2010 New York Code
WKC - Workers' Compensation
Article 2 - (9 - 35) COMPENSATION
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.
    * (a-1)  Notwithstanding the provisions of subdivision four of section
  twenty-eight hundred seven and subdivision one of  section  twenty-eight
  hundred  seven-c of the public health law, payments to general hospitals
  for AP-DRGs 755-758 (spinal fusion; back and neck  procedures),  806-807
  (combined  anterior  and  posterior  spinal  fusions),  836-837  (spinal
  procedures), and 864-865 (cervical spinal fusion) shall be at the  rates
  of  payment  determined pursuant to section twenty-eight hundred seven-c
  of the public health law  for  state  governmental  agencies,  excluding
  adjustments   pursuant   to   subdivision  fourteen-f  of  such  section
  twenty-eight hundred seven-c, plus the provider's  documented  cost  for
  any  implantable  hardware and instrumentation, which should be recorded
  under revenue code 278 on the claim, plus an additional ten  percent  of
  such  documented  cost  not  to  exceed a maximum of three hundred fifty
  dollars.
    * NB Repealed March 31, 2011
    (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.