2023 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.