2006 New York Code - 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,  surgical,
  optometric or other attendance or treatment, nurse and hospital service,
  medicine,  optometric  services,  crutches,  eye-glasses,  false  teeth,
  artificial eyes, orthotics, 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,  surgical, optometric or other attendance or
  treatment, nurse and hospital service,  medicine,  optometric  services,
  crutches,   eye-glasses,   false   teeth,  artificial  eyes,  orthotics,
  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,
  functional assistive and adaptive devices or appliances necessitated  by
  ordinary  wear or loss or damage to a prothesis 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,
  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 chapter. 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, 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 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.