis subdivision shall be the submission of the controversy to mandatory\narbitration or other alternative dispute resolution procedures as\ndefined by rules and regulations promulgated by the chair in accordance\nwith subdivision (h) of this section.\n (e) The board, on its own motion, or a referee, upon the\nrecommendation of the compensation medical director for the board,\nhearing a claim for compensation may require examination of any\nclaimant, or of the testimony, reports and exhibits, or both, by a\nphysician especially qualified with respect to the diagnosis or\ntreatment of the disability for which compensation is claimed; and may\nrequire a report from such physician on the diagnosis, the causal\nrelationship between the alleged injury and subsequent disability or\ndeath, proper treatment, and the extent of the disability of such\nclaimant. The employer or his or her insurance carrier shall pay for\nsuch examination in an amount to be directed by the chairman.\n The chairman may in his discretion designate physicians of outstanding\nqualifications in such fields of medicine as he deems essential in order\nto ascertain the diagnosis, the causal relationship between the alleged\ninjury and subsequent disability, the type of medical care and operative\nprocedure requisite in particular cases where such matters are not\nreadily determinable by the regularly employed medical examiners of the\nboard. Each of such physicians shall have had, prior to his or her\ndesignation, at least five years of practice in the field with respect\nto which he or she is designated, and shall receive a fee for each case,\nor shall be paid on a per diem basis, as determined by the chairman.\nClaimants maybe required to submit to examination by such physicians in\nthe manner hereinbefore specified. The contents of reports of designated\nphysicians when introduced in evidence shall constitute prima facie\nevidence of fact as to the matter contained therein, and the makers of\nsuch reports shall be subject to examination upon demand and shall be\npaid an additional fee, as determined by the chairman, for testifying in\neach case.\n (f) Copies of medical reports of claimant's attending physician or\nmedical consultant, made pursuant to this chapter subsequent to the date\nof the request provided for in this subdivision and antedating not more\nthan thirty days, shall be transmitted by the physician or consultant to\nthe claimant's licensed representative or attorney representing the\nclaimant before the board upon his written request therefor accompanied\nby a notice of his retainer and consent to such transmittal signed by\nthe claimant.\n (g) Every hospital operating in the state shall, within twenty days of\nreceiving a written request by a claimant, claimant's representative,\nemployer, carrier or special fund created under this chapter, provide to\nsuch claimant, claimant's representative, employer, carrier or special\nfund for use in board proceedings the medical records of an employee who\nhas received treatment in such hospital and who is claiming benefits\nunder this chapter. Each hospital shall designate at least one officer\nor employee who shall be responsible for provision of such records on\nwritten request, and to whom the board, claimant, claimant's, employer,\ncarrier representative or special fund may address informal inquiries\nregarding provision of such records.\n No hospital shall be required to produce the records of any claimant\npursuant to this section without receiving the cost of copying such\nrecords as determined by the chair. Such cost shall be paid by the\nrequesting party except that the employer or carrier or special fund\nshall reimburse a claimant or claimant's representative the cost of an\ninitial set of such records where the request is made by a claimant or\nclaimant's representative. Should the hospital not be able to provide\nthe requested records within twenty days, they shall notify in writing\nthe party requesting the records of the reason why the records were not\nprovided and the date on which they will be provided. Such date shall be\nwithin a reasonable period of time, but shall not exceed thirty days.\nFailure to either provide the records within twenty days or to provide a\nreason why the records have not been provided shall subject the hospital\nto a fine of two hundred dollars which shall be imposed by the chair\npayable to the board upon finding that this subdivision has not been\ncomplied with. No hospital shall be required to produce the records of\nany claimant without receiving its customary fees or charges for\nreproduction of such records.\n (h) (1) The chair shall require the performance of computer searches\nto identify injured employees who, with respect to the same injury or\nillness, have filed claims under the provisions of this chapter and made\nclaims to, or on their behalf with, a payor of medical payments eligible\nfor reimbursement pursuant to this section. Such searches shall be done\nat least quarterly upon request of payors and upon submission to the\nboard of computer tapes containing the information the chair shall need\nto identify injured employees who file dual claims under this section.\nAt least quarterly, the chair shall identify injured employees who have\nfiled dual claims by social security number and workers' compensation\nboard number and shall notify the payor of such results.\n (2) Such payor shall use the information of dual filings solely for\nthe purpose of reimbursement from the carrier or employer. The chair,\nupon a finding that such entity has used the information for purposes\nother than reimbursement from the carrier or employer, may, after\nhearing, impose a penalty of not more than ten thousand dollars and may\nprohibit such entity from receiving information under this subdivision\nfor up to three years.\n (3) The chair shall adopt rules and regulations to carry out the\nprovisions of this section, which rules and regulations shall provide\nfor alternative dispute resolution procedures for settlement of disputed\nclaims for reimbursement under subdivision (d) of this section including\nbut not limited to referral and submission of disputed claims to\nmandatory arbitration with private arbitration associations. Such rules\nand regulations may provide for a reasonable fee to be charged to payors\nfor computer searches. Claims for computer searches submitted to the\nboard prior to March thirty-first, nineteen hundred ninety-two, may be\nsubmitted with a payment date on or after April first, nineteen hundred\neighty-eight. Claims for reimbursement submitted after March\nthirty-first, nineteen hundred ninety-two, shall have a payment date\nthat is no later than three years prior to the date of submission of the\nclaim for matching purposes to the board. If disputed, these claims\nshall be resolved through the dispute resolution procedures set forth in\nthis section. Upon resolution of the reimbursement dispute in accordance\nwith this section, the amount paid to the prevailing party shall be\nincreased by the amount of any fee paid to the arbitrator or incurred by\nreason of any other alternate dispute resolution procedure.\n (i) (1) When a claimant or pharmacy submits a claim to the employer or\nits carrier for payment of prescribed medicine or for reimbursement of\nthe cost of prescribed medicine which the employer is required to\nprovide under this section, the employer or carrier shall pay the amount\nprescribed by the fee schedule adopted under section thirteen-o of this\narticle, or if the prescribed medicine is not included on the current\nfee schedule, the usual and customary charges for such prescribed\nmedicine, within forty-five days of receipt of the claim, unless the\nliability of the employer or carrier on the claim for which the claimant\nseeks payment or reimbursement of payment for the prescribed medicine is\nnot established, or the prescribed medicine is not for a causally\nrelated condition.\n (2) Where the liability of the employer or carrier on the claim for\nwhich the claimant seeks payment or reimbursement of payment for the\nprescribed medicine or reimbursement for payment of prescribed medicine\nis not established, or is not for a causally related condition, the\nemployer or carrier shall pay any undisputed portion of the claim in\naccordance with this section and notify the claimant or pharmacy, as\nappropriate, in writing within forty-five days of receipt of the claim:\n (i) that the claim is not being paid and explaining the reasons for\nnonpayment; or\n (ii) to request all additional information reasonably needed to\ndetermine the employer's or carrier's liability for the claim. Upon\nreceipt of the information requested in this subparagraph, the employer\nor carrier shall comply with paragraph one of this subdivision.\n (3) Each claim for payment of prescribed medicine or reimbursement for\npayment of prescribed medicine that is processed in violation of this\nsection shall constitute a separate violation. In addition to the other\npenalties provided in this chapter, any employer or carrier that fails\nto reimburse the claimant or pay the pharmacy, as appropriate and as\nrequired in this section shall be obligated to pay to the claimant or\npharmacy the amount prescribed on the fee schedule adopted under section\nthirteen-o of this article, or if the prescribed medicine is not\nincluded on the current fee schedule, the usual and customary charges\nfor the prescribed medicine plus simple interest at the rate set forth\nin section five thousand four of the civil practice law and rules.\n (4) Nothing in this subdivision shall prohibit employers or carriers\nfrom agreeing to or arranging for direct billing by the pharmacy to the\nemployer or carrier for the cost of prescribed medicine, in order for\nclaimants to more promptly receive prescribed medicine for which\nemployers and carriers are liable under this section.\n (5) Notwithstanding any other provision of this chapter, if an\nemployer or carrier has contracted with a pharmacy to provide prescribed\nmedicine to claimants, then such employer or carrier may require\nclaimants to obtain all prescribed medicines from the pharmacy with\nwhich it has contracted, except if a medical emergency occurs and it\nwould not be reasonably possible to obtain immediately required\nprescribed medicine from the pharmacy with which the employer or carrier\nhas a contract. An employer or carrier that requires claimants to obtain\nprescribed medicines from a pharmacy with which it has a contract must\nnotify claimants of the pharmacy or pharmacies with which it has a\ncontract, the locations and addresses of the pharmacy or pharmacies, if\napplicable, how to initially fill and refill prescriptions through the\nmail, internet, telephone or other means, and any other required\ninformation that must be supplied to the pharmacy or pharmacies. If the\npharmacy or pharmacies with which the employer or carrier contracts does\nnot offer mail order service and does not have a physical location\nwithin a reasonable distance from the claimant, as defined by regulation\nof the board, the claimant may obtain prescribed medicines at the\npharmacy or pharmacies of his or her choice and the employer or carrier\nwill be liable for such charges in accordance with the fee schedule\nprescribed in section thirteen-o of this chapter.\n