N.Y. Comp. Codes R. & Regs. tit. 12 § 300.37

Current through Register Vol. 46, No. 22, May 29, 2024

Section 300.37 - Case file creation and indexing of claims that may be controverted

(a)Case file.

Upon receiving any document or notice regarding a claim or potential claim for workers' compensation benefits for which a case number has not been assigned and a case file has not been created, the board shall assign a unique case number and create a case file. The assignment of a case number and creation of a case file is not the indexing of a claim for purposes of filing a notice of controversy in accordance with paragraph (b) of subdivision (2) of section 25 of the Workers' Compensation Law. The board shall assign the case number and create the case file within five business days of receipt of said document for which a case file does not exist. Nothing in this section changes existing law with respect to the filing of a claim for purposes of the limitations period set forth in Workers' Compensation Law, section 28.

(b)Indexing.

(1) The board will index a claim for compensation only upon the receipt of these notices or forms:

(i) a notice or form prescribed by the chair for an employee, dependent or beneficiary, volunteer firefighter, volunteer ambulance worker, or a volunteer who meets the definition set forth in subdivision (1) of section 161 of the Workers' Compensation Law for a participant in World Trade Center rescue, recovery or cleanup operations to make a claim for compensation, death benefits or volunteer benefits (hereinafter referred to as employee claim form) pursuant to the Workers' Compensation Law, Volunteer Firefighters' Benefit Law or Volunteer Ambulance Workers' Benefit Law, or a notice or form prescribed by the chair for an employer or political subdivision to report an injury or illness of an employee, volunteer firefighter or volunteer ambulance worker as required by Workers' Compensation Law, section 110 and/or Volunteer Firefighters' Benefit Law section 42 and section 57 or Volunteer Ambulance Workers' Benefit Law section 42 and section 57 (hereinafter referred to as employer's report);

(ii) a completed report or form as prescribed by the chair for a medical provider treating an injured employee to report on medical treatment which references an injury (hereinafter referred to as medical report), except that the medical report need not be in the prescribed format where:

(a) the treating medical provider is based out of state;

(b) the claimant was treated in an emergency room; or

(c) the claimant is deceased; and

(iii) a completed and executed limited authorization to obtain relevant medical records regarding the prior medical history of the body part or illness at issue (hereinafter referred to as limited release). The limited release is only required if the claimant files a completed employee claim form and indicates on the form that he or she had a prior injury to the same body part or similar illness to the one(s) listed on the form. It shall be part of the employee claim form and compliant with the Health Insurance Portability and Accessibility Act.

(2) Notwithstanding paragraph (1) of this subdivision, if the chair obtains information that a worker was killed due to injuries or illness sustained in a work related accident, the chair may direct that a claim be indexed if the alleged employer has either failed or refused to submit an employer's report as described in paragraph (1) of this subdivision and neither a beneficiary nor representative of the worker's estate has filed a claim or can be identified to file a claim.

(3) Within five business days of receiving the notices or documents required for indexing as set forth in paragraph (1) of this subdivision, except as set forth in subdivision (c) of this section, the board shall index the claim and electronically make available to the insurance carrier and, if applicable, the Uninsured Employers' Fund created by Workers' Compensation Law, section 26-a, all documents which the board has received to date.

(4) Notice of indexing.

(i) The board shall send the claimant, the claimant's legal representative, if any, the insurance carrier and if applicable, the Uninsured Employers' Fund, the notice of indexing on the form prescribed by the chair. The board shall also make available to the insurance carrier and, if applicable, the Uninsured Employers' Fund, the completed limited release executed by the claimant required by subparagraph (1)(iii) of this subdivision.

(ii) The notice of indexing shall include notification that if the insurance carrier submits a notice of controversy:

(a) any independent medical examination report as provided in section 300.2(d)(3) of this Part (hereinafter referred to as IME report) shall be filed with the board and served as required by Workers' Compensation Law, section 137(a)(1) at least three days before the date set for the initial expedited hearing; and

(b) the failure to so file and serve an IME report shall be a waiver, as provided in section 300.38(g)(8) of this Part, of the insurance carrier's right to examine the claimant and to have filed on its behalf or otherwise have considered an IME report on the threshold issue of causal relationship.

(c)When claim is not indexed.

(1) Notwithstanding paragraph (b)(1) of this section, if the insurance carrier submits to the board a notice that serves one of the purposes described in this paragraph before the board receives all of the notices or forms required to index a claim as provided in paragraph (b)(1) of this section, the board is not required to index a claim. The board may take appropriate action without indexing a claim to address any issue(s) or dispute(s) raised by one of the parties in a form that serves one of the purposes described below that has been filed with the board by the insurance carrier. If the board does not index a claim in accordance with this subdivision, the date the board received the notice submitted by the insurance carrier that serves one of the purposes described in this paragraph shall be considered the date of indexing for purposes of Workers' Compensation Law, sections 25(2-b) and 32. The notices are those required by section 300.22 of this Part and that:

(i) accept the claim or show that the claim has been accepted; or

(ii) agree to make temporary payment of compensation, payment for medical treatment, and payment for prescribed medicine without prejudice and without admitting liability pursuant to Workers' Compensation Law, section 21-a; or

(iii) controvert the claim.

(2) If the insurance carrier submits notice controverting the claim before the claim is indexed in accordance with paragraph (b)(1) of this section and the board has not received a medical report referencing an injury, the board shall:

(i) contact the claimant, the claimant's legal representative if applicable, and the claimant's treating medical provider or providers if known, in writing to advise of the need for and how to file a medical report;

(ii) attempt to contact the claimant, claimant's representative if applicable and the claimant's treating medical provider or providers if known by telephone to explain the need for and how to file a medical report; and

(iii) if the claimant is unrepresented and a claimant information packet has not been sent in accordance with, subparagraph (d)(2)(ii) of this section, send a claimant information packet as described in subparagraph (d)(2)(ii) of this section to the claimant.

(d)Provisions applicable to all claims that have been or may be controverted.

(1) If the claimant has retained a legal representative at the time the employee claim form is filed with the board, the legal representative shall file with the employee claim form:

(i) a written certification, signed by the legal representative, that to the best of the legal representative's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the allegations and other factual matters asserted on the employee claim form have evidentiary support or if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(ii) a list of all documents in the possession, custody or control of the claimant that may be used to support the claim.

(2) If the claimant has not retained a legal representative, the board shall do the following with respect to a claim that has a case number but has not been indexed, has not been accepted by the insurance carrier, or does not have an employee claim form and a medical report in the case file:

(i) make readily available, to the employee, assistance in:

(a) complying with the indexing requirements in paragraph (b)(1) of this section when applicable;

(b) completing the employee claim form; and

(c) obtaining a medical report. Such assistance shall include information about the need for a medical report, the services of the Office of the Advocate for Injured Workers, a board employee electronically completing the employee claim form based on information provided by the claimant through a recorded telephone conversation and sending the completed form to the claimant for review, and a telephone hotline exclusively dedicated to these purposes;

(ii) provide to the claimant by mail or other effective means the following information and documents (hereinafter referred to as the claimant information packet);

(a) an employee claim form;

(b) instructions for completing said form that shall include notice of the availability of assistance in completing the form by calling a toll free telephone number;

(c) notice of the necessity of a medical report, including the requirement that a medical report referencing an injury must be received in order to schedule a pre-hearing conference if the claim is controverted;

(d) notice of the requirement that the employee complete and execute a limited release if the employee indicates on the employee claim form that he or she had a prior injury to the same body part or similar illness as the one(s) listed on such form;

(e) notice that the employee has the right to a legal representative in proceedings before the board, accompanied by information about access to an attorney or licensed representative which contains contact information for the State and local bar associations and information on how to obtain a list of licensed representatives; and

(f) notice regarding medical treatment for work related injuries, including that:

(1) the employee is entitled to medical treatment and prescription drugs for the work related injury and should not pay for such medical treatment; and

(2) the insurance carrier may have contracted with a designated pharmacy or pharmacies from which the employee may be required to obtain his or her prescription drugs and the insurance carrier must send notice to the employee about the designated pharmacy or pharmacies; and

(3) the insurance carrier may have contracted with a diagnostic network to perform X-rays, computed tomography scans (also known as computerized axial tomography scans) (CT or CAT scans) and/or magnetic resonance imagings (MRI), the employee may be required to obtain such diagnostic tests from a provider that is part of the network, and the insurance carrier must send notice to the employee about such network.

(iii) inform the claimant of all available resources in a meaningful fashion, using plain language. All forms, instructions and notices shall be available in English and Spanish; and

(iv) notify the claimant semi-annually in writing for two years after the filing of any document with the board of the claimant's right to file a claim, the statute of limitations for doing so, and the assistance available for indexing a claim so long as the board has a valid address for the claimant.

(3) The employer's report shall require the employer or its designee to certify that the employer or its designee has delivered to the injured or ill employee the claimant information packet. The contents of the claimant information packet are set forth in subparagraph (2)(ii) of this subdivision except that the notices described in clause (f) of such paragraph shall also include specific information about the designated pharmacy or pharmacies and diagnostic networks claimants must utilize.

(i) The information about the designated pharmacy or pharmacies must be in the form of a pharmacy benefit card and include:

(a) either the identity of all pharmacy chains and independent pharmacies designated by the insurance carrier, or where more than one pharmacy chain or independent pharmacy is so designated, the identity and contact information of a pharmacy benefits manager or other party, who shall provide a list of all pharmacies in the employee's state to the employee in writing or electronically upon and in accordance with an employee's request; and

(b) a toll-free number and website where the employee may access information regarding the procedures by which the employee must fill and refill prescriptions through a remote pharmacy or other means, and may obtain a list of such pharmacies including their name, address and phone number, searchable by geographic location and fully updated as of the date at issue, in that employee's state.

(ii) The information about the diagnostic network must include:

(a) the identity and contact information for the diagnostic network with which the insurance carrier has contracted; and

(b) a toll-free number and website where the employee may access information about providers who are part of the diagnostic network and how to schedule an appointment. The contents of the claimant information packet will be available to employers on the board's website except for the information about the specific designated pharmacy or pharmacies and/or diagnostic network(s).

(4) A medical report shall set forth facts and opinions responsive to the questions on the form. A separate narrative or office notes of an authorized medical provider shall not be sufficient to serve as a medical report, although they may be used to supplement information in the medical report. Separate narrative or office notes may serve as a medical report if:

(i) the treating medical provider is based out of state;

(ii) the claimant was treated in an emergency room; or

(iii) the claimant is deceased. A medical provider shall not be paid for examining the claimant and filing a medical report unless the medical report is completed in accordance with this paragraph. The medical report may be filed electronically.

(5) A claimant who has not satisfied the indexing requirements may amend the required documents and resubmit them.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 300.37

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