NY Work Comp L § 13 (2021)
2021 New York Laws WKC - Workers' Compensation Article 2 - 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.  (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.