2023 New York Laws › WKC - Workers' Compensation › Article 2 - Compensation › 13-A - Selection of Authorized Physician by Employee.

§  13-a. Selection of authorized physician by employee. (1) An injured
employee may, when care is required, select to  treat  him  or  her  any
physician  authorized  by the chair to render medical care, as hereafter
provided. If for any reason during the period when medical treatment and
care is required, the employee wishes to transfer his or  her  treatment
and  care  to  another  authorized  physician,  he  or she may do so, in
accordance with rules prescribed by the  chair.  In  such  instance  the
remuneration  of  the  physician whose services are being dispensed with
shall be  limited  to  the  value  of  treatment  rendered  at  fees  as
established  in  the schedule for his or her location, unless payment in
higher amounts has been approved  as  authorized  in  section  thirteen,
paragraph  a.  If  a claimant shall receive treatment in any hospital or
other institution operated in whole or in part by the state of New York,
the  employer  shall  be  liable  for  food,  clothing  and  maintenance
furnished  by the hospital or other institution to such employee. If the
employee is unable due to the  nature  of  the  injury  to  select  such
authorized  physician  and  the  emergency nature of the injury requires
immediate medical treatment and care, or if he or she does not desire to
select a physician, and in writing so advises the employer, the employer
shall promptly provide him or  her  with  the  necessary  medical  care,
provided however, that nothing herein contained shall operate to prevent
such  employee,  when  subsequently  able  to  do so, from selecting for
continuance of any medical treatment or  care  required,  any  physician
authorized by the chair to render medical care as hereinafter provided.
(2)  The  chairman  shall  prescribe  the  form  of a notice informing
employees of their privilege under this chapter, and such  notice  shall
be  posted  and  maintained  by  the  employer in a conspicuous place or
places in and about his place or places of business.
(3) The employer shall have the right  to  transfer  the  care  of  an
injured employee from the attending physician, whether chosen originally
by  the employee or by the employer, to another authorized physician (1)
if the interest of the injured employee necessitates the transfer or (2)
if the physician has not been  authorized  to  treat  injured  employees
under  this  act  or (3) if he has not been authorized under this act to
treat  the  particular  injury  or  condition  as  provided  by  section
thirteen-b  (2).  An  authorized  physician  from whom the case has been
transferred shall have the right of appeal to an  arbitration  committee
as  provided  in  subdivision  two  of  section  thirteen-g  and if said
arbitration committee finds that the transfer was not authorized by this
section, said employer shall pay to the physician a  sum  equal  to  the
total  fee  earned  by  the  physician  to  whom the care of the injured
employee has been transferred, or such proportion of  said  fee  as  the
arbitration committee shall deem adequate.
(4)  (a) No claim for medical or surgical treatment shall be valid and
enforceable, as  against  such  employer,  or  employee,  unless  within
forty-eight  hours  following  the  first treatment the physician giving
such treatment furnishes to the employer and directly  to  the  chair  a
preliminary  notice  of  such  injury and treatment, within fifteen days
thereafter a  more  complete  report  and  subsequent  thereto  progress
reports  if  requested  in  writing  by  the  chair,  board, employer or
insurance carrier at intervals of not less than three weeks apart or  at
less  frequent  intervals if requested on forms prescribed by the chair.
The board may excuse failure to give such notices within the  designated
periods when it finds it to be in the interest of justice to do so.
(b)  Upon  receipt of the notice provided for by paragraph (a) of this
subdivision, the employer, the carrier, and the claimant each  shall  be
entitled  to have the claimant examined by a physician authorized by the
chair  in  accordance  with  sections   thirteen-b   and   one   hundred

thirty-seven  of  this  chapter, at a medical facility convenient to the
claimant and in the presence of the claimant's physician, and refusal by
the claimant to submit to such independent medical examination  at  such
time  or  times  as  may  reasonably  be necessary in the opinion of the
board, shall bar the  claimant  from  recovering  compensation  for  any
period during which he or she has refused to submit to such examination.
No  hospital  shall  be  required to produce the records of any claimant
without receiving its customary fees or charges for reproduction of such
records.
(c) Where it would place an unreasonable burden upon the  employer  or
carrier  to  arrange  for, or for the claimant to attend, an independent
medical examination by an authorized physician, the employer or  carrier
shall  arrange  for  such  examination  to  be  performed by a qualified
physician in a medical facility convenient to the claimant.
(d) The independent medical examiner shall provide  such  reports  and
shall submit to investigation as required by the chair.
(e)  In  order to qualify as admissible medical evidence, for purposes
of adjudicating any claim under this chapter, any  report  submitted  to
the  board  by  an independent medical examiner licensed by the state of
New York shall include the following:
(i) a signed statement certifying  that  the  report  is  a  full  and
truthful   representation   of   the   independent   medical  examiner's
professional opinion with respect to the claimant's condition:
(ii) such examiner's board issued authorization number;
(iii) the name of the individual or entity requesting the examination;
(iv) if applicable, the registration number  as  required  by  section
thirteen-n of this article; and
(v) such other information as the chair may require by regulation.
Any  report  by an independent medical examiner who is not authorized,
and who performs an independent medical examination in  accordance  with
paragraph  (c)  of  this  subdivision,  which  is  to be used as medical
evidence  under  this  chapter,  shall  include  in  the   report   such
information as the chair may require by regulation.
(5)  No  claim  for  specialist  consultations,  surgical  operations,
physiotherapeutic or occupational therapy procedures, x-ray examinations
or special diagnostic laboratory tests costing more  than  one  thousand
dollars shall be valid and enforceable, as against such employer, unless
such  special  services shall have been authorized by the employer or by
the board, or unless such authorization has been unreasonably  withheld,
or  withheld for a period of more than thirty calendar days from receipt
of a request for authorization, or  unless  such  special  services  are
required in an emergency, provided, however, that the basis for a denial
of  such  authorization  by  the employer must be based on a conflicting
second opinion rendered by a physician  authorized  by  the  board.  The
board,  with  the  approval of the superintendent of financial services,
shall issue and maintain a list of pre-authorized procedures under  this
section.  Such  list  of  pre-authorized  procedures shall be issued and
maintained for the purpose of expediting authorization of  treatment  of
injured  workers.  Such  list  of  pre-authorized  procedures  shall not
prohibit varied treatment when the treating  provider  demonstrates  the
appropriateness and medical necessity of such treatment.
(6)  (a)  Any  interference  by  any  person  with the selection by an
injured employee of an authorized physician to treat  him,  except  when
the selection is made pursuant to article ten-A of this chapter, and the
improper  influencing  or  attempt by any person improperly to influence
the medical opinion of any physician who  has  treated  or  examined  an
injured  employee,  shall  be  a misdemeanor; provided, however, that it
shall not constitute interference  or  improper  influence  if,  in  the

presence  of such injured employee's physician, an employer, his carrier
or  agent   should   recommend   or   provide   information   concerning
rehabilitation  services  or  the  availability  thereof  to  an injured
employee or his family.
(b)  Except  as  otherwise  permitted by law, an employer, carrier, or
third-party administrator shall not interfere or  attempt  to  interfere
with  the  selection  by  an  injured  employee  of, or treatment by, an
authorized medical provider, including by  directing  or  attempting  to
direct that the injured employee seek treatment from a specific provider
or  type  of  provider selected by the employer, carrier, or third-party
administrator. It shall not constitute improper interference under  this
paragraph  if the direction or attempt to direct the injured employee to
receive  treatment  from  a  specific  provider  or  type  of   provider
originates  from  the authorized medical provider while in the course of
providing treatment to the injured employee.
(i) Notwithstanding any other provision in  this  chapter,  the  chair
shall  by  regulation  establish  a  performance standard concerning the
subject of any penalty imposed under this paragraph against an employer,
carrier  or  third-party   administrator.   The   performance   standard
established  by  the chair shall be used to measure compliance with this
paragraph by employers, carriers  and  third-party  administrators.  The
chair  shall  apply  the performance standard based on multiple factors,
including  but  not  limited  to,  findings  of  improper   interference
submitted  as  complaints  to  the board's monitoring unit, unreasonable
objections to medical care, unwarranted objections to variances, medical
billing disputes, case delays brought about by employers,  carriers  and
third-party administrators, and the unreasonable denial of medical care.
(ii)  Upon  validating  an  allegation  that  the employer, carrier or
third-party administrator has failed to meet the promulgated performance
standard, a penalty shall be assessed by the board upon  notice  to  the
employer,  carrier  or third-party administrator. The board shall impose
such penalty against the carrier, employer or third-party  administrator
in  the amount of fifty dollars per violation identified in subparagraph
(i) of this  paragraph.  The  penalties  for  violations  identified  in
subparagraph  (i)  of  this  paragraph,  may be aggregated into a single
penalty  upon  a  finding  that  an  employer,  carrier  or  third-party
administrator  has  interfered  with  an  injured  employee's  necessary
medical treatment and care. Such aggregate penalty or  assessment  shall
be  based  upon  the  number  of  violations  as  multiplied against the
applicable penalty or assessment, but may be negotiated by  the  chair's
designee  in  full  satisfaction  of  the  penalty  or  assessment.  Any
aggregate penalty or assessment issued under  this  paragraph  shall  be
issued administratively, and the chair shall, by regulation, specify the
method of review or redetermination, and the presentment of evidence and
objections   shall  occur  solely  upon  the  documentation.  Any  final
determination shall be subject to review under section  twenty-three  of
this  article  but  penalties  may  not  be  subject  to a stay. A final
determination that an employer, carrier or third-party administrator has
engaged in a pattern of interference with an injured worker's access  to
medically  necessary  medical  care shall result in the imposition of an
aggregate penalty and publication of  notice  of  such  finding  on  the
board's web page.
(7)(a)  Notwithstanding  any  other  provision  of this chapter to the
contrary, any insurance carrier authorized to transact the  business  of
workers' compensation insurance in this state, self-insurer or the state
insurance  fund  may  contract  with  a network or networks, legally and
properly organized, to perform  diagnostic  tests,  x-ray  examinations,
magnetic  resonance imaging, or other radiological examinations or tests

of claimants  and  may  require  claimant  to  obtain  or  undergo  such
diagnostic test, x-ray examinations, magnetic resonance imaging or other
radiological examinations or tests with a provider or at a facility that
is  affiliated  with  the  network  or  networks  with which the carrier
contracts, except if a medical emergency occurs requiring  an  immediate
diagnostic  test, x-ray examination, magnetic resonance imaging or other
radiological examination or test  or  if  the  network  with  which  the
insurance  carrier,  self-insurer  or the state insurance fund contracts
does not have a provider or facility able to perform the examination  or
test within a reasonable distance from the claimant's residence or place
of employment, as defined by regulation of the board.
(b)  Any  insurance  carrier, self-insurer or the state insurance fund
which requires claimants to obtain or undergo  diagnostic  tests,  x-ray
examinations,   magnetic   resonance   imaging   or  other  radiological
examinations or tests with a provider or at a facility affiliated with a
network or networks with which it contracts, must notify the claimant of
the name and contact information for the network or networks at the same
time the written statement of  the  claimant's  rights  as  required  by
subdivision   two  of  section  one  hundred  ten  of  this  chapter  or
immediately after imposing such requirement if the  time  period  within
which  the  written  statement  of  the claimant's rights as required by
subdivision two of section one hundred ten of this chapter has expired.
(c) At the time a request for  authorization  for  special  diagnostic
tests,   x-ray   examinations,   magnetic  resonance  imaging  or  other
radiological examinations  or  tests  costing  more  than  one  thousand
dollars as required by subdivision five of this section is approved, the
insurance  carrier,  self-insurer  or  state  insurance  fund,  or if so
delegated the network with which the insurance carrier, self-insurer  or
state   insurance  fund  has  contracted,  shall  notify  the  physician
requesting authorization of the requirement that the claimant obtain  or
undergo   the  special  diagnostic  test,  x-ray  examination,  magnetic
resonance imaging or other  radiological  examination  or  test  with  a
provider  or  at a facility affiliated with the network or networks with
which it has contracted, the contact information for the network  and  a
list  of  the  providers and facilities within the claimant's geographic
location, as defined by  regulation  of  the  board.  The  claimant,  in
consultation  with  the  provider  who  requested the special diagnostic
test,  x-ray  examination,   magnetic   resonance   imaging   or   other
radiological  test or exam, will determine the provider or facility from
within the network  which  will  perform  such  diagnostic  test,  x-ray
examination,   magnetic   resonance   imaging   or   other  radiological
examination or test.
(d) The results of the special  diagnostic  test,  x-ray  examination,
magnetic  resonance  imaging  or other radiological test or exam must be
sent to the physician who requested the test or  exam  immediately  upon
completion of the report detailing the results.