In the Matter of Maureen Kigin, Appellant,v.State of New York Workers' Compensation Board et al., Respondents.

Brief

N.Y.October 14, 2014

APL-2013-00295 To be argued by: PAUL GROENWEGEN Estimated time: 20 minutes APP. DN. THIRD DEPT. 515721 QC:ourt of ~ppeals of tbe ~tate of J!etn ~ork IN THE MATTER OF THE CLAIM OF MAUREEN KIGIN, Claimant-Appellant, -AGAINST- NEW YORK STATE WORKERS' COMPENSATION BOARD, Employer-Respondent, AND SPECIAL FUNDS CONSERVATION COMMITTEE, Carrier-Respondent. BRIEF FOR RESPONDENT NEW YORK STATE WORKERS' COMPENSATION BOARD BARBARA D. UNDERWOOD Solicitor General ANDREW D. BING Deputy Solicitor General PAUL GROENWEGEN Assistant Solicitor General of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent New York State Workers' Compensation Board The Capitol Albany, New York 12224 (518) 474-6639 (telephone) (518) 4 73-8963 (facsimile) Dated: March 7, 2014 Reproduced on Recycled Paper TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ............................................................................... iii PRELIMINARY STATEMENT ........................................................................... 1 QUESTIONS PRESENTED ................................................................................ 3 STATEMENT OF THE CASE ............................................................................. 3 A. Statutes and Regulations Involved ................................................. 3 1. The Board's Statutory Authority to Regulate the Delivery of Medical Care ................................................. 3 2. The 2007 Legislation ............................................................. .4 3. The Medical Treatment Guidelines ....................................... 6 4. The Board's Regulations ........................................................ 8 B. Claimant's Workers' Compensation Claim ................................... 11 C. Claimant's Appeal to the Appellate Division ................................ 18 ARGUMENT ....................................................................................................... 22 POINT I THE BOARD HAD STATUTORY AUTHORITY TO ADOPT REGULATIONS INCORPORATING THE GUIDELINES ................... 24 A. The Board and the Chair have broad authority to adopt regulations governing the delivery of medical care provided as a benefit to injured workers ............................... 25 B. The Board's statutory authority is not limited to development of a list of pre-authorized procedures ...................... 29 - 1 - POINT II REQUIRING CLAIMANTS TO PROVE THE MEDICAL NECESSITY OF CARE THAT IS NOT AUTHORIZED BY THE GUIDELINES IS CONSISTENT WITH THE WORKERS' COMPENSATION LAW ..................................................... 31 POINT III THE REGULATIONS AND GUIDELINES DO NOT DENY DUE PROCESS TO CLAIMANTS .......................................................... 39 CONCLUSION .................................................................................................. .42 Addendum A Addendum B Addendum C Governor's Program Bill Memorandum for chapter 6 of the laws of2007 ............................................................... Al Message of the Governor Transmitting Report of the Committee on Workmen's Compensation, with Recommendations, 1934 Legislative Document No. 75 .... Bl Bill Jacket for chapter 568 of the laws of 1923 .................. Cl - 11 - TABLE OF AUTHORITIES CASES PAGE Ayala, Matter of v. DRE Maintenance Corp., 238 A.D.2d 674 (3d Dep't 1997) ............................................................... 32 Belmonte, Matter of v. Snashall, 2 N.Y.3d 560 (2004) ............................................................................. 25,29 Crosby v. State of New York Workers' Compensation Board, 57 N.Y.2d 305 (1982) ................................................................................ 27 Dixon, Matter of v. State Univ. Coll., 283 A.D.2d 840 (3d Dep't 2001) ............................................................... 33 Entertainment Partners, 2003 N.Y. Wrk. Comp. LEXIS 87260, 2003 WL 22437325 (Wrk. Com. Bd. Case No. 09913893) (Oct. 16, 2003) .............................. 33 Freitag, Matter of v. New York Times, 260 A.D.2d 748 (3d Dep't 1999) ............................................................... 35 Gen. Elec. Cap. Corp., Matter of N. Y.S. Div. of Tax Appeals, 2 N.Y.3d 249 (2004) .................................................................................. 24 Hoffman, Matter of v. Creedmoor State Hosp., 22 A.D.2d 736 (3d Dep't 1964) ................................................................. 38 Jaquin, Matter of v. Community Covenant Church, 69 A.D.3d 998 (3d Dep't 2010) ................................................................. 36 Keigher v. General Elec. Co., 173 A.D. 207 (3d Dep't 1916) ................................................................... 34 Kigin, Matter of v. State of New York Workers' Compensation Board, 109 A.D.3d 299 (3d Dep't), lv. granted, 22 N.Y.3d 854 (2013) ................................................................................ 18 - 111 - Table of Authorities (cont'd) CASES (cont'd) PAGE KSLM-Columbus Apts., Inc., Matter of u. New Yori? State Div. of Haus. & Community Renewal, 5 N.Y.3d 303 (2005) .................................................................................. 24 Kurcsics u. Merchants Mut. Ins. Co., 49 N.Y.2d 451 (1980) ........................................................................... 24-25 Magna, Matter of u. Hegeman Harris Co., 258 N.Y. 82 (1932) ............................................................................... 35,37 Malacarne, Matter of u. Yonkers Parking Auth., 41 N.Y.2d 189 (1976) ................................................................................ 32 Mathews v. Eldridge, 424 U.S.319 (1976) .................................................................................... 39 Middleton, Matter of u. Coxsackie Corr. Facility, 38 N.Y.2d 130 (1975) ................................................................................ 36 Miller, Matter of v. National Cabinet Co., 8 N.Y.2d 277 (1960) .................................................................................. 32 Nassau County Police Dep't, 2007 N.Y.W.C.L.R. (L.R.P.) LEXIS 149, 2007 WL 1601269 (Wrk. Comp. Bd. Case No. 20201309) (Apr. 10, 2007) ........................... 33 N. Y. State Dep 't of Correction, 2000 N.Y. Wrk. Comp. LEXIS 117957, 2000 WL 33398477 (Wrk. Comp. Bd. Case No. 59910681) (Sept. 18, 2000) ..................... 33-34 Nicholas, Matter of u. Kahn, 47 N.Y.2d 24 (1979) .................................................................................. 24 - lV - Table of Authorities (cont'd) CASES (cont'd) PAGE People ex rel. Wallington Apts., Inc. u. Miller, 288 N.Y. 31 (1942) .................................................................................... 37 Philip M., In re, 82 N.Y.2d 238 (1993) ................................................................................ 37 Smith, Matter of v. Albany County Sheriff's Dep't, 82 A.D.3d 1334 (3d Dep't), motion for leaue to appeal dismissed, 17 N.Y.3d 770 (2011) ................................................................................ 29 Spinex Laboratories, Inc., Matter of u. Patton, 213 A.D.2d 884 (3d Dep't 1995) ............................................................... 28 Weingarten, matter of u. Pathmark Stores, Inc., 256 A.D.2d 648 (3d Dep't 1998) ............................................................... 38 Wilson, Matter of u. General Motors Corp., 298 N.Y. 468 (1949) .................................................................................. 37 Wojciechowski, Matter of u. Bethlehem Steel Corp., 15 A.D.2d 422 (3d Dep't 1962) ............................................................... 14n Zamora, Matter of u. New York Neurologic Assoc., 19 N.Y.3d 186 (2012) ................................................................................ 32 STATE STATUTES Workers' Compensation Law § 13 .......................................................................................... 10,30,34,35 § l 3(a) ................................................................................................ passim § 13-a(5) ............................................................................................. passim § 13-b ............................................................................................ 4,10,26,30 § 13-g ...................................................................................................... 4,26 § 13-k ................................................................................................. 4,26,30 - v - Table of Authorities (cont'd) STATE STATUTES (cont'd) PAGE Workers' Compensation Law (cont'd) § 13-1 ................................................................................................. 4,26,30 § 13-m ................................................................................................ 4,26,30 § 21(1) ................................................................................................... 37,38 § 21(5) ................................................................................................ passim § 23 ......................................................................................................... 40 § 24 ........................................................................................................... 9 § 25-a ......................................................................................................... 13 § 28 ........................................................................................................... 6 § 117 ......................................................................................................... 29 § 117(1) ......................................................................................... 4,10,19,26 § 141 ................................................................................................. passim § 142 ......................................................................................................... 19 Act of March 13, 2007, ch. 6, 2007, McKinney's N.Y. Laws 53 .......................... 5 § 2 ........................................................................................................... 5 § 3 ........................................................................................................... 5 § 7 ........................................................................................................... 5 § 8 ........................................................................................................... 5 §9 ........................................................................................................... 5 § 10 ........................................................................................................... 5 § 12 ........................................................................................................... 5 §§ 14-24 ....................................................................................................... 5 §§ 25-46 ....................................................................................................... 5 STATE RULES AND REGULATIONS 12 N.Y.C.R.R. § 324.2(a) ..................................................................................................... 9 § 324.2(d)(l) ................................................................................................. 9 § 324.3 ......................................................................................................... 9 § 324.3(b)(2) ............................................................................................... 40 § 324.3(d)(3) .......................................................................................... 39,40 § 324.3(d)(4) ................................................................................................. 9 § 325-l.25(a) .............................................................................................. 10 - Vl - Table of Authorities (cont'd) TREATISES PAGE 1-11 New York Workers' Comp. Handbook, 11.01(3) (Matthew Bender) (2013) ......................................................................... 32 Benders' New York Evidence, § 127.01(5) (2013) ...................................................................................... 37 Minkowitz, Practice Commentaries to Workers' Compensation Law, § 13, 64 McKinney's Cons. Laws of N.Y. (2013) ................................. 32,36 Price, Richardson on Evidence, §§ 3-201, 3-202 (2008) .................................... 37 MISCELLANOUS Governor's Program Bill Memorandum, L. 2007, ch. 6, Bill Jacket at 9 .......... 6 Letter dated March 13, 2007, From Eliot Spitzer, Governor, to Eric Dinallo, Donna Ferrara and Patricia Smith, http://worldcat.org/arcview/ 1/A0%23/2008/03/17/0000083244/viewer/file20 .pdf ................................. 7 Letter from J.M. O'Hanlon, Chairman Legislative Committee of the New York State Federation of Labor, to Alfred E. Smith, Governor (April 27, 1923), reprinted in Bill Jacket for ch. 568 (1923) .............. 35-36 Letter of Eric R. Dinallo to Zachary Weiss dated December 3, 2007, http://www.dfs.ny.gov/insurance/press/2007/p0712032cov.pdf. ............... 7 Message of the Governor Transmitting Report of the Committee on Workmen's Compensation, With Recommendations, 1934 Legislative Document No. 75 .......................................................... 34 Notice of Adoption (Medical Treatment Guidelines), N.Y.S. Register, Nov. 3, 2010, http://docs.dos.ny.gov/info/register/2010/nov3/pdfs/rules.pdf ........ 9, 10,30 - Vll - Table of Authorities (cont'd) MISCELLANEOUS (cont'd) PAGE Notice of Proposed Rulemaking, New York State Register, June 30, 2010, http://docs.ny.gov/info/register/2010/jun30/pdfs/rulemaking.pdf. ..... 26,30 Workers' Compensation Board Subject No. 046-270, http://www.wcb.ny.gov/content/main/subjectnos/sn046 270.jsp ............. 8 Workers' Compensation Board Subject No. 046-346, http://www.wcb.ny.gov/contentlmain/SubjectNOs/sn046 346.jsp ........... 8 - Vlll - PRELIMINARY STATEMENT Claimant Maureen Kigin challenges regulations of the Workers' Compensation Board that established medical treatment guidelines (the "Guidelines") for determining the medical necessity of treatments provided as a benefit under the Workers' Compensation Law. Claimant's physician requested a variance from the portion of the Guidelines governing acupuncture, seeking authorization to administer acupuncture that exceeded the number of treatments recognized as medically appropriate under the Guidelines. The Board denied the variance, finding that claimant and her physician had failed to show that the additional treatments were medically necessary. Claimant appealed to the Appellate Division, Third Department, which affirmed the Board's decision. On appeal to this Court, claimant argues that the Board's regulations adopting the Guidelines exceed the Board's statutory authority because they "pre-deny" treatment not authorized by the Guidelines. Claimant also argues that the regulations conflict with the Workers' Compensation Law by placing on a claimant, or a claimant's care provider, the burden of proving that medical care not authorized by the Guidelines is medically necessary. Finally, claimant asserts that the regulations deny due process to injured workers. The Third Department rejected claimant's arguments and so should this Court. The Board has broad authority to adopt regulations consistent with and supplemental to the Workers' Compensation Law, including authority to regulate the delivery of medical care provided to injured workers under the statute. Adoption of the Guidelines was within the Board's regulatory authority because it is a rational means of improving the administration of the Workers' Compensation Law, to the benefit of employees, employers, care providers and insurance carriers. Contrary to claimant's assertions, the Guidelines do not "pre-deny" treatment. Rather, they remove impediments to treatment by providing automatic authorization for all care that is consistent with the Guidelines. By establishing uniform standards for the treatment of common workplace injuries, the Guidelines also lessen the likelihood of costly, time-consuming disputes over whether particular treatments are medically necessary. Finally, the availability of variances from the Guidelines safeguards the interests of employees who have medically valid reasons to seek care not authorized under the Guidelines. The variance procedure comports with due process by providing claimants with extensive procedural rights, including an evidentiary hearing and administrative and judicial review. The opinion and order of the Appellate Division should therefore be affirmed. - 2 - QUESTIONS PRESENTED 1. Whether the Workers' Compensation Board acted within its statutory authority when it adopted regulations incorporating medical treatment guidelines developed by medical experts as a standard for determining the medical necessity of care provided as a benefit under the Workers' Compensation Law. 2. Whether the portion of the regulations requiring a claimant or his care provider to show that treatments not authorized under the Guidelines are medically necessary is consistent with the text of the Workers' Compensation Law. 3. Whether the variance procedure established under the Guidelines, which includes a hearing and administrative and judicial review, affords due process to claimants seeking care that is not authorized under the Guidelines. STATEMENT OF THE CASE A. Statutes and Regulations Involved 1. The Board's Statutory Authority to Regulate the Delivery of Medical Care The Workers' Compensation Law requires employers to provide to their injured employees "such medical ... treatment ... for such period as the nature of the inJury or the process of recovery may require." Workers' Compensation Law § 13(a). In implementing this requirement, the - 3 - Legislature has delegated broad authority to the Board to regulate and administer the workers' compensation system, including the authority to regulate the delivery of medical care provided as a benefit to injured workers. The Board "may adopt reasonable rules consistent with and supplemental to the provisions of this chapter and the [L]abor [L]aw" and the Board's chair is similarly authorized to make "reasonable regulations" consistent with the Workers' Compensation Law and the Labor Law. Workers' Compensation Law § 117(1). Moreover, the chair is authorized to "make administrative regulations and orders" establishing procedures for the resolution of claims. Workers' Compensation Law§ 141. In addition to their general regulatory authority, the Board and the Chair are specifically authorized to regulate the delivery of medical care under the Workers' Compensation Law. Among other things, the Chair authorizes the physicians and other providers that are permitted to render medical care under the statute (Workers' Compensation Law §§ 13-b, 13-k, 13-1, 13-m), establishes a schedule of standard fees for medical care (§ 13(a)), and resolves disputes over medical bills between providers and employers (§ 13-g). 2. The 2007 Legislation In 2007, as part of a major initiative to reform the workers' compensation system, the Legislature enacted extensive revisions to the - 4 - Workers' Compensation Law and related statutes. Act of March 13, 2007, ch. 6, 2007 McKinney's N.Y. Laws 53. The legislation combined significant increases in benefits for injured workers with steps to reduce the cost of the workers' compensation system. The maximum weekly benefits for loss of income due to disability, which had been set at $400 since 1992, was increased gradually so that they would eventually equal two-thirds of the New York average wage (Id., § 2). Minimum weekly benefits and death benefits were also increased (Id., §§ 2, 3). Measures intended to contain the escalating costs of the workers' compensation system included limits on the duration of awards for permanent partial disability, increased penalties for employers that fail to procure workers' compensation insurance (Id., §§ 7, 8), enhancements to the Board's ability to combat fraud (Id., §§ 9, 10, 12, and 14-24), and a number of provisions intended to "achieve greater efficiencies or cost savings" in the delivery of medical care to injured workers (Id., §§ 25-46). Among the provisions of the 2007 legislation intended to improve efficiency with respect to medical benefits was an amendment of Workers' Compensation Law § 13-a(5). That section generally requires that the employer or the Board must approve any surgical operations, specialist consultations, and other specified medical procedures if the cost exceeds a specified dollar threshold. In addition to increasing the cost threshold from $500 to $1,000, the 2007 legislation added a sentence directing "[t]he board, - 5 - with the approval of the superintendent of insurance,1 [to] issue and maintain a list of pre-authorized procedures under this section." (§ 28). This provision directed the Board to develop a list of procedures that a claimant can obtain at the employer's expense even if the cost exceeds $1,000, without obtaining the employer's (or the Board's) prior approval that would otherwise be required under section 13-a(5). In proposing these amendments to section 13-a(5), the Governor explained that "the purpose of both provisions is to remove impediments to prompt diagnostic and treatment measures and to better reflect current medical service costs." Governor's Program Bill Memorandum at 5, L. 2007, ch. 6, Bill Jacket at 9.2 The Governor stated that "[t]he provision permitting the creation of a pre-authorized list allows the Board appropriate regulatory flexibility to add or remove procedures depending on best practices, increases or decreases in costs, or opportunities presented by managed care approaches." Id. 3. The Medical Treatment Guidelines On March 13, 2007, the day that the 2007 legislation was signed into law, the Governor directed the Superintendent of Insurance, the Chair of the I This prov1s10n was amended to refer to the "Superintendent of Financial Services" by chapter 62 of the laws of 2011. 2 See Addendum A attached to this brief. - 6 - Workers' Compensation Board and the Commissioner of Labor to collaborate on additional regulatory reforms. Letter dated March 13, 2007, from Eliot Spitzer, Governor, to Eric Dinallo, Donna Ferrara and Patricia Smith. 3 Among other things, the Governor directed those officials to develop guidelines that "structure the information that the treating physician is to report to the Board in order to minimize factual conflicts and the need for battles of experts before the Board, taking into consideration the appropriate use of impartial specialists and advances in imaging and diagnostic testing." The guidelines were also to include a set of "best practices" for health care professionals who provide treatment as a benefit under the Workers' Compensation Law, and protocols and training for workers' compensation law judges and other board employees. On December 3, 2007, the Superintendent of Insurance delivered to the Chair of the Board a draft of guidelines developed by an advisory committee appointed by the Governor in consultation with medical professionals. Letter of Eric R. Dinallo to Zachary Weiss dated December 3, 2007.4 The draft guidelines were limited to the treatment of injuries to the low back, cervical 3 Available at Governor Spitzer's archived website, which can be accessed through the website of the State Archives at http ://wor Idea t. org/ arcviewer/ l /A 0%2 3/2008/03/ l 7 /0000083244/viewer/file20. pdf 4 Available on the website of the Department of Financial Services, http://www.dfs.ny.gov/insurance/press/2007 /p0712032cov .pdf - 7 - spine (neck), knee and shoulder because those injuries account for a disproportionate amount of the cost of workers' compensation medical care. Id. The Board solicited public comments on the draft guidelines on January 26, 2009, and August 13, 2009. Workers' Compensation Board Subject Nos. 046-2705 and 046-346.G The Board published the Guidelines in final form on June 30, 2010, to be effective on December 1, 2010. 7 4. The Board's Regulations In 2010, the Board adopted regulations that incorporate the Guidelines as the basis of the list of pre-authorized procedures required by section 13-a(5) and, in addition, establish the Guidelines as the standard for determining the medical necessity of all treatments provided as a benefit under the Workers' Compensation Law for injuries to the knee, shoulder, back and neck. Under the regulations, the Guidelines apply to all treatments for injuries to those four parts of the body and are not limited to surgeries, specialist consultations, or other listed treatments subject to the employer approval requirement of section 13-a(5). 5 Available on the website of the Workers' Compensation Board, http://www.wcb.ny.gov/content/main/SubjectNos/sn046 270.jsp. 6 Available on the website of the Workers' Compensation Board, http://www.wcb.ny.gov/content/main/SubiectN os/sn046 346.jsp. 7 Available on the website of the Worker's Compensation Board, http://www. web. ny. gov/ con ten t/main/hcpp/Medical Treatment Guidelines/2010 TreatGuide.jsp. - 8 - Part 24 of the Board's regulations provides that treatment of injuries to an employee's lumbar, thoracic, or cervical spine, shoulder or knee must be consistent with the Guidelines (12 N.Y.C.R.R. § 324.2(a)).8 In addition, the regulation states that "[a]ll medical care consistent with the Medical Treatment Guidelines costing more than one thousand dollars is included on the pre-authorized procedures list," for purposes of section 13-a(5), except for a list of specified procedures which the Board viewed as "subject to abuse" or "complex or high risk" or "invasive" (12 N.Y.C.R.R. § 324.2(d)(l)). See Notice of Adoption (Medical Treatment Guidelines), N.Y.S. Register, Nov. 3, 2010, at 24, 26 ("Notice of Adoption"). 9 Part 24 also sets forth a procedure for obtaining a "variance" that permits care that would not otherwise be authorized under the Guidelines (12 N.Y.C.R.R. § 324.3). The regulations provide that the claimant and the treating medical provider "shall have the burden of proof that such variance is appropriate for the claimant and is medically necessary." 12 N.Y.C.R.R. § 324.3(d)(4). 8 The revised edition of the Guidelines adopted in January 2013 includes new guidelines for the treatment of carpal tunnel syndrome. 9 Available on the website of the Division of Administrative Rules, http://docs.dos.ny.gov/info/register/2010/nov3/pdfs/rules.pdf. - 9 - The Board also revised its procedures for the payment of medical bills, including bills for treatments that do not require prior employer authorization under section 13-a(5). The regulations now provide that, with respect to treatment involving parts of the body covered by the Guidelines, an employer or insurance carrier is liable only for care that is consistent with the Guidelines, unless a variance has been granted. 12 N.Y.C.R.R. § 325-l.25(a). The Board modified the form used by insurance carriers to object to the payment of medical bills so that it includes non-compliance with the Guidelines as an explicit basis for refusing payment to the provider, in conformity with the regulations. See Notice of Treatment Issue(s)/Disputed Bill Issue, Form C-8.1.10 In its notice of adoption of the regulations, the Board explained that it relied on its general rulemaking authority in Workers' Compensation Law §§ 117(1) and 141, as well as the specific authority in § 13 (authorizing the chair to establish a fee schedule for medical treatment), in § 13-b and similar sections (providing that treating doctors and other providers, and those providing independent medical examinations, must be authorized by the chair), and § 13-a(5) (directing the chair to issue a list of pre-authorized procedures costing more than $1,000). See Notice of Adoption, at 24-25. 10 Available on the website of the Workers' Compensation Board, http://www.wcb.ny.gov/content/main/forms/c8 1.pdf. - 10 - The Board further explained that "[a]lthough the statutes do not specifically require the adoption of guidelines, it is clear that the absence of them has resulted in an inefficient system." See Notice of Adoption, at 25. The Board noted that the Guidelines would enhance quality of care for occupational injuries to the knee, shoulder, back and neck by providing up-to-date standards on which to base treatment and would reduce costly disputes and unnecessary treatment delays by providing "agreed upon standards on which to assess medical necessity." Id. The Board concluded that "(b]y adopting the Guidelines as the standard of care for the neck, back, shoulder and knee, and making all but 12 procedures pre-authorized, medically sound, evidence based treatment will flow promptly which will improve recovery and expedite a return to work." Id. B. Claimant's Workers' Compensation Claim Claimant was involved in an automobile accident on December 13, 1996, and was treated at Stony Brook University Hospital on the day of the accident (R. 13, 15). X-rays taken that day showed no evidence of fracture, dislocation or other injury (R. 16-17). Claimant, who was employed by the Board as a hearing reporter. filed a claim for workers' compensation benefits on January 13, 1997 (R. 13). The State Insurance Fund, the Board's carrier, controverted the claim, raising questions as to whether the accident occurred in the course of employment - 11 - and whether claimant's disability was causally related to the accident (R. 14). However, a workers' compensation law judge determined that claimant had established her claim for injuries to her neck and back and authorized a neurological exam and various tests, including magnetic resonance imaging ("MRI"), electromyography ("EMG") and nerve conduction velocity ("NCV") (R. 129, 130, 131). The workers' compensation law judge also authorized treatment of claimant's symptoms by a chiropractor (R. 131, 133, 134). Dr. Richard Carruthers, a neurologist, performed an independent medical exam on October 20, 1998, and diagnosed "neck and back strain superimposed on chronic degenerative changes with no objective residuals" (R. 52-55). He concluded that claimant's symptoms were related to the exacerbation of pre-existing problems by the accident, that there was no objective sign of neurologic disability, and that there was no need for further diagnostic testing or treatment (R. 54). The workers' compensation law judge nevertheless authorized further orthopedic consultation and treatment of claimant's symptoms (R. 137, 138). Dr. Alan R. Friedman, a chiropractor, submitted to the carrier bills for treatments provided to claimant over the course of 36 visits between June 1998 and March 2001 (R. 31-47). On November 25, 2002, a workers' compensation law judge determined that "[i]ssues are resolved on prior findings and awards" and that "[n]o further action is planned by the Board at this time." (R. 139). - 12 - Claimant's case was reopened in 2006, when Dr. Friedman .submitted bills for seven additional treatments of claimant in January, February and April of that year (R. 48-51). The workers' compensation law judge ordered the State Insurance Fund to pay the disputed bills and transferred liability for the claim to the Special Fund for Reopened cases under Workers' Compensation Law § 25-a (R. 140) Claimant then began treatment with Andrea Coladner, a doctor of osteopathic medicine (R. 57). Dr. Coladner recommended physical therapy, including massage and a "TENS unit," and a repeat MRI (R. 60, 64, 74, 82, 87). Between April 2006 and September 2007, claimant was treated by Dr. Coladner on 18 separate visits (R. 56-92). During 2006, claimant was also treated seven times by Dr. Yelena Amitina of North Shore Pain Management, P.C. (R. 114-120). The Special Funds Conservation Committee requested an independent medical exam of claimant, which was performed by Dr. Steven R. Nissenbaum on November 7, 2006 (R.121-128). Dr. Nissenbaum reported that "[t]oday's examination fails to demonstrate any clinical objective findings to support this claimant's subjective complaints." (R. 123-128). However, Dr. Nissenbaum concluded that "claimant presents with a mild partial disability since she continues to present subjective complaints of long standing duration without any clinical objective findings." (R. 127). - 13 - Accordingly, in December 2006, the workers' compensation law judge determined that claimant is permanently partially disabled and ordered payment of various medical expenses, including an additional MRI (R. 145). In November 2009, claimant again consulted Dr. Coladner, reporting that her neck and low back pain were getting worse (R. 96-97). Dr. Coladner asked the Special Funds Conservation Committee to authorize acupuncture treatments for claimant, to be administered three times per week for six weeks (R. 148-49). Although Dr. Coladner filed this request using a form designed for requests for authorization under Workers' Compensation Law § 13-a(5), prior authorization was not required under that section because treatments administered by Dr. Coladner did not involve "specialist consultations" or "special services" within the meaning of that section, 11 and would not have cost more than $1,000. 12 The Special Funds Conservation Committee authorized the acupuncture treatment requested by Dr. Colander (R. 148-150), which was performed between January and April of 2010 (R. 101-13). 11 See Matter of Wojciechowski v. Bethlehem Steel Corp., 15 A.D.2d 422, 425 (3d Dep't 1962) (defining "special services" as "services which are extraordinary to those normally rendered by the attending physician"). 12 See Doctor's Progress Reports on Form C-4.2 listing charges for acupuncture treatments on January 11, 2011, February 2, 2011, and February 13, 2011(R.101-02, 108-109). - 14 - The particular claim giving rise to this case arose in March 2011, when claimant saw Dr. Coladner for re-evaluation, complaining of persistent pain in her neck and low back (R. 153). Dr. Coladner requested a variance under the Guidelines, which had become effective on December 1, 2010, seeking authorization to provide three acupuncture treatments per month for six months (R. 153-155; R. 158-159). A variance was required because the Guidelines for treatment of neck injuries provide that the optimum duration of acupuncture treatments is one month and the maximum duration is 10 treatments. 13 Dr. Coladner indicated that the treatment was medically necessary because claimant continued to report persistent neck pain, and that the treatment was intended to increase flexibility and circulation, decrease headaches and muscle tightness and to maintain function and activities of daily living (R. 158).14 In response to the request for a variance, the Special Funds Conservation Committee obtained an independent medical exam of claimant, conducted by Peter Chiu, a physician board certified in physical medicine and 13 New York State Workers' Compensation Board, Neck Injury Medical Treatment Guidelines 20-21 (1st ed. 2010), http://www.wcb.ny.gov/content/main/hcpp/MedicalTreatmentGuidelines/Neck InjuryMTG2010.pdf 14 Dr. Coladner also requested a variance authorizing acupuncture treatment for claimant's lower back (R. 156-157). That request is not before the Court because claimant did not seek administrative review of its denial. - 15 - rehabilitation and in acupuncture (R. 163-168). Based on an orthopedic examination and a traditional Chinese medical exam, Dr. Chiu concluded that further acupuncture treatments were not medically necessary (R. 166). Dr. Chiu noted that claimant's subjective complaints of pain were not supported by objective findings, that she did not suffer from any disability, 15 and that she could resume normal activities of daily living and her occupation without restriction (R. 166). Dr. Chiu noted that, under the Guidelines, the recommendation with respect to acupuncture treatments is ten treatments over a period of one month (R. 167). Acupuncture may extend longer "if objective functional gains can be documented or when symptomatic benefits facilitate progression in the patient's treatment program." (R. 167). Because claimant's medical records failed to mention any benefits from her previous acupuncture treatments, there was no indication of a significant positive response to treatment or symptomatic or functional gain (R. 167). Therefore, Dr. Chiu recommended denial of the variance (R. 167). The Special Fund Conservation Committee then denied the variance (R. 169). 15 The Third Department noted in its opinion that Dr. Chiu's finding of lack of disability was not essential to his determination of lack of medical necessity and was not relied on by the workers' compensation law judge or the Board in denying claimant's request for a variance (R. 215, n.5). That finding is not relevant to claimant's arguments here that the Guidelines are invalid. - 16 - Claimant requested review of the denial of a variance (R. 172). Based on testimony by Dr. Coladner (R. 173-185) and Dr. Chiu (R. 186-193), the workers' compensation law judge determined that claimant's medical provider had failed to show that the additional acupuncture treatments were medically necessary (R. 196). In particular, the law judge noted that, although Dr. Coladner testified that claimant reported some pain reduction from the prior treatments, "there is no evidence in the record that these earlier treatments resulted in the objective improvement of functional outcomes with respect to claimant's neck, or that it is reasonable to expect that further acupuncture will result in such improvement." (R. 196). On claimant's administrative appeal, the Board affirmed the workers' compensation law judge's decision denying the variance (R. 8-12). The Board concurred with the finding of the workers' compensation law judge that there is insufficient evidence in the record that claimant's earlier acupuncture treatments resulted in objective improvements or that it is reasonable to expect that further acupuncture would result in such improvements (R. 12). The Board also rejected claimant's arguments that the Guidelines and the variance procedures set forth in the regulations are inconsistent with the Workers' Compensation Law. The Board reasoned that Workers' Compensation Law § 13(a) does not require the employer or its carrier to provide medical treatment that is not medically necessary and that the - 17 - statute "is not intended to require the provision of ineffective or unnecessary treatment when there is no positive outcome which is reasonably expected to result from such treatment." (R. 10). The Board explained: (R. 9-10). The mere fact that a physician, chiropractor or other provider has provided services to an injured or ill worker is not, of itself, sufficient to require the employer or its carrier to pay the bill rendered for the service. Payment need not be made for tests and treatment that are unnecessary, duplicative, or inappropriate for the injury and accordingly of no benefit to the injured or ill worker. Such services may be determined to be of no value by the Board .... Although claimant is correct that she is entitled to medical care as needed, [Workers' Compensation Law] § 13 does not provide unlimited and unchecked medical care to injured workers. C. Claimant's Appeal to the Appellate Division In a comprehensively reasoned decision, the Appellate Division, Third Department, affirmed the Board's decision denying the variance request (R. 212-229). Matter of Kigin v. State of New York Workers' Compensation Board, 109 A.D.3d 299 (3d Dep't), lv. granted, 22 N.Y.3d 854 (2013). Claimant did not contend that her proposed course of acupuncture treatment was within the Guidelines or that she sustained her burden of proof for a variance. Instead, she argued that the Guidelines and the regulations were invalid. - 18 - The Appellate Division rejected claimant's assertion that adoption of the Guidelines exceeded the Board's statutory authority, holding that the regulations were within the Board's authority to administer the Workers' Compensation Law, to regulate treatment and determine claims for benefits, and to adopt reasonable regulations consistent with the statute (R. 215). The court explained that, as an administrative agency, the Board is authorized to promulgate rules to fill gaps in the statute. and that broad legislative delegations of rulemaking authority to agencies like the Board are permissible because administrative flexibility is necessary in technical areas such as workers' compensation (R. 215-216). The court also noted that, in addition to the Board's general statutory power under Workers' Compensation Law § 117(1), § 141 and § 142, the Legislature had expressly authorized the Board "to issue and maintain a list of pre-authorized procedures" under Workers' Compensation Law § 13-a(5) (R. 216). By providing a list of pre-authorized procedures and requiring a variance for other care, the regulations are consistent with the statutory authority (R. 216-219). The court also explained that medical necessity had always been a prerequisite to an employer's obligation to pay for medical treatment under Workers' Compensation Law§ 13(a), and that denials of payment for medical care had been upheld where the proposed care was duplicative, excessive or - 19 - inappropriate (R. 217). The court noted that the legislative history of the 2007 amendments to section 13-a(5) demonstrated that the Legislature intended that enabling the Board to pre-approve diagnostic tests and treatments that would be automatically covered in the frequency and duration recommended, regardless of cost, would benefit claimants and the system as a whole in several ways. These included reducing provider bill disputes, unnecessary or ineffective treatments, and treatment delays and eliminating the need for the employer's prior approval that section 13-a(5) had mandated for specialists, surgeries and other identified treatments (R. 217-218). The court concluded that the Board acted within its statutory authority when it devised a list of pre-approved medical care deemed in advance to be medically necessary for specified conditions (R. 218-219). The court rejected claimant's contention that the variance procedure included in the regulations impermissibly shifts to the employee the burden of demonstrating the medical necessity of medical procedures that are not included on the list of pre-authorized procedures (R. 219-221). The court explained that nothing in the statutes or case law "compels or even supports" claimant's assertion that, before the adoption of the Guidelines, the burden of proof as to medical necessity had been on the employer (R. 219). The court found that in any case the Board could predetermine the medical necessity of particular treatments, including duration and amount, through the - 20 - Guidelines and likewise predetermine that treatment falling outside the Guidelines was not medically necessary. Thus, it would make no sense to require employers to establish that treatment outside the Guidelines (and thus, that the Board had already generally determined not to be medically necessary) was not medically necessary in a particular case (R. 220-221). Furthermore, the court found that requiring that claimants establish that care outside the Guidelines is medically necessary is not inconsistent with Workers' Compensation Law § 21(5) (R. 221). That section provides a presumption that the contents of medical and surgical reports introduced in evidence by claimants "shall constitute prima facie evidence of fact as to the matter contained therein." The court explained that the purpose of this presumption was to permit the medical report to substitute for the live testimony of the claimant's expert in establishing the uncontroverted facts contained in the report (R. 221). However, the presumption did not establish the medical necessity of or entitlement to care in a particular case (R. 221). The court also rejected claimant's claim that the Guidelines deprived her of due process of law, finding that the regulations provide an opportunity to be heard at a meaningful time and in a meaningful manner (R. 222-223). The regulation did not diminish claimant's right to receive medical care for work-related injuries, which had always been subject to the requirement that it be shown to be medically necessary (R. 223). Additionally, noting that the - 21 - Guidelines apply only to prospective medical treatment, the court rejected claimant's assertions that the Guidelines were improperly retroactive (R. 223-224). Finally, the court concluded that the Guidelines were properly applied to claimant's treatment for chronic pain and that the Guidelines were not limited to acute care (R. 224). The dissenting justice stated that, while he agreed that the Board had authority to adopt the regulations, he believed that requiring claimant to prove the medical necessity of treatments that are not pre-authorized created a presumption that is inconsistent with the statutory scheme (R.225-229). ARGUMENT This Court should affirm the Appellate Division's opinion and order. As in that court, claimant here does not argue that her proposed course of acupuncture treatments is within the Guidelines or that she sustained her burden of proof for a variance. Instead, she argues that the Guidelines are invalid because they exceed the Board's authority under the Workers' Compensation Law, they impermissibly transfer to claimants the burden of proof on the issue of medical necessity, and they deprive injured workers of their due process right to a hearing (Br. at 14). None of these arguments has any merit. The Guidelines fit comfortably within the Board's broad authority under the Workers' Compensation Law to administer the workers' - 22 - compensation system and regulate the delivery of medical care provided as a benefit to injured workers. The Guidelines also implement and are consistent with the Board's authority under the 2007 amendment to section 13-a(5), which directed the Board to establish a list of pre-authorized procedures under that section. The Guidelines provide consistent and standardized treatments based on best practices for common workplace injuries to the shoulder, knee, back and neck. By conclusively presuming that treatment within the Guidelines is medically necessary, the Guidelines benefit injured workers, employers and carriers by expediting the delivery of care and eliminating time consuming case-by-case determinations of what care is necessary. And by providing a variance process, the Guidelines afford claimants a process to demonstrate that care and treatment that is not covered by the Guidelines is medically necessary in their individual cases. Similarly, the Guidelines do not impermissibly shift the burden of proof to claimants on the issue of medical necessity-there is no burden at all on claimants as to treatment that is within the Guidelines, which is conclusively presumed to be medically necessary. As to treatment that is not within the Guidelines, there is no shifting of the burden, because claimants have always been ultimately responsible for establishing that proposed treatment is medically necessary. Finally, the hearing process for variances, with the opportunity for judicial review exemplified by this appeal, satisfies the - 23 - requirements of due process. The Guidelines are valid and this Court should uphold them. POINT I THE BOARD HAD STATUTORY AUTHORITY TO ADOPT REGULATIONS INCORPORATING THE GUIDELINES Claimant's challenge to the Guidelines should be rejected because the regulations adopting the Guidelines are within the broad regulatory authority that the Legislature has vested in the Board under the Workers' Compensation Law. "The cornerstone of administrative law is derived from the principle that the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation." Matter of Nicholas v. Kahn, 4 7 N.Y.2d 24, 31 (1979). Under this principle, "an agency can adopt regulations that go beyond the text of that legislation, provided they are not inconsistent with the statutory language or its underlying purposes." Matter of Gen. Elec. Cap. Corp. v. N. Y.S. Div. of Tax Appeals, 2 N.Y.3d 249, 250 (2004). Deference to the rulemaking agency is particularly appropriate when the interpretation of a statute "involves specialized 'knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom."' Matter of - 24 - KSLM-Columbus Apts., Inc. u. New York State Div. of Haus. & Community Renewal, 5 N.Y.3d 303, 312 (2005), quoting Kurcsics u. Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459 (1980). "This Court reviews administrative regulations to determine whether they are rational and to ensure that they are not arbitrary or capricious." Matter of Belmonte u. Snashall, 2 N.Y.3d 560, 567 (2004). Claimant's argument that the authority of the Board was limited to the issuance of a list of pre-authorized surgical, specialist, or other treatments listed in section 13-a(5) is mistaken. The Board properly issued the Guidelines and the regulations under its general authority to make rules supplemental to and consistent with the statute, as well as pursuant to the specific direction contained in the 2007 amendment to section 13-a(5). Because the regulations adopting the Guidelines are authorized by the Legislature and are rational and not arbitrary and capricious, they must be upheld. See Matter of Belmonte, 2 N.Y.3d at 567. A. The Board and the Chair have broad authority to adopt regulations governing the delivery of medical care provided as a benefit to injured workers. The regulations adopting the Guidelines are within the scope of the Board's statutory authority to administer the workers' compensation system, which includes the authority to regulate the delivery of medical care provided as a benefit to injured workers. The Board and its Chair have always had - 25 - authority to adopt reasonable rules consistent with and supplemental to the statute and to establish procedures for the resolution of claims. See Workers' Compensation Law § 117(1) (Board's rulemaking authority); Workers' Compensation Law § 141 (general powers and duties of the Chair). Furthermore, in addition to their general regulatory authority, the Board and the Chair are specifically authorized to regulate the delivery of medical care under the Workers' Compensation Law. Among other things, the Chair authorizes the physicians and other providers that are permitted to render medical care under the statute (Workers' Compensation Law §§ 13-b, 13-k, 13-1, 13-m), establishes a schedule of standard fees for medical care (§ 13(a)), and resolves disputes over medical bills between providers and employers (§ 13-g). The regulations are a valid exercise of the Board's broad regulatory authority because they are rationally related to the underlying policies of the Workers' Compensation Law. When the Board published the proposed regulations for public comment, it provided a detailed explanation of their purpose. Notice of Proposed Rulemaking, New York State Register, June 30, 2010, at 33-38. 16 The Board explained that, previously, lack of standards to assess the medical necessity of treatment had resulted in 16 Available on the website of the Division of Administrative Rules, http://docs.dos.ny.gov/info/register/2010/jun30/pdfs/rulemaking.pdf. - 26 - "disputes over treatment, delayed care, and increased frictional costs." Id. at 24. The Board also pointed out that Guidelines grounded in "evidence-based medicine and the sound clinical judgment of highly credentialed physicians" would improve the quality of care for injured workers and that "(w]hile denial of care to reduce costs is harmful, overuse of medical services does not necessarily improve outcomes." Id. Thus, by adopting standards for determining the necessity of care, the Board enabled claimants, health care providers, employers and insurance carriers to avoid the uncertainty and delay that results from disputes over the medical necessity of treatment. These regulatory objectives are rational and consistent with the underlying policies of the Workers' Compensation Law. See Crosby v. State of New York Workers' Compensation Board, 57 N.Y.2d 305, 313 (1982) (noting that the Workers' Compensation Law was intended in part to obviate the expense and delay caused by protracted litigation). There is no merit to claimant's argument that the Guidelines "direct[ly] conflict" with sections 13(a) and 13-a(5). Claimant mistakenly characterizes those sections as providing "for general approval of all medical treatment, reserving to employers and carriers the right to pre-authorize special services with a cost in excess of $1,000." (Br. at 19-20) (emphasis added). On the contrary, as the Third Department correctly observed (R. 217), the statute does not require that employers and carriers pay for "all medical treatment"; - 27 - the Workers' Compensation Law has long required that employers need only pay for treatment that is medically necessary. The employer's statutory obligation is to provide "such" treatment "for such period as the nature of the injury or the process of recovery may require." Workers' Compensation Law § 13(a). The word "such," modifying treatment, imposes on the employer the duty to provide only the treatment that is "require[d]" by the "nature of the injury" or the "process of recovery," i.e., treatment that is medically necessary. See Matter of Spinex Laboratories, Inc. v. Patton, 213 A.D.2d 884, 885 (3d Dep't 1995) (care that is duplicative, excessive or inappropriate for the claimed injury is not medically necessary). Accordingly, the Guidelines and the regulations, which are based on medical necessity, are consistent with sections 13(a) and 13-a(5). Nor is there any merit to claimant's assertion that the "Legislature could plainly have granted employers and carriers broader rights to pre-deny authorization for medical treatment, but chose not to." Br. at 19 (citing Workers' Compensation Law § 13-a(5) (emphasis added). The Guidelines are based on the Board's general authority under the Workers' Compensation Law to regulate the delivery of medical care to injured workers, in this case by determining in advance, based on the best practices known, the medical necessity of various treatments for injuries to the neck, back, shoulder and knee, as well as of the amount and duration of such treatments. - 28 - Therefore, the regulations adopted by the Board are supplemental to and consistent with the Workers' Compensation Law and should be upheld because they are rational and not arbitrary and capricious. Matter of Belmonte v. Snashall, 2 N.Y.3d 560, 567 (2004); see also Matter of Smith v. Albany County Sheriff's Dep't, 82 A.D.3d 1334, 13235 (3d Dep't) (regulation providing for waiver of defenses is valid as a "logical supplementation" to the Workers' Compensation Law), motion for leave to appeal dismissed, 17 N.Y.3d 770 (2011). B. The Board's statutory authority is not limited to development of a list of pre-authorized procedures. Claimant claims that the Board exceeded its statutory authority when it adopted the Guidelines because the 2007 amendment to Workers' Compensation Law § 13-a(5), which required the Board to issue a list of "pre-authorized procedures," did not authorize the Board to "pre-deny" treatment that is not provided for in the Guidelines (Br. at 15-25). That argument is erroneous for two reasons. First, as explained above, claimant's argument ignores the statute's grant of authority to administer the Workers' Compensation Law in general and to regulate the delivery of medical care in particular. The Board did not base its statutory authority to adopt the Guidelines solely on the authorization to create a list of pre-authorized procedures, but rather cited its - 29 - general authority under Workers' Compensation Law § 117, the Chair's authority under section 141, and their combined authority to regulate care providers and fees under sections 13, 13-a, 13-b, 13-k, 13-1, and 13-m. See Notice of Proposed Rulemaking, New York State Register, June 30, 2010, at 33-38; Notice of Adoption, New York State Register, Nov. 3, 2010, at 24. Therefore, the Board was not limited to adopting a list of pre-authorized procedures under section 13-a(5), and had the authority under the other statutes cited above to establish guidelines for treatment generally including a regulatory variance requirement for treatment that is not consistent with the Guidelines. Second, the authority to issue a list of pre-authorized procedures necessarily implies the authority to determine that some procedures are not pre-authorized. Because of the possibility of obtaining a variance, such procedures are not automatically "pre-denied," as claimant asserts. Rather, the requirement of a variance reflects the Board's preliminary determination that procedures not in accordance with the Guidelines are not medically necessary. The Guidelines are conclusive only in the claimant's fauor~ treatment that is in accord with the Guidelines is provided at the employer's expense and the employer cannot contest it. But treatment that is not in accord with the Guidelines may nevertheless be approved pursuant to the variance procedure. Therefore, claimant's argument that the regulations - 30 - conflict with the plain language of the Workers' Compensation Law by "pre-denying" care that is not authorized under the Guidelines is without merit. 17 POINT II REQUIRING CLAIMANTS TO PROVE THE MEDICAL NECESSITY OF CARE THAT IS NOT AUTHORIZED BY THE GUIDELINES IS CONSISTENT WITH THE WORKERS' COMPENSATION LAW The Appellate Division correctly rejected claimant's argument that the regulations conflict with the Workers' Compensation Law by requiring the employee or the care provider to prove that treatment not authorized under the Guidelines is medically necessary (Br. at 26-30). According to claimant, sections 13(a), 13-a(5) and 21(5) of the Workers' Compensation Law "place[] the burden of proof squarely on the employer and carrier to deny a request for medical treatment." (Br. at 26). However, claimant is mistaken-those provisions do not, individually or collectively, allocate the burden of proof in workers' compensation cases. 17 Claimant also argues that the regulations conflict with Workers' Compensation Law § 13-a(5) because they permit a carrier to deny a variance on the basis of a review by a "medical professional" rather than a licensed physician (Br. at 21). However, as the Appellate Division observed, that issue is not before the Court in this case because, in fact, claimant's request for a variance was denied on the basis of an exam by a physician (R. 163-168; 222). - 31 - Nothing in the Workers' Compensation Law precludes the Board from placing the burden of proof with respect to medical necessity on claimants. 18 Indeed, the general rule in workers' compensation cases has always been that a claimant has the burden of proving facts sufficient to support his or her claim for compensation. See Matter of Zamora u. New York Neurologic Assoc., 19 N.Y.3d 186, 192 (2012) (rejecting mandatory inference that lost wages were caused by work-place injury because it "would shift the burden of proof from claimant to employer"); Matter of Malacarne u. Yonkers Parking Auth., 41 N.Y.2d 189, 193 (1976) (claimant had burden of showing that injuries were sustained in the course of employment); Matter of Miller u. National Cabinet Co., 8 N.Y.2d 277, 288 (1960) (claim dismissed where claimant failed to present evidence that illness was caused by occupational exposure to toxic chemical); Matter of Ayala u. DRE Maintenance Corp., 238 A.D.2d 674, 675-76 (3d Dep't 1997) (annulling the Board's determination for claimant because evidence of causation was too speculative); see also 1-11 New York Workers' Comp. Handbook § 11.01[3] (Matthew Bender) (2013); Minkowitz, Practice Commentaries to Workers' Compensation Law § 13, 64 McKinney's 18 And, as noted above, the Guidelines do not impose any burden of proof on claimants in the mine run of cases where the recommended treatment is conclusively deemed to be medically necessary because it is consistent with the Guidelines. - 32 - Cons. Laws of N.Y. at 190 (2013) (suggesting that the claimant bears the burden of proof). A. Sections 13(a) and 13-a(5) do not impose the burden of proof on the employer. Claimant asserts that sections 13(a) and 13-a(5), taken together, establish that an employee is entitled to receive treatment that costs less than $1,000 without prior authorization and that the employer or insurer bears the burden of proof if it denies authorization for treatment that costs more than $1,000 (Br. at 26). But neither of those sections makes any express reference to the burden of proof, and claimant has not cited any administrative or judicial decision holding that those sections place the burden of proof on the employer. Indeed, the limited authority on the question suggests the contrary. See Matter of Dixon v. State Univ. Coll., 283 A.D.2d 840, 841 (3d Dep't 2001) (request for authorization under section 13-a(5) must state the medical necessity of the special services); Nassau County Police Dep't, 2007 N.Y.W.C.L.R. (L.R.P.) LEXIS 149 *5, 2007 WL 1601269 (Wrk. Comp. Bd. Case No. 20201309) (Apr. 10, 2007) (stating that the issue was whether the claimant had provided sufficient credible medical evidence that a hot tub was medically necessary); Entertainment Partners, 2003 N.Y. Wrk. Comp. LEXIS 87260 *8-9, 2003 WL 22437325 (Wrk. Comp. Bd. Case No. 09913893) (Oct. 16, 2003) (stating that claimant bore burden of - 33 - producing sufficient credible evidence that treatment is medically necessary); N. Y. State Dep't of Correction, 2000 N.Y. Wrk. Comp. LEXIS 117957 *3, 2000 WL 33398477 (Wrk. Comp. Bd. Case No. 59910681) (Sept. 18, 2000) (stating that it was the claimant's burden to produce medical evidence that massage therapy is necessary). Moreover, claimant is mistaken in arguing that these sections grant to an injured employee an unlimited entitlement to medical care that does not require prior authorization under section 13-a(5). On the contrary, an employee's right to treatment under section 13 has always been limited. When the Workers' Compensation Law was first enacted, medical care for injured employees was provided by physicians chosen by the employer. See Keigher v. General Elec. Co., 173 A.D. 207 (3d Dep't 1916). Claimants were not permitted to choose their own provider until section 13-a was enacted in 1935, and even then the choice was limited to physicians authorized by the Chair, with fees strictly regulated by the Board. See Message of the Governor Transmitting Report of the Committee on Workmen's Compensation, With Recommendations, 1934 Legislative Document No. 75 at 10-11 (stating that limits on an employee's choice of physician are "designed to assure medical service of adequate competence, and to protect the employer and the - 34 - insurance earner against excessive costs").19 Those basic limitations- authorization of physicians and regulation of medical fees-remain in place today. Nothing in the statute precludes the Board, in its role as the adjudicator of disputes as to those matters, from adopting regulations requiring an employee seeking medical treatment not consistent with the Guidelines to prove that it is medically necessary. B. Section 21(5) does not impose the burden of proof on the employer. Claimant's reliance on Workers' Compensation Law § 21(5) is also misplaced. That section provides that "it shall be presumed in the absence of substantial evidence to the contrary ... [t]hat the contents of medical and surgical reports introduced in evidence for compensation shall constitute prima facie evidence of fact as to the matter contained therein." Like sections 13 and 13-a, section 21(5) says nothing about the burden of proof. Rather, it creates a limited presumption that permits a claimant to make a prima facie showing through a written report of his or her doctor rather than live testimony. Matter of Magna v. Hegeman Harris Co., 258 N.Y. 82, 84 (1932) (purpose of section 21(5) is to permit claimant to "make out his case in the first instance by a verified report"); see also Matter of Freitag u. New York Times, 260 A.D.2d 748, 749 (3d Dep't 1999) (Workers' Compensation Law l~J See Addendum B attached to this brief. - 35 - § 21(5) is intended "to reduce the necessity for the actual testimony of the claimant's expert."); Letter from J.M. O'Hanlon, Chairman Legislative Committee of the New York State Federation of Labor, to Alfred E. Smith, Governor (April 27, 1923), reprinted in Bill Jacket for ch. 568 (1923)20 (stating that the purpose of section 21(5) is to avoid when possible the cost and delay of having a doctor appear in person to make the same statement that could be made in a written report); see also Minkowitz, Practice Commentaries to Workers' Compensation Law § 21, 64 McKinney's Cons. Laws of N.Y. at 387 (2013) (presumption is intended to reduce the necessity for the actual testimony of the doctor). Moreover, by its terms, the section 21(5) presumption only permits a claimant to use a medical report as evidence of the facts stated in the report. It does not establish a presumption that the opinions or conclusions stated in the report are valid. See Matter of Jaquin v. Community Covenant Church, 69 A.D.3d 998, 1000 (3d Dep't 2010) (Board may reject medical evidence even where no opposing proof is presented); but see Matter of Middleton v. Coxsackie Corr. Facility, 38 N.Y.2d 130, 133 (1975) (citing section 21(5) in finding doctor's report to be prima facie evidence of fact as to causation in a case where the employer also admitted that employee's contact with an 20 See Addendum C attached to this brief. - 36 - infected inmate was the cause of the employee's tuberculosis). Section 21(5) therefore does not create a presumption that treatments requested by a claimant care are medically necessary, and the Guidelines do not conflict with that section. Moreover, claimant's assertion that section 21(5) places the burden of proof on the employer is mistaken because it overlooks the distinction between a presumption and the burden of proof. A presumption may shift the burden of producing evidence or "burden of going forward," but it does not shift the burden of proof. In re Philip M., 82 N.Y.2d 238, 244 (1993) (presumption that facts constitute prima facie evidence does not shift burden of proof); see generally Benders' New York Evidence § 127.01[5] (2013) (explaining the "marked distinction" between a presumption and the burden of proof); Prince, Richardson on Evidence, §§ 3-201, 3-202 (2008) (explaining difference between burden of proof and burden of going forward). Thus, in Magna v. Hegeman Harris, supra, the Court held that the presumption under section 21(5) ceased to be relevant once substantial evidence to the contrary was produced. 258 N.Y. at 84. See also People ex rel. Wallington Apts., Inc. v. Miller, 288 N.Y. 31, 33 (1942) ("Such a presumption is not evidence but serves in place of evidence until the opposing party comes forward with his proof, whereat it disappears. It has no weight as evidence and is never to be considered in weighing evidence.") (citing Magna); Matter of Wilson v. " 37" General Motors Corp., 298 N.Y. 468, 472 (1949) (presumption in Workers' Compensation Law § 21(1) "has no place in any case once the facts are fully developed; of necessity, it fails in the presence of contrary evidence") (citing Magna). Finally, claimant's reliance on the Matter of Weingarten v. Pathmark Stores, Inc., 256 A.D.2d 648 (3d Dep't 1998), and Matter of Hoffman v. Creedmoor State Hosp., 22 A.D.2d 736 (3d Dep't 1964), is also misplaced. Although the decisions of the Appellate Division in those cases refer to the "burden of proof," in fact both involve an employer's failure to rebut the presumption in section 21(1) that "the claim comes within the provisions of this chapter." Hoffman, 22 A.D.2d at 737; Weingarten, 256 A.D.2d at 649. See also R. 219, n.7 (Appellate Division decision in this case, explaining that Weingarten did not impose a burden of proof on the employer regarding the issue of medical necessity). The principal holding of Weingarten was that the employer's failure to appeal an earlier law judge decision authorizing a particular treatment and the employer's concession that it was acquiescing in the treatment as a courtesy to claimant precluded it from raising the issue of causation thereafter. Weingarten, 256 A.D.2d at 650. Thus, neither of those cases support claimant's assertion that the Workers' Compensation Law places on the employer the burden of proving that claimant's requested treatment is not medically necessary. - 38 - The Appellate Division was therefore correct that nothing in the text of the Workers' Compensation Law or the cases interpreting it supports claimant's contention that, before the adoption of the Guidelines, the burden of proof on the issue of medical necessity was on the employer or its insurance carrier (R. 219-221). There is no conflict with the Workers' Compensation Law on this ground either, and this Court should reject claimant's argument that the regulations are invalid. POINT III THE REGULATIONS AND GUIDELINES DO NOT DENY DUE PROCESS TO CLAIMANTS Claimant's argument that the Guidelines deny injured workers due process (Br. at 30-35) are without merit. Claimant's assertions that "the Guidelines "do not provide an opportunity to be heard in a meaningful time and in a meaningful manner" (Br. at 30), that "the Guidelines apply blanket proscriptions on continued medical care" (Br. at 31), and that the Guidelines provide for "summary denial of treatment" are refuted by the Board's regulations, which provide a claimant with an elaborate procedure for contesting a denial of a request for a variance from the Guidelines. 12 N.Y.C.R.R. § 324.3(d)(3). Indeed, the procedures for review of a request for a variance surpass the minimal requirement of due process in an administrative hearing, which is only that "the procedures be tailored, in - 39 - light of the decision to be made, to the capacities and circumstances of those who are to be heard to insure that they are given a meaningful opportunity to present their case." Mathews v. Eldridge, 424 U.S. 319, 349 (1976) (internal quotation and citation omitted). Claimant in this case was afforded "a meaningful opportunity to present [her] case": a hearing at which a workers' compensation law judge considered testimony by both her own care provider and the independent expert engaged by the insurer (R. 173-193). Claimant was represented by counsel, who cross-examined the insurer's expert (R. 189-192). The workers' compensation law judge's decision was reviewed by the Board, which considered legal arguments submitted by claimant's counsel (R. 8-12). And, of course, the Board's decision was subject to judicial review under section 23 of the Workers' Compensation Law. Thus, the procedures available to claimants seeking medical care not authorized under the Guidelines satisfy all the elements of procedural due process, including notice, see 12 N.Y.C.R.R. 324.3(b)(2) (requiring carrier or special fund to state the basis for a denial in detail); an evidentiary hearing, including the right to cross-examine witnesses, see 12 N.Y.C.R.R. 324.3(d)(3) (providing for hearing process including depositions of medical professionals), and appellate review, see Workers' Compensation Law § 23. The Appellate Division was correct in holding that the process for determining the medical - 40 - necessity of requested medical care and the review process, both facially and as applied to claimant, comported in all respects with due process. Finally, the Third Department also correctly rejected claimant's argument that the regulations and the Guidelines unconstitutionally diminished her entitlement to medical care (R.223). Medical necessity has always been a prerequisite to an employer's obligation to pay for medical care and thus the Guidelines and the variance process did not diminish claimant's entitlement to necessary treatment. For all these reasons, this Court should affirm the Third Department's opinion and order. - 41 - CONCLUSION The opinion and order of the Appellate Division should be affirmed. Dated: Albany, New York March 7, 2014 BARBARA D. UNDERWOOD Solicitor General ANDREWD. BING Deputy Solicitor General PAUL GROENWEGEN Assistant Solicitor General of Counsel Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent NYS Workers' Compensation Board By:~~~~~~~~~~~~ PAUL GROENWEGEN Assistant Solicitor General Office of the Attorney General The Capitol Albany, New York 12224 (518) 474-6639 Reproduced on Recycled Paper - 42 - PURPOSE PROG:~AM BILL# 9 REVISED GOVERNOR'S PROGRAM BILL 2007 MEMORANDUM AN ACT to amend the workers' compensation law, the labor law, the insurance law, the tax law, the volunteer ambulance workers' benefit law, the volunteer firefighters' benefit law, and the public officers law, in relation to increasing benefits, setting maximum benefit weeks for receiving payments on certain claims, providing enhanced return to work services and expedited medical services for claimants, increasing penalties and enforcement against fraud, implementing cost-savings, providing for premium discounts, authorizing the closing of the special disability fund to new claims; and to amend the public authorities law, in relation to the issuance by the dormitory authority ofrevenue bonds secured by debt service assessments in connection therewith This bill establishes comprehensive reforms to New York's workers' compensation law by; (I) increasing maximum and minimum benefits for injured workers and indexing the maximum to New York's average weekly wage; (2) dramatically reducing costs in the workers' compensation system, making hundreds of millions of dollars available annually to be translated into premium reductions; (3) establishing enhanced measures to combat workers' compensation fraud; (4) replacing the Special Disability Fund with enhanced protections for injured veterans; (5) preventing insurance carriers from transferring costs to New York employers by closing the Special Disability Fund to new claims; and (6) creating a financing mechanism to allow for settlement of the Fund's existing liabilities. SUMMARY OF PROVISIONS Provisions relating to benefits Section I of the bill adds new subdivisions 16 through 23 to section 2 of the Workers' Compensation Law to define certain terms. Section 2 of the bill amends section 15(6)(a) of the Workers' Compensation Law to increase the maximum weekly benefits for permanent or temporary partial disability ADDENDUM A A1 and permanent or temporary total disability from $400 to: (1) $500 for an accident or disablement that occurs on or after July 1, 2007; (2) $550 for an accident or disablement that occurs on or after July 1, 2008; (3) $600 for an accident or disablement that occurs on or after July 1, 2009; and ( 4) two-thirds the New York State average weekly wage each year thereafter. This section of the bill also raises the minimum benefits for permanent or temporary partial disability and permanent or temporary total disability from $40 per week to $1 00 per week. Section 3 of the bill amends section 16(5) of the Workers' Compensation Law to increase the maximum amount of weekly compensation to be taken into account in calculating the death benefits from $600 to: (1) $750 for an accident or disablement that occurs on or after July 1, 2007; (2) $825 for an accident or disablement that occurs on or after July 1, 2008; (3) $900 for an accident or disablement that occurs on or after July 1, 2009; and (4) the New York state average weekly wage, each year thereafter. Section 4 of the bill amends section 15(3)(w) of the Workers' Compensation Law to create a maximum number of weeks that a permanent partial disability recipient may receive indemnity payments. There is no maximum for medical services. The maximum benefit weeks range from 225 weeks where the loss of wage-earning capacity is 15 percent or less, to 525 weeks where loss of wage-earning capacity is greater than 95 percent. This section of the bill also seeks to protect claimants after their indemnity payments expire by creating a presumption that medical services will continue, and placing the burden on the carrier in any application to discontinue or suspend such services. Section 5 of the bill adds a new section 35 to the Workers' Compensation Law to establish a safety net for permanent partial disability claimants who surpass their number of maximum benefit weeks. Section 35 requires the Commissioner of Labor to survey and recommend best practices for return-to-work programs. Jn addition, this section incorporates existing case law on total industrial disability. For those with loss of wage earning capacity of 80 percent or greater, the bill additionally allows claimants to seek an exemption on extreme hardship grounds. This provision provides an exemption for extreme financial hardship, while allowing judges to take into account factors in addition to claimants' income and other available resources. Finally, the Commissioner of Labor is directed to track those who are classified as permanently partially disabled over time. Provisions relating to fraud prevention, detection. or punishment Section 6 of the bill amends section 50(2) of the Workers' Compensation Law to require employers to secure compensation for employees through a policy issued under the law of New York. Sections 7 and 8 of the bill amend sections 52 and 131 of the Workers' Compensation Law to impose stricter criminal and civil penalties for employers that fail to secure coverage for their employees. These sections of the law are drawn from, among other sources, analogous Florida statutes. Under section 7, failure to secure coverage for 2 ADDENDUM A A2 five or more employees during a twelve-month period is a Class E felony, and a second or subsequent conviction is a Class D felony. The section also creates an affirmative defense to personal liability for corporate officers who take reasonable steps to insure that their corporation secured compensation. It also defines failure to secure compensation to include intentional misrepresentation or concealment of payroll or information relevant to premium calculation. Section 8 specifies the records that employers must keep, and creates civil penalties and enhanced criminal penalties for failing to keep such records. Extremely important in the enforcement scheme are provisions creating additional liability for corporate officers, who are made liable if their corporation fails to keep accurate records. This is intended to solve the frequent problem in white collar Jaw enforcement that high ranking officers - who have the most to gain -- escape liability, while middle managers or lower level employees do not. Section 9 of the bill amends section 114(4) of the Workers' Compensation Law to allow prosecutors to charge a person pursuant to the provisions of sections 52 and 131 of the Workers' Compensation Law, and in the same accusatory instrument also with a violation of other laws. This section of the bill also provides that those convicted of second or subsequent offenses within a ten year time frame or those who knowingly violate any provisions of this section with respect to two or more claimants are guilty ofa class D felony. Section 10 of the bill adds a new subdivision 3 to section 114-a of the Workers' Compensation Law to provide for the assessment of costs against parties, and attorneys fees against attorneys or licensed workers compensation representatives, who institute or maintain actions without reasonable ground. Section 11 of the bill amends section 141 of the Workers' Compensation Law to allow the Chair of the Workers' Compensation Board to issue stop-work orders as provided for in section 141-a of the Workers' Compensation Law. This provision is a keystone to the civil enforcement provisions in the bill, and has proved partkularly effective in Florida, on which the provision was modeled. Section 12 of the bill adds a new section 141-a to the Workers' Compensation Law to grant the Chair of the Workers' Compensation Board certain investigative and enforcement powers, including the power to: (I) issue subpoenas outside New York State and enforce such subpoenas in court; (2) issue stop-work orders against employers who do not maintain coverage or pay penalties, and enforce those orders (and obtain other injunctive relief) via a court action; and (3) recover attorneys' fees and costs in a successful action brought under this section. This section of the bill also allows a judgment obtained by the chair to serve as a lien against the employer's property. Section 13 of the bill adds a new section 141-b to the Workers' Compensation Law to bar those who were subject to final assessments of civil fines or penalties or a stop-work order, or those convicted of a misdemeanor under sections 26, 52 or 131 of the Workers' Compensation Law, and any substantially owned affiliated entity of such person from bidding on public work contracts or subcontracts with the state, any 3 ADDENDUM A A3 municipal corporation or any public body for one year from the date of conviction. Those with felony convictions, or who violate the discrimination provisions of sections 125 or 125-a of the Workers' Compensation Law, will be barred for a period of five years. Section 14 of the bill adds a new section 141-c to the Workers' Compensation Law to facilitate greater coordination and communication between the Workers' Compensation Board, the Department of Labor, the Department of Taxation and Finance, the Department of Motor Vehicles and the Department oflnsurance, in order to gather information helpful in identifying fraud. Section 15 of the bill adds a new section 114-c to the Workers' Compensation Law to impose additional penalties for second or subsequent offenses where the prior offense was committed by a substantially owned affiliated entity of the party subject to the penalty. Section 16 of the bill amends section 136(5) of the Workers' Compensation Law to allow for sharing of information between agencies investigating insurance fraud. Section 17 of the bill amends section 406 of the Insurance Law to extend civil immunity to any person who, in the absence of bad faith, shares information related to suspected fraudulent insurance transactions with a state agency, including its employees and agents, investigating fraud or misconduct relating to workers' compensation insurance law. Sections 18 and 19 of the bill amend section 697 of the Tax Law to allow for enhanced sharing of information between the Department of Taxation and Finance and the Department of Labor, and redisclosure of information by the Department of Labor. Sections 20, 21, 22, 23 and 24 of the bill amend various subdivisions of section 537 of the Labor Law to: (I) prohibit the disclosure of information gathered from employers or employees pursuant to the Labor Law or the use of such information in any court unless the action or proceeding involves information provided pursuant to section 537(3)(g); (2) provide that if a person discloses information in violation of the confidentiality provisions of section 537, then, upon conviction, such person will be guilty of a misdemeanor; (3) provide that the Commissioner of Labor shall make certain information available, upon request, to any federal, state or local agency entitled to such information under the Social Security Act, any other federal law, or its implementing regulations; (4) provide for a mechanism for the disclosure of information between the Department of Labor and the Department of Taxation and Finance and certain federal, state and local agencies, includingthe Workers' Compensation Board, and set forth certain procedures that must be followed and conditions that must be met for such disclosure to take place; and (5) provide for use by the Department of Labor of wage reporting information obtained from the Department of Taxation and Finance pursuant to section 171-a{4) of the Labor Law. 4 ADDENDUM A A4 Provisions to achieve greater efficiencies or costs savings in the Workers' Compensation system Section 25 of the bill amends section 13(a) of the Workers' Compensation Law to add dental care and prosthetic devices to the list of covered treatments and covered devices and apparatus, respectively, which employers must provide to injured employees. This section of the bill would further expand the schedule of fees and services to be established by the Chair to include all medical, dental, surgical, optometric or other attendance or treatment, nurse and hospital service, medicine, optometric services, crutches, eyeglasses, false teeth, artificial eyes, orthotics, prosthetic devices, functional assistive and adaptive devices and apparatus. Section 26 of the bill adds a new subdivision (i) to section 13 of the Workers' Compensation Law to: (I) require employers and/or carriers to pay, within 45 days, the scheduled fee for prescription drugs in all cases, unless the liability of the employer for the claim is not established, or the prescribed medicine is not for a causally related condition; and (2) where the liability of the employer for the claim is not established, or the prescribed medicine is not for a causally related condition, require the carrier to pay any undisputed portion of the claim and also notify the claimant within 45 days that the claim is not being paid and the reasons for such decision, or the employer or carrier may request additional information reasonably needed to determine the employer or carrier's liability. The section would require payment plus interest for claims not paid by the employer in violation of this section. This section also authorizes carriers, self-insureds and the State Insurance Fund to contract with a pharmacy to supply prescription medicine to claimants and require claimants to use such pharmacies if within a reasonable distance, except in the case of a medical emergency. Carriers and employers that require the use of the pharmacy with which it contracts would be required to notify claimants. Section 27 of the bill adds a new section 13-o to the Workers' Compensation Law directing the Chair of the Workers' Compensation Board to adopt a pharmaceutical fee schedule establishing maximum pharmaceutical fees. This section would also allow mail order supply, and provide for use of generic drugs where appropriate. Under this section, the schedule may be modified annually on April I. Section 28 of the bill amends subdivision (5) of section 13-a of the Workers' Compensation Law to raise from $500 to $1,000 the maximum cost of specialist treatments for which an employer is automatically liable without prior authorization from the carrier, the State Insurance Fund or an employer. In addition, the Board, with the approval of the Superintendent of Insurance, shall issue and maintain a list of pre- authorized procedures. The purpose of both provisions is to remove impediments to prompt diagnostic and treatment measures and to better reflect current medical service costs. The provision permitting the creation of a pre-authorized list allows the Board appropriate regulatory flexibility to add or remove procedures depending on best practices, increases or decreases in costs, or opportunities presented by managed care approaches. The provision requiring the approval of the Superintendent focuses 5 ADDENDUM A A5 consideration on the effect that pre-authorizing any specific procedure may have on premiums. Section 29 of the bill adds a new subdivision (7) to section 13-a of the Workers' Compensation Law authorizing carriers, self-insureds and the State Insurance Fund to contract with a network or networks to perform diagnostic tests, x-ray examinations, magnetic resonance imaging, or other radiological examinations or tests of claimants and require claimants to use a provider or facility within the network with which it contracts and which is within a reasonable distance of the claimant, except in the case of emergency. Carriers, self-insured employers and the State Insurance Fund that require the use of such network affiliated providers or facilities would be required to notify claimants and their providers, at specified times, that they require the use of a provider or facility within the network with which they contract. Results of the special diagnostic test, x-ray examination, magnetic resonance imaging or other radiological test or exam would be required to be provided to the physician who requested the test or exam immediately upon completion of the report. Section 30 of the bill amends section 21-a of the Workers' Compensation Law to authorize employers to initiate temporary payments for prescribed medicine for injured employees in contested cases without such payment being viewed as an admission of liability. This provision is intended to expedite treatment for injured workers, thus helping speed return to good health and gainful employment. Section 31 of the bill amends section 54-b of the Workers' Compensation Law to allow claimants and medical providers to file a judgment for unpaid awards of compensation and awards for medical care issued pursuant to section 13-g of the Workers' Compensation Law against carriers and self-insured employers. This is designed to solve the serious problem of carriers frequently failing to pay medical bills and indemnity even after being ordered to do so by the Board. Section 32 of the bill amends subdivision I of section 354 of the Workers' Compensation Law to require preferred provider organizations to provide at least two providers in every medical specialty from which the employee may choose and at least two hospitals from which the employee may choose in the event that hospitalization is necessary while allowing the Commissioner of Health to waive the requirement if the geographical area does not allow the requirement to be met. Section 33 of the bill amends section 134 of the Workers' Compensation Law to require the Commissioner of Labor to promulgate rules and regulations for the implementation of safety, drug and alcohol prevention, and "return to work" incentive programs. Employers who implement these programs will receive premium credits in an amount set by the Superintendent of Insurance. Section 34 of the bill amends section 23 of the Workers' Compensation Law to allow for a party to take an appeal within 30 days after notice of the redetermination review decision by the chair pursuant to section 131 and 141-a, in addition to section 6 ADDENDUM A A6 52(5) of the workers' compensation law. This section of the bill also provides that an appeal shall not operate as a stay of the payment of the cost of medical, dental, surgical, optometric or other attendance, treatment, devices, apparatus or other necessary items the employer is required to provide pursuant to section 13 of the Workers' Compensation Law. This section of the bill also doubles the penalty for an employer or carrier who serves a notice of appeal for the purpose of delay or on frivolous grounds from $250 to $500. This provision is designed to eliminate carriers' financial incentive to appeal solely in order to stay payment of benefits and the provision of medical care. The Workers' Compensation Board has concluded that the current structure has led to a high number of frivolous and/or unsuccessful appeals by carriers. This will lead to finality in more cases sooner. Section 35 of the bill would amend section 26-a(2)(b) of the Workers' Compensation Law to increase the assessment imposed upon employers who have been found liable for a workers' compensation claim but failed to secure compensation for their employees from $250 to $1000 for each ten-day period of non"compliance, or two times the cost of compensation for its payroll for the period of such failure. Section 36 of the bill adds a new subdivision 3 to section 13-n of the Workers' Compensation Law to allow the Chair of the Worker' Compensation Board, upon finding that an entity that derives income from independent medical examinations has materially altered an independent medical examination report, or caused a report to be materially altered, to revoke the registration of such entity, impose a penalty of up to $10,000 and refer the matter to the Attorney General for prosecution. Section 37 of the bill would add a riew subdivision 4 to section 10 of the Workers' Compensation Law to deem ineligible for all benefits under the Workers' Compensation Law those persons incarcerated upon conviction of a felony. After release from custody, these individuals may apply to the board for reinstatement of their benefits. This provision codifies existing case law. Sections 38 and 39 of the bill amend section 13-d of the Workers' Compensation Law to allow the chair to remove from the list of physicians authorized to render medical care those physicians who have been found guilty of professional or other misconduct or incompetence in rendering medical services under the law or whenever the Department of Health shall conduct an investigation with respect to charges of professional or other misconduct by a physician which results in a report, determination or consent order that includes a finding of professional or other misconduct or incompetency. Sections 40 and 41 of the bill amend section 25 of the Workers' Compensation Law to reduce the time in which the board must schedule a pre-hearing conference in a controverted case from 60 days to 45 days after receipt of a notice of controversy and a medical report referencing an injury. The bill also provides that if issues in a case have not been resolved within one year after such issues have been raised before the board, or 7 ADDENDUM A A7 if a notice of controversy is filed, the chair may order that the case be transferred to a special part for expedited hearings. Section 42 of the bill amends subdivisions I and 2 of section 54 of the Workers' Compensation Law to allow for an insurance policy providing coverage for workers' compensation claims to be issued by more than one insurance company authorized fo transact workers' compensation insurance in the state. Jn the case of a policy with more than one insurer, the insurers shall share one hundred percent of the liability and one of the insurers shall serve as the lead insurer for notice and cancellation purposes. Section 43 of the bill amends section 77 of the Workers' Compensation Law to increase from 8 to I 0 the number of commissioners who would administer the State Insurance Fund. One of the two additional commissioners will be appointed by the Governor upon recommendation from the New York State American Federation of Labor-Congress of Industrial Organizations and one upon recommendation of the Business Council of New York State. As with other commissioners of the Fund, these appointees would be policyholders insured in the State Insurance Fund. Section 44 of the bill amends section 87 of the Workers' Compensation Law to allow the State Insurance Fund to invest up to ten percent of its surplus and reserve funds in certain securities. Section 45 of the bill would amend section 351 of the Workers' Compensation Law to authorize the State Insurance Fund to contract with a preferred provider organization for the delivery of workers' compensation benefits. Section 46 of the bill amends section 27(2) of the Workers' Compensation Law to mandate that carriers deposit awards pursuant to WCL § l 5(3)(w) into the aggregate trust fund. Provisions relating to the compensation insurance rating board ("CIRB") Sections 47 through 53, 55 through 62, 67 and 68 of the bill amend various sections of the Insurance Law, Volunteer Ambulance Workers' Benefit Law, Volunteer Firefighters' Benefit Law, and Workers' Compensation Law to end New York State's exclusive reliance on the Compensation Insurance Rating Board ("CIRB"), and to remove from CIRB certain statutory obligations and powers, effective as of February I, 2008. Section 57 directs the Superintendent of Insurance to report to the Governor and Legislature by September I, 2007 on how CIRB has performed tasks currently designated to it by statute or regulation; whether any of those tasks would more appropriately be performed by any other entity, including any government agency; and on the ratemaking process for workers' compensation insurance. Sections 67 and 68 bar rate service organizations for workers' compensation insurance from filing rates or sharing statistical information, as of February I, 2008. 8 ADDENDUM A AB Further provisions relating to efficiencies and cost savings Section 50 of the bill amends section 25-a(3) of the Workers' Compensation Law to make technical corrections to the section in connection with the fund for reopened cases. Section 54 is intentionally omitted. Section 56 of the bill amends section 151(2) of the Workers' Compensation Law to modify the method by which administrative expenses are assessed upon group self-insurers. Section 57-a of the bill amends section 27(4) of the Workers' Compensation Law to change the rate of interest paid by an employer or insurance carrier into the Aggregate Trust Fund in the event of a review or appeal from three percent to the "industry standard rate" as determined through regulation issued by the Superintendent of Insurance. This section of the bill also requires that payments into the Aggregate Trust Fund on claims for death benefits be based on the assumption that any child between the age of 18 and 23 years will continue to be enrolled as a full-time student in an accredited educational institution and thereby retain eligibility for benefits, to provide for any appropriate refund of such payment after all such children have reached 23 years of age, and to make various interest provisions consistent with the "industry standard rate" provided by this bill. Section 57-b of the bill adds a new subdivision 8 to section 27 of the Workers' Compensation Law to provide that in the case of a claim concerning which the Aggregate Trust Fund enters a waiver agreement pursuant to section 32, the insurance carrier that paid the present value of the award of such claim is not entitled to a refund of any portion of the award. Section 63 of the bill amends section 143(1) of the Workers' Compensation Law to allow the Workers' Compensation Board to use electronic means to record and maintain public records. Section 64 of the bill amends section 50(3) of the Workers' Compensation Law to require the Board to report to the Governor and the Legislature, on or before December I, 2007, on the possibility of implementing a statewide self-insured employer bond program and an improved individual employer bond program. Section 65 of the bill amends section 50(5)(c) of the Workers' Compensation Law to provide for the apportionment of the assessment against self-insurers and defines the term "pure premium calculation." Section 66 of the bill amends section 27(7) of the Workers' Compensation Law to provide for the computation of the loss reserves for the Aggregate Trust Fund and 9 ADDENDUM A A9 provides for a standard interest rate to be determined by the Superintendent of Insurance by regulation. Sections 69 and 70 amend section 125 of the Workers' Compensation Law and add a new section 125-a to the Workers' Compensation Law, to provide that any employer or insurance carrier that discriminates against an injured veteran shall be guilty of a Class A misdemeanor. Section 71 of the bill amends section 27(5) of the Workers' Compensation Law to provide that deposits in the Aggregate Trust Fund are credited with interest at the industry standard rate. Section 72 of the bill amends section 13-j(I) of the Workers' Compensation Law to remove the prohibition on insurance carriers directing medical treatment with respect to pharmacy and diagnostic networks. Provisions relating to the Special Disability Fund Section 73 of the bill amends section 32(a) of the Workers' Compensation Law to make clear that the Aggregate Trust Fund and the Special Disability Fund may enter into waiver agreements, and establishes procedures by which the Special Disability Fund can enter into waiver agreements funded by bond proceeds. This section also includes protections for claimants entering into such agreements, since such settlements are final and conclusive once approved by the Workers' Compensation Board. Section 74 of the bill adds new subdivisions (e), (f), (g), (h) and (i) to section 32 of the Workers' Compensation Law to provide for settlement of claims for which liability of the Special Disability Fund has been established by: (1) establishing a Waiver Agreement Management Office under the supervision of the Chair of the Workers' Compensation Board; (2) making clear that any waiver agreement entered into by the fund shall be conclusive on other potentially interested parties (such as carriers and employers); (3) providing for notice of interested parties; and ( 4) allowing for joint entry into waiver agreements by the Special Disability Fund and other parties. In an effort to limit the outstanding liability of the Special Disability Fund efficiently and effectively, this section allows the Waiver Agreement Management Office to contract with a third party to manage and settle claims. It authorizes the Chair to conduct a procurement, subject to provisions of State Finance Law, that might result in transfer of liability and responsibility for management, administration and settlement of all or a portion of claims in the Special Disability Fund to private entities with demonstrated financial strength. Finally, this section provides for the Director of the Budget to notify the Chairs of the Senate Finance Committee and the Assembly Ways and Means Committee of policies, procedures and plans to be employed in addressing the outstanding liability of the Special Disability Fund, including those involving management of claims, and financing. 10 ADDENDUM A A10 Section 75 of the bill amends section 15(8)(ee) and(!) of the Workers' Compensation Law to subject applications for reimbursement from the Special Disability Fund for dust disease claims to the time limits on seeking reimbursement set forth in subdivision (h) of that section. Section 76 of the bill amends section l 5(8)(h) of the Workers' Compensation Law to close the Special Disability Fund to new claims as follows: (I) no claim may be filed against the Special Disability Fund for any injury or illness where the disablement or accident took place after July l, 2007; (2) no claim for reimbursement may be made against the Fund after July 1, 201 O; and (3) requests for reimbursement from the Fund (where the Fund's liability has already been established), must be filed by the later of one year after the expense was paid or one year after this provision's effective date. To discourage attempts to transfer unfounded liability for claims to the Special Disability Fund before these deadlines, this section imposes a filing fee of$250, $200 of which would be refundable upon ruling that the claim is eligible for reimbursement from the Special Disability Fund. To offset the costs of settling claims, and to manage the associated costs for insurers and employers, this section of the bill allows for a financing agreement among the Workers' Compensation Board Chair, the Commissioner of Taxation and Finance, and the Dormitory Authority of the State of New York. This section provides protection to ensure that funds associated with the Special Disability Fund are used solely for their intended purposes. The amendments to section l 5(8)(h)(7) allow the financing agreement to limit the Fund's investments, and allow the Commissioner of Taxation and Finance, who will continue to hold proceeds from the assessment in a sole custody account, to set up such accounts as are necessary to manage the fund. Further, this section provides for the Chair of the Workers' Compensation Board to report annually to the Legislature the revenues and expenses, financing plan, assets and liabilities, status of claims and the amount of the remaining unfunded liability of the Special Disability Fund. Section 77 of the bill amends section 14(6) of the Workers' Compensation Law to apply time limits on applications for reimbursement from the Special Disability Fund by an employer who must pay additional compensation as a result of its employee's concurrent employment, under section 14(6) of the Workers' Compensation Law. Section 78 of the bill adds a new section 1680-1 to the Public Authorities Law to provide for the Special Disability Fund financing through the issuance of bonds by the Dormitory Authority. This section of the bill: (1) provides definitions of terms used in the new section 1680-1; (2) clearly segregates the assets and liabilities associated with the Special Disability Fund financing from all other assets and liabilities of the Dormitory Authority; and (3) sets forth the public benefit of the closing of the Special Disability Fund and the issuance of bonds to pay for waiver agreements and other liabilities and expenses of the fund. 1 l ADDENDUM A A11 Under this section of the bill, the Dormitory Authority, the Commissioner of Taxation and Finance, and the Chair of the Workers' Compensation Board would be authorized to enter into a financing agreement. The agreement would include terms intended to preserve the bonds' tax exempt status. This section of the bill also sets forth the purposes for which bond proceeds may be used, authorizes the Dormitory Authority to issue bonds, and provides the Dormitory Authority with certain powers regarding the issuance of the bonds, to support the closing of the Special Disability Fund. New section 1680-1 of the Public Authorities Law further provides that neither any bond issued pursuant to this section, nor any ancillary bond facility of the Dormitory Authority shall constitute a debt or moral obligation of the state or a state-supported obligation. The bonds and associated costs will be funded entirely by an assessment on insurance carriers and self-insurers, on which bondholders are granted a statutory lien. In addition, it establishes certain remedies for bondholders in case of default of principal and interest payments by the authority. This section also sets forth requirements for depositing the bond proceeds. New section 1680-1 of the Public Authorities Law further provides that the Dormitory Authority is acting for a public purpose and that the bonds issued to fund its operations will be exempt from federal tax. This section of the bill also sets forth the State's other covenants to the bondholders. This section also provides that the bonds of the authority are made securities. Section 79 of the bill amends section 17(1) of the Public Officers Law to include in the definition of"employee," members of the board, officers and employees of the authority for purposes of carrying out section 1680-1. Section 80 of the bill provides that the Superintendent of Insurance and the Chair of the Workers' Compensation Board may each, in consultation with each other, promulgate regulations to implement provisions of this act. Section 81 of the bill contains a severability clause. Section 82 of the bill contains the effective date provisions of the bill. EXISTING LAW Section 15(6) of the Workers' Compensation Law establishes the maximum weekly benefits for workers' compensation at $400 per week and the minimum benefits at $40 per week. In addition, section 16(5) of the Workers' Compensation Law provides that weekly wages in excess of $600 are not to be considered in calculatirtg death benefits. Section 15 of the Workers' Compensation Law provides for a schedule of benefits for certain injuries classified as "permanent partial disabilities" but not for other injuries in the same classification, resulting in a set duration of benefits for some claimants and 12 ADDENDUM A A12 lifelong benefits for others. Furthermore, the Workers' Compensation Law currently provides only limited support for vocational rehabilitation for injured workers to enable them to return to work as soon as possible. Section 50 of the Workers' Compensation Law requires employers to secure compensation coverage for their employees. Sections 52, 114, 114-a and 131 of the Workers' Compensation Law currently govern fraud and failure to secure compensation, and provide for criminal and civil penalties. Failure to secure compensation for employees, for example, constitutes a misdemeanor under section 52 of the Workers' Compensation Law and is punishable by a fine between $500 and $2000, and may subject the violator to certain civil penalties. Section 141 of the Workers' Compensation Law provides the Chair of the Workers' Compensation Board with limited enforcement power. The Chair cannot issue "stop-work orders" to employers who fail to provide coverage for their employees, or issue subpoenas for documents and testimony outside New York State. In addition, confidentiality laws hamper coordination and the sharing of information between state agencies investigating fraud, thus making it difficult for agencies to coordinate efforts to combat fraud effectively. The Special Disability Fund, which was created to encourage employers to hire workers who had been previously injured or had an existing disability, including veterans, is currently financed through assessments on insurance companies. These assessments, which are in the hundreds of millions of dollars, are passed on to employers. STATEMENT IN SUPPORT This landmark legislation reforms the state's workers' compensation system by significantly increasing benefits for injured workers and eliminating hundreds of millions of dollars of system costs, monies that will be passed through to employers in the form of premium reductions overseen by the Superintendent of Insurance. For too long, despite the high costs paid by New York employers, injured workers have failed to receive sufficient benefits. Since 1992, weekly benefits for workers' compensation have been capped at a maximum of$400 per week. Minimum benefits remain at one-tenth of that -- a mere $40 per week. These benefits fall far short of what claimants in other comparable states receive. This legislation seeks to increase the benefits of claimants so that they may be adequately compensated for their loss of wage earning capacity, receive the prompt medical services that they deserve, and receive vocational counseling to return to work in an expedited manner. Under this bill, maximum benefits for injured workers will be increased from the current level of $400 per week to $500 per week for injuries occurring after July I, 2007. Benefits would continue to increase significantly on an annual basis until July I, 2010, when the weekly benefit would be indexed to two-thirds the average weekly wage in 13 ADDENDUM A A13 New York. By indexing wages, claimants are assured that their benefits will not suffer real-dollar benefit reductions due to inflation. The bill also enacts a number of reforms that will result in hundreds of millions of dollars of additional savings. These reforms include: (I) establishing maximum benefit years on workers' compensation payments for a small group of claimants classified as non-schedule "permanently partially disabled," to whom cash benefits would otherwise continue for life; (2) establishing stricter criminal and civil penalties to combat workers' compensation fraud and facilitating greater communication between state agencies investigating fraud; and (3) implementing a variety of efficiency measures, such as requiring fee schedules to manage costs for pharmaceuticals and durable goods. One critical component of the bill supported strongly by both business and labor is a new emphasis on returning permanent partial disability claimants to work. This requires study of vocational rehabilitation and training programs, so that New York will become a leader in the field. This will benefit both workers and businesses. In addition, the bill closes the Special Disability Fund to new claims. The Special Disability Fund is an antiquated fund paid for by annual assessments passed through to New York State's employers. Designed more than a half century ago to serve as an anti- discriminatory tool to protect injured veterans, it no longer serves that purpose due to statutory amendments that allow an employer to recover from the fund even when unaware that the individual it is hiring is disabled, and as a result of civil rights laws that make such discrimination illegal in any case. Insurers, with the assistance of private firms, have become successful at identifying claims that may be eligible for reimbursement from the Special Disability Fund. In these cases, after five years of payment by the carrier, the costs of the claims are paid through assessments passed on to · employers throughout the State. Annual liabilities have grown from $45 million in 1980 to $1.3 billion in 2001. Assessments on employers have increased almost 200% since 1995. The bill will limit the long term liability of the Special Disability Fund by closing the Fund to new claims, instituting a process for settling existing claims, and using financial tools to both cover the costs of the settlements and smooth the effect on assessments. This initiative is part of the comprehensive plan to reduce workers' compensation costs for employers. BUDGET IMPLICATIONS This bill is expected to result in savings to the State and local governments as reductions in costs are achieved through the implementation of maximum benefit weeks, anti-fraud measures and various efficiency provisions. T)le State and many local governments, as self-insured entities, may in the near term experience a modest increase in costs associated with increased benefit amounts. All fiscal impacts of this legislation will depend on the number of State workers who suffer injuries on the job once the bill takes effect. To offset these anticipated costs, the State will continue to pursue various initiatives to promote safe and healthy workplaces. 14 ADDENDUM A A14 EFFECTIVE DA TE This bill takes effect immediately, except that: (a) section 4 only applies to accidents and dates of disablement occurring on or after such effective date; (b) sections 6 and 8 take effect 180 days after the bill becomes a law; ( c) sections 7, 9, 13, 15 and 70 take effect 30 days after the bill becomes a law, and apply to offenses committed on or after such date; (d) sections 10, 35, 40 and 41 apply to claims or appeals filed after the effective date; (e) sections 11, 12, 25, 26, 27, 28, 33, 43, 46 and 66 take effect 120 days after the bill becomes a law; (f) section 34 applies to appeals filed after the effective date; (g) sections 56 and 65 take effect on January 1, 2008; and (h) section 68 takes effect February 1, 2008. 15 ADDENDUM A A15 Legislative Document (1934) No. 75 STATE OF NEW YORK MESSAGE OF THE GOVERNOR TRANSMITTING Report of the Co111mittee on Workmen's Compensation, With Recon1mendations ALBANY ]. B. LYON COMPANY, PRTNTl~RS I 9 ~ 4 EXEl'UTJ\~E ('HA1\1HEH '.l'u 1'hc Lrgislaiurr: Ar,nANY, Jlarch 19, 1934 'fhe \Vorkmen 's Cou1pensution l;a\v of this State has no'v be<•n in operation for alinost t,\renty yrar::-;. Thls 1neasure of social 1Pgi.'i- lation has n1erit<~·d great eon1n1endation. As predicted '"hell C'nacted, it hag clirninated tlie n1ajor difficulties \vhich an injured \\'orkl•r or his dependent~ had to faeP in ord<>r to St'CLll'<:> snn1e money eonqJ('Hsation for injury or death resulting fro1n neeideutx inenrrc in lD2.B de\'i~ed a systc1n to li<:en;.;e the t'<:'JH'C1sen11:11h·es \\'hn could app1_•ar for clairna1tb; unrl :-;1·lf'-insur1~rs in !he~.c H1attnr~. Sinee thC'n lit.tie has hPcn heard of tho:.;c <'_01nph1 ·rnt.c.;. 111 recPJJf ,Yl'ill'S nuotlH'l' t1 vit1 detri1nental aJike to \\lol'kt'r 11nd employer, has devt•lopPd. It relatPx Jargoely to tlH'. question of Jnedie.al eare and treatrnrnt of the injured elairnani~. In nu1u,v instances, 1hil'l treatment an~ front doc1or.'> ai1·cac1y treating the111 have· been by-products of thi:-: con11nereiu lizution. Heretofore the injured worker ha$ undoubtedly been handi- capped and prejudiced in the presentation and prosecution of his claim by the fac.t that substantial evidence relating to his injury is solely in the po&;ession of a physieian designated b? th1: ra J 4 cn1plnycr. Sn1~h a pl1,r~i(,·inn is pnid hy the en1ploy1•r or hi;-; insnr- a11et• 1·arl'il:l'. In 1nany cHSP>i Hi~ t1·eatlnl'llL of injuries ha.') becu1ne r·t·ntPl\'d in a s1null nu1ubt'l' nL ph.y,,Jcli1n,.;, lnj111·,,,l "'Ol'ker~ l:elit'\'t_• soiru• uf tltl'."'t' physician:') h:1\'<' h(•t·uJlH' ''t•tHplo,r··t' or ear- rii·t·-ntindt·tL 11 'T'h(•-.;1• ,n1rkl'l'S l1f'li1'\'t' 1 ltat l i1··i1· t·tai;ii.c.; :1rr often di:~allnwPd ur 111i11i1ni~·.1•1l b1_·1·1111)~<' (il' lh1· l1·,.;ljl!1-,n;r· id' .'1111•l1 physi- t·1;111s. n('l':lliS!' of StH·h t_'llllditio11s. it l1ns LcPll -..;!\'Oll~':ly lll'~'(•rl 1'01· :·.011tv years t.hal tht'. injnn·d \\-1Jrk1•1· ht• ;~·i\'1·11 ,_;(1JJJ!' !( 1"W c'.1nnn1il1er•, \Vith 1lit> t'nll 1;1)nJH'1·;diq11 of' 1lit• ])(·parr.1111·;·11 of J,ahor, rnade an 1•xliau;.,livP invi·sl!~·a1:1J11 nr lliP 1111·dh:11l ;i.-;pt•i·1s of the hn.r and dls('los1'd in its preliu1innry report, \rlii1d1 1vu,..; snb1nitterl 1·0 t11e L1.•.!.d~lntu1·e on IJ,1•hr11:11·.\· ::'.!l, l!J:l2, 111all}' s1•riou.:.; 1nedieal Hbnsrs. Last Yt'a1· f npp(1inh•t1 :1 <'")n11nitii.•(• or ten ernh1ent phy;.;icians, 1·Ppl'(·sr•nf1n!.!.' rh,• :\t·adcn1y of XIPdiciue of >iL'\V York nnJ the .\'Icdi('.al Soviv1y of tl1e Stat1' nf :'-:('\V \'ot·k, 1·0 in1piirc furthel' into tl1('Ni~ abnst'"· 'l'!Ji>; e01Hn1iU:P!', of \vhiidi llr. I~H.!.!{'lll~ lI. l:>ool :H·i.1·rl :i.-. ('.li:1it·11n111 ;ind Dr. t:('l)\'~·1· nai·l11·) ns Sl•(·Tet;Jr_v. tnade u d(·lailed inv{·slig·atl1Jn and study iii'. tile 1111dl1·1·. [t J1;1s ;;uhniitted 11r lll•' a n•po.·r. in(:lndill,'.!" r1'("ll/llll!Plldatirn1s ]'(JI' 1~igi.-d:i1 ive JH'.tion. r :till 1r111L<.,,11Jit1i11.~~- 1lii:-: !'t>p1lrt l1J ,i'0\11' !Jt,Jl!il'ilhl1~ !~1ldi«'4. Subse· 1111r·111 tu i!s l"!'t·i-ipt I f'l'!'1'!T1\d 1111• rep111'1 \·J th(~ [11rlusLrial Con1· Jlli~.;s]o!ll'!' for Iii;-; iL\lil,V and !'l'l'Olt'Hlll,'lldul ion. Th0 r1n11niit1·pr. h;IS dis1·11S..'i1·1d th(~ t"r·port. 'i\'\lh rh11 fndnsti·iuJ (,1()Jll1nissif1!1el'. i\,I) a rc:->ult uf thl' 1·tHlJh·1·ntil1!l uf the t'.onnniih.'•:" autl 1h1: lnd11slrinl Con1- rnisi-li111H·r1 tl1t~ t•1Ju11nit.1J•e r1'1.:on1n1e11dalio11s ha\';' bt•vn sornewlult inodiii1•d and :l h\tt i1H·orpin·ati11g· 1!11•ir .ij1i11t ret·nn1nH•1u.latfrn1s lu1s IH~1:n j)l't>p;11·Pd and is heilt!.!" i1tlrod11t',t:d f.J;' lL•· ··1Jll6id0ralio11 1,f rn1u· Tlnnur:ihlt· BntliPs. 5 'fhe essL•ntial purposl's of the pr 'P~):..;l'd !t1:,rislation are to per1nit the injured \Yorker to have a greater freedo1n in his selection of a physician, to inake 1nore unifor1n the present competitive ele- ment of n1etill l'i'rnain \\'holly liable for tltt• (:(;~t of n11•dit·al trt-!11trn1'nL ~o arg11tH('tlJs htt\'(' h<'!'ll u1ade agnin::.;J J .. !'ivi11g to th" i11j111'1',J ,\·orku1a11 ;u1 :1h'·,i,lut,·Jy uulinlited 1·i,!.d1t of frt•(• sr:h!r•tioH of a physicia11. \\'i!liout ;.,nn1t1 l'(~gulntion thf• «o;.;t. of tnl'dh:ul ('Hl'e to 1he r:1nplo,vt•1· nli.!Xllf bl' ~1·eatfy ine1·p;1~0d. If(HH!e tln~ bill pr·o,·ides for ('.r!1·fain J'(•sl l'i(•l i\lns and regulnti1Jns. rl'ht• \Vorkc•r is lhuited to t\Je Sl'lr1~l.ion 1>f a phy- sici<1n uuthol'ized hy the Intlu::;tria.1 C:ounni.'i-sinn1;J' to I rcat (~nin pensation {~lair!lunts. Physi(·iaus: de:-;iring to rend(·l' ~n,~h l1·,·u.1n11·nt, either in gene1·al praetice or in spceializ:ed fields, uiHy b<• au U1or· i:.r.etl Uy the (Jomrr1issi0Hel') after the invcstig-ation and 1'('t~nn11nen datio11 by the appropriate! medil~nl sotdi:ty, In tlt1• san11: \ray, connncrcial nH:dical btu·e1u1~ n1ny ht1 liee11i.>t'd h.Y I.he ( ~01nn1i:-:»i1111,•1·, after rccornn1enda.tion by a n1edieal or;.;anh:a1 ion ;i;..; to H1rir IHnf'i;:-;, personnel untl C.:({UifHrlc1tL 'l1he Corn1nis.~ioner is ('lllJHnverPtl, after consultation 1Yith file me en1ployr·r . . A. sy.str1n of arbitration of dispnu~d llledicul fpe;-; or (:har.ttc;.; hy Joetors appointed by the e1nptoyer or the iu;.;urance {'.:lrriet· ;1nd hy the 1nec.lipa1·tm{'llt of 'LHhu1· al!d pl:lvP it i11 the h::.uuls of tho.st~ dven11:~ rl'movect J'1·on1 the li:-:;t of authorizrd phy~i1~ia11s and in 11 ertaiH instance:i stth.ic<'trd to .furthel' di:-.eiplilH' undel' lhc }Icdi(•al Prl:letiec A~t. '['he hill nlso a1nent1s the J_.iabnr f.ia\V by en·ating a 1nedicnl nilvisory eo1n1nittee to the l)Pp(1rtlnent of Lnhnr. 1'his \\'ill he a ;,tnte-\ridc eo1n1nittce and 'rill rPpreseut ;.ill elernt>nts of tlH' 1ncdiC'al profesKi(Jn. '['he St'I'vicc it c·an re1Hh 1r will ht~ extren1('ly Yalnablf• to the C:o1n1ni:ssinnt>r. lndnstl'ial Board Hnd !ndnstrial Cnuueil j~l tJip di! l 'l1ntn1ittee ;ind !h<' [H'OPO:\<'d bill rncril. llte :)t'rion:-; eonn:iden1t.ion of your llouorahle [~odies. ;,fcr!ical ah11s('~ in the ad111inisti·atioH of the \\.~orktncn 's Con1pcnsation I_.aw 1nust he eradicated. 1rhc coopera- tion of the nu~dical prnfe::ision ;.;hould he invokf'd. An injnred \r11rking nu1n or hi~ d<'petHlrut.':i arc entitled to the fuH benefits ·,\·~1i1·h the 'V'orkrnen ·..., Co1npensati01i La'IY intended to bPstnvr. IIEHBEHT JI. LEl!11AN 7 HEPOUT OF THE COMMITTEE ON \VOHKMEN'S CO~f PENSATION TO HIS EXCELLENCY, THE HONORABLE GOVERNOR, HERBERTH. LEHMAN rrhe present \Vorkn1e11 's Co111pen~ation l::nv is designed to pro- t(•et the \rorking n1an 'vhen injured, by sllifting purt of thP burd('Jl of iullustr·in1 entially tlH~ pre~ent linv l't'qnires thv PH1pl0yel' to provide prornpt 1nedi1·al trt•atrnt!Ut for ;in i11jur1!(l (·JnployeP fo1· \Vhatt:ver periud t!u~ injury Uen1ands aud to pay liiru t'.!l1npens:1tiuu for the dnratiou of any di~ability lusting niure than St'\"PJJ days. 'rlit• hnv has nut \Vurked to the bt'nefit of the \\'or king" H1;u1 a:--; n·1·!l 1L"' !Jaat[ng· injiu·ed \\'Orku1en. ..\Iet1i(·al st.:1·ri1•.c> re11dercd u1H.le1· th(•1J1~ 1:inj1un~ stances is uxuallv i11ferio1·. Jn otdL'l' lo SL'eure adclition;d i11t'.O!J1(' and to cover lh~ cost of the rebate or (:onnnh;sion, treatn11~nt ha . .;; bet:n nePdl<·~sly pr-oloug~d and bills fur rnedi{:u.I scrviees hav(• beun t'X<'t>~Rive. 'rhe eost of iu.'nn·ant~e to the liout•st enn>loy!''I' h<18 b1•(!!l tlit·tc·hy increased ant} insurant:e rarrit>1·s have bt~fll t111able tn Psti- rnate Ueenrately the aetuurial rixk ~o that they ha \'e lost ino!!ey on \Vork:rnen '.'::> C~ou1pensation insurance. 'rhe- abu~es v.·hich have l'(•:sulted under tlu~ pre~ent la .. \V n1ay Le subdivided into t.host.~ ov(~r \rhieh tho inedlcal proft'.ssion ha8 at pl't''Sent uo t· .. ontrol au11 tho;,.;e dh·eetJy aitribntable to tilt' 1nedieal profc's~ion. ABUSES OVER WHICH THE ~IEll!CAI. PROFESSION HAS AT PHESENT NO CONTROL 'l. 1 Phe hirlng· uf el1eap and ineontpetl!Ht. n1edienl service h,V' iemployt;rs and insuranee t.:arriers. This \VU){ une 0£ the huportant di~elo:-:urr·s of the C'ornn1ittee on \Vo1·kn1l•-n ':$ (~un1pen5utiun ~ippuintf'd by foriner (lovel'nor i~llosevclt. The prat:tit·viee has bet~ll respousible for such n1edical i11eo111petj•nct:->, padding of bill:->. prohjngation of treu.tnu~n1' and rt•hatinK. 8 '.J. Ueduvl'1l 1·!tar1!t':O: hy ho.>ipitah~ in orch·r to ubtain casei:I. llospita!s 'vhic·h acerpt cnn1pensation t:asPs at ;J per (1iem rate \\hivli is l1•ss thau the t of hospit111'1za.tinn n1E'Pt the lr"iss liy di\"i'rti11g fnndt-i \Yliieh l1<1Ye bl'L'll given for philauthropic i'l!J"[)O:-:l'S. ;;, "Lifting." 1,ifting- of C'l'l.-.:.t·s llurin!.!: tlir eo11t·.c.;e of t1'f'<1tn1cnt l1ns la'en prac- 1!1't'd h.r :,n111e in-..;nra1u:t~ co1np<1nir;~ and SP]f~insurcrs, i11 order to ', rr111~fr:r tile palif:nt to a ehC'aper nr lnnt·e favorrd physieian or )iq;-pi1':1l cntd nq!: infrl'1_pu·ntl.r in qrd1•r to s111_•11rp nHH'e favorable Jestirnony at ,r.qJl)'·;P11nnnt l11'arin~:-> befnl'L' thr l)epnr1"rnent of I.1abor. :\ot. only a1nh11Jato1'.Y pa.ticnt:-i but also thn~e hospltalizrrl in com- peh·nt ho~pital~ have been tran:sfL1rrcd at considerable ri~k to the patient. ·l. f~t'l'/Jl's in c·atvHll relationsliip. (a) Carriers hrivt~ 1'r1•1pu.:ntly :dlPlnptcd to prove wr()ngly that pal'ieJJfs. wPrc 11H1lin~n:ring 01· that the injury did not r11sult fro1n li<'i 1· oc:c~upal inn. '!'his injnstirt' has be<•n rnn.'lt AallTlUlt \vhen 1«11Ti(•p.; !1ave l}(;Pn di1·<~(~t eznployL'r8 of the physic'.itlns. ( h) Jn oevasinnnl in...,tanucs, disvases \Vhi<·.h have ocrnrred three q· inorc y1-'1n·s at'1·cr nn i11j11r-y have been \\'ro11gly attributed to r!H.· inj11ry or oe(·l!pation. J\.,\ards have hf!r>!l Tnade h,r lay referees for 1 nlH•rtnlo:-iis. Sl1 JJil1~ l'(HHlition~\ <'ariliorenal clil->ease, neurologi· \'trcsH. 0. IJther legal inju.-;tices. '!'he injurr>d \vork1nan \vho beliPve:> that he ha::; not received proper rnedieal tl'Patn1ent or a fair a,vard of con1pe11sation is pLH_'.,•d Jn an unfair pn.-;ition by the fact that his n1ost hnportaf!t \-,·i11H·Ks. th~ physieiHn \Yho has ~rea.tcd hin1 1 is engaged anq is paid by l'he en1ployi;r or in:-:11rauce- carrier. Also the medical rceords aJ'l' in the 110.sc;e!ision uf the employer or currier. \Yho can !) ultord to hf> l"CfH'e>uc11h•d by ('1Jlll!St'I and by paid n1t'dival experts. Th(' in1pnrtial i1ttihhle of thl' l't'ferce doe~ not con1pen!.-'atc tlie jnjured \rork1nan frH· thf•se di~advnntages . . \llLSES DUE TO TI!E MEDICAL PROFESSION 1. Inefficicut llH .. 1dicn.l lrratn1eut. l)P,".ijlitc the f.'lct that !hr tlliljority of jlljl!J'i('S 11l'(' of Illillnl' n;1ture and can hr il'"il11:d e1Ju1pl·tent!.'' by thP '..!;t'\Jl1,1·::it pr;a·!itinnc·r. :-1·vvrrl.'· injllt'f•d \\'orking IJJ('J1 \\·!Ju .<.,h(111ld l1aYn he1•n rt>l'qn or ·"P<'l:i1lli.1;j- hnvi_• 11t 1iHU'S h!·1'n trt•atecl hy pli~"'"':iiei;1n" in~utl'li:i1:ntly tr:1iu1•Ll iu t1•aun1nti1~ -:111·.~i'ry. 2. { )Yf'l'-t rr~at1uc11t .in1d rn·l.'l'-tliar.~·inµ: . .So1ne pltysici11n-; finv1· "f.'('/l patii·nt:' 1ur1ri• l'r('1p1l'nfl.) tli1111 t!i,· jJtjury n·quir1·d. vnd lia\·\' t't't1dr'J'Pd bill:-; \y!Jj,.h were 1n11t_.Ji hi;.rl1t•J' 1hnn the 1r(•a1'1n•:,i1L \va1·niuted. !L l't'0Jongntin11 of period oi' r~o1np1·n:,;·1t ion, j'>lJysi«ians liav\' r1r't'<1sit1tud!y eu11,c.,pi1·r·d \Villi l!H' i11,il!l'f'd work- in_Q' nun1 Jn nlJti-1111 1·01np1:11s:itiun for h~1n f'nr a !onµ-c·r pnrirJd U1:111 l1is injury '\YHl't'111..::1.1(l. 'fhe t-rurki11µ: 11i;1n is dr•1nyt·d front returning to his norrnat oecupation1 t111d con1pensntion as \vcll as n1edicu.l costs are thereby in(;rl'ased. ;). Inadequate rnedical ti·8tirnoHJ'. Ca.'.:>es nre too oftc·n postponed \vitliout tn~diea.J tcsthnony l11n-in;..;" been taken. rph i::; is due to the faet tha.t physicians i! !"(~ often subpoennerl. to testify nt eornpensation hearings 1vithout rc1nunera- tion ;u1rl at. time<; that interfere \\rith their professionnl \rork. '.\IorPOVt'r, they al'1! often resentfnl and their testimony is therefore perf:unetory anrl inadctj_ 1.u1tc. G. }fedic:al advprtiidug und ruckc:teering in tJrde1.· to ::;et:ur(' c:ases. 'fhc:.;c prn('r.i(:('~ ill'l' r(-.-.;orted tu by :~ornc unt'lhiea! ph.r~i1'.ians an,-] r·umpe.n:-:;atinn elini('s contrnlltd by la>"JTl•'ll Ol' by 11u:-i1~rnpulo11~; ph_y~i(:i11ns. \r1• .'llinll l°f:'fer t1J :-;111:li 1·Jinit'.S a;:.; Cnn11)('nsation .\Il'di1:al Bn1·ean:;;. 'l'he f•llhnving' e.::.:t·e1·pt~ ill'I' frnn1 ilte rrpott of P1 ra1H'('s Pcl'kin::;, fqrtner indtL-strial cn1Hn1i0~~ion1•r iif ihe :)taft_, of :\"e"' l~orli. ; 'Cunspij.~nr)u-.; is i-IH~ prnl·tiei~ or iut l·nsi ve :sol ic! ta1 inn for the 'ht1))ines8' of lreating clai111J111:1. .)fany clinic:) ernp!oy advertising tllstribntors to canvnJ>;s cntployers and post on the ernployers 1 prernh;es cards that are obviously designed to eo1n·ey so1ne official connection \Vi th the ''rorkmen ~s cn1npen. sation. 1 fn addition ,')on1e of tht~ clinics offer 1•mployP1'ti first. aid kits us au indnc<•ment for patronctge. ·' Co1npetitive rivalry bet\VL'en clinics freqnently results in att(•tnptt~d 'lifting' of ca..~cs and there i~ indieation that this eonipf't.it.lon is carried on even tu the t•xtt-,nt of offering induce. nienti-; to !he injured eluilnant~..:i:. '' !::iunll~ of the clinics are inadequately Pquippecl and are 1naintained in a slovPnly n1anrH:'r. '' ".\1uny. espt!einlly those uf the chain variety, are staffed by lo\\'-saJaeied physicians und 1vork1nen, the <:011scientioH8 1·1uployer vf labor, the insuran(:e (~urriers, nrid Hie medieal pr·o fr·s;:;ion. RECOMMENDATIONS L{ecornrnf'ndations 1 to 6 art! de.'ii.itned to re:.r11late 1nedical prac· 1 i(~e tHHle-r thi~ aet so a:\ to prov itle Jnore adequate rnedie~tl and ~-111·gieal {'.ttre for- the inj111·1'.Ll wo1~k1ne.n anti to eli1ninate the many evils of tlte present Ja,v. Recomrnendations 7 and 8 dt'fine the rtH~dical activitic,-s of the insut·unte carriers. I\ecomme1idation.s 8 to 12 are eo1it!erneJ vvith iinprove1nents in con1pensation procedure. :\C<'.01npauying tllis i·eµurt is a t.eutativn d1·aft of the rev!seLl pt·nvisions of the \\'orknt~H 's ton1penHation apt as proposed by I his Cor11n1itte1>. I. IJmited Free Choice of Phy~icinn hy the Employee [t is the 11piuion of .'·nur ('onunittre that the principal a.bus~ :1·~ Lhey :t!'t'eet the \YOrk.u1en ari-1 duP [Jl'in1arily to 1l1e iuanner 111 11 'rhich. n1edic:al service is at present provided and that the-y can be corrected only by granting the injured \VOrknu.1n the right to choose a physieian under ce1·tain lirnltutions and safegunrds designed to assure 2nen1eL·µ·(;ncy. 'Phl'se li1nitatio11s art>- describt:c1 in paragraphs 2 an cruploy<~r. 'l1he l'ollov.,·ing- ~afegua1·J!-{ (re1~01nnH~ndntions 2 to ·l lnclnt:>iYe) <1 re desil--(Ht'd to a~sur~ the \\'\Jrkrnan iuHl QmplDyer of eo1npetent 111edical ·~t~rvi<:es and Plin1inali> tltt~ ahuse:-i \rhich havt• d1~velupe-d under tht"" }'H'('St!llt law. 2. EuroUmcut of Physici:.tns for Co1npcn;;ation Work In order to £:stablish adeqnate n1edi<~a1 sufeguarir training and their qualifications \VjtJi the lllCdit'.ttl society or the county in whieh they reside or with a board designatl~d by the county i::ociety. \V11en i1ui.king their applications for cnroU- na~nt they \Yill agrf'e to liinit their professional activit11;s under this a(:t to those ~ouditions \rhieh a general pruet.itioner j,-; com- peLPnt to ITPat, or in th1~ ca<:>c of sµcciaJists, \vhieh lie within theii· ~pec~ial fhdd. 1l'Jif,; reqUifCIIlC~llt Of t'tll"Olhllent as \VeJl as aJ1 (ither jJl'ovisions of the proposed aet ine!ndes physieinns t~ngaged in physi-0tht~ra.py, X-ray and other diagnostic Juboratory work. rl'he nH'llieal so('iety ur tht~ board de~ignufa~d by it. is in t·eenmrnend to I lie Industrial (~on:1nrissiu1H!r that the• physh:ian be autlJorized tu render inedical eare nnde1· this :1ct, auJ the reeon1nH.·ndation and the certificate of enrollrnent 01· .uuthorizrttion \\'ill specify the eharacter of the 1nedieul r:are \\'hieh he is lfualified a.rid autho1·ized to 1·ender. It s!totdt'S \Vheneve1· the c1nploy''" t'Xt:rei:-.i•s hi:-; ri~·l1t nf f'l!Oil·e of p\r:-..i- cinn, 1bt· e1nployt:'r or J11i;urance i:ilrri<'l' u111;.;t. liHY1' th~· ri;..rht. to have 1-he patiet1t exarni11t•d pPriodil'11l!y, either ;d thr: oflii«· o[ thoir iuedieal advise1·. if the pa.ti1~nt is a1nb11l11tory. or at his h(1Jllr' n1· hospital or ot.her place rl'H~onabl,v conyi•nient to the Pniployt't', 't!I order to proteet then1sel \'t~:. against undue prnlong·ation nf lT1'nL- n1c·nt., inad('qtu1te or f'anlty tl'!'atnH·nt or ol'IH'l' 1nt•rlical ;i\ntsr:-;. 'l'lu'rn are O\'.('. lif1in.!.!:'' is jP·ti- !lt1d in order to JH'Olf'l.'I. tht• injprr•d \\·ork1n:111 fro1n in;1det i11n lrl~s Of H conrlition w]1\ch 1n\ght pn:judiCf.' tliu patient\. f'li<1n1•(·~ or !'l'COVC!',Y Ol' !'('.-;ult \11 fill irtJ'['('ClS(' ni' his di~;d;JJity. llndnr .-:;Ul'h ('Xi~cption;il i·in·111n>.ttu11•1>.-; flH: crnplnycr (JI' ins11rai:r:" vat'l'i<•r is privil(·gndin~ ph;;·siei11t1, wlief]H~l' c·ho . ..;i'n 1>1·igi11;1llr by L'll' 1·n1p!oyi'e or by t.he Prnplo,v1·1· 11r currier, to <11n1f'h1~r 1·11rolletl ph'i:- sieinn (1) if the l'J11Jllc1y(•r 01· C'.lU'rir•r 1·.ou:;.i(ler;-; that tlH• intr,rr..;L of lht: patieut. fl('CPS~;itatus i he L1'<1n'~ fr.•rred hus the right tn rPgistt•r hi:-; (•omplaint before :in arbit1·a- tion l.Juard des ('.IJUnly tncdir-al S(H'.iPly 01' or the board designated by it lhr• eo1n1nissioner \vill iss1.rr• certificate;; fif enrollment to riualifiPcl phy~itianx \Vhk:h \vill speeify the char- acter of 1nerlical eare \vhie:h the physieia.n is authorized to render 1n:ider this ae.t. The <'fJUHt,y 1nedieal soci1't]e;.; or th1·ir board~ -.,,·1U fuuetion us the L'nct-findin~.r 11µ-en<:y on prnfe!:i~ional conduct nnd profe:-.":Sionat cornpetentc [ol' the 1:ornrni:-;...-;ioner anri \Vill be 111utlogou:5 to the shnilar ('.OUHnlltee:-;: of thn bar as::-;oe:iHti(111:... .A.Jtrr invf'stigation and trial) the .':\n1•ic;Ly or its dec;i~·1u1ted boc1rrl rna.v rE>cornmend tn !he eonunissioner th<~ ten1porary or pc:-1nancnt rt~n10\'al frorn the roll (Jf a phy:.;ician "'hurn it find::. ;:tllilty of a breach of prnfessionHl fir ethical eond11ct, rrinlpractier>. profes~ional ineompef-ence. ()r an.Y infrnet.ion nf i.he pr1lvi:-.ions of this act. A physician w-110 h11s not het•n 1:nl'Ollcd or \rhose n:in1e has been rPn1ov(·d fl•o1n the roll lJy the ronuni"sioner \Till not be eutitlt~d l.r1 payn1(•nt fro1n thr~ eu1ployer f!)l' the trPatnH•nt of "·orknH'n for injuries aucl :illnesses arisin:..: ont of indu:~try, exc('pt for e1nerg-encies. - lnfl'ilvlinn:.-. nJ' fl1e ~·>lu ·;1liPn L;i\1· \rHJ lH• ri·fel'rcd by 11 C'.01;11tr .\l.1·dical 8o~it'l.y (II' hv I]](> !~0111111ission«r to !lie co;Hn1it(f(' q;l Clri('Ydicnl lHU't'ioual c·n111p~trn1·p \\·ill ht• dc•li_'g'at1•d in Lu·;..:.\• pnrt 1n tl1e 01''..!:IU1i7.l't'l Il)edi<'al profc·.'i~ion. 'l'hl' injurr·d \nirknian \Yill bf' li1nitc•d in hi~; l'.hfJi1~r_· to physieians ('1IP<1hl1.: uf treating lrirn for hiH parfiPnlar di:.:ahility. tfi<• e1np!0y1·r:> anrl in.snt;tnc.(• car1·i1•1'!4 wiH lie· prolt!('1(•d il!.ndnst. prnfessinnal nhu:·;es.. and u1i.-.:r·Tupulnns or iIJC'nn1p(·rcnt f'linil'"> will he rradic:ited. 5. Stundnrdil'.afion of ,)Jcdici:d Ft'.f'~ i\'11_·rlil';d 1'1·1·s fnr \·;u·ilJU:.. t_vpl's of indo;.,tl'i;Jl ;H·ei(ll!Ot:.; :ind itl.n(•:-;sr~ arP to bP fixe>d fot· rlH· :;.i1ate hy the ('orn1ni,.,.siotH'r. iiftl:r fit> lr;t<.; l'(·q11'._'sl1'd t!u• .\fi'.tlicni ~n1:irty ()f lhj• 8!at(' of :\f•w \-ork to snliff1it· H sr·h1,dule of f(·r·s wliir·h iJ d~crn.-.; fair and }Hlcqnute ;n1d liaB givPn othur i11t01·1~:-;ted purt'ics an npportunity to L'Xpre&.':i th1:ir vif'ws. Thesi• fe(•s a1·e to apply ;1;.; minimun1s to all physiefr111s 1rPatin!-!: rorHpt'nsatinu (·:tl)e:-;, \Vhethcr chosen by thl~ C>ruployec or b,v lhe t•111ployer. .A ~iruiJar ,-;chedufe of rnedical fPc.-; \\'as established in Ne\V 'York Cit.y \ritltin the past tlro years by agret-menL het\vcen t.he l\'ational Bureau of Ca.sua!ty unrl Rurety 1Jndcr\\1rite1·s nnd the <~ount.v soeie-ties and ha..5 hccn mnt11nlly satisfactory. find~reuttingi rt>IJHti11g1 split.Ung or rcfnnding of 1ncdicnl fees \Yill he t•lirninated by n1aking ;.;ncll practice."\ jlJ1~_{!·aL Advi~rtising nr soliciting rnedieal \\'Ork nnder this aet \vi\l be puni:5J1able as :t 1ni:i,denH:anrJr. 6. ,\rhitrntion of Oi:oputed BiUs for :\lt'dkal Scrvil!es Dispnl('d bill.<.; fr1r n1t·dicCtl -'iel'\'i('('S arc to b1~ .-:illh1nitled fnr adjustnH>.nt lo nn arbitration cnrnn1ittet• 1Jf funr l't~prr:senting Lhr. ernployrr or c_•arri1~r and thf' physieian, .:\ nlajnrity l'Ott~ of tlH• t'Olllffliltl'(' is to bf+ COllCJHSi\'('. rn fhe event Of Pqn11J di\'jS(OI1, the cnrnniiltev xhall ('hoose a ~i11µ;!e ;-a·bitt'r \Nhoi;p dcc·l:-:iion \rill be contl11sivP. i\ .'>irnilar practiee 1vas iusl itittcd vulnntari1y t\vo years llg'f) by the !\'ationul Buteau of Ca.-.;11alty and Surety l:ndPl'WTitcr!'i Hnd the- 1.Iedieal 801~ieties of tl1e l'nuntirs of .\'c\v York. the 1-~ronx anct ICing.~ nnd lias be!~n n1ntunlly :->ati!-ifnctory. 'l'n 'elute nbont onr~ thonsand (:ontt'.sted hill.-: have bei?n referr1'd for arbitt'ntion. of \\'bieh a!n1o~t fi.vt' hnndred \YPrr 81.'ttle-d by nn1tual agre0ment before fhe hearing. Every cine of thP re1naining five hundred cases \ri.~re ,,,.U lt?"d by unaniznnlli-i a;zrcen1('nt. l)f the arbitration <'on1n1ittee and the deci$lon \\'as a{'i~eptcd by both parties in all but ·on£~ instance. 14 7. Elin1inalion of l\lt•dit'al Practit·e by Jnsnrnnct~ Carrit~rs Thl' invPstignt.iou iu,li,,ale . ..; d1at .">\.>ll1e iiu;nnlui.:e earrier~ and even the ~late I1u-;uraru~e l•\tnd havi: been g-uilt.Y of the practice of attcrnpting to provide nndnly cheap rnedieal <•arc by under- cutting and untlerbidding. linnecessury lifting of cases :ind a bureaucratic relnthn1ship t() injnreJ ,\·ork1nt:H anll physicians have arout1ed u111eh criti\:i.s1n. 'l11le n1eJit·.al nuth·ity or thr Bta.te ln)j\ll'llllCL' I•'und and of all insu1·ance earrif.:'rs l'Xl't~pt .~elf-i11su1·t1 d v1upluyer~ should be lirnitL1d tn the 1uai11ti·nanvt· uf a staff of t·on1peh.·uL n1edieal inspectors to 1'X~nni11e (~u111p1~n~:.a1 ion l~:t:-.t•,..; periodieally 1\'hile undc•1· 111t•dical or surgical ll't~atine11t a111l 1J1 l'Ppot·t. upo11 the advqoru:y of tht> nlt·dical v~ll'l' and l1th(·1· n1at t1•1·s ndativc lll tliP 1nedieal cuuduct ol' tllf• ease. I! is also rl·1·on1n1t•1Jllj·d tlia! t.hv 11lt·di(' been f.li~t:losed by the rctcut J"j~velations involvjng Qne of the l;irgest of the :-;cll'-insurer::.;1 the n1unicipality of the (;ity of .Xe\v York. Furtherrnore, an injured eruployl!e \vho tnuy have l't'USOH tn believe that he is not r~'.('.E'iving aUc\1t11i.te (!are fro1u a. self-in.\:au·~d c1nployer enn file a tornplai11t '\'ilh the Labor Depurtn1e11t only at the risk or losing his job. i\nd his t~han(!es of proving the inadequacy of u11~tlicul earl~ ari~ redueed bv the fact 1·hat the n1edical recun.Is arP in i.ltt~ pos.•a:ssiou uf !.he def0udant 'vho t~an affurd to lie repn:s.ente self-insurer. I '.ndf'.l' t!.if" pt·opo!'.i~d unH~ndrrH·uts to this aet. (~rnpluyen:.; \Yho are . .,1d [-ins11rerl{ 1nay n1aintnin a li1.:t~11:->t'L\ it uutl 1uay choose his O\Vn 111Pdi<•11l attt~ndant ir he desi1·Ps, s1il>.il't'.t only bJ the limitations tleS('.l'ilH~tl in paragtapli.N ~ and a or this 1.'Cport. It'. the self-insurer 1naint1.1.i11x un <~!YiciPnL stuli'1 lh1~ i11jurell \Vorlnnan \\'ill find it tidvantag·eou.~ to t•ontinul' to usu tin~ 1ne rr~ferel'. .An appc•cll frn111 his decision!-> eren on 1nedi(:al ntatrer:) i.s i·t~.vie\\·ed at pr,~seut by the I ndustriu.l Boa1·ct, all 1n1•1ubers of svhieh arc la.yn1~n. re1u~ follo,r- ing \'.hangl'X in prul'ed1n·t' are tht>rt:fore proviJed in the proposed ll!•\V Ju\Y. 15 'I'Jie prirnary deter1nination of disability, the dcgreC' of per~ eentage of disability and ({Ue~tions of causal relationship will remain the duty of the referees (or the Industrial Board) but whc•n in doubt the referee will have the right (1) to ttvail himself of the opinion of au impartial expert or (2) to refer the case for decision on n1e takPn tn !:ht· Industrial l3ourd. JO. l\l(.•dic:1l AJ\'i1'ory and Appenl Doard \Ve nl'ge that all ob"'1~u1·e ur difli1:ult questiuns inrolvin.i:r 1nediea] fact~ s!toulrovisic1n i.e.; u!so n1ade for appointinent of the -:\fedical ;\dvisory and 1\ppeal Bo11rtls hy the t!onnnissioner jn_ tht! l'\'ent LlH1t u county 111P1l'teal suc•i1d')' ~hould fail t.u 111ake 110111inations within a. l'l' \rork of tlit~ fndu:-;lrial Bo;n·d is to ,'itHtH! t'Xt0nt 1'0lll'(~rn1:d with lllPdk•.al problCHIS it. i;::; l'{'f'OHlllH~!Hlcd !:hat i.l!. Jeasj, ullP ()f it:; llH"n1be:rs bt~ a physl{'.iau. 12. 01her Chung'i!S in Compt'nf.lation Procedure ()th(~f' (·hang-es in proe(•t1ui·e !1Hdude: l. f'uujslnnt•nt for rebating, splitting or refuntliHg of fees ;:ind !'1,r soliciting or iulvert'ising for \VUrk, pr;H:1it'.l'8 w!ii;·li 11:1\'t'. h1 1t""1\ rtsponsibl{! for nn1eh t}f tlie r;H·ket.e(~t·inµ:. :!. l:lrovi-don fol· Lite lit~en:-;ing', iu.spt>ction and rt•g-nl.:1Uou tJf eoin- jJt·nsutiou Jneatiun f:ases in 1nunieipal, ('~ounty and ~tate hospitals, ·L Regulation f(~quil·ing a phy.'::itian to S(·11. 1legnl11tions expediting heal'itq!.<: Li:·fu1·p rt•ff-'ri•f'R i·ed11r·ing- llie f>i'qllPlit:y of pustpune1nents. 16 Tl1" < ':1!'1i:1ilt(•1• i.-: \'!'ll\-i!l('1'1L :is \\Tl'(' if:-; ]ll'('d1"1·c•.-;sor.-.. iu th'! !11\·1·~1i.~.11i(Jn of 11H: 111;,·r.1liu11 ()f th1' \\'1Jr!,11>t~11':-: l'o111pe11sa!ion Law. tliat 1h(~ pr<•sc.1 111. la\\' :-:hon!d bP ;tlil'recL ThP propo;-;pi[ chringe."' iu !iJ(' l;n\· \vliir·h \V1' nn\V .-;uhrn!t. r(·pr1.'Sl'HL the upininn of the (_'Orl1tlii/l(~t· ;tf!<:J' :iflld,Y nf iJH; n[d law illH1 jj-s operatinn. rJ'he ()11fil- lliittr_•C ht>!ic•Vt'S tl1at tlH'S(' ('.han_~·c·s shonld rt-suit in the C>!irn!nation of nntny of. tht• f11nlts in the pre::;(-!Ut J;n~'. Tt I'Pl'Onunencls, hrnvever, thnt <1 1•01n1nitl'(•e be appoinh·d for a perloll of t\Yn yl'ars to observe the operation nf the r1.•vi· .. ,i~d la\V ,rit.h a vic\V tq rccomnH•nding f'nrreetion of fHults \vhieh n1ay be revealed by suhsC'quent experil'BCL'. J)1c F~t;(;1-;xr; IL Pon1,, ('!1rdr1nr111., JVcu1 l'ut'k ('·i:ly l_)1t. Ui.:rn,ur: J~.\l!:tH'RIU \V. fJ,\S:f'tUH"r, ~Vr'11r l~ark C'it1; f)f{. J),\\'lf) .J. f{ALl::"KI, .r110 'York (!ity J)1t. 1\. V. :-;_ fJ_\'llBr:r;,T, cYtuJ l"r1rk ('it-y f>H. 'l'uo.11.\;-: ~\J(·i,Jor..r>1acK. IJrookfy11 f)1:. ('1L1.J:r.1-::::; ./L .JicI(1.-;:~·a1t{EJ~:, ,\~i:u.J l'ork City !)re 1'1• 'J-L .\1ILLE1', ~H .. f__'fi('r/ Du. lL'\!\ltr II. T1trcK. D11//alo f)~;, f''1tr:1Jr:l:l! .. K 0. \Vr:'l'IlCJ:I::LL. ,'-1.yrr1cusr- [J1·cc111/Jtr ~r_;, 1:1:3;3, 17 MEDICAL AID AMENDMENTS TO THE WORKMEN'S COllIPENSATION ACT l. (H) rrhe en1ployer sJudJ b(~ liable fur tJHi pnyll1t•nt llf tli~~ expenses of rncdical, surgical, or other attendance or treatJ11ent., niirse and hospitul ~e1·vice, mctlirine, crutches, and apparntus necessitated by the injnry of an employee, for such period a.IS the nature of the injury or the proeess of recovery nu1y t'f'qui1·e. j_\11 fpes and othrr ~harg-<'s for s1u~h treatn1ent tind scrviee::; sb
enrr1n111niiy for :-;indlar trPat1nent of jnjur1•d p('r1::ion.-; of a likP standard of Jivin!!, 'I'hc cominiss:ionPr shall prepare a s<~hPdule for the 8tat~ of 111iui- 1nun1 rluu·g~s a.ntl fees to he t of the illjllrPtl 1 1 1nploye1~ 11<'1~e~sitate.s tl11! ti·ansft:l' 01· (~) if lh1• µh,rsi<·ia11 has not lwt'n :iuthot·izPd tu t1'1 1:ll, itt,inri:d t'lnployei•s 1u1de1· tlii.<.; ;J('1, 01· (:ij it' he hus ll(!t been <1ulhorizt>1l undtr ! hi~ :u:t Lo Ll't»tt t!ie partiP.t1ln1· i11j11ry ur 1~011- ditiou. .\.n t~uro!lcd pliysic•iun frn1u \\'hoin 1.hl' (·asl' ha;.; been tra11;.;f1'l'l'(~d sl1alJ ltave the ri~hl of app1•1tl to an nrhit rat inn eorn. n1ittt•1• ns provided i11 paragrnplt lJ of snLdivi.sion 7 and if ,(,,aid arbitntt.kin 1'.iHn1nitt1~e find;-; that llH: transfr•r \1·as unt. au1 horized hy tJ1i:-i st:(~tion, ;.;aiJ t'ntploy(•r shall pay lo 1 l1e physicinn a stun 1•urni·d by tho physician to \vhon1 fhe care of th1• illj11r1·1l (:n1plo,\"t'l' ltas bceu i ransft.•rred. nr :-;nrd1 pi·opor1ion uf said fi·e as th1· arbitration eo1nrnittc•e shull d1·1·1u adequ:ilv. (d) :\o tlain1 for Htl'dh:al 01· sut'J.dt:al tl'(•a\tlH'llt shall be villi<~ nud rnf1H'C't>ahle, as ag-;linst sllt'.h cn1p1oycr~ unlt~s;.; \Vithin forty~ pjglJt h(IUl'S fo!lo"'ing th<~ first treatrnt>nt the physi1•.ia..U giving' HllCh tl'eat.nH'llt fur1iisll to the ernplo.vci· and the indust1·ial c:onunis. siont•r a prelirninary uutit~e of SU(·h iujury and treatment, and \'.·ithiu twPnty days tli1.•r1~afL('I' a. runre cuu1plet.e rtq.HH'l on a t'ortn J.1rv.s~rib1~d by Ute industrial eo1u111is:-;io1H~1.. '11ht~ iudustrial board 1nay t'.X.ttlse the failure to givH );llvh notil~es \Vilhiu the (·iJstinµ; 0111\'c tlian $10 ;.,Jiall ht· valid and enfor\•.eable, as against suvh e1nployer_. unlest:: such special :>t"l'\'ice,..., sliall l1ave be~u authorized by the t'rnployer or by the 1·01111ni,,s1oner, CH' unleHs s1H:h authorization Hhall huvf' b~en 1lu 1·1:aHonably \Vithhe!d, 01· u11Je;.;s sneh special servii·Ps \\'ere l'{'qui:·ed in an en1ergent:y in \vhich 1.h•lay fo1· the purposp of sePur1ng- auJ"lu1rization nti: . .d1L pre;jndiee the patieut's ehane(•S of n~t·overy ur 1uight result in au jn<;reasc in his disabilty. 3. (a} 1,'he con11nisslunl~r 8hall 11pon the t·ecommendation of the nu•dlc::d .-:(n:ie1y or i•ach 1·u11nty ur of ;i board d<•signated hy such ('ouuty ;..;ociety aull1orizC' physie.ians li1~cu::1f•d tn prat>Jiee tnf'dit>ine in lhe State of Ne'v 'York h°) rt>nclr.1' r11edir,al care uJtcler this Hct. If \Vithin sixty dnys after the enn11ni::;sionrr request~ ;.;u<'h rceorn· int-'ndntions the mr.dieal ~o(•.i1•ly of :.iny eounty fai1;1:; to ~H'l, 01· ir t JierP is no 8Uch i:iocip.f,y in a <~ount-v, the «01nn1is:.:ion<--'l' slu1 ll d"~j~ nat-r• n board of thrt•e fJUalificd phJ:sicians, tne1nbcrs of t lio 1uedie11l so1_·iety of that county, 1Yho shall nHtke the rt~quested 1'1'e.on1- 1nenrlations. No :.,nch authorization shall be n1adn in the absene" nf rreorn1nrnclutinn of the apprnpl'iate socict.y or board. Xo pcrl'nn ~;hall rellder inetli(';nl enrc under this act ,~·ithout sueh anthorlzrttion (If the commis:sjonrr,. ['rovidrd, 1hat: (1) e1nrrgency (fir.'it aid) nlf1dieal CH re tnay be renclt:l'('d under thi~ act by any physlci:u1 licPnxerl· tfl praeticc- medicine in the 8tatr of :\'1!\V \"01·k ,.,,i1hor~f a11thoriiution by the co1nn1issio11PI' 11udf~r 1hi:-) srction; and ('2) A lh·.( 1!1St'd phyxlc·inn \\'ho is a llH'trJhl'l' or H i'(J!1~1ill11/r'F! 1nr·dl«1-ll st;1U: of 11'1'1'd fllll"~!· physiotlu,r;1pi~t or otfH•J· P\'l:son l.raini•d in lahon-dory r1r di;1.C!;11 1·.".:1· t•'ehnil'.s wi1liin tlH! :-;c!Jp1· of :-.u1:lt JH'rsnns' .-;pC('.ializcd tn1i11i11g und qttalifications. 'I'lii.-; ;;up<'l'\'if:iion ~hn!l be c\·idrl!ced hy s"1!.tn•·d n•eords of insltlll'.tion:-; /'ot• tri•i!lfJll'Ht. a11d .'li:!flf'1l 1·~,<·nnl;-; nf Lf1*' pntlc·nt's t•nndi!'ion and prngTf'>;~-;. l{Pports of such fn·;if11H'11f. and supervi;.;ion .'ihaH bt~ n1ade b.v StH:h phy.'lici;-ru to 1 he 1·01nu1issinner on xuch for1nx and ut !-Hlth tinH•s a:-; ! he c:ouurii~xioner 1nay J'(!f{U i L'e. ( b) I\ person l it~en:->ed t.n JH'l:ll"Lice ntedicine iu !.11f' St,;ih~- of .\fe\V rork WiJO is dPSJl"Otl.-. of being authorized fo J'etlrler ITlftd hy it, if it, de(•1ns l:}1J(•J1 li1•c•nst-d physi~ian duly qnalif11•il, s!i~!IJ l'('(•n1ntr1('lld to th0 c·rHn1nissionPr that iilH'.h physieil' und<'r thi.-, act. J\ liti•nsed physici1tn niay JH·c:-;r:nt h) 1'he n1editd! -:ociety or ho<1rd 1:viden(·c>s of additionnl qualifications at any tirnr nihst'queut to his urigil1al npplieution. ( c) Laboratorie8 and burean1; engaged in physiotherapy, .X>ray utd other dia~nostie d "·orkn1en under his act .shall be O\Vtled and operated b.Y qualified physicians tluly tllthorized untler this at'.t. 4, (a) 'l'hc 111cdi1.:al society or board that has rccorn1nended the authorization of physicians to render 1nedical care under this act shall investigate all (~harges of profc,,i;;sional or other misconduct. hy any anthorized physieian or by any compensation burean licenst•tl us hereafter provitled, and shall report evidence of such 111iscondtH:t to the eon1missioner. Sneh invPstigation u1ay be rnade by the boilrd of an ncljoining l'onnty npon the l't'l{Uest of the 1ntnlic:nl sueipty of the county i1t \vhit·h the al!ug«d ndscondnct or infru('tion of the act Ot!Clll'l'l'(]. (!J) 'l'hc co1nnti~sio11t•r ."\hall l'(·n1ovP ['rom the !is~, of physi('.ians authuriz1:d to l'Plldt!I' IUPdieaJ (';tl'f~ lll!dl"l' t!1is ai~t the nan1C of a!lj' physician who (1) h~1s bt·r~n i.,rniliy of professiunul or other n1iseo1Hlllt!1 or in{'.onipt•b.•n(~y iu f:oun1•t·tiun with 1nt:die11l servie1•s rendered uutler this l'!'l'.Hfllllll'lldation of tlu~ rnndi<:al so<:iety in the county in whic:li his o!'fii:e is lo~ah•d or uf tlH~ \Juat·d designated by it; or (:J) has f'ailt~d to subn1it full a11d truthful l'(~ports 1·equirt>d tr> be 1n11d1: hy hiu1 to tile eorr1u1ix.'lioner i 01• (.!) Ila .. "> reudt•rPd 111ctli('.;tl servir:es und(:l' this aet f'or a f\:c h~ss 1hat that fi1H:d by the corunilssio11•·1· al{ the 1uini111nni rate ill his (.'tllHlllUJlity i 01' ( J) has partiej pated in the divi:'{ion, transft>rence. assignment, 1·uliating, ~plitting 01· refunding of a fl'e for n1(•dic•.al (~are 4ndee 1 his net; or (G) has solicited, or has employed another to solicit, for himself or for auother the profes~ional trcatliieut, exa.min.ution or care of nu injurecl e1nployee in cvnnel•tiou \rith any elain1 under this chapter. (<'.) Nuthing in this seetion sLull b~ construed as limiting- in any rPspect the p1nvPr Dl' duty of the cornniissioner to ilTvesti~Yilte instanees of 1ni~er;ruluct, either before ur after inv!'stigation by a rnedical xouiety or bonrd a:-; ht•r('ill proritl<'d, or to revoke the :iull1orizu.tion of any physil·ian or tltt• li('ense of nny eompensatlon u1edical bureau that he n1ay dete1·niine tu be guilty of sueh n1iseu11d1tct. 5. (n) rrhe (~ornrrds~ioner 111ay, up<1n the i·econ1n1cndation of the n1Pdieal :-:.oeiety of eaeh ('!}ttnty or of u hoard designated by such c1111nty society) antllorize a11d iiet·nse 1:01npensation medical bureaus. 1nu.jHtainr>d by (1Ualifiet']q-,e iH full tJ1e uattrrf'. uJ' tlif' pt:rsnnnel Ulld t~quipn1ent 21 rJJ sucl1 ln1r1..~au:~. Xo ~ueh authorizu.tioH slu.tll be n1ac1l' in tIH: a h~Cll('t: of l't'{'{Jllln1endation fro1n thL' iolH'J' or tl1t• 111edi1·:-il SOt'.iP1y ol' 1ht· (•\JUn1.Y i11 whit:l1 Sl!('IJ bHl'1'illl i" ]1,c;1J1 1d; Hiid (3) pa_y 1o Jhv (•11llnnisc:irnJt'r :1 Jit>i'll:~L' ft•t• ul' f\Y{·JJly-fivt• d(i/- hn·s pt•i· a1n1111u for 1·tH:l1 i'.t.HHJH~l!Natiun bt1n 1:i:1. '1'111• f'1•1•c..; su ('.O/~ le(·tcd sllaJJ b1' used fqr dlcl'l'il,Yinµ: 1 he i>~;p1•11:-;;· 01' li1q•11~i11g und iuspp1•Li11µ: Stlt~ll bnrt'HUS. (b) 1 rhP co1n1nissioue1• shall revuke th ti li(:e11,,,1• of UHY l~Ol!iJ.H.:n satiou lnelat(· of -~ueli physieinn . .JJo,,pital.':> shall 110! he (~nti1l(~d 11J ri•('(~i\·,~ 1hc 1·p11n1t1i'ra- tiun paid to pli;rsieir1n,..; on tht•i1· shd1' for HH!di(:;il a11d ·'-'llr:··i,·;tl St•l'ViCt'S, 7. (a) tJ111ess "'ithin 1hii·t;y da.r~~ af1t,1· ;1 hill l1:·1-. b(1 (~!\ rr·11tli'l'i'd ftl till' <~n1ployt~r by t/1e pl1ysi1d:n1 01· J1ospil<1l '\l1ii·l1 Jtac. t1·1·u!1.•1I an injured e1uplo,r1•l'1 s11t•.h c111ployt•1· sl1r1ll l1a\'i~ nolifli•tl UH· 1·01t1- 1ui:-;sjo1101· .and .sueh phy.-;ieiun 01· ho~plLd i11 \\·rj1j11.'.!'. tlin!- :-;uclt ernployc•r deniuuds. an ilnpurtiat cxa1ninu1 il)JJ oJ' t!H· fnir11e.":i uf' 1l1t> an1ount (•.lai111t'd b,r fH1clJ ph,r"it~iun ti1· ho:-.pi1:d frir Ji!~ {JJ< ils :-.•,.rviees, ttH• rigl1i- to KU<·.h nn i1npnrtiu! t'X11c:J1 v;du(• :·dudJ bt• dt~<·ided Ly :111 arbitraJ-ion t'.011in1it.t1•(· c~c1usisti11i:.~ o!' t\\'o pl1yHiciu11.s d(·:-:i; .. n1nt1·d b,\" the- presiJent of tin• llJ1•di-(:ssiv" t_1J' in:1d,:qualc ur prouurl•d by fra1ul. 1u U1c <'\'t'lll of (•qoal divL.;,;io11, tliP l'.onunii1t'!' .-;ltnll 1-:eh~ct a fifili phy!<::iit•ial! 1 ttlsu n 111e111bt•r of 11Jt• j.J1·dh'id ~ocit•fy ul' 1!1e St-ah1 of N('\\' York \Vhn'i1' dccis.ioll ;.;h;1]/ 111.: eo11,·.!11;.;i\'1>, (c-) 'J'lH• pa1·ti1·K in nl'hit.1·1tJin11 pnw(·1·di1n~-:-, 1111d(•1· U1i:-; SPvlin11 ~.tiall each pay tu 1 h«· c·o1u1ui:-;si11111·1· 11 "ll!Jll 1•q11::I to li\'1' JH'l' t'1·11L of the ;iward, or a 1nini1nu1n 1;f t\VO dolhlr;-:;. 111 ro1n sunu; ~o 1'oll(~ctt'd the l·nru1nis.'liourr shall pay to C'nch 1nr1nber of the ;1rbitration co1nniittPe a Pl'l' die1n fee of ten doll<-1r:-:;. ~. (11) Jfo:-;pitnls uniintained wholly by public taxation n1ay I 1·l1 <1 L unly enH'l'~enL\Y ('re is not avail;ib}e a lHispital ol"ht·r tlian a hospital rnaintninPcl hy t<1xJ:1tion nor l'hHll it pl'(:\·cnt nny n111nicipal, county or state ho~pitnl from' rt-tn1lerin;i.· 1nedh·;-d s1.'rvic~t·;., to e1uployL'P;-) oi' sta:h hospital. ~) .. \ny person who xl1all tnakc it a hu~iness to :;olieit. 1·111ploy- 11H'lll l'or any prrso11 anthorizl'd by this act. to rcndt'r n1edi1•1t! care 1r1 ;111 i1ij11red <'n1ployi'I~ in ennnpc·tinn \Vith any t~laim under t.l!i.':l 111:!, Kluil! h<' ~.niil!y of a rriisd<~n1eanor, t'XCf•pt that. the pn1ployrr ~,li;dl have th1• !'iglit, snhjf'ct to rPgnlatinns prc~scribf'd by t.he i'11111111is:-1io1H'l', to 1·t-eornHH.'IHl t.o thP injured <:rnp1oyep the namet; of (~nrn]!t>c{ pltysi1.~ians 'vhom /Jc bcliCVt'S to be· ('(!UlpCtcnt to treat hiln. 10. (11 J 'I'hP prirnary dch·rtniuation of te111porary p;1rtial. j('lllpon1ry Iota!, pf'r1nn11c11L parjial a1HI JH'rma1H'11t tntal f" thi~ d(~g'l'l'l' or pct·ccnbigt' of partial disHhilit:v ;ind thP pri111ary dt 1 !er1uina!ion of e;.111);a\ rrla!inn:ship of the (1h1ahiljty to ;111 injni·y nr o~eupation, :---;hall h0 tin~ duty of the l'efrr<'c ~itt.ing in ! h1 1 (·;1~i._ \Vhl't1 in doubt Jiu rnay eall tin hnpnrtia.l medical 1•:-.>J1t'l'L ~JH'1'.ially qualiilcd in tile sub.i('Ct lnntter of the ca.se a.<; pro\'idrtl in p:·1rag-1·;-1rh ,._, suht1ivision 1, or be tnny refer the ca.':ie i'ur del~isinu to the >.Trdieal Ad\'isnr·y and ;\ ppcal Board. ( h) In tin~ t>Hd rer;nlt after ii·.ians shall he appointed fnr c;H!h <·n1npr'11Katlon dist1·ict of j IH~ Stat!.' bv the cornnii~iSilltlr.T rron1 a li:st- of 1111t. lP.ss t.lu111 nine p!1y~icians ;·101ninatcd jointly h.~' th(; tott11ty medical societies of :~11e!t di:->triet. \\Th(lfi 11-pp(•;ils iH a gi,·en di:'itrit•t. i!l'P, too nnmcroutt [i.1r a »inglc board to ad,jnrlicate, t\V(} or 1nr1re boards 1na.y be d1•sig-11att 1(l. \Vhen the enunty 1nedical ~ocieties fail to 1nake nrunit1atioa.s for men1bership on the -.:\L~clical 1\dvisory and i\ppeal l ~oard "\Vi thin sixty days after lhe commissioner- requests such nondnations. the connni8sioner shall nppoint three qualified ph.rsieians t(J serve as the 1nemberH of the board. Reft•rec:.; 111a,y reft•r {'ion. 'flip J'VfediraJ +\d,·i;.;ot·y ::iuct "\pp<-•al I3oard~ shall ;d!iO henr nil ;ipp~als f1·n111 th<' (\('ci.-:ion of rt•feret•s \Vhic•h itt\'olvc (1) ihe f:':-:. \Vht>l'e thf' refcrrf:' lias n·ferrcd a (•11;.;C' lo a sp~'i·i;i!ly quali· fil'd physil·irin 1nH!cr rn1r;1gr:1pli (t:) snhdivi~.;in11 (I) ;ind llil'> 11111d1~ a dP~·i:.:iou in 8ifatl•d by thil") act. l.l. (a) No pliyshdan, evPn if c1uployetl by th(• [)ppartniPnt of f ,abor, P,an se1·vc~ hoth a~ H witnc>:iS. and a::> advi~tJL' lo tli0 eorn· n1i,'>xioup1· or 1·pf,;rp~~ a.t a hP;iring. ( h) \Vbcnever his attPnr!HtH!(" at a hcntitl<•d to l'Cteive IL fen of five dollal's front the ('tnploy1.•r. 1~. (;1) ~\.n ins11rnnc~r.. (·arrier olhcr !h1111 a :->P!f.i11~11r~d en1plny<~l' :-:hail not p1irticipate iu !he trc•atnLPHt: of inj11L'f'd \\'n1·kn1r'.n e;.;;l'»f'pt that it niay crnploy UH'di1·nl inspectors tn t•xarnine cornp1:1u.;a!inu t·11ses pr~riodica.lly \rltilc !HHlcr trf;'a./111ent Hnd rt•JlOl"t t1pcn1 th,, ndf'qllney of Jllt'iou of paragTaph (a} of suhdiyision 2. CHAPTER No. 241. Int. 241. January 17, 1923. Jn·trodn.(:ed by .\fr. < J '( '(J.\'~\·( l/\ -- r<·ad onc·e and reff>rred to the ( '01nn1i1tr·1· on -Tudil'iar.-.:. AN ACT To amend the workmen's compensation law, in relation to the presumption of fact contained in verified medical and surgical reports introduced in eviaerice · 15y Claimants for ~ -- compensation • . , -7-- ,.\•ofrs ............ . lu; t el. ·.·· . . c:·- - ·- --· ---- .· ......... "··~'·- '·~1111R18- -•o:""-:_-_ ... _ _. ,,,__...,. ___ ~~-""-._.,.,,_._-"'---~"---..,.1,,,9~2,.l-,__._;_ Ordered, That the Clerk ddiver the. bill entidcd AN:ACT • _To aiJjetid the workmen's ~sa{fon law, in l'l'latlon tJ> #le '. pf8suti1Ption or fact eon*llined in verified rnedloat a)K(_ aurafoal reports inlrOduoeid iii evidenee by- ola-lmarif!: for ' ' ' . ·j •. • . . : -···· ' ': . ' .... ·'" compensation. ·. ' to the Senate, and request their ·concurrence -in the 1ame~· By order FRED W. HAMMOND_ · T'.:4 . 8 .A .. ,, ' ·of •L-' l:.'C'NA. TE . L a'!luer . ·"'°QI;, "!'..·;:;:--··;.;,.;;· ~;;;:;$:=:;:;;;==~- ·-(" ··--- ~ -. " . • ---·-·--·-'-- .. ----------. . ,/"""'-\ IST. VICI[ """Jl!•IOll:NT Owners -AS&OCiation .280 BB:OA..D-W-A)'.'--. ~-¥OAK .C.i-T'V PHONI£: WoRTH "297 1.~ ....... CHAl"ILES W. EIDT Ct'!AHLES £. Cl..ARl( 1tW•1t111::NT COUN•l:L 11iAAC HY MAN :llll:C"l:TARY 5TEWAl'IT BROWNIE Honorable Alfred E. 51:1itl1, Goverr.or of the state of 1:ew l:lbeny, N.Y. '- Dear coverror :';rcitfi; .Yo r.l,__ / ______ _ F. X. A. PURCELL Dtlilll:C'l'Ol'I' 01'" ,.UlllCHASO We are opposed to thi• bill. '1'/e cannot set:J vrhy surgical· reports shoulC· constifute prin1l; fE".c.;ic. evlCence of fact, and therefore ask ya;. to veto the aarr.s. Faithfully yours Presi'' :. JJts ·.r;c r 1rt':·;:ll :·.' g _ :· .. "~-' ·.1u. ~.:;::. ~:i !. /.J. V;' I l !·~ :. 0, 1 r !1;; '.·} •, )'.'. !•':. . ( .:~. f'; f :• (~~ ~ ,; {~ J:'.: - lb:i:leO ~-:-: "'.""t1T'!:T1l!.:d ~-e?!::'.:1 nni'. a!lr c-icul '!·0~ crt::: .'...:~t.r-s--d~;::s.,~ ~-'- aY\rl·~:-., l· clbl~wl~~ :o~ co~.r~0~~nt~o~. '.?C:;'O?._l.._T:T;;: J~L??J·:!! ?: • ')].' T 1.:"::, ~cveroc~ cf the St~~0 cf ~:e~ ~·erk, 41 tu.::i7, ··'?.w '·.'erk. '.i ! ".! frc r:,. t 1 P, ') '1 j J 1. O :f ~- r. G C j i r1 i O !'1 11'.;: t l .•.JI'. -1.1•,1·.··,_,·_r,c, i, .'' .. ".'] ,, •. '"'"1 "'l' \' (1 1 · ·•· ·-0·1 '' "• • ' ' ' u - '",)...' ~·.··~ ~----' .....:: ";l ,, .·1 \...i(; ,_ - 'J 'J !' '. ; ( : . ,~ ,, ' !J ( : ., !" J:h~l'•! .. -Of;'M!4_1UJ -~·1'•l~tnrt. ~ti~: mill'"""''"·· ••~n•. )o:>t'•' Y~•• n1, ·1'i.-..1" ... .-ld ... 1--.co-.... 1 tt..,..· .• 1,_..,, .\'~~-~~.:..i!r~.·- -<.l? ".iW• ~~-'*''"'4"1:-iij-~' :0-,... .. ~,...1·~-~·~~ ·,, - -. i,~,1·.~~~·~~ W4 1\-.-r~-1•1 ..,.,.,,,_,, ~·>,~, ct'tk-•• ('1iW- ~~~-~it.!~~~;~'~~!, ....., .. -...... _ .... , ... ,,. t,o~,.,.4 ... -..~ . ~, r..,.i,_,..,~~ '"~--, :G"""lr "r:';#i.--t .. -.-.. . , 11'1 ...... ,.,,,,,, ,,. .. f'l•t•N". !~~' ,._,._ J,,1,..1~ .. ,, 1';kv!.Jlf19!.-*WWM \'i,... ,.,...,1~ .. n<-l''ll'H1m f. l;.~h~• ·~.t.'----'l<=l.4n T!I ,.,,.J,,..h'O l ~!) !>OUTH i~J,,Y,1( r.rnrLl '.,. ~· ~-\!h:111y, ';\, ~(., -AJ1Til_ .. LJ ___ - -------.----:-.-l~-:___:_4 __ "r;· \YU) '..-e ,\lfr.-, l. ~' :~:!l~ ~.L 1 --13-0'i!'r:'r er,-:~"'!)"'.: .c._i' .. tJ :'c:::'j_, -----=-;;-;:_,:-ffcuti"1re -CT:·;~--;-r:>r;T, C'-J1i·tc-±--; Alban::, ·;. ·:11-:C: :'.c\' ''.orL B'!,.w..-11...-. .2-J.:..c.:.:-.~tic;·: cf :.,1Lc1r reufi0Ct- :ully .·Yr.:r'.\:·c;~- ... s t-:!';ut-·::-cin v:-t-11 ar:Frcve At;som~~:.-J1 ;r.u:~ C: 1 ·';ft1,-,or~ 1 UJ.11, /~s. 0r,:ul:: Jr,"",, ::c. }.'il, printed· o. 21, l w ,.ice. f.116 pti.Uccd botO-. ];(-t;·t:.eLl ti.0 ~--·:Jp-:'i.slu:·,urc :_j;', -·~ is J. 0-... , u0f '!'!.: -:,_ii·, -fo:r cc:.aillt:r~.t~r,n. '':1;.i:,-; 't .. ilJ.. L:..l;)v,'id::: tJ.c V/(;r.kmen 1 1.; c.:_:.;k1.-c;i.S1,~·-i,>:~ l.ti-1'\ to per~:-:it \'•_ri:flud re1.r1rte of_u.t·.-c:u_i;-~g pL~/Sidiu.ns ".c r..-c 1J.-d1;1i.tt0d u..:;; 'pri:;;Qf.Uie you ti1a t your comnruni c« tipn wi 11 re- ceive 11is. carefuo consideration. very t~uly ycu:rs, P:CMC ., ~,.....=:fj~~~~~ltlli~-'frlr~ =--~-- - --- of ·Greatpr NewYfi>rli.:"il.ndYiclhlty c~4-J.l'-"-:o-.r_;.:,,_~ r--~f ___ j: 1.:-2" .. -.;3;.t L-t~ 11 ~.i__e. CO'JJl t_qln- ,.-:1_1~_;;.;·;2.', t"J tr;'.~t,}f~/ 1 co··:. ::_~1y ._ "C.l!r. -:.o; tJ - '-L---·-'-' .... - • _l, ·-- tT':-•:;. :'..c;~)TCY '.~}: .. i: i , .. _!.J1·t::·::::n~ -~~ ~.L~: t ,10 ~; •_: . .:i :J r:-.c; to .·::so to :·;(,· t·rcrrt.e:Cc ·.~:.<; J.il·1ysic1: '''· ·,_ i. :1· '· ._ .H···· \ 0 ,l,(J·-t~- :''J l ,-ii.' ii-.··]·;.:-·· .::.n:~-~-oc~. '-~- .. l bc~~~c~rc·~-,_-t1: 1~~- eo-, ·~};!;l'C ·.°(J}'C :·)':'_}: l ./ •• I, f, r" ,) /, 1,: , ADDENDUM C C· .. \ I.c --. ' u.; .. _,_ ca c-.. -• ··---·---·--· -----........:..:.-. .._..,~,,... --- . :::,.-- - ~-,.,.u-. ....... -,.~ nTv-·-~._...,...-~, ::q;i.-"'""' ., \ c /'"~t'J TllOl'(;~)-D J. cut tic,, !!anci.,;.;er' -· Bui1d.lng ?...:. Al}-~ ccS. 1'?2.d~o r:oI:',f:·Cnr; <..t ion service Bureau, 128-Lexington Ave .• New York City Dear Sir! rtr.c G-0\"(:.rnO)' dt.r:cot'J \;';":l to aekD-<.?lf.'lC::dgB receipt of yol1r cornr:T11Tiii::::r:o:.t'ivn -o--f i\fi-i'il 2~jth =clative to /i.Bsernbly BJ.11 Int. 2t11, ·v1hioh ts no-r1 before the Governor for c~ction,. -.~cl to asaurc you that yollJ'.' communic;~tio:n '!Fill yete"i.v>! his cui-c·ful conG~der~::.- tion. very truly youro, .-,,,,._ '" . .,, ·"' I ---.. -- · _:_• tH'._F_J.C E _Of_:~.£.J_N DU5-!:R-iAL.~G.-..,.. ~ · -,,..o~ .... -.,,-~·!iuiiii\w=iiii. · ~-·~-..,ii