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New York State Workers’ Compensation Board COVID-19 Initiative—Rolling Updates Since March 7, 2020


New York State Workers’ Compensation Board COVID-19 Initiative—Rolling Updates Since March 7, 2020

March 2020

In response to the COVID-19 pandemic mitigation initiatives in New York State, including Gov. Cuomo’s Executive Order and sequelae, the New York State Workers’ Compensation Board has posted cover page announcements about processes and procedures, along with regular updates. This information can be found here.

Each week, Goldberg Segalla will be providing resources and updates on the status of New York State Workers’ Compensation Law to provide knowledge and quick access all in one convenient location. In addition, we have provided an overview of the board’s initiative, below:

  1. All hearings will take place remotely

Any DVDs or other documentation evidence should be mailed to the Workers’ Compensation Board and opposing parties within two days of introduction.

  1. Ninety-day requirement for updated medical evidence

Where a claimant has not been classified, 12 NYCRR 325-1.3(b)(3) states that a medical progress report must be submitted at an interval of no less than 90-day frequencies.

If a carrier requests suspension, the Board will take into consideration the inability to comply with this requirement secondary to the COVID-19 outbreak

  1. Failure to attend an IME

Generally, Section 13-a(4) and 12 NYCRR 300.2(d)(ii) allow for a bar of compensation for the period where a claimant refuses to submit to an examination. Although not specific in the rules, it is generally a second refusal to submit to an IME which allows for a bar to compensation (see Matter of Ferguson v Freuhauf Corp, 156 AD2d 880 [1989]. However, no bar to compensation will apply where the refusal is “reasonably” excused. The claimant, or claimant’s attorney, shall notify both the IME vendor and the Workers’ Compensation Board if the claimant cannot attend the IME.

  1. C-4 AUTH

Section 13-a(5) pertains to surgery or special services costing over $1,000. The request for reimbursement is not enforceable unless authorization is given by the employer or board “or is unreasonably withheld, or within a period of not more than 30 calendar days from receipt of the request, or special services in an emergency circumstance.” A denial for such circumstances must be based on a conflicting second opinion by a physician authorized by the board. This applies under 12 NYCRR 325-1.4(a)(b) where a claimant is not hospitalized, and in controverted cases under 12 NYCRR 325-1.4(b). A second opinion is controlled under 12 NYCRR 325-1.4(5).

Although the board does not have authorization to waive the statutory requirement of Section 13-a(5), the existing law does allow for conflicting opinion in the form of a record review instead of an in-person exam.

  1. Other IMEs

In the circumstances where the examination involves a permanency examination or controverted claim under 12 NYCRR 300.38(g)(8), an Affidavit request will be considered for extensions. The affirmation or affidavit must explain the circumstances to warrant the request for extension. Under Section 300.38(g)(8), an opinion of causal relationship for controverted claims is due no more than 30 days from the pre-hearing conference or is deemed waived unless good cause is shown (good faith and due diligence [i.e., claimant failed to appear or inability to appear]).

  1. Depositions (cross examination of medical witnesses)

An extension will be considered only if a request is made by affirmation of affidavit providing a description of the situation.

  1. Appeals and rebuttals

Under Section 23 and 12 NYCRR 300.13, an appeal or rebuttal is considered untimely per 12 NYCRR 300.13 (b)(4)(iii). If an appeal or rebuttal is submitted late, an affidavit/affirmation must be submitted stating in detail the COVID-19 -related circumstances causing the delay, and the submission must be filed as soon as feasible. Under these circumstances, the board will determine if there is a reasonable excuse for untimely filing. This provision does not apply to unrepresented claimants under 12 NYCRR 300.13(f).

Proof of service required for appeals and rebuttals to the Workers’ Compensation Board will allow for exceptions to the proof of service requirement if under Section 12 NYCRR 300.13(b)(2)(a) the remote carrier, employer, or legal representative signs the affirmation without signature by a staff notary but must include within the brief or a standalone statement of the circumstances, and that the filing was directed to a staff person in compliance with service requirements (upon information and belief).

  1. Bureau of compliance

Section 52 and 220 of the WCL allow for the imposition of penalties for failure to provide benefit coverage. Section 131 applies to failure to submit the requested records to the WCB. The board will consider applications to excuse delay and timeliness, but it must show that a delay over which the applicant had no control. Each application must list the pending penalty number and be sent to the Bureau of Compliance, PO Box 5200 Binghamton, New York 13902 within 14 business days of the deadline for application.

  1. Payor compliance

Section 25 requires the filing of documents and payment benefits in the form of FROI, SROI IP, and timely initial payment evidence, as well as Notice of Controversies. If an affidavit is sent within 14 business days of the deadline to explaining that the delay is secondary to COVID-19-related circumstances, the board will consider waiver of the penalty (this does not apply to penalties to the injured worker or third party).

  1. Insurance policies

No insurance policy under Executive Order 202.13 for Workers’ Compensation, Disability, or Family Medical Leave will be cancelled, non-renewed, or be given conditional renewal to individual or small businesses. This also applies to group insurance in circumstances where the certificate holders involve a small business or individual. The extension is given for 60 days to the policyholder [as opposed to regulations for cancellation or termination with 10 days’ notice and 30 days’ non-renewal notice under Section 4(5)]. Those businesses temporarily closed or that have no employees secondary to COVID-19 will not be implemented in the system and insurers will not have to file such transactions. Sanctions will be imposed under Section 114-a(3) along with reinstatement to negate pending cancellations. Section 3203 and 4510 of Insurance Law will extend the grace period for payment of premiums and fees to 90 days for life insurance policies facing a financial hardship as a result of COVID-19 pandemic.

  1. COVID-19 and labor market attachment

Based on the disruption of normal economic activity posed by Executive Order 202:

      • The board will not require injured workers to demonstrate labor market attachment to maintain partial disability payments during the emergency period.
      • Any matter on the calendar for labor market attachment during the emergency period will be adjourned until the issue can be addressed.
      • The board will await the governor’s declaration that the period of emergency is over.

For additional information, see the latest guidance from New York’s Empire State Development on the definitions of essential vs. non-essential businesses, explained by our Employment and Labor practice.