N.Y. Comp. Codes R. & Regs. tit. 12 § 300.22

Current through Register Vol. 46, No. 45, November 2, 2024

Section 300.22 - Procedure by carrier, special fund, or TPA following disability event when compensation controverted and when no controversy, including temporary payments of compensation without prejudice

(a)Definitions.

The following terms shall have the following meanings when used herein:

(1)Disability event means any accident, including death resulting therefrom, occurring in the course of employment or any alleged accident, including death resulting therefrom, that results in personal injury which has caused or will cause a loss of time from regular duties of one day beyond the working day or shift on which the accident or alleged accident occurred, or which has required or will require medical treatment beyond ordinary first aid or more than two treatments by a person rendering first aid; or any disease or alleged disease, including death resulting therefrom, claimed to have been caused by the nature of the employment and contracted therein.

(2)Electronic trading partner agreement means the agreement between the carrier, special fund or TPA, and the board that establishes the method and frequency of sending and receiving electronic reports including those required by this section.

(3)Filed electronically means that the electronic transmission submitted by the carrier, special fund, or TPA has been accepted and acknowledged by the board. For the purpose of determining whether an electronic transmission has been timely submitted, any electronic transmission that is submitted to and accepted by the board within the time required by subdivisions (b), (c), (d) and (f) of this section shall be considered timely submitted when such electronic transmission is later acknowledged by the board even though the acknowledgement by the board may have occurred after the time required by subdivisions (b), (c), (d) and (f) of this section.

(4)Special fund means any special fund maintained by the board or any administrator of such special fund that is responsible for paying compensation or medical treatment and care of injured workers, including but not limited to, the Special Fund for Reopened Cases created and governed by Workers' Compensation Law section 25-a and the Uninsured Employers' Fund created and governed by Workers' Compensation Law section 26-a. The chair may waive a special fund's obligations under this section.

(5)Third party administrator or TPA means third party administrators responsible for all or part of the claims handling, pursuant to a contract, for the claims of the State Insurance Fund, stock corporations, mutual corporations or reciprocal insurers with which employers are insured to provide workers' compensation coverage, employers permitted to pay compensation directly under the provisions of Workers' Compensation Law section 50(3), (3-a) or (4), and any special fund maintained by the board that is responsible for paying for compensation benefits or medical treatment and care of injured workers.

(b)Mandatory first reports of injury and reports required by section 110 of the Workers' Compensation Law.

(1) Mandatory first reports of injury. On or before the 18th day after the disability event or within 10 days after the employer has knowledge of the disability event, whichever period is the greater, the carrier, special fund, or TPA shall file electronically a first report of injury with the board. The lapse of 18 days from the disability event or 10 days from the employer's knowledge of the disability event does not relieve the carrier, special fund or TPA from its obligation under this subdivision to file electronically a mandatory first report of injury. Such report shall be filed electronically in the format prescribed by the chair and shall contain the data elements prescribed by the chair.

(i) Medical only cases. When the disability event has not resulted in any compensable lost time and the carrier does not controvert the claim, the carrier, special fund or TPA must electronically file a mandatory first report of injury in the manner prescribed herein indicating that the carrier, special fund or TPA is providing coverage for medical expenses only. In such cases, the carrier, special fund or TPA is not required to file a subsequent report of injury except as set forth in paragraph (f)(2) of this section. When a carrier, special fund or TPA, takes action on the claim beyond payment of medical expenses, the action may not be included in a first report of injury, but rather must be electronically filed with the board in a subsequent report of injury as set forth in subdivisions (c), (d) and (f) of this section, or must be filed in accordance with subdivision (e) of this section.

(ii) A notice of controversy included in a first report of injury. A mandatory first report of injury electronically filed in the manner prescribed herein, may include, but is not required to include, an initial notice of controversy required by subparagraph (a) of subdivision (2) of section 25 of the Workers' Compensation Law. An initial notice of controversy may always be filed as a subsequent report of injury as set forth in subdivision (c) of this section. When a carrier, special fund or TPA, takes action on the claim beyond the initial notice of controversy, the action may not be included in a first report of injury, but rather must be electronically filed with the board in a subsequent report of injury as set forth in subdivision (c) of this section. Unless it is filed on or before the greater of 18 days after the disability event or within 10 days after the employer has knowledge of the disability event as required by paragraph (1) of this subdivision, a notice of controversy may not be filed as a first report of injury. A notice that contains the relevant elements, as prescribed by the chair, of the subsequent report of injury and initial action shall be transmitted to the claimant and his or her attorney or licensed representative, if any, within one business day of the date it is filed electronically with the chair. Such notice shall be served in accordance with section 300.38 of this Part.

(2) Reports required by section 110 of the Workers' Compensation Law. A mandatory first report of injury filed electronically by the carrier, special fund, or TPA pursuant to paragraph (1) of this subdivision shall satisfy the employer's obligation under subdivision (2) of section 110 of the Workers' Compensation Law when it is filed electronically within the time required in subdivision (2) of section 110. However, a report of injury filed by an employer in satisfaction of the requirements of subdivision (2) of section 110 of the Workers' Compensation Law is not a mandatory first report of injury unless such report is filed electronically by a carrier, special fund, or TPA in the format prescribed by the chair and contains all data elements prescribed by the chair as required in paragraph (1) of this subdivision.

(3) Acquisition of claim from another carrier, special fund or TPA. A carrier, special fund or TPA shall file electronically a supplemental first report of injury with the board within 10 days of acquisition of the transfer of responsibility for a claim from another carrier, TPA or special fund that has previously filed a mandatory first report of injury with respect to the claim. In the event that a carrier, special fund, or TPA acquires responsibility for a claim transferred from another carrier, special fund or TPA, and a mandatory first report of injury has not yet been submitted to the board, such mandatory first report of injury shall be filed within 30 days of rejection by the board of the supplemental first report of injury or within 30 days of the acquisition of responsibility from the previous carrier, special fund or TPA when no supplemental first report of injury has been filed following acquisition. Such reports shall be filed electronically in the format prescribed by the chair and shall contain the data elements prescribed by the chair.

(c)Mandatory subsequent reports of injury and initial action taken by carrier, special fund, or TPA.

Within 18 days of the disability event or within 10 days after the employer has knowledge of the disability event, the carrier, special fund, or TPA shall file electronically one of the subsequent reports of injury and initial action listed below. The subsequent report of injury and initial action shall be filed electronically in the format prescribed by the chair and shall contain the data elements prescribed by the chair. A notice that contains the relevant elements, as prescribed by the chair, of the subsequent report of injury and initial action shall be transmitted to the claimant and his or her attorney or licensed representative, if any, within one business day of the date it is filed electronically with the chair.

(1) Initial controversy. Unless submitted as a first report of injury in accordance with subparagraph (b)(1)(i) or (ii) of this section, the initial notice of controversy required by paragraph (a) of subdivision (2) of section 25 of the Workers' Compensation Law shall be filed electronically with the chair either on or before the 18th day after the disability event or within 10 days after the employer has knowledge of the disability event, whichever period is the greater. In addition to the notice to claimant and claimant's attorney or licensed representative set forth in this subdivision, such notice shall be served in accordance with section 300.38 of this Part.

(2) Notice that right to compensation is not controverted and payment has begun. If the right to compensation is not controverted and the claimant has compensable lost time, the carrier, special fund, or TPA shall, either on or before the 18th day after the disability event or within ten days after the employer has knowledge of the disability event, whichever period is the greater, begin paying compensation and shall file electronically notice to the chair that payment of compensation has commenced. Such notice shall be made for all claims that are not controverted, including cases that are partially accepted by the carrier, special fund, or TPA or in which the employer is paying wages instead of compensation benefits paid by the carrier, special fund, or TPA.

(3) Notice that right to compensation is not controverted, but payment has not begun. Unless submitted as a first report of injury in accordance with subparagraph (b)(1)(ii) of this section, if the right to compensation is not controverted but payment has not begun because no compensation is presently due and the claimant has compensable lost time, the carrier, special fund, or TPA shall file electronically notice with the chair on or before the 18th day after the disability event or within 10 days after the employer has knowledge of the disability event, whichever period is greater.

(d)Notice of controversy in the event of a notice of indexing.

A notice of controversy that is permitted by subparagraph (b) of subdivision (2) of section 25 of the Workers' Compensation Law shall be filed electronically with the chair within 25 days of the date of mailing by the board of the notice of indexing. Such notice of controversy shall be filed electronically as a subsequent report of injury in the format prescribed by the chair for subsequent reports of injury and shall contain the data elements prescribed by the chair. A notice that contains the relevant elements, as prescribed by the chair, of the subsequent report of injury and initial action shall be transmitted to the claimant and his or her attorney or licensed representative, if any, within one business day of the date it is filed electronically with the chair. Such notice shall be served in accordance with section 300.38 of this Part.

(e)Notices and procedures when payments made pursuant to section 21-a of the Workers' Compensation Law.

Notwithstanding any other provisions of this section or section 300.23 of this Part, the following procedures shall apply when a carrier, special fund, or TPA is unsure of the extent of its liability for a claim of compensation made under the Workers' Compensation Law:

(1) If the carrier, special fund, or TPA is unsure of the extent of its liability for a claim of compensation, and elects to make temporary payments of compensation or payment for prescribed medicine pursuant to section 21-a of the Workers' Compensation Law, the carrier, special fund, or TPA may, when filing a notice pursuant to subdivision (c) of this section, and prior to any decision of the board establishing or disallowing the claim, begin temporary payments of compensation and/or prescribed medicine has commenced. Such notice shall be filed electronically in the format prescribed by the chair and shall contain the data elements prescribed by the chair. A notice of payments made pursuant to section 21-a of the Workers' Compensation Law that contains the relevant elements, as prescribed by the chair, shall be transmitted to the claimant and his or her attorney or licensed representative, if any, within one business day of the date it is filed electronically with the chair. Payments of temporary compensation and/or prescribed medicine may be made without prejudice and without admitting liability.

(2) Upon receipt of the notice set forth in paragraph (1) of this subdivision, the board shall notify the employee that it has received a notice of payment of temporary compensation and/or prescribed medicine that payment of such compensation and the employee's acceptance thereof shall neither be an admission of liability by the carrier, special fund, or TPA nor prejudice the claim of the employee, and that payment of temporary compensation and/or prescribed medicine shall terminate upon either the lapse of one year from the date of first payment, or the filing of a notice of controversy, or the cessation of temporary payments by the carrier, special fund, or TPA upon the filing of notice, whichever is first. The board shall also notify the employee that he or she may be required to enter into a non-prejudicial agreement with the carrier, special fund, or TPA in order to ensure the continued payments of temporary compensation and/or prescribed medicine.

(3) A carrier, special fund, or TPA may cease making temporary payments of compensation and/or prescribed medicine by delivering notice to the board and the employee, within five days after the last payment. The notice shall be in a format prescribed by the board and shall indicate whether the carrier, special fund, or TPA is now accepting liability for the claim or whether the carrier, special fund, or TPA is now controverting the claim. In any case in which temporary payments of compensation and/or prescribed medicine have been made and notice has been filed electronically with the board advising that temporary payments without prejudice have commenced, a notice of controversy is not required to be filed electronically on or before the 18th day after the disability event or within 10 days after the employer has knowledge of the disability event, or if applicable, within 25 days from the date of transmittal of the notice of indexing provided, however, that if the carrier, special fund, or TPA ceases making temporary payments of compensation and/or prescribed medicine, the filing electronically of a notice of controversy as prescribed in subdivision (c) of this section or within 10 days after delivery of notice that temporary payments of compensation and/or prescribed medicine have terminated, whichever is later, shall be deemed timely for the purposes of subdivision (2) of section 25 of the Workers' Compensation Law.

(4) If the carrier, special fund, or TPA does not file electronically a notice of controversy with the board within one year from the commencement of payment of temporary compensation and/or prescribed medicine, the carrier, special fund, or TPA shall be deemed to have admitted liability for the claim, and a decision shall be issued establishing the claim.

(f)Subsequent reports of injury for certain payments and periodic summary of payments.

(1) The carrier, special fund, or TPA shall file electronically a notice with the board within 16 days of:

(i) a modification of any payment of compensation or payment of wages by the employer instead of compensation and the claim is not disputed;

(ii) a suspension of any payment of compensation or payment of wages by the employer instead of compensation and the claim is not disputed;

(iii) payment following acquisition of the transfer of responsibility for a claim from another carrier, TPA or special fund. Such notice shall be filed electronically by the carrier, special fund, or TPA when payment is made pursuant to subdivision (1) of section 25 of the Workers' Compensation Law or following direction by the board. Such notices shall be filed electronically in the format prescribed by the chair and shall contain the data elements prescribed by the chair. Such notice shall also include a total reporting of all other types of payments made by the carrier, special fund, or TPA as provided in paragraph (3) of this subdivision. A notice that contains the relevant elements, as prescribed by the chair, shall be transmitted to the claimant and his or her attorney or licensed representative, if any, within one business day of the date it is filed electronically with the chair.

(2) Within 18 days of a resumption of payments for a disability becoming due, the carrier, special fund, or TPA shall file electronically with the board a subsequent report of injury indicating payments made to the claimant, or in the event that payments are not being made due to a credit owed to the carrier, special fund or third-party administrator, the amount of such total amount claimed and the amount credited by the carrier, special fund or third-party administrator from the payment due: A notice that contains the relevant elements, as prescribed by the chair, shall be transmitted to the claimant and his or her attorney or licensed representative, if any, within one business day of the date it is filed electronically with the chair.

(3) In every case, the carrier, special fund, or TPA shall file electronically with the board a summary of all payments made to a claimant . The summary of payments shall include compensation payments, payment for medical care and treatment, and wages paid instead of compensation and the claim is not disputed. When the carrier, special fund, or TPA or employer has not made any such payments in the preceding 180 days, no report shall be filed.

(i) Initial Summary report. The initial summary report shall be due:

(A) within 180 days of the date of the disability event or, if there is no known date of disability event, the date of the initial first report of injury; or,

(B) if the board directed continuing payments prior to 180 days of (A) herein, then within 180 days of such award. If the case is closed with no continuing payments, the summary report shall be due within 180 days of closure. The initial summary shall be due within 180 days of the initial direction to continue payments or the initial closure.

(ii) Subsequent Summary Reports. Following the filing of an initial summary report in accordance with (i) herein, the carrier, special fund, or TPA shall file electronically a subsequent summary of all payments:

(a) every 180 days from the initial award directing payment while such benefits continue.

(b) Additionally, following a reopening of the case in accordance with section 300.14 of this Part when payment(s) have been directed pursuant to such reopening, a summary report shall be due within 180 days of the subsequent closing of the case following direction of the Board; or if awards are continuing, every 180 days from the initial award directing payment while such benefits continue. Such reports shall be filed electronically in the format prescribed by the chair and shall contain the data elements prescribed by the chair. Such summary shall also include a total reporting of other types of payments made by the carrier, special fund, or TPA as provided in paragraph (3) of this subdivision.

(4) Reporting of other types of benefits. Upon submission of a subsequent report of injury required by paragraph (1), (2) or (3) of this subdivision, the carrier, special fund, or TPA shall be responsible for reporting the total amount and type of payments made in connection with the claim, including:

(i) all penalties paid to the claimant or New York State;

(ii) all medical expenses including payments to physicians, chiropractors, physical therapists or other medical providers, payments to hospitals, payments for pharmaceuticals, payments for dental expenses, payments for durable medical goods, payments for medical and travel expenses reimbursed to the claimant, any other medical expenses;

(iii) attorney fees or other legal fees;

(iv) interest paid. Such reports shall be filed electronically in the format prescribed by the chair and shall contain the data elements prescribed by the chair.

(5) Penalties paid to claimant. A report of any penalty paid in whole or in part to the claimant must be filed electronically with the board within 10 days of such payment. Such reports must be made for penalties issued pursuant to sections 13 (i)(3), 14-a, 23, 25, 220 (4) of the Workers' Compensation Law and subdivision (h) of section 300.36 of this Part.

(g)Effective dates.

This regulation shall be effective on April 23, 2014. In order to file electronically, every carrier, special fund and TPAs, shall have completed an electronic trading partner agreement prior to that date.

(h) Where any notice is required to be transmitted to a claimant or his or her attorney or licensed representative, if any, the date such notice is actually mailed or otherwise transmitted shall be the date of transmittal, regardless of when received by the intended recipient.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 300.22

Amended, New York State Register April 2, 2014/Volume XXXVI, Issue 13, eff. 4/2/2014

Amended New York State Register July 25, 2018/Volume XL, Issue 30, eff. 7/25/2018

Amended New York State Register April 14, 2021/Volume XLIII, Issue 15, eff. 1/24/2022