Indexing of workers' compensation claims and expedited processing of controverted claims.
Purpose:
To provide a process to resolve controverted claims within 90 days.
Summary of proposed rule (Full text is posted at the following State website www.wcb.state.ny.us):
The proposed changes amend 12 NYCRR § 300.1(a), § 300.33 and § 300.34, and add new § 300.37 and § 300.38 to govern indexing of all claims, pre-hearing conference, the expedited hearing process and the resolution of controverted claims.
Section 300.1(a) provides definitions of terms used in Part 300. The proposed rule making adds definitions for the terms “affidavit”, “affirmation”, “initial expedited hearing” and “insurance carrier.” The existing definition of “representative” is clarified that it refers to “legal representative” and that it includes representatives licensed by the Board pursuant to Workers' Compensation Law (WCL)§§ 24 and 50(3-b) and (3-d). The proposed rule making also adds a definition of “prima facie medical evidence” that comports with the amendment to WCL § 25(2-a) (a) by Chapter 6 of the Laws of 2007.
Section 300.33 regarding pre-hearing conferences (PHC) is amended by this rule. First, § 300.33 is amended to require PHC in cases in which a notice of controversy and a medical report referencing an injury (a medical report) are received must be scheduled within 30 days and to eliminate the requirement that notices of PHC must be sent 21 days before the PHC. Other cases with outstanding issues shall be referred to a PHC when necessary to complete discovery. New subdivisions (c), (d) and (e) of § 300.33 are added to provide that the notice of PHC, the PHC statement filed by a represented party, and how the PHC is conducted if the claimant is represented are governed by new § 300.38. Subdivision (f) sets forth how a pre-hearing conference will be conducted if a claimant is not represented and is only minor changes to existing § 300.33.
Section 300.34 regarding the expedited hearing process is amended to reflect the statutory changes to WCL § 25(3) (d) by Chapter 6 of the Laws of 2007 and that the expedited hearing process for controverted claims is governed by new § 300.38. Chapter 6 amended WCL § 25(3)(d) to authorize the Chair to transfer claims with an issue outstanding before the Board for one year rather than two years to be transferred to the expedited process. It also specifically authorizes the Chair to transfer controverted claims to the expedited process. Section 300.34 is renumbered and new subdivision (c) requires a PHC statement in accordance with § 300.33(c) be filed in any case transferred to the expedited hearing process. Subdivision (f) of § 300.34 requires adjournments in cases transferred to the expedited hearing process be granted only in accordance with § 300.38. Throughout § 300.34 references to carrier and representative are corrected to refer to “insurance carrier” and “legal representative”. Subdivision (h) clarifies that decisions solely containing determinations, directions and orders made by a Workers' Compensation Law Judge (WCLJ) in the special expedited hearing process are interlocutory and not reviewable under WCL § 23 until the conclusion of the trial and the resolution of all outstanding issues.
A new § 300.37 is added to govern case file creation and indexing of claims. Subdivision (a) requires the Board to assemble a case upon receiving a document regarding a claim or potential claim for workers' compensation and assign it a unique case number within five days. Assembling a case is not the indexing of a claim for purposes of WCL § 25(2) (b) and does not change existing law with respect to the filing a claim for purposes of WCL § 28.
Subdivision (b) provides that a claim may only be indexed if the Board receives an employee claim form or employer report of injury for any type of claim, a report by a medical provider on the form prescribed by the Chair unless the treating provider is based out of state, the claimant was treated in an emergency room or the claimant is deceased, and a limited release if the claimant files an employee claim form that indicates he or she had a prior injury to the same body part or similar illness to the one listed on the form. However, the rule authorizes the Chair to direct the indexing of a claim if a worker is killed and the employer refuses or fails to file an Employer's Report and no one files a claim on behalf of the beneficiaries. Once all of the required forms are received the Board must send a notice of indexing to the parties and make the limited release available to the insurance carrier. The notice of indexing must indicate that if the claim is controverted the insurance carrier must file an independent medical examination (IME) report with the Board at least 3 days prior to the initial expedited hearing or waive the right to have such a report considered.
Subdivision (c) provides that if the insurance carrier files a form to accept or controvert a claim or to notify the Board that it has begun to make temporary payment of compensation before all of the forms required to index a claim are received, the Board is not required to index a claim and can take any necessary action to resolve any issues in the claim.
Subdivision (d) includes provisions applicable to all claims, regardless of whether they are indexed or not. Specifically, it requires the legal representative of a claimant to provide a written certification and list of documents if retained when the employee claim form is filed; requires the Board to send a claimant information packet (packet) to unrepresented claimants who have not filed an employee claim form or had their claim accepted, details the contents of the packet and requires the Board to provide assistance to the claimant; requires the employer or the third-party it designated to file the employer's report to certify that the employer gave the packet to the claimant; and requires a medical report to be on the prescribed form and fully completed except in certain circumstances in order for the provider to be paid.
A new § 300.38 is added to govern the resolution of controverted claims. Subdivision (a) requires the filing of the notice of controversy and details the contents of such notice, including that it contain a written certification by the insurance carrier, a list of witnesses and list of documents. Subdivision (b) requires a notice of PHC be sent to the parties upon receipt of the notice of controversy and a medical report. The notice shall include the date of the PHC which shall be no more than 30 days after the receipt of the notice of controversy and a medical report and notification that an IME report must be filed at least 3 days prior to the initial expedited hearing.
Subdivision (c) authorizes the parties to seek production of relevant medical records using the limited release and requires medical professionals authorized by the Chair to produce such records within 21 days or 10 business days if the requesting party offers to pay $1.50 per page. A medical professional who fails to produce the records timely, if authorized by the Chair to treat or conduct IMEs of claimants, shall be subject to administrative warning or suspension or revocation of his or her authorization. All medical records obtained by the parties must be filed with the Board.
Subdivision (d) requires a legal representative of a claimant retained after a claim is indexed or the carrier files a form as provided in § 300.37(c) to file a notice of retainer within five days, ensure an employee claim form is filed and certified by the legal representative, and provide a list of documents that support the claim. Subdivision (e) provides that the claimant's retention of a legal representative 10 days or less before the PHC may constitute good cause for an adjournment.
Subdivision (f) prescribes the content and date for filing the PHC statement. An unrepresented claimant is not required to file such statement. Each party must attach all documents not already part of the claim file to the PHC statement. Failure by the insurance carrier to timely serve and file the PHC statement or to file an incomplete statement will result in a waiver of defenses; failure to list witnesses or attach documents not in the electronic case folder will result in a waiver of the right to call the witness or introduce such document. There will be no waiver if a WCLJ finds the failure was due to good cause. If the legal representative of a claimant fails to timely file or files an incomplete PHC statement, his or her legal fee will be reduced.
Subdivision (g) governs the PHC for a represented claimant. It requires the PHC to be held within 30 days of the filing of the notice of controversy and medical report and prescribes what will occur at the PHC. For example, at the PHC the WCLJ will confirm all forms are filed, add any necessary parties, simplify and limit factual and legal issues, determine whether the medical report constitutes PFME, determine if the offer of proof for a defense was sufficient, obtain the names and addresses of medical providers for prior injuries or illnesses if relevant, determine if the insurance carrier is entitled to a broader medical release, direct the claimant to file an employee claim form if one has not already been filed, set the date by which the IME report must be filed, identification of medical witnesses to be cross-examined, how and when such cross-examination shall occur and sets the date for the Initial Expedited Hearing.
Subdivision (h) governs the expedited hearing process for controverted claims when the claimant is represented. It requires the initial expedited hearing to occur within 30 days after the PHC where the claimant was represented. All lay witness testimony will be taken at that hearing. If no lay witness testimony is requested, nor the testimony of the claimant, the initial expedited hearing will not occur and the testimony of the medical witnesses will occur as set forth at the PHC. All IME reports must be filed and served at least three days before the date of the initial expedited hearing. If the testimony of the medical witnesses is to occur at a hearing it shall be scheduled no more than 30 days after the initial expedited hearing. This subdivision sets for the process if witnesses fail to appear. Paragraph (3) of subdivision (h) authorizes parties to make oral summations but limits written post-hearing summations, memoranda of law and/or briefs to certain situations. Finally, paragraph (4) details the timing of decisions deciding the controverted claim.
Subdivision (i) provides that decisions containing only orders or directions made by a WCLJ in connection with a PHC or expedited hearing process pursuant to § 300.38 are not reviewable by the Board until a decision is made by a WCLJ establishing or disallowing a claim.
Subdivision (j) governs adjournments. An adjournment will only be granted in an emergency, and shall not exceed 20 days, and the grounds for an adjournment must be established by an affidavit of a legal representative. If a request for an adjournment is not an emergency and is frivolous the penalties in WCL § 25(3) (d) and § 300.34(f) and (g) apply.
Subdivision (k) provides that the § 300.38 shall not apply to controverted claims where the employer was uninsured and the provisions relating to pre-hearing conferences and expedited hearings shall not apply if the claimant is unrepresented at the time of the PHC at which hearings are scheduled.
Text of proposed rule and any required statements and analyses may be obtained from:
Cheryl M. Wood, Workers' Compensation Board, 20 Park St., Rm. 400, Albany, NY 12207, (518) 408-0469, e-mail: regulations@wcb.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. Statutory authority:
The Workers' Compensation Board (hereinafter referred to as Board) and the Chair of the Board are authorized to adopt this rule pursuant to Workers' Compensation Law (WCL) § 117(1), § 141, § 142, § 25, § 24, § 13-a, § 13-b, § 13-d, § 13-k, § 13-l, § 13-m and Chapter 6 of the Laws of 2007.
2. Legislative objectives:
On March 13, 2007, Governor Spitzer signed into law sweeping reforms of the workers' compensation system which amended the WCL to increase benefits to claimants while decreasing costs to employers. Section 40 of Chapter 6 amended WCL Section 25(2-a) to reduce the period in which a pre-hearing conference (PHC) is held from 60 days to 45 days and to require a medical report before scheduling a pre-hearing conference. These regulations build upon these legislative changes so that controverted claims can be resolved as quickly as possible.
3. Needs and benefits:
In a letter dated March 13, 2007, Governor Spitzer directed the Superintendent of Insurance, with the assistance of the Chair of the Board and the Commissioner of Labor, to development recommended regulations to adjudicate a controverted claim within ninety days. To assist the Superintendent, the Governor directed the formation of an Advisory Committee comprised of representatives of the AFL-CIO, Business Council of New York State, New York State Senate and Assembly. On June 1, 2007, the Superintendent issued his report and recommended regulations.
The Board received comments regarding the recommended regulations from attorneys, associations representing attorneys, one union, an occupational health and safety committee and the New York State Insurance Fund. In addition, the Chair and other representatives of the Board met with interested parties to discuss their concerns regarding the recommended regulations. Based upon the comments and concerns expressed, as well as logistical challenges identified by the Board, the recommended regulations have been revised to retain the goal of resolving controverted claims within 90 days and the core philosophy that more information early in the claim enables the insurance carrier or self-insured employer to make informed decisions about whether or not to controvert a claim.
The proposed rule eliminates the requirement that a determination of prima facie medical evidence be made within five days of receipt of the notice of controversy, the mediation conference and removes the requirement that the first expedited hearing occur immediately after the PHC. The proposed regulations are based on a 30-60-90 timeframe. The PHC will be held within 30 days of the filing of the notice of controversy and a medical report referencing an injury. The initial expedited hearing, at which all lay testimony will be taken, will be held 30 days after the pre-hearing conference or 60 days after the receipt of the requirement documents. If a second expedited hearing is necessary for medical testimony it will be held no more than 60 days after the pre-hearing conference. The 30-60-90 timeframe fits easily within the statutory requirements.
Chapter 6 of the Laws of 2007 amended WCL § 25(2-a) to reduce the maximum time period in which a PHC must be held in a controverted case from 60 to 45 days and added the requirement that “a medical report referencing an injury” must also be received by the Board before the 45 day time limit begins to run. These changes clearly indicate the need for faster resolutions of controverted claims and that the evidence necessary to proceed to a PHC is a medical report referencing an injury.
The reduction in time from receipt of a notice of controversy to the convening of a PHC has obvious benefits for an injured worker. In the past PHCs were held only to find that there are no medical reports in the Board's file for the Workers' Compensation Law Judge (WCLJ) to review for the purpose of determining whether “prima-facie medical evidence” (PFME) exists. These types of “no medical evidence” hearings were of limited value. The statutory amendment and the proposed regulations ensure that “no medical evidence” PHCs will no longer be held. In addition, the amendment makes clear that all that is needed in order to proceed to a pre-hearing conference at which discovery will close and a hearing scheduled is a medical report referencing an injury. Therefore, prima facie medical evidence is now a medical report referencing an injury. The proposed regulation sets forth this definition.
The new case file creation, claim indexing, notice of indexing and notice of controversy regulations are designed to generate more claim information earlier in the process so that an employer/carrier can make an informed decision whether to accept or controvert a claim. If the decision is to controvert, the proposed regulations require the employer/carrier to specifically state the basis (es) of the controversy.
The proposed regulations require the filing of a PHC statement at least 10 days prior to the PHC. This statement must contain certain required information. It is intended to narrow the issues in dispute, provide witness names, and otherwise facilitate the prompt and efficient resolution of disputed issues relating to the basic, initial compensability of the claim.
The new regulations are designed to expedite the adjudication of controverted claims by requiring carriers to file Independent Medical Exam (IME) reports, if the carrier wishes to produce such a report in support of its controversy, on or before the initial expedited hearing date.
The proposed regulations modified the recommended regulations to schedule the initial expedited hearing 30 days after the pre-hearing conference to ensure the most efficient use of resources. Under the recommended regulations, if a controversy was resolved at the PHC then the time blocked for the initial expedite hearing would not be used. In addition, parties would be required to prepare witnesses and prepare to examine witnesses before a WCLJ had ruled whether the witness could testify at the PHC. The proposed regulations require the taking of all medical testimony at a hearing to be held within 30 days after the initial expedite hearing or no more than 55 days after the PHC.
Like the recommended regulations, the proposed regulations regulate and limit the circumstances under which adjournments in controverted cases can be granted. Adjournments usually prolong the time it takes to reach a decision in a controverted case. Additionally, the proposed regulations limit appeals of decisions that contain orders and directions that do not establish or disallow the claim. This provision is in accordance with existing regulations at 12 NYCRR § 300.34.
Unlike the recommended regulations, the proposed regulations revise 12 NYCRR § 300.33 and § 300.34. These sections currently govern PHCs and the expedited hearing process. Changes were made to conform to the provisions in section 300.38 for controverted claims.
4. Costs:
Some of the provisions in the regulations already exist, such as the filing of IME reports and PHC statements. The proposed regulations eliminate the requirement in the recommended regulations that a mediation conference occur before the PHC. Carriers, self-insured employers and attorneys would have incurred costs in attending these conferences. There should be fewer controvered claims because carriers and self-insured employers will be able to make an informed decision due to the increased information they will receive and the requirement that the Board receive a medical report before indexing a claim. The regulations require parties to use required forms. Employers, carriers, attorneys and medical providers may experience some increase in costs from fully complying with the WCL and regulations.
There are some minimal costs that will be incurred regardless of whether the claim is controverted, such as distributing the Claimant Information Packet (Packet) to employees injured or who become ill on the job. Legal Representatives of claimants will incur small costs in complying with the requirement to submit a written certification and a list of documents if the representative is retained at the time the Form C-3, Employee's Claim for Compensation, is filed with the Board.
5. Local government mandates:
All local governments, especially the approximately 2,511 political subdivisions who currently participate in self-insured programs for workers' compensation coverage in New York State, will have to comply with these regulations. Local governments will be affected by the proposed rule in the same manner as all other employers. Since the purpose behind the regulations is to speed the resolution of controverted claims so claimants receive the benefits they are entitled to as quickly as possible, there is no justification or reason why an employee of a local government has any less right to a swift resolution when a local government decides to controvert a claim.
6. Paperwork:
The proposed rule imposes some paperwork requirements. First, the rule requires that all forms be completed fully which the Board has not historically required. The proposed rule creates consequences for failing to fully complete forms. Second, existing forms must be modified. The proposed regulations require revised Forms C-2, C-3, C-4, C-7 and PH-16.2. Third, new forms and documents are required such as, a claimant must complete a limited medical release in order for a claim to be indexed in certain cases, claimant's legal representative must file a written certification that the allegations and facts in the employee claim form have evidentiary support or will have such support after an opportunity for investigation, and claimant's legal representative must file a list of all documents that may be used to support the claim. The employer upon receiving notice of a work place injury must provide the employee with a Claimant Information Packet. The Board is required to send this packet to an individual who has not retained a legal representative and has a case number but a claim has not been indexed. The limited release required by the regulations is only for relevant medical records for the same condition or injury site as that at issue in the workers' compensation claim. To obtain a broader release, an insurance carrier must make an application to the Board supported by an affidavit showing relevance. Requests for adjournments under the proposed rule must be made by affidavit rather than merely submitting a letter or telephoning the Board.
The proposed rules will limit some paperwork because it limits the filing of appeals until a final decision is reached. The proposed rule will also limit the number of summations, memoranda of law and/or briefs that are submitted.
The proposed rule requires the parties to file all medical reports obtained by them through the use of medical releases with the Board.
7. Duplication:
These amendments will not duplicate any existing Federal or State requirements.
8. Alternatives:
One alternative would be to take no action. However, given the statutory amendment of WCL § 25(2-a) and gubernatorial directive to design a streamlined docket system to process workers' compensation claims, this is not a viable alternative.
Another alternative would be to propose and adopt the recommended regulations as submitted to the Chair and Board. However, the recommended regulations contain provisions which are inconsistent with statute, do not account for all types of claims that are filed with the Board, and contain provisions which are logistically difficult for the Board and the parties. The proposed regulation has addressed these issues.
The Board received suggested changes to the recommended regulations from participants in the system and from within the Board.
9. Federal standards:
There are no federal standards applicable to this proposed rule.
10. Compliance schedule:
It is expected that the affected parties will be able to comply with all of these changes upon three months notice and for all claims indexed or created after the effective date of the regulation. However, the statutory amendment to WCL § 25(2-a) regarding the 45 day notice of controversy to PHC and medical report referencing an injury requirements became effective for claims filed on and after March 13, 2007, and has been implemented. Therefore, parties are already complying with these requirements.
Regulatory Flexibility Analysis
1. Effect of rule:
All small businesses and local governments for which workers' compensation coverage is required and whose employee(s) might be injured will be affected by this rule to some extent. For the most part, it is the entity providing coverage for the small employer that must comply with all of the provisions of this rulemaking. Small businesses cannot be individually self-insured. They must purchase coverage from the State Insurance Fund or a private insurance carrier authorized to write workers' compensation insurance in New York or join a group self-insured trust. The impact on the State Insurance Fund and all private insurance carriers is not covered in this document as they are not small businesses. Group self-insured trusts, third party administrators hired by private insurance carriers and group self-insured trusts, and attorneys may be small businesses who will be impacted by this regulation. Further, all health practitioners authorized by the Chair to treat or conduct independent medical examinations of claimants will have to comply with parts of this rule.
The approximately 2,511 political subdivisions that are self-insured for workers' compensation coverage in New York State will have to comply with all provisions of this proposal. Those local governments who are not self-insured will be affected by this rule to a limited extent.
2. Compliance requirements:
The proposed rule imposes new compliance requirements on all small businesses and local governments. First, those small businesses and local governments who purchase coverage and whose only involvement with the workers' compensation system is that of an employer will only be minimally affected by this rule. Specifically, such employers will be required to provide an injured employee with a Claimant Information Packet (hereinafter referred to as Packet), which contains a Form C-3 (Employee's Claim For Compensation), instructions for completing the form, explanation of the necessity of a Form C-4 (Attending Doctor's Report), a limited medical release, and notice that the employee has the right to a legal representative. Either they or their designated third-parties will be required to certify on the Form C-2, Employer's Report of Work-Related Accident, that the Packet was provided.
Second, small businesses authorized to provide medical treatment to claimants will have to comply with the requirements discussed above for medical reports and testimony. Specifically, the proposed regulations require medical providers authorized by the Chair to fully complete and submit a Form C-4, Attending Doctor's Report. Historically, the Board has accepted office notes, medical narratives and the HCFA 1500 form. The proposed regulations only allow for the filing of the Form C-4 by authorized providers. If an authorized medical provider fails to file a fully completed Form C-4, he or she will not be paid for the services provided to the claimant. Medical providers will be required to comply with shortened time periods in which to appear for a hearing to give medical testimony. Additionally, medical providers authorized by the Board will be required to reply to requests for records within 21 days or within 10 days if an expedited request is made. Authorized medical providers will be paid $1.50 per page for expedited orders to defray any associated costs. If an authorized provider fails to comply with this requirement, he/she will be subject to administrative warning, suspension or revocation.
Third, those small businesses involved in the actual process of adjudicating claims, such as third party administrators, group self-insured trusts and/or trust administrators, and attorneys, must comply with all of the provisions of the proposed regulations. Also, self-insured local governments will have to comply with all of the provisions. The proposal requires all forms to be fully completed and requires the filing of forms that to date have not been regularly filed. For example, the regulation requires modifications to the Form PH-16.2, Statement on Specific Issues in Dispute, to include more information and provides for sanctions for failing to file the form. Historically, this form has not been filed. Small businesses and local governments, along with all insurance carriers and the State Insurance Fund, will now be required to file this form. The proposal also requires the Form C-7, Notice that Right to Compensation is Controverted, be complete, including a basis for the carrier's controversion of the case and any defenses, be certified by the carrier or its legal representative, and be accompanied by a list of documents that may be used to support the carrier's position.
The proposed regulations impose some new reporting and compliance requirements. If a claimant has retained legal representation at the time the Form C-3 is filed with the Board, the legal representative will be required to provide written certification that the contents of the Form C-3 have evidentiary support or will after discovery and investigation, and a list of all documents in the claimant's control that will be used to support the claim.
Pursuant to this proposal, a determination of prima facie medical evidence is interlocutory, so that it cannot be appealed by either party. This will reduce delays and costs as neither side will need to prepare and file Applications for Review or Rebuttals. Additionally, the proposal prohibits the filing of summations, memoranda of law and/or briefs unless the Workers' Compensation Law Judge finds that the claim presents extensive and complicated factual determinations or novel and important questions of law.
3. Professional services:
It is believed that no additional professional services will be needed to comply with these regulations. Small businesses and local governments will continue to use the same professional services as they are using today, such as third party administrators and attorneys.
4. Compliance costs:
The additional costs from this rule making are minimal. Mainly the regulation requires compliance with existing requirements. All participants in the workers' compensation system, including small businesses and local governments, will be required to fully complete and file all forms that have been required for decades using the forms prescribed by the Chair or Board. Some small businesses and local governments may experience costs associated with now complying with these requirements. Employers may experience some costs in complying with the requirement to provide a Claimant Information Packet to injured or ill employees. Small businesses that are involved in the adjudication of claims and self-insured small businesses will experience some costs from completing the more extensive Form PH-16.2, Statement on Specific Issues in Dispute.
Medical providers may incur some costs in complying with expedited record requests, but the provider is paid twice the usual rate for such requests.
At the same time, the regulations will reduce legal costs by expediting resolution of disputes.
5. Economic and technological feasibility:
No implementation or technology costs are anticipated for most small businesses and local governments to comply with the proposed amendments.
6. Minimizing adverse impact:
These proposed amendments seek to minimize adverse impacts on small businesses and local governments by eliminating unnecessary and unproductive “no medical evidence” hearings and by expediting the adjudication of controverted claims. Therefore, these proposed regulations provide a benefit to small businesses and local governments by eliminating frictional costs.
The regulations also provide relief to small businesses by enabling the Workers' Compensation Law Judge or conciliator to allow medical experts to testify by deposition or telephone rather than having to travel to the hearing. Not only does this save time in the process, it saves time and money for the witnesses, many of whom may be small businesses.
7. Small business and local government participation:
The proposed regulations are based upon regulations recommended by the Superintendent of Insurance based upon the work of the Advisory Committee appointed by Governor Spitzer in his March 13, 2007, letter. The Advisory Committee is composed of representatives from the AFL-CIO, Business Council of New York State, and New York State Assembly and Senate.
The Board made modifications to the recommended regulations to address provisions which were inconsistent with statute, to ensure all types of claims are covered and to address provisions which were logistically difficult for the Board and the parties. While the recommended regulations require the PHC statement to be filed 14 days before the PHC, statute requires it to be filed 10 days before the PHC. The recommended regulations only allowed an employer to file an employer's report of injury or C-2 form, however WCL § 110(2) specifically authorizes employers to designate a third-party to file the form. The recommended regulations required medical providers to file medical reports electronically and legal representatives to file PHC statements electronically. However, State Technology Law § 305(1) prohibits the Board from refusing to accept paper forms and requiring electronic filing without statutory authority. The recommended regulations only referenced the C-3 and C-2 forms and not the forms to file a death claim or a claim for volunteer firefighter or volunteer ambulance worker benefits. The recommended regulations required all medical providers to complete the form prescribed by the Chair, the C-4 form, and did not accept office notes or a narrative. However, not all claimants are treated by medical providers authorized by the Chair who are required to complete the C-4 form, such as emergency room physicians. As stated above, holding the first expedited hearing, to take all lay testimony, immediately after the PHC could easily result in wasted calendar time and make it difficult for the parties to prepare for the hearing. The proposed regulations address all of these issues.
The Board received suggested changes to the recommended regulations from participants in the system and from within the Board. The Board received comments from the Injured Workers' Bar Association, the State Insurance Fund, the Public Employees Federation, New York Committee for Occupational Safety and Health, the Bar Association of Nassau County, and the Suffolk County Bar Association.
The comments suggested:
(a) Permitting the indexing of a claim upon receipt of any medical report that provides a history, a diagnosis and statement on causal relationship rather than restricting indexing to receipt of completed, prescribed medical report. The Board amended the recommended regulations to allow for the indexing of a claim without receiving the prescribed medical report when the claimant is treated out of state, treated in an emergency room and when the claimant has died due to his or her work related injury. Also the Board revised the definition of prima facie medical evidence (PFME) in accordance with the amendment to WCL § 25(2-a).
(b) Amending the recommended regulation to make Claimant Information Packets available to employers on the Board's website, available to anyone.
(c) Deleting the phrase “by an attending medical provider” from the recommended definition for PFME to allow the acceptance of PFME from a medical professional other than an “attending medical provider” in some cases. The definition of PFME has been completely changed and no longer contains a reference to attending provider.
(d) Deleting the requirement that a prescribed form must be used for a medical report to qualify as PFME. The Board amended the recommended regulations to allow a medical report other than on the prescribed form when the claimant is treated out of state, treated in an emergency room and when the claimant has died due to his or her work related injury.
(e) Deleting sections relating to Limited Releases. Currently, claimants are directed to sign releases for prior medical records. The proposed regulations modify the recommended regulations by only requiring receipt of a limited release to index a claim when a claimant notes on the C-3 form that he or she suffered a prior injury or similar illness to the work related injury or illness.
(f) Deleting the recommended regulation section regarding mediation meetings as unnecessary and unworkable. The proposed regulation eliminates this provision.
(g) Modifying the recommended regulation to indicate that photocopies or electronic copies of a Limited Release are the equivalent of an original signed release and must be accepted as such by medical professionals and hospitals. This suggestion is incorporated into the draft form prepared by the Board.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
These regulations will apply to all insurance carriers, employers, local governments, attorneys, medical providers, group self-insured trusts, third party administrators and claimants across the state. These individuals and entities exist in all rural areas of the state.
2. Reporting, recordkeeping and other compliance requirements:
The proposed rule imposes new compliance requirements on all participants to the workers' compensation system. First, claimants will be required to complete a limited release. The limited release is necessary to provide carriers and self-insured employers with the information about prior injuries or similar illnesses to the work related injury or illness.
Second, those employers who purchase coverage and whose only involvement with the workers' compensation system is that of an employer will only be minimally affected by this rule. Specifically, such employers will be required to provide an injured employee with a Claimant Information Packet (hereinafter referred to as Packet), which contains a Form C-3 (Employee's Claim For Compensation), instructions for completing the form, explanation of the necessity of a Form C-4 (Attending Doctor's Report), a limited medical release, and notice that the employee has the right to a legal representative. Employers or the third-parties they designate will be required to certify on the Form C-2, Employer's Report of Work-Related Accident, that the Packet was provided.
Third, individuals authorized to provide medical treatment to claimants will have to comply with the requirements for medical reports and testimony. Specifically, the proposed regulations require medical providers authorized by the Chair to treat claimants to fully complete and submit a Form C-4, Attending Doctor's Report. Historically, the Board has accepted office notes, medical narratives and the HCFA 1500 form. The proposed regulations only allow for the filing of the Form C-4 by authorized medical providers. If an authorized medical provider fails to file a fully completed Form C-4, he or she will not be paid for the services provided to the claimant. Medical providers will be required to comply with shortened time periods in which to appear for a hearing to give medical testimony. Additionally, medical providers authorized by the Board will be required to reply to requests for records within 21 days or within 10 days if an expedited request is made. Authorized medical providers will be paid $1.50 per page for expedited orders to defray any associated costs. If an authorized provider fails to comply with this requirement, he/she will be subject to administrative warning, suspension or revocation.
Fourth, those entities involved in the actual process of adjudicating claims, such as self-insured employers, insurance carriers, local governments, third party administrators, group self-insured trusts and/or trust administrators, and attorneys must comply with all of the provisions of the proposed regulations. The proposal requires all forms to be fully completed and requires the filing of forms that to date have not been regularly filed. For example, the regulation requires modifications to the Form PH-16.2, Statement on Specific Issues in Dispute, to include more information and provides for sanctions for failing to file the form. Historically, this form has not been filed so entities will be required to adjust. The proposal also requires the Form C-7, Notice that Right to Compensation is Controverted, be complete, including a basis for the carrier's controversion of the case and any defenses, be certified by the carrier or its legal representative, and be accompanied by a list of documents that may be used to support the carrier's position.
The proposed regulations impose some new reporting and compliance requirements. If a claimant has retained legal representation at the time the Form C-3 is filed with the Board, the legal representative will be required to provide written certification that the contents of the Form C-3 have evidentiary support or will after discovery and investigation, and a list of all documents in the claimant's control that will be used to support the claim.
Pursuant to this proposal, a determination of prima facie medical evidence is interlocutory so that it cannot be appealed by either party. This will reduce delays and costs as neither side will need to prepare and file Applications for Review or Rebuttals. Additionally, the proposal prohibits the filing of summations, memoranda of law and/or briefs unless the Workers' Compensation Law Judge finds that the claim presents extensive and complicated factual determinations or novel and important questions of law.
3. Costs:
The additional costs from this rule making are minimal. Mainly the regulation requires compliance with existing requirements. All participants in the workers' compensation system will be required to fully complete and file all forms that have been required for decades using the forms prescribed by the Chair or Board. Some entities and individuals in rural areas may experience costs associated with now complying with these requirements.
Employers may experience some costs in complying with the requirement to provide a Claimant Information Packet to injured or ill employees. Medical providers may incur some costs in complying with expedited record requests, but the provider is paid twice the usual rate for such requests. Entities and individuals that are involved in the adjudication of claims, and self-insured small businesses will experience some costs from completing the more extensive Form PH-16.2, Statement on Specific Issues in Dispute.
At the same time, the regulations will reduce legal costs by expediting resolution of disputes.
4. Minimizing adverse impact:
These proposed amendments seek to minimize adverse impacts on entities and individuals in rural areas by eliminating unnecessary and unproductive “no medical evidence” hearings and by expediting the adjudication of controverted claims.
The regulations also provide relief to small businesses by enabling the Workers' Compensation Law Judge or conciliator to allow medical experts to testify by deposition or telephone rather than having to travel to the hearing. Not only does this save time in the process, it saves time and money for the witnesses, which will be particularly beneficial to those in rural areas.
5. Rural area participation:
The proposed regulations are based upon regulations recommended by the Superintendent of Insurance based upon the work of the Advisory Committee appointed by Governor Spitzer in his March 13, 2007, letter. The Advisory Committee is composed of representatives from the AFL-CIO, Business Council of New York State, and New York State Assembly and Senate.
The Board made modifications to the recommended regulations to address provisions which were inconsistent with statute, to ensure all types of claims are covered and to address provisions which were logistically difficult for the Board and the parties. While the recommended regulations require the PHC statement to be filed 14 days before the PHC, statute requires it to be filed 10 days before the PHC. The recommended regulations only allowed an employer to file an employer's report of injury or C-2 form, however WCL § 110(2) specifically authorizes employers to designate a third-party to file the form. The recommended regulations required medical providers to file medical reports electronically and legal representatives to file PHC statements electronically. However, State Technology Law § 305(1) prohibits the Board from refusing to accept paper forms and requiring electronic filing without statutory authority. The recommended regulations only referenced the C-3 and C-2 forms and not the forms to file a death claim or a claim for volunteer firefighter or volunteer ambulance worker benefits. The recommended regulations required all medical providers to complete the form prescribed by the Chair, the C-4 form, and did not accept office notes or a narrative. However, not all claimants are treated by medical providers authorized by the Chair who are required to complete the C-4 form, such as emergency room physicians. As stated above, holding the first expedited hearing, to take all lay testimony, immediately after the PHC could easily result in wasted calendar time and make it difficult for the parties to prepare for the hearing. The proposed regulations address all of these issues.
The Board received suggested changes to the recommended regulations from participants in the system and from within the Board. The Board received comments from the Injured Workers' Bar Association, the State Insurance Fund, the Public Employees Federation, New York Committee for Occupational Safety and Health, the Bar Association of Nassau County, and the Suffolk County Bar Association.
The comments suggested:
(a) Permitting the indexing of a claim upon receipt of any medical report that provides a history, a diagnosis and statement on causal relationship rather than restricting indexing to receipt of completed, prescribed medical report. The Board amended the recommended regulations to allow for the indexing of a claim without receiving the prescribed medical report when the claimant is treated out of state, treated in an emergency room and when the claimant has died due to his or her work related injury. Also the Board revised the definition of prima facie medical evidence (PFME) in accordance with the amendment to WCL § 25(2-a).
(b) Amending the recommended regulation to make Claimant Information Packets available to employers on the Board's website, available to anyone.
(c) Deleting the phrase “by an attending medical provider” from the recommended definition for PFME to allow the acceptance of PFME from a medical professional other than an “attending medical provider” in some cases. The definition of PFME has been completely changed and no longer contains a reference to attending provider.
(d) Deleting the requirement that a prescribed form must be used for a medical report to qualify as PFME. The Board amended the recommended regulations to allow a medical report other than on the prescribed form when the claimant is treated out of state, treated in an emergency room and when the claimant has died due to his or her work related injury.
(e) Deleting sections relating to Limited Releases. Currently, claimants are directed to sign releases for prior medical records. The proposed regulations modify the recommended regulations by only requiring receipt of a limited release to index a claim when a claimant notes on the C-3 form that he or she suffered a prior injury or similar illness to the work related injury or illness.
(f) Deleting the recommended regulation section regarding mediation meetings as unnecessary and unworkable. The proposed regulation eliminates this provision.
(g) Modifying the recommended regulation to indicate that photocopies or electronic copies of a Limited Release are the equivalent of an original signed release and must be accepted as such by medical professionals and hospitals. This suggestion is incorporated into the draft form prepared by the Board.
Job Impact Statement
The amendments to Section 300.1 and the addition of Sections 300.37 and 300.38 implement statutory changes and accelerate, enhance and improve the process for resolving controverted claims of represented claimants. It is apparent from the nature and purpose of the rule that it will not have a substantial adverse impact on jobs or employment, and therefore a job impact statement is not required.
