Ask Joan

From an employer:

I have an employee who tested positive for COVID-19 and would like to file a claim. Should I ask them to provide documentation by an authorized workers' compensation provider stating it is work related?

Joan:

Each state has its own guidelines for this. In NY, you should ask the employee to provide a medical report, from an authorized workers’ compensation medical provider, stating that work caused their illness. 

From a claims manager:

Where can I find out what each jurisdiction is doing regarding covering COVID-19 claims?

Joan:

I recommend you reach out to defense counsel and or contact your state agency responsible for workers' compensation filing. The NCCI has published a compensability survey for 36 states--it's a good reference tool. 

https://www.ncci.com/Articles/Pages/Insights-Compensability-Statutory-Survey-May-2020.pdf

From an injured worker:

Why do I have a Nurse Case Manager for my injury at work/what is their purpose?

Joan:

Think of your Nurse Case Manager as the air traffic controller of your recovery process; communicating and working with all of the stakeholders involved in your care.  Nurse Case Managers understand both the claims process and the technical elements of your medical treatment. As registered nurses (as all NCMs are at Viscardi), their work involves both the strategic (overseeing the trajectory of treatment) to the tactical (obtaining and scheduling diagnostic tests, attending office visits, answering questions on prescriptions or physical therapy). Most importantly, Nurse Case Managers are there to provide you with compassionate support during an undoubtedly challenging time.  

From a claimant:

I slipped and fell while climbing down from my truck and need an MRI.  My adjuster is advising I can't go for it until I try physical therapy - is that true? 

Joan:

First, let's clarify what state your claim is in. If we're discussing NY; then according to the NYS Medical Treatment Guidelines, the MRI can be performed if your provider has clinical evidence or suspicion of a full thickness tear. Regardless of your jurisdiction, the treating provider will need to provide documentation of medical necessity, indicating the reason an MRI is required.

From a claimant:

Why do I need to go to an Independent Medical Examiner if my provider has requested treatment that I need?

Joan:

An Independent Medical Examination (IME) is an exam that is performed to provide an unbiased opinion on injury, work ability and treatment plan. IMEs are requested by the WC insurance company and performed by a board certified WC authorized provider. 

The IME provider will interview you and in some cases perform a physical examination. Following the exam, the provider will produce a report which includes a review of your medical records, interview and examination; along with comments on your work status, degree of disability (if applicable) and treatment plan. The IME must take place within a "reasonable distance" from your home. You'll be provided, via USPS, a notice of the exam at least seven days before the scheduled date. 

From an injured worker:

Why does it take so long to get my first check?

Joan:

There's no better place for this answer than direct from the NYS WCB: "Cash benefits are not paid for the first seven days of the disability, unless it extends beyond fourteen days. In that case, the worker may receive cash benefits from the first work day off the job. Necessary medical care is provided no matter how short or how long the length of the disability."

From an injured worker:

What can I do if I don't agree with a Judge's decision?

Joan:

If you don't agree with a judge's decision, you can file an application for the board to review the claim within thirty days of the Judge filing the decision. The board notes that "the application must specify why the claimant does not agree with the decision."

CLAIMS PROFESSIONALS:

On October 7, 2020, the New Jersey Appellate Court issued a decision affecting Medical Provider Claims. The Court ruled that the New Jersey Division of Workers' Compensation only has jurisdiction over a Medical Provider claim for payment if it has jurisdiction over the underlying claim for a compensable work-related injury.

From an employee:

Can my employer require me to get a vaccine?

Joan:

Yes, employers can require vaccinations. The Equal Employment Opportunity Commission (EEOC) confirmed that a COVID-19 vaccination requirement by itself would not violate Americans with Disabilities Act (ADA). That law prohibits employers from conducting some types of medical examinations.

“If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination,” the EEOC says.

From an adjuster:

What happens when the scripting providers are out of state?

Joan:

Out of state providers need to comply with the NY WC Formulary and will have access to the NY WC Formulary Prior Authorization System to submit requests for non-formulary medications.

From an adjuster:

When will NY's WCB rollout the new body parts?

Joan:

They have estimated second quarter of 2021.

From an injured worker:

When a provider advises you to RICE the injury, what do they mean?

Joan:

R - Rest, I - Ice, C - Compression, E - Elevate

From an injured worker:

How do I request my medical records from a doctor's office?

Joan:

When you call a providers office, you can speak to their medical records department and request the information you require.

From a HR manager:

WHAT IF MY EMPLOYEE JUST STARTED WITH MY COMPANY, HOW DO I COMPLETE THE C-240?

Joan:

The C-240 is an employer's statement of wage earnings. This form is used to determine an employee's Average Weekly Wage. To complete the form, you need the gross weekly earnings for the 52 weekly periods immediately preceding the date of the injury. If the employee has not worked for a full 52 weeks, you can use the payroll of a similar class of employee.
http://www.wcb.ny.gov/content/main/forms/Forms_EMPLOYER.jsp#C240

From a claims manager:

WHAT IS THE LONGSHORE ACT AND WHAT DOES IT MEAN FOR A WORKER'S COMPENSATION CLAIM?

Joan:

The Longshore and Harbor Workers' Compensation Act (LHWCA) is a federal law that provides compensation and other certain services and assistance for on the job injuries that occur on the navigable waters of the United States, or in adjoining areas. An injured worker can choose to pursue benefits under the LHWCA or under state worker's compensation programs.

From an injured worker:

I was injured at work and a claim was filed, I have been resting and icing my injury. Do I need to go to a doctor? I'm working full time full duty.

Joan:

Absolutely. Speak to your HR Manager immediately for guidance regarding where to go.

From an injured worker:

What is my employer entitled to know about my medical history?

Joan:

Per HHS.gov Disclosures Without Individual Authorization. The Privacy Rule permits covered entities to disclose protected health information to workers’ compensation insurers, State administrators, employers, and other persons or entities involved in workers’ compensation systems, without the individual’s authorization:

As authorized by and to the extent necessary to comply with laws relating to workers’ compensation or similar programs established by law that provide benefits for work-related injuries or illness without regard to fault. This includes programs established by the Black Lung Benefits Act, the Federal Employees’ Compensation Act, the Longshore and Harbor Workers’ Compensation Act, and the Energy Employees’ Occupational Illness Compensation Program Act. See 45 CFR 164.512(l).
To the extent the disclosure is required by State or other law. The disclosure must comply with and be limited to what the law requires. See 45 CFR 164.512(a).
For purposes of obtaining payment for any health care provided to the injured or ill worker. See 45 CFR 164.502(a)(1)(ii) and the definition of “payment” at 45 CFR 164.501. - A carrier may send a HIPAA release form to the injured worker to obtain medical records for treatment prior to the work injury.
​ - Nurse Case Managers do not share HIPAA protected information with employers.

From an employer:

I am a small Mom & Pop company and we have our first injury, who do we contact?

Joan:

You should contact your insurance broker who assisted you in your insurance specifically, Workers' Compensation or the carrier on your Workers' Compensation policy.

From an injured worker:

Will I get paid starting the first day I lose time and who will pay me?

Joan:

Based on your employer's policy or union policy and the state jurisdiction of your injury - you may be paid by your employer and or will have to wait the grace period while the insurance company awaits evidence of your injury. Check with your HR Department or Leave of Absence Representative.

From an injured worker:

I got hurt on the job a month ago and thought everything was okay but now my back is killing me - my friend said to take PTO. Is that right?

Joan:

You should give your HR Department a call and report your injury. They will ask you to fill out an Injury Report and then will submit a First Report of Injury to their Workers' Compensation carrier. They can assist you further. In the event you have further questions about treatment or benefits - you can ask the Insurance Adjuster, once they are assigned.

From an insurance carrier:

It was anticipated that the NY OnBoard was going to roll out in the summer 2021 - has this been delayed?

Joan:

Yes, the NYS WCB will provide a 4 week head's up prior to release. There have been some delays.

From a provider:

When are payers required to electronically accept Form CMS-1500?

Joan:

NYS WCB has advised that October 1, 2021 is the deadline for acceptance. Don't forget to review The Revised CMS-1500 Claim Form: Everything You Need to Know in preparation for upcoming changes.

From a provider:

Do I need to renew my WCB provider authorization? If so, how often?

Joan:

The NYS WCB requires authorized providers to renew their authorization every two or three years.

From a claimant:

I fell down the stairs at home, but did not hurt anything. When I went to work a couple of days later, my left shoulder was hurting me. I lift boxes all day. My friend told me to talk to work about it. What should I do?

Joan:

If you feel you have had an incident that occurred at work - it is important to report the injury to your representative at work; whether that be your supervisor or HR Department. They will then be able to assist you further.

From an insured:

When does a C11 have to be filed?

Joan:

The C-11 form is an Employers Report of Injured Employee's Change in Employment Status Resulting from injruy. It should be used when there is any change in injured workers employment status. Complete the form when employee goes out of work, or returns to work or has changes in hours worked or in wages.

From a claimant:

I was injured at the office Christmas party - Is that covered under Worker's Compensation?

Joan:

The answer is It depends. Workers Compensation is available if you are injured or become ill as a direct result of your job. The nature of the party and whether it was within the scope of employment / a direct result of your job would need to be determined. My recommendation is to notify your supervisor / employer of your injury to discuss and confirm if the injury would fall under workers compensation. Remember, per the Worker's Compensation Board You must notify your employer within 30 days, but it is best to do so as soon as possible. If 30 days pass and you have not notified your employer, you may lose your rights to workers' compensation benefits.

As soon as possible, you should also file an Employee Claim (Form C-3) with the Board; this is how you notify the Board of your injury. Form C-3 must be filed within two years of the accident or within two years after you knew (or should have known) that you contracted a disease or condition due to the nature of your employment. If you are filing a claim for an occupational disease, see the reporting requirements for an occupational disease.

If you have injured the same body part before, or had a similar illness, you must also file the Limited Release of Health Information (Form C-3.3). http://www.wcb.ny.gov/content/main/Workers/file-claim.jsp

From a claimant:

I cut my hand at work and it was treated at the urgent care. My employer told me they would pay my urgent care bill directly and that a claim does not have to be filed with Workers Compensation. Is that correct? What if I develop numbness and think I need more treatment other than the urgent care?

Joan:

For minor injuries, the employer may choose to pay for the first aid treatments directly, completes the Employer's First Report of Work-Related Injury/Illness (Form C-2F), and maintains the form in their files. An injury is considered minor if it requires two or fewer treatments by a person rendering first aid, and lost time amounts to less than one day beyond the end of the working shift on which the accident occurred. If treatment or lost time exceeds these parameters, the employer should file the claim with the carrier and the WCB.

From an adjuster:

I keep reading about the new OSHA rules about mandatory vaccinations, does that apply to our company?

Joan:

The Emergency Temporary Standard (ETS) for COVID-19 vaccination and testing was officially filed on 11/4/21 and became effective on 11/5/21. The ETS has been issued to minimize the risk of COVID-19 in the workplace. It established requirements to protect employees of large employers (100 or more) from risk of contracting COVID-19 in the work place. Key: 100 or more employees. Need more info check out: https://www.osha.gov/sites/default/files/publications/OSHA4161.pdf

From a claims manager:

When is something considered an exacerbation of a prior injury or a new injury?

Joan:

There are a few scenarios to understand:
1) A "pre-existing injury" is when the injured worker has a medical history of injuring an area that is being claimed under workers' compensation.
2) An "exacerbation" is a temporary worsening of a prior condition by an exposure/injury. Following a transient increase in symptoms and signs, and a decrease in function, the person recovers to baseline status or what it would have been had the exacerbation not occurred.
3) A "new injury" should be considered when the injured worker reports an injury to a body part that if previously injured, has fully recovered and no symptoms have been present till the new injury occurred.

From a provider:

What if the provider that is requesting the medication is an out of state provider?

Joan:

Out of state providers will need to adhere to the NYS Drug Formulary and will have access to the portal in order to request the medication(s).

From a payor:

Are trainings available for the new OnBoard Limited Release system?

Joan:

Yes, you can obtain training, find out what is coming up next and get answers to your questions at http://www.wcb.ny.gov/onboard/payers-training.jsp. If you need anyting further, reach out to us - we would be happy to help.

From a claimant:

My benefits ended because my doctor stated that I had reached MMI. Should they have been discontinued?

Joan:

MMI or maximum medical improvement means it is not anticipated that you will recover or improve any further. Depending on the state jurisdiction and rules and regulations of that state, your benefits may be canceled. We recommend you discuss this with your claims adjuster at the workers' compensation carrier.

From a claimant:

My doctor wants me to have an EMG, what is that and what can I expect?

Joan:

Electromyography (EMG) is a diagnostic test used to assess your muscle(s) and nerve cells that control them. This test is typically recommended if you have symptoms of muscle pain or numbness. During an EMG, electrodes will be placed on the muscle(s) to record the electrical signals the nerve cells send to cause muscles to contract.

From an injured worker:

What if my medication is denied or partially granted? What can I do if I disagree with their decision?

Joan:

If a medication is denied or partially granted at a Level 1 review, the provider has 10 days to escalate the treatment request to a Level 2 Reviewer who can then grant, grant partially or deny. If the Level 2 reviewer partially grants to denies that treatment request, then the provider has 10 days to escalate the treatment request to a Level 3 which is by the Order of the Chair. Level 3 decisions are final and cannot be escalated.

From a claimant:

Can my evaluation include an ergonomic evaluation?

Joan:

If the treating provider opines medical necessity for an ergonomic evaluation of the claimant's workspace a request for the evaluation can be submitted to the carrier for review. The provider should follow MTG accordingly.

From a carrier:

When can we respond IME on a PAR?

Joan:

You can respond IME to MTG Variance and MTG Special Services PARs only. You can always get an IME and it can be referenced but the only 2 PAR types that can be responded with IME are MTG Variance and MTG Special Services.

From a provider:

Should a provider request a medication through the Medical Portal if it is a non-formulary medication?

Joan:

If a medication is not on the drug formulary set out by the NYS WCB, the requested medication must go through the Medical Portal.

From a provider:

Why has my company asked me to complete FMLA paperwork when I am out of work receiving Worker's Compensation benefits?

Joan:

FMLA leave and workers' compensation leave can run concurrently if the reason for the employee's absence is due to a qualifying serious illness or injury and the employer properly notifies the employee in writing that the leave will be counted as FMLA leave.

From a provider:

How many days do I have to appeal a level one or level two medication PAR review?

Joan:

Providers have ten days to appeal the carriers response. The appeal can lead to a direct escalation to a level 2 review or level 3 review (final decision).

From a claimant:

How will I know if my medication is approved?

Joan:

The ordering provider will get an alert of the carriers response.

From a provider:

Do out of state providers need to comply with OnBoard/PARs?

Joan:

Yes, the NY jurisdiction claims require out of state providers to sign up for OnBoard.

From a claimant:

Can a request be denied if I am at MMI?

Joan:

No, MMI does not preclude treatment.

From a carrier:

CAN A PRIOR OR PRE-EXISTING IME BE USED INSTEAD OF SCHEDULING A NEW ONE?

Joan:

No, a pre-existing IME cannot be used to deny a PAR. The Board states that a "Stand Alone IME" must be scheduled to address the PAR in question/under review OR at Level 2 the carrier physician can deny and await the OOTC decision.

From a provider:

What if the provider that is requesting the medication is an out of state provider?

Joan:

Out of state providers will need to adhere to the NYS Drug Formulary and must access the NY WCB Medical Portal in order to request the medication(s).

From a claimant:

I live in one state and was injured in another, can I go to a doctor of my choosing?

Joan:

Workers' Compensation insurance is the responsibility of your employer. Treatment must be rendered in the state the policy covers. 

From a claimant:

What if my doctor recommends surgery, but I'm not ready to move forward with that? My injury still comes in the way of me doing my job to the fullest, but I don't want a surgical intervention.

Joan:

No one can force you to undergo surgery. However, if it is the recommendation of the physician treating you and you do not wish to pursue; you should discuss other treatment options to assist you in your recovery. 

From a claimant:

I'm worried my job will be jeopardy if I tell my employer I was injured, how can I protect myself?

Joan:

Workers' Compensation is responsible for your injury that occurs as a result of an incident/jury at work. In order to receive benefits, you must inform your employer and complete the appropriate forms.

From a claimant:

I would like to try some holistic treatments for my worker's compensation injury, will these be covered by the insurance carrier?

Joan:

Each state has its own laws for workers' compensation requirements. In New York State, a provider must be authorized to treat Worker's Compensation claimants. In 2020, the state began allowing more types of providers to treat injured workers, this included acupuncturists. I would start by checking to see if the provider you wish to see is authorized to treat Worker's Compensation claimants.

From a carrier:

Do we have to provide transportation for an injured worker? How?

Joan:

Depending on the jurisdiction, transportation can be arranged by the insurance carrier and/or the claimant must be reimbursed for certain out-of-pocket travel expenses. New York’s Workers’ Compensation Law requires the employer/carrier to reimburse the claimant for out-of-pocket expenses for fares, automobile mileage, and other necessary expenses going to and from healthcare providers. In certain situations, transportation can be arranged through a dedicated vendor that provides such services.

From an employer:

The summer is coming up and my company hires seasonal employees, do they receive the same worker's comp benefits as regular full-time employees?

Joan:

Yes, seasonal employees are entitled to the same Worker's Compensation benefits as regular, full-time employees.

From a claimant:

What are the first steps I must do if I am hurt during work?

Joan:

When you are injured at work - it is important to notify your employer/supervisor as soon as possible. If an emergency seek immediate attention. Your employer will provide you with an incident report to complete and explain the procedures. If you need more information - you can find it at the New York State Workers Compensation website at https://www.wcb.ny.gov/content/main/Workers/Workers.jsp

From an employer:

My employee filed for unemployment insurance, but they are already receiving worker's comp insurance. Are they allowed to do this?

Joan:

Yes, someone can collect both NYS Unemployment Insurance benefits and workers’ compensation benefits at the same time. Eligibility for both benefits will generally occur if they are being paid at a partial disability rate from workers’ compensation and are deemed ready, willing, and able to work by the Unemployment office. Alternatively, if a doctor opines that someone is totally disabled and they are receiving workers’ compensation benefits at the total rate, they are likely not eligible for Unemployment benefits.