When a carrier is unsure of its liability with respect to a workers' compensation claim, the carrier may use Workers' Compensation Law (WCL) §21-a to extend its time to investigate the claim. WCL-§21-a permits a carrier to take up to a year (365 days) to determine whether it will accept or deny the claim when:
- timely payments are made in accordance with Subject Number 046-696 Notice Requirements for eClaims and the WCL § 21-a Process dated July 17, 2014 during this period; and
- the claimant and the Board are notified that such payments are made "without liability."
Use of the §21-a option has increased. In addition, on or after January 1, 2019, carriers will be required to indicate whether benefits are being paid with liability (L) and the claim is accepted or paid without liability (W) under WCL §21-a. These Agreement to Compensate Codes replace the former Claim Type Codes. When a carrier selects an Agreement to Compensate Code of L on a First Report of Injury (FROI) and/or an L or W code on a Subsequent Report of Injury (SROI), the carrier is accepting the case or paying without prejudice pursuant to WCL §21-a. Accordingly, the Board has developed a process and timelines incorporating WCL §21-a rules and the eClaims protocol.
In general, whenever the first indemnity payment of compensation has been made on a claim, the carrier must indicate on its first SROI filing, that the payment is made with (L) or without (W) liability. When a SROI is filed with a W, the servable form of the SROIs listed below will contain the required notice from the Board to the claimant. The case will be identified as subject to WCL §21-a and no further notice will be sent by the Board. The table below lists the SROIs that must indicate W or L when filed and those that should not have this indicator:
|FROI/SROI type||W or L required|
* Required after February 22, 2019
IMPORTANT: The L Agreement to Compensate Code indicates acceptance of the claim. When a SROI is filed with an L, the Board will mark this case as accepted for the body part(s) identified in the SROI.
Filing using the Agreement to Compensate Code W
To invoke WCL §21-a, the carrier must use the W code on the first SROI that is filed.
- An L filing indicates that the carrier has accepted the claim.
- Any subsequent SROI filed with a W will not be accepted.
- When a carrier has filed a SROI-04. A subsequent SROI reporting payment to the claimant with a W will be accepted, as long as it is filed more than 10 days before the Pre-Hearing Conference on the controversy. NOTE: In such cases the carrier may still be subject to late payment penalties imposed by the Board's Monitoring Unit.
- A carrier may not use the W code in death cases, or cases that are medical only.
Ending WCL §21-a status
There are three ways to properly end a case's WCL §21-a status:
- Accept the case: An L filing after the first SROI with a W, indicates that the carrier has accepted the case and the case will no longer be marked as subject to WCL §21-a. The carrier should make this filing using a FROI or SROI-02.
- Controvert the case: A carrier that wishes to controvert the case after a W filing, must file a SROI-SJ before filing the SROI-04. Filing the SROI-SJ satisfies the carrier's obligation under WCL §21-a(3). Failure to timely or properly follow this procedure may result in a case being deemed accepted pursuant to WCL §21-a(4).
- Accept the case by allowing a year to pass: When the insurance carrier's initial SROI has a W designation, and 365 days have passed from the first benefit payment issue date, and the carrier has not properly controverted the case, the case is deemed accepted. The carrier must file a SROI-02 with the L designation.
To Avoid Losing 21-a Status
If any of the following occur, the carrier may lose their rights to continue payments per §21-a, as the case may be established:
- Object to payments of a medical bill (C-8.1B) stating treatment provided was not causally related to the compensable injury or claim has been controverted and there is no controversy (FROI/SROI 04) present in the case.
- Failure to continue payments consistent with the claimant's treating provider's medical reports, including reducing payments based on an IME.
Process for Acceptance of a Claim
For cases with a date of accident on or after 1/1/19, the acceptance of a claim on the FROI will change from the Claim Type Code to the Agreement to Compensate Code (this is a new field for the FROI). There are two ways a claim may be accepted: L - With Liability or W- Without Liability.
- The Agreement to Compensate Code of L- With Liability indicates acceptance of a claim.
- The Agreement to Compensate Code of W- Without Liability indicates:
- The claim has been accepted without prejudice and without admitting liability and payments will be made pursuant to §21-a, or
- Indemnity benefits are being paid pursuant to §25(1)(f).
For dates of accident prior to 1/1/19, the acceptance of a claim will remain to be based on the Claim Type Code.
Additionally, two new Claim Type Codes were added as of 1/1/2019:
- W = Lost Time with No Paid Indemnity
- P = Indemnity with No Lost Time Beyond Waiting Period
The current Claim Type Code descriptions were updated as of 1/1/2019:
- N = Notification of an Incident Only
- I = Indemnity for Lost Time
- L = Became Indemnity for Lost Time
Volunteer Claims, Section 50 not 21-a
Benefits paid under the Volunteer Firefighter's Benefits Law (VBFL) or the Volunteer Ambulance Workers Benefits Law (VAWBL) may not be made without liability pursuant to Workers' Compensation Law (WCL) section 21-a.
When a payment is made pursuant to Section 50 of either the VBFL or VAWBL, the payer is conceding that the benefits are due. The controversy in these Section 50 cases is between potential liable parties. Payments made pursuant to VBFL or VAWBL Section 50 do not extend the payer's time to controvert the claim. The proper filing of a SROI using the Agreement to Compensate Code of "W" without liability, represents the payer is raising Section 50 on a volunteer claim.
eClaims Reminders for Payers
eClaims 3.1 requires payers to use an ATC (Agreement to Compensate) code on nearly all filings (that are not an 04 denial of the claim) indicating whether they are accepting the case with (L) or without liability (W). The legal significance of these filings must be interpreted within the framework of New York's Workers' Compensation Law. 2 sections of law in particular must be considered in conjunction with the payers eClaims filings: WCL 25(2)(b) states that in the event that the Board indexes a claim, the payer will waive most defenses unless it files a denial of the claim within 25 days of indexing; and WCL 21-a states that when a carrier makes payment of compensation without prejudice to its right to later controvert the claim, the payer must notify the claimant of this reservation of rights.
FROIs. When a payer files a FROI in a claim, and includes an ATC code of L, but the case is either not indexed or 25 days have not passed from the date of indexing:
- the payer may file a subsequent 04 in the case due to its rights under WCL 25(2)(b)
- The payer may also file a SROI with an ATC code of W as WCL 21-a is not triggered until the carrier begins to make benefit payments to the claimant.
SROIs. When a payer files a SROI indicating payment to the claimant and enters an ATC code of L, the carrier has accepted the case for the body parts listed on the SROI. Any subsequent SROI 04 or SROI that changes the L to a W is of no legal effect. This is due to the application of WL 21-a which requires that payments of a claimant where the payer wishes to reserve it's rights be made with notice to the claimant. An initial SROI with an L indicates that payments are being made without any such reservation.
|eClaims Filing||ATC||21-a waived and Claim accepted||Denial waived and Claim accepted|
|FROI (all)||L=With Liability||No||No - unless the case has been indexed and 25 days expired.|
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