WCB-17-13-00002-A Electronic Reporting of First Reports of Injury and Subsequent Reports of Injury

8/28/13 N.Y. St. Reg. WCB-17-13-00002-A

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 35

August 28, 2013

RULE MAKING ACTIVITIES

WORKERS' COMPENSATION BOARD

NOTICE OF ADOPTION

 

I.D No. WCB-17-13-00002-A

Filing No. 832

Filing Date. Aug. 12, 2013

Effective Date. Apr. 23, 2014

Electronic Reporting of First Reports of Injury and Subsequent Reports of Injury

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Repeal of section 300.22, addition of new section 300.22 and amendment of sections 300.23 and 300.38 of Title 12 NYCRR.

Statutory authority:

Workers' Compensation Law, sections 117, 141, 25 and 110

Subject:

Electronic reporting of first reports of injury and subsequent reports of injury.

Purpose:

To require electronic reporting of first reports of injury and subsequent reports of injury.

Substance of final rule:

The proposed regulation repeals Section 300.22 and adds a new 300.22.

Subdivision (a) of Section 300.22 adds definitions of “disability event,” “Electronic Trading Partner Agreement,” “filed electronically,” “Special Fund” and “Third Party Administrator.”

Subdivision (b) of Section 300.22 sets forth the process and requirements for mandatory first reports of injury, including medical only cases, notices of controversy and when a carrier acquires responsibility for a claim from another carrier. The subdivision also sets forth the requirements for filing an employer’s first report of injury required by Workers’ Compensation Law Section 110.

Subdivision (c) of Section 300.22 sets forth the process and requirements for filing mandatory subsequent reports of injury and initial actions including notice of initial controversy, notice that compensation is not controverted and payment has begun, and notice that compensation is not controverted but payment has not begun.

Subdivision (d) of Section 300.22 sets forth the rules for filing a notice of controversy following a notice of indexing as a subsequent report of injury.

Subdivision (e) of Section 300.22 sets forth the notices and rules required when an insurance carrier makes payments pursuant to Workers’ Compensation Law Section 21-a because it is unsure of the extent of its liability for a claim for workers’ compensation.

Subdivision (f) of Section 300.22 sets forth the rules and process for reporting subsequent reports of injury following certain payments, the reporting of periodic summary of payments, and when to report other types of benefits including penalties paid to the claimant.

Subdivision (g) of Section 300.22 sets forth that the regulation shall be effective on April 20, 2014 and every carrier must complete an Electronic Trading Partner Agreement prior to the effective date.

Subdivision (h) of Section 300.22 states that the date of transmittal shall be the date a notice is actually mailed or transmitted.

Section 300.23 is amended throughout to provide that modification or suspension of claimant’s workers’ compensation benefits shall be by electronic notice that conforms to the requirements set forth in Section 300.22 and that evidence in support of the modification or suspension shall be mailed or submitted to the Board on the same day.

Subdivision (f) of Section 300.23 is added to state that the date of transmittal shall be the date a notice is actually mailed or transmitted.

Subdivision (a) of Section 300.38 is amended to add that any notice of controversy must be submitted as a first report of injury or subsequent report of injury and transmitted to all other parties within one business day of the date it is filed electronically with the Board.

Subparagraph (2) of subdivision (a) of Section 300.38 is amended to state that the written certification required to be submitted by the carrier with a notice of controversy may be completed at the pre-hearing conference.

Subdivision (d) of Section 300.38 is amended to change “files a form to controvert” to “submits a notice of controversy.”

Subparagraph (2)(i) of subdivision (g) of Section 300.38 is amended to add “ and notices” and change “filed with” to “submitted to.”

Final rule as compared with last published rule:

Nonsubstantive changes were made in sections 300.22(a)(3), (b)(1), (f)(2), (g), 300.23(b)(1) and (c)(1).

Text of rule and any required statements and analyses may be obtained from:

Heather MacMaster, Workers' Compensation Board, 328 State Street, Office of General Counsel, Schenectady, New York 12305-2318, [phone], email: [e-mail]

Revised Regulatory Impact Statement

A revised Regulatory Impact Statement is not required because the changes made to the last published rule do not necessitate revision to the previously published document. The changes to the text are not substantial, do not change the meaning of any provision and therefore do not change any statements in the document. Specifically the changes are to: 1) change the effective date to April 23, 2014; 2) clarify that first reports of injury and subsequent reports of injury that are submitted to the Board before the deadline set forth in the regulation will be considered timely even though they are not acknowledged until after the filing deadline has passed; 3) clarify when a notice of controversy may not be filed as a first report of injury; and 4) clarify that when a carrier files a notice seeking to suspend or modify payments to the claimant and a hearing is required, that these notices are currently filed as paper documents not as a subsequent report of injury which reports a suspension or modification of payment after it as occurred.

Revised Regulatory Flexibility Analysis

A revised Regulatory Flexibility Analysis for Small Business and Local Governments is not required because the changes made to the last published rule do not necessitate revision to the previously published document. The changes to the text are not substantial, do not change the meaning of any provision and therefore do not change any statements in the document. Specifically the changes are to: 1) change the effective date to April 23, 2014; 2) clarify that first reports of injury and subsequent reports of injury that are submitted to the Board before the deadline set forth in the regulation will be considered timely even though they are not acknowledged until after the filing deadline has passed; 3) clarify when a notice of controversy may not be filed as a first report of injury; and 4) clarify that when a carrier files a notice seeking to suspend or modify payments to the claimant and a hearing is required, that these notices are currently filed as paper documents not as a subsequent report of injury which reports a suspension or modification of payment after it as occurred.

Revised Rural Area Flexibility Analysis

A revised Rural Area Flexibility Analysis is not required because the changes made to the last published rule do not necessitate revision to the previously published document. The changes to the text are not substantial, do not change the meaning of any provision and therefore do not change any statements in the document. Specifically the changes are to: 1) change the effective date to April 23, 2014; 2) clarify that first reports of injury and subsequent reports of injury that are submitted to the Board before the deadline set forth in the regulation will be considered timely even though they are not acknowledged until after the filing deadline has passed; 3) clarify when a notice of controversy may not be filed as a first report of injury; and 4) clarify that when a carrier files a notice seeking to suspend or modify payments to the claimant and a hearing is required, that these notices are currently filed as paper documents not as a subsequent report of injury which reports a suspension or modification of payment after it as occurred.

Revised Job Impact Statement

A revised Statement in Lieu of Job Impact Statement is not required because the changes made to the last published rule do not necessitate revision to the previously published document. The changes to the text are not substantial, do not change the meaning of any provision and therefore do not change the statement that the rule making will not have an adverse impact on jobs. Specifically the changes are to: 1) change the effective date to April 23, 2014; 2) clarify that first reports of injury and subsequent reports of injury that are submitted to the Board before the deadline set forth in the regulation will be considered timely even though they are not acknowledged until after the filing deadline has passed; 3) clarify when a notice of controversy may not be filed as a first report of injury; and 4) clarify that when a carrier files a notice seeking to suspend or modify payments to the claimant and a hearing is required, that these notices are currently filed as paper documents not as a subsequent report of injury which reports a suspension or modification of payment after it as occurred.

Assessment of Public Comment

The 45-day public comment period with respect to Proposed Rule I.D. No. WCB171300002 commenced on April 24, 2013, and expired on June 8, 2013. The Chair and the Workers’ Compensation Board (Board) received and accepted formal written comments on the proposed rule through June 15, 2013.

The Chair and Board received formal written comments from one entity, the State Insurance Fund (SIF). This Assessment will address each comment made and summarize the minimal clarifying changes to the proposed regulation.

SIF commented that the Board could not limit the statutory grant of discretion permitting the Board to excuse a carrier’s late filing of a notice of controversy granted by Workers’ Compensation Law (WCL) § 25(2)(b), by prohibiting a carrier’s filing of a notice of controversy as a first report of injury when more than 18 days from the date of injury and 10 days from the employer’s knowledge have elapsed in proposed 12 NYCRR § 300.22(b)(ii). The Board has not made any changes to the regulation based on this comment because the Board’s discretion to excuse a late filed notice of controversy is granted by WCL § 25(2)(b) and is preserved in proposed 12 NYCRR § 300.22 (d). Proposed 12 NYCRR § 300.22(b) and (c) addressed notices of controversy filed pursuant to WCL § 25(2)(a).

SIF also notes that the sentence in 12 NYCRR § 300.22(b)(ii), “A notice of controversy may not be filed as a first report of injury when it is filed more than 18 days after the disability event or more than 10 days after the employer has knowledge of the disability event,” fails to state that it should be the greater of 18 days and 10 days. The sentence has been changed to read “Unless it is filed on or before the greater of 18 days after the disability event or within 10 days after the employer has knowledge of the disability event as required by subdivision (1) herein, a notice of controversy may not be filed as a first report of injury.”

SIF states that a carrier should always be permitted to submit a notice of controversy as a first report of injury because the carrier may not have sufficient information to complete a subsequent report of injury. The circumstances for filing a notice of controversy as a first report of injury and subsequent report of injury are set by the protocols of the International Association of Industrial Accident Boards Commission, a national organization, and are being used successfully by carriers in 39 states. Based upon the successful use of these protocols by all national insurance carriers and many regional carriers, the Board believes that SIF’s concerns are unwarranted and no change is necessary.

SIF also commented that the requirement in subdivision (f) (2) of section 300.22 that requires a carrier to file a subsequent report of injury within 18 days of the resumption of disability should be changed as a carrier may not necessarily know when a disability has resumed, particularly if the claimant has returned to work with a new employer. Based on this comment, the board has clarified that the subsequent report of injury is due within 18 days of the resumption of “payments for” a disability.

Finally, SIF commented that the provisions in section 300.23 that in some instances require the carrier to electronically file a report on a change in payment and simultaneously send documents in support of the change in payment to the Board could result in the supporting documentation being filed prior to the electronically filed report. This is an unlikely scenario for two reasons: 1) the carrier will know almost immediately if a transaction is rejected; and 2) the mailing of supporting documents will take several days and then the scanning of those documents into the Board’s electronic case folder also takes a couple of days.

CHANGES TO THE REGULATION:

The Regulation that is being adopted contains the following insubstantial changes from the proposed rule published in the April 24, 2013 State Register:

• In section 300.22 (a)(3), the following sentence has been added to clarify that an electronic filing will not be untimely when it is received by the Board on time, but is not processed by the Board until after the expiration of the filing date. The new sentence reads: “For the purpose of determining whether an electronic submission has been timely submitted, any electronic transmission that is submitted to and accepted by the Board within the time required by subdivisions (b), (c), (d) and (f) herein shall be considered timely submitted when such electronic transmission is later acknowledged by the Board even though the acknowledgement by the Board may have occurred after the time required by subdivisions (b), (c), (d) and (f).”

• In section 300.22(b)(1)(ii), the sentence “A notice of controversy may not be filed as a first report of injury when it is filed more than 18 days after the disability event or more than 10 days after the employer has knowledge of the disability event” has been changed, for the purpose of clarification, to “Unless it is filed on or before the greater of 18 days after the disability event or within 10 days after the employer has knowledge of the disability event as required by subdivision (1) herein, a notice of controversy may not be filed as a first report of injury.”

• In section 300.22 (f)(2), in the first sentence, “payments for” has been added and “due to the resumption of disability” removed. The sentence now reads “Within 18 days of a resumption of payments for a disability, the carrier, Special Fund, or TPA shall file electronically with the Board a subsequent report of injury indicating payments made to the claimant.”

• In section 300.22 (g), the effective date has been changed from April 20, 2014 to April 23, 2014 to ensure enough time for implementation by all carriers, self-insured employers and third-party administrators.

• In section 300.23 (b)(1) and (c)(1), “A copy of the notice shall be transmitted to the claimant and his or her attorney or licensed representative, if any, within one business day of the date it is filed electronically with the chair and,” has been changed to “A copy of the notice and supporting evidence shall be transmitted to the claimant and his or her attorney or licensed representative, if any, on the same day it is submitted to the Board or if submitted electronically within one business day of the date it is filed electronically with the Board and,” as service on the next business day is only permitted when a notice is submitted to the Board electronically in order to give the carrier sufficient time to receive an acknowledgement from the Board that the notice was electronically filed.