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Date: October 30, 2008
On October 3, 2008, Subject Number 046–254 was released, explaining the new case assembly, indexing and adjudication processes, while setting forth implementation dates. This release sets forth an effective date for Section 300.38, and identifies the affected claims.
On June 1, 2007, the Superintendent of Insurance forwarded to the Chair of the Workers' Compensation Board administrative and regulatory recommendations to resolve controverted claims within 90 days. One of the operating premises of the recommendations is that more information earlier in the case will provide insurance carriers the specific information they need to make reasoned decisions. If carriers should dispute a claim, they will have a fact–specific basis for controversy, eliminating defenses of little or no merit. To achieve this goal, the Board enhanced the claim forms used by claimants, employers and treating medical providers.
The recommended foundation of enhanced disclosure is included in the regulations adopted by the Board on September 16, 2008. Pursuant to Section 300.37(b), a claim is not indexed until the Board receives a completed employee claim form or employer report of injury form, as well as a medical report form. Further, if an employee claim references a prior injury or illness, a limited release form is also necessary. The purpose behind requiring these forms in order to index is to provide the insurance carrier with enough information to decide whether to accept or controvert a claim. Because the insurance carrier is receiving more information early in the claim, Section 300.38(a) requires the carrier to fully complete any notice of controversy and to provide a factual basis for the controversion and any asserted defenses. In addition, this subdivision requires the legal representative of the insurance carrier to certify the notice of controversy. The additional information on the initial forms will also assist the parties in completing the Pre–Hearing Conference Statement (Form PH–16.2). While this form has always been required by statute and regulation, the recently adopted regulations [see Section 300.38f)] impose significant penalties for failing to fully complete and timely file and serve it.
On September 17, 2008, the Board announced it had redesigned the core forms used to gather information about a claim (Subject Number 046–250). After a year of input from stakeholders and the public, focus groups, review by plain language experts and internal review, the Board released
The redesigned and new forms seek all necessary information, are easier to read, and provide additional space to answer the questions.
The Board encourages all parties to begin using the new forms as soon as possible. However, the Board also recognizes that our stakeholders will need time to incorporate them into their business processes. Therefore, the Board expects all parties to begin using the new forms by January 1, 2009.
On September 16, 2008, the Board voted to adopt the case assembly, indexing and controverted claim process regulations. The new controverted claims process regulations are effective for claims assembled and assigned a unique claim number on or after November 3, 2008.
However, because old versions of the core forms (C–2, C–3 and the C–4 family of forms) may still be filed between November 3, 2008, and January 1, 2009, the Board will not apply the controverted claim process in Section 300.38 to claims that are assembled and assigned a unique claim number before January 1, 2009. In other words, if a case is assembled on November 4, then the requirements and penalties in Section 300.38 will not apply. This means that if the revised Form C–7 is used to controvert the case it does not need to be certified, either by the preparer or the insurance carrier's legal representative, and the new Pre–Hearing Conference Statement (Form PH–16.2) does not need to be filed. In addition, if the insurance carrier controverts the case by filing a Form C–7 before the C–3 or C–2 and one of the C–4 family of forms are filed, then the requirements and penalties in Section 300.38 will not apply.
Parties must use the redesigned and new forms for all claims filed after January 1, 2009. If an insurance carrier intends to controvert such a claim, it must use the redesigned Form C–7 and comply with Section 300.38. The streamlined adjudication process in Section 300.38 will apply to all controverted claims assembled on and after January 1, 2009, except as provided in the regulations for unrepresented claimants.
Please visit the Board's website at www.wcb.ny.gov to obtain or submit a form and/or to review or obtain a copy of the regulations.
Zachary S. Weiss