N.Y. Workers' Compensation Law § 13: Treatment and care of injured employees

§ 13. Treatment and care of injured employees. (a) The employer shall

promptly provide for an injured employee such medical, dental, surgical,

optometric or other attendance or treatment, nurse and hospital service,

medicine, optometric services, crutches, eye-glasses, false teeth,

artificial eyes, orthotics, prosthetic devices, functional assistive and

adaptive devices and apparatus for such period as the nature of the

injury or the process of recovery may require. The employer shall be

liable for the payment of the expenses of medical, dental, surgical,

optometric or other attendance or treatment, nurse and hospital service,

medicine, optometric services, crutches, eye-glasses, false teeth,

artificial eyes, orthotics, prosthetic devices, functional assistive and

adaptive devices and apparatus, as well as artificial members of the

body or other devices or appliances necessary in the first instance to

replace, support or relieve a portion or part of the body resulting from

and necessitated by the injury of an employee, for such period as the

nature of the injury or the process of recovery may require, and the

employer shall also be liable for replacements or repairs of such

artificial members of the body or such other devices, eye-glasses, false

teeth, artificial eyes, orthotics, prosthetic devices, functional

assistive and adaptive devices or appliances necessitated by ordinary

wear or loss or damage to a prosthesis, with or without bodily injury to

the employee. Damage to or loss of a prosthetic device shall be deemed

an injury except that no disability benefits shall be payable with

respect to such injury under section fifteen of this article. Such a

replacement or repair of artificial members of the body or such other

devices, eye-glasses, false teeth, artificial eyes, orthotics,

prosthetic devices, functional assistive and adaptive devices or

appliances or the providing of medical treatment and care as defined

herein shall not constitute the payment of compensation under section

twenty-five-a of this article. All fees and other charges for such

treatment and services shall be limited to such charges as prevail in

the same community for similar treatment of injured persons of a like

standard of living.

The chair shall prepare and establish a schedule for the state, or

schedules limited to defined localities, of charges and fees for such

medical treatment and care, and including all medical, dental, surgical,

optometric or other attendance or treatment, nurse and hospital service,

medicine, optometric services, crutches, eye-glasses, false teeth,

artificial eyes, orthotics, prosthetic devices, functional assistive and

adaptive devices and apparatus in accordance with and to be subject to

change pursuant to rules promulgated by the chair. Before preparing such

schedule for the state or schedules for limited localities the chair

shall request the president of the medical society of the state of New

York and the president of the New York state osteopathic medical society

to submit to him or her a report on the amount of remuneration deemed by

such society to be fair and adequate for the types of medical care to be

rendered under this chapter, but consideration shall be given to the

view of other interested parties. In the case of physical therapy fees

schedules the chair shall request the president of a recognized

professional association representing physical therapists in the state

of New York to submit to him or her a report on the amount of

remuneration deemed by such association to be fair and reasonable for

the type of physical therapy services rendered under this chapter, but

consideration shall be given to the views of other interested parties.

The chair shall also prepare and establish a schedule for the state, or

schedules limited to defined localities, of charges and fees for

outpatient hospital services not covered under the medical fee schedule

previously referred to in this subdivision, to be determined in

accordance with and to be subject to change pursuant to rules

promulgated by the chair. Before preparing such schedule for the state

or schedules for limited localities the chair shall request the

president of the hospital association of New York state to submit to him

or her a report on the amount of remuneration deemed by such association

to be fair and adequate for the types of hospital outpatient care to be

rendered under this chapter, but consideration shall be given to the

views of other interested parties. In the case of occupational therapy

fees schedules the chair shall request the president of a recognized

professional association representing occupational therapists in the

state of New York to submit to him or her a report on the amount of

remuneration deemed by such association to be fair and reasonable for

the type of occupational therapy services rendered under this chapter,

but consideration shall be given to the views of other interested

parties. The amounts payable by the employer for such treatment and

services shall be the fees and charges established by such schedule.

Nothing in this schedule, however, shall prevent voluntary payment of

amounts higher or lower than the fees and charges fixed therein, but no

physician rendering medical treatment or care, and no physical or

occupational therapist rendering their respective physical or

occupational therapy services may receive payment in any higher amount

unless such increased amount has been authorized by the employer, or by

decision as provided in section thirteen-g of this article. Nothing in

this section shall be construed as preventing the employment of a duly

authorized physician on a salary basis by an authorized compensation

medical bureau or laboratory.

(b) In the case of persons, injured outside of this state, but

entitled to compensation or benefits under this chapter, the provisions

as to selection of authorized physicians shall be inapplicable. In such

cases the employer shall promptly provide all necessary medical

treatment and care but if the employer fail to provide the same, after

request by the injured employee such injured employee may do so at the

expense of the employer. The employee shall not be entitled to recover

any amount expended by him for such treatment or services unless he

shall have requested the employer to furnish the same and the employer

shall have refused or neglected to do so, or unless the nature of the

injury required such treatment and services and the employer or his

superintendent or foreman having knowledge of such injury shall have

neglected to provide the same; nor shall any claim for medical or

surgical treatment be valid and enforceable, as against such employer,

unless within twenty days following the first treatment, the physician

giving such treatment, furnish to the employer and the chairman a report

of such injury and treatment, on a form prescribed by the chairman. The

board may, however, by the unanimous vote of a panel of not less than

three members qualified to act, excuse the failure to give such notice

within twenty days when it finds it to be in the interest of justice to

do so, and may, subject to the limitations contained in section

twenty-eight of this chapter, make an award for the reasonable value of

such medical or surgical treatment. All fees and other charges for such

treatment and services, whether furnished by the employer or otherwise,

shall be subject to regulation by the board as provided in section

twenty-four of this chapter, and shall be limited to such charges as

prevail in the same community for similar treatment of injured persons

of a like standard of living.

(c) The liability of an employer for medical treatment as herein

provided shall not be affected by the fact that his employee was injured

through the fault or negligence of a third party, not in the same

employ. The employer shall, however, have an additional cause of action

against such third party to recover any amounts paid by him for such

medical treatment, in like manner as provided in section twenty-nine of

this chapter.

(d) (1) In the event that an insurer or health benefits plan makes

payments for medical and/or hospital services for or on behalf of an

injured employee they shall be entitled to be reimbursed for such

payments by the carrier or employer within the limits of the medical and

hospital fee schedules if the board determines that the claim is

compensable. For the purposes of this section, an insurer or health

benefits plan includes a medical expense indemnity corporation, a health

or hospital service corporation, a commercial insurance company licensed

to write accident and health insurance in the state of New York, a

health maintenance organization operating in accordance with article

forty-three of the insurance law or article forty-four of the public

health law, or a self-insured or self-funded health care benefits plan

operated by, or on behalf of, any business, municipality or other entity

(including an employee welfare fund as defined in article forty-four of

the insurance law or any other union trust fund or union health benefits

plan). Notwithstanding any other provision of law, in no event shall the

carrier or employer be required to reimburse the insurer or health

benefits plan in an amount greater than the amount paid for medical and

hospital services for or on behalf of the injured employer by such

corporation or company; provided, however, if the carrier or employer

does not reimburse the insurer or health benefits plan within thirty

days after the board determines that the claim is compensable, the

carrier or employer shall reimburse the insurer or health benefits plan

at the amount the carrier or employer would be obligated to reimburse

the hospital or other provider of medical services if the carrier or

employer made payment directly to the provider of medical and/or

hospital services pursuant to this chapter (or, in the case of inpatient

hospital services, pursuant to paragraphs (b) and (b-1) of subdivision

one of section twenty-eight hundred seven-c of the public health law).

Upon reimbursement to the insurer or health benefits plan pursuant to

this subdivision, the carrier or employer shall be relieved of liability

for the medical and/or hospital services for which payment has been made

by the insurer or health benefits plan.

(2) An insurer or health benefits plan entitled to reimbursement

pursuant to paragraph one of this subdivision shall receive copies of

the hearing and decision notices and shall develop with the carrier or

employer its own mechanisms and standard operating procedures for

payment of undisputed claims for reimbursement. In cases of disputed

claims for reimbursement that are filed with the board within three

years of the date of payment for services rendered by the health care

provider or within ninety days of the effective date of a chapter of the

laws of nineteen hundred ninety-two, entitled "AN ACT to amend the

workers' compensation law, in relation to reimbursement of insurers and

health benefit plans", whichever is later, the sole remedy of the

insurer or health benefit plan to recover on a claim arising pursuant to

this subdivision shall be the submission of the controversy to mandatory

arbitration or other alternative dispute resolution procedures as

defined by rules and regulations promulgated by the chair in accordance

with subdivision (h) of this section.

(e) The board, on its own motion, or a referee, upon the

recommendation of the compensation medical director for the board,

hearing a claim for compensation may require examination of any

claimant, or of the testimony, reports and exhibits, or both, by a

physician especially qualified with respect to the diagnosis or

treatment of the disability for which compensation is claimed; and may

require a report from such physician on the diagnosis, the causal

relationship between the alleged injury and subsequent disability or

death, proper treatment, and the extent of the disability of such

claimant. The employer or his or her insurance carrier shall pay for

such examination in an amount to be directed by the chairman.

The chairman may in his discretion designate physicians of outstanding

qualifications in such fields of medicine as he deems essential in order

to ascertain the diagnosis, the causal relationship between the alleged

injury and subsequent disability, the type of medical care and operative

procedure requisite in particular cases where such matters are not

readily determinable by the regularly employed medical examiners of the

board. Each of such physicians shall have had, prior to his or her

designation, at least five years of practice in the field with respect

to which he or she is designated, and shall receive a fee for each case,

or shall be paid on a per diem basis, as determined by the chairman.

Claimants maybe required to submit to examination by such physicians in

the manner hereinbefore specified. The contents of reports of designated

physicians when introduced in evidence shall constitute prima facie

evidence of fact as to the matter contained therein, and the makers of

such reports shall be subject to examination upon demand and shall be

paid an additional fee, as determined by the chairman, for testifying in

each case.

(f) Copies of medical reports of claimant's attending physician or

medical consultant, made pursuant to this chapter subsequent to the date

of the request provided for in this subdivision and antedating not more

than thirty days, shall be transmitted by the physician or consultant to

the claimant's licensed representative or attorney representing the

claimant before the board upon his written request therefor accompanied

by a notice of his retainer and consent to such transmittal signed by

the claimant.

(g) Every hospital operating in the state shall, within twenty days of

receiving a written request by a claimant, claimant's representative,

employer, carrier or special fund created under this chapter, provide to

such claimant, claimant's representative, employer, carrier or special

fund for use in board proceedings the medical records of an employee who

has received treatment in such hospital and who is claiming benefits

under this chapter. Each hospital shall designate at least one officer

or employee who shall be responsible for provision of such records on

written request, and to whom the board, claimant, claimant's, employer,

carrier representative or special fund may address informal inquiries

regarding provision of such records.

No hospital shall be required to produce the records of any claimant

pursuant to this section without receiving the cost of copying such

records as determined by the chair. Such cost shall be paid by the

requesting party except that the employer or carrier or special fund

shall reimburse a claimant or claimant's representative the cost of an

initial set of such records where the request is made by a claimant or

claimant's representative. Should the hospital not be able to provide

the requested records within twenty days, they shall notify in writing

the party requesting the records of the reason why the records were not

provided and the date on which they will be provided. Such date shall be

within a reasonable period of time, but shall not exceed thirty days.

Failure to either provide the records within twenty days or to provide a

reason why the records have not been provided shall subject the hospital

to a fine of two hundred dollars which shall be imposed by the chair

payable to the board upon finding that this subdivision has not been

complied with. No hospital shall be required to produce the records of

any claimant without receiving its customary fees or charges for

reproduction of such records.

(h) (1) The chair shall require the performance of computer searches

to identify injured employees who, with respect to the same injury or

illness, have filed claims under the provisions of this chapter and made

claims to, or on their behalf with, a payor of medical payments eligible

for reimbursement pursuant to this section. Such searches shall be done

at least quarterly upon request of payors and upon submission to the

board of computer tapes containing the information the chair shall need

to identify injured employees who file dual claims under this section.

At least quarterly, the chair shall identify injured employees who have

filed dual claims by social security number and workers' compensation

board number and shall notify the payor of such results.

(2) Such payor shall use the information of dual filings solely for

the purpose of reimbursement from the carrier or employer. The chair,

upon a finding that such entity has used the information for purposes

other than reimbursement from the carrier or employer, may, after

hearing, impose a penalty of not more than ten thousand dollars and may

prohibit such entity from receiving information under this subdivision

for up to three years.

(3) The chair shall adopt rules and regulations to carry out the

provisions of this section, which rules and regulations shall provide

for alternative dispute resolution procedures for settlement of disputed

claims for reimbursement under subdivision (d) of this section including

but not limited to referral and submission of disputed claims to

mandatory arbitration with private arbitration associations. Such rules

and regulations may provide for a reasonable fee to be charged to payors

for computer searches. Claims for computer searches submitted to the

board prior to March thirty-first, nineteen hundred ninety-two, may be

submitted with a payment date on or after April first, nineteen hundred

eighty-eight. Claims for reimbursement submitted after March

thirty-first, nineteen hundred ninety-two, shall have a payment date

that is no later than three years prior to the date of submission of the

claim for matching purposes to the board. If disputed, these claims

shall be resolved through the dispute resolution procedures set forth in

this section. Upon resolution of the reimbursement dispute in accordance

with this section, the amount paid to the prevailing party shall be

increased by the amount of any fee paid to the arbitrator or incurred by

reason of any other alternate dispute resolution procedure.

(i) (1) When a claimant or pharmacy submits a claim to the employer or

its carrier for payment of prescribed medicine or for reimbursement of

the cost of prescribed medicine which the employer is required to

provide under this section, the employer or carrier shall pay the amount

prescribed by the fee schedule adopted under section thirteen-o of this

article, or if the prescribed medicine is not included on the current

fee schedule, the usual and customary charges for such prescribed

medicine, within forty-five days of receipt of the claim, unless the

liability of the employer or carrier on the claim for which the claimant

seeks payment or reimbursement of payment for the prescribed medicine is

not established, or the prescribed medicine is not for a causally

related condition.

(2) Where the liability of the employer or carrier on the claim for

which the claimant seeks payment or reimbursement of payment for the

prescribed medicine or reimbursement for payment of prescribed medicine

is not established, or is not for a causally related condition, the

employer or carrier shall pay any undisputed portion of the claim in

accordance with this section and notify the claimant or pharmacy, as

appropriate, in writing within forty-five days of receipt of the claim:

(i) that the claim is not being paid and explaining the reasons for

nonpayment; or

(ii) to request all additional information reasonably needed to

determine the employer's or carrier's liability for the claim. Upon

receipt of the information requested in this subparagraph, the employer

or carrier shall comply with paragraph one of this subdivision.

(3) Each claim for payment of prescribed medicine or reimbursement for

payment of prescribed medicine that is processed in violation of this

section shall constitute a separate violation. In addition to the other

penalties provided in this chapter, any employer or carrier that fails

to reimburse the claimant or pay the pharmacy, as appropriate and as

required in this section shall be obligated to pay to the claimant or

pharmacy the amount prescribed on the fee schedule adopted under section

thirteen-o of this article, or if the prescribed medicine is not

included on the current fee schedule, the usual and customary charges

for the prescribed medicine plus simple interest at the rate set forth

in section five thousand four of the civil practice law and rules.

(4) Nothing in this subdivision shall prohibit employers or carriers

from agreeing to or arranging for direct billing by the pharmacy to the

employer or carrier for the cost of prescribed medicine, in order for

claimants to more promptly receive prescribed medicine for which

employers and carriers are liable under this section.

(5) Notwithstanding any other provision of this chapter, if an

employer or carrier has contracted with a pharmacy to provide prescribed

medicine to claimants, then such employer or carrier may require

claimants to obtain all prescribed medicines from the pharmacy with

which it has contracted, except if a medical emergency occurs and it

would not be reasonably possible to obtain immediately required

prescribed medicine from the pharmacy with which the employer or carrier

has a contract. An employer or carrier that requires claimants to obtain

prescribed medicines from a pharmacy with which it has a contract must

notify claimants of the pharmacy or pharmacies with which it has a

contract, the locations and addresses of the pharmacy or pharmacies, if

applicable, how to initially fill and refill prescriptions through the

mail, internet, telephone or other means, and any other required

information that must be supplied to the pharmacy or pharmacies. If the

pharmacy or pharmacies with which the employer or carrier contracts does

not offer mail order service and does not have a physical location

within a reasonable distance from the claimant, as defined by regulation

of the board, the claimant may obtain prescribed medicines at the

pharmacy or pharmacies of his or her choice and the employer or carrier

will be liable for such charges in accordance with the fee schedule

prescribed in section thirteen-o of this chapter.