On March 7, 2020, former Governor Andrew M. Cuomo issued Executive Order 202, declaring a disaster emergency in the State of New York in response to the threat posed to the health and welfare of its citizens and visitors by the novel coronavirus, COVID-19, outbreak.
As an overarching precaution, in line with recommendations by the Governor and the Centers for Disease Control and Prevention on social distancing as a preventative tool, the NYS Workers' Compensation Board (Board) encourages those who need to contact the Board to do so via phone, email and/or your attorney if applicable, limiting any in-person visits to Board offices. Please see the Board's Contact Us webpage for location and service-specific contact information.
As a result of the issuance of this Executive Order, and the impact that this health crisis is expected to have on the adjudication of ongoing workers' compensation claims, the Board is issuing the following guidance to assist its stakeholders.
All Hearings will be by Remote Attendance
To preserve public and workforce safety, effective immediately, and until further notice, the Board will conduct all hearings remotely, through the Board's Virtual Hearings. Virtual Hearings allow injured workers, attorneys/licensed representatives, witnesses and other participants to attend hearings online. For the very small number of hearings that are not able to be held virtually, the Board will contact the participants regarding further proceedings.
Please visit the Virtual Hearings webpage at wcb.ny.gov/virtual-hearings for further guidance and instructions regarding virtual appearances.
Claimants appearing from home (or wherever safe and convenient) can appear either by video through Virtual Hearings, or may appear at hearings by telephone. To appear by telephone, a claimant should call the Board's Customer Service at (844) 337-6301 on the day of their hearing. If an unrepresented injured worker is unable to participate in their hearing, it will be rescheduled.
DVD and other evidence that the parties wish to introduce should be mailed to the Board and the opposing parties within two days of introducing it at the hearing.
Our goal is to keep the hearing process going without having to cancel hearings, because we don't want to see delays in the system that affect benefit delivery to injured workers. We appreciate everyone's cooperation in this effort. Any questions can be directed to the Board's Customer Service at (877) 632-4996.
90-day Requirement for Medical Evidence
When a claimant's disability has not been classified as permanent, the claimant's attending physician has the burden of submitting up-to-date medical evidence that the disability is continuing.
Board Rule 325-1.3(b)(3) requires a claimant's attending medical provider to submit progress reports of ongoing medically necessary treatment and "the intervals between [those] follow-up visits shall be no more than 90 days."
The Board understands that a claimant may be unable to see his/her attending physician due to the coronavirus outbreak. This may (for example) be due to the physician's unavailability or the claimant being quarantined. This could result in delays beyond the 90-day period set forth in Board Rule 325-1.3(b)(3) that could affect continuity of lost time benefits.
To avoid that situation, if a carrier seeks to suspend the claimant's benefits as a result of a failure to comply with Board Rule 325-1.3(b)(3), the Board will take into consideration a claimant's or his or her attorney's assertion that the claimant was unable to secure a required medical report due to the coronavirus outbreak.
Please be advised that the Board is set to issue an emergency regulation on Telemedicine, which will be effective for 90 days upon adoption. Information will be provided on the Board's website, wcb.ny.gov, and provided to all subscribing stakeholders via WCB Notifications.
Failure to Attend an Independent Medical Examination (IME)
The Workers' Compensation Law provides that a refusal by a claimant to submit to an IME may bar the claimant from recovering compensation for any period during which he or she has refused to submit to such examination (WCL § 13-a[b]; see also 12 NYCRR 300.2[d]). While the number of non-appearances is not specified by rule, usually any request to suspend would only occur after a second refusal to appear.
There have been circumstances where the Board has held that when a claimant frustrates the employer's right to engage an IME, a suspension of payments is warranted (see Matter of Jasmine v Rainbow Grill, 115 AD2d 862 ).
However, there is no basis to bar payments where the claimant's failure to attend an IME is not due to a refusal to submit to such examination, or where the claimant's refusal is reasonable (see Matter of Ferguson v Fruehauf Corp., 156 AD2d 880 ).
If a claimant cannot appear at a scheduled IME due to the coronavirus outbreak, he/she should let his or her attorney know, and notify the IME doctor and the Board by email at firstname.lastname@example.org, or by letter to the Board's centralized mailing address at PO Box 5205, Binghamton, NY 13902-5205.
Benefits will not be suspended if the claimant offers a reasonable excuse for the failure to attend the IME.
C-4Auth Filed; 30 Days to Schedule IME Requirement
Pursuant to WCL § 13-a(5), a claim for a surgical procedure costing more than $1,000 shall not be valid and enforceable against an employer unless it was authorized by the employer or the Board, "or unless such authorization has been unreasonably withheld, or withheld for a period of more than  calendar days from receipt of a request for authorization, or unless such special services are required in an emergency, provided, however, that the basis for a denial of such authorization by the employer must be based on a conflicting second opinion rendered by a physician authorized by the board."
As provided in Board Rule 325-1.4(a)(6), in a situation where the claimant is not hospitalized, the employer must either grant or deny the authorization request within 30 days, and a denial must be based on a conflicting second opinion performed within that 30-day period (see 12 NYCRR 325-1.4). In the event that a case is controverted, the procedures set forth in 12 NYCRR 325-1.4(b) must be followed.
It is possible that a carrier may be impeded in acquiring a "conflicting second opinion" from an IME because of the coronavirus outbreak.
While the Board does not have the authority to waive the statutory requirement for a timely conflicting medical opinion under WCL § 13-a(5), existing law allows for the conflicting opinion to be based on a records review instead of an in-person examination.
There are other situations in which an IME may be directed by the Board, such as permanency exams and in controverted claims.
In a controverted claim, an IME as directed under Board Rule 300.38(g)(8) on the issue of causal relationship must be obtained no more than 30 days from the date of the pre-hearing conference, or else it is deemed waived, "…unless the insurance carrier makes a showing of good cause for such failure, and that it acted in good faith and with due diligence. The showing must be made by an affidavit by the insurance carrier or if represented, by its legal representative. Good cause shall include, but not be limited to, the inability to obtain medical records in advance of the hearing or the failure of the claimant to appear for an independent medical exam."
If the failure to schedule an IME is attributable to circumstances surrounding the coronavirus outbreak, the carrier can request that the Workers' Compensation Law Judge (WCLJ) excuse the lateness and allow additional time to procure an IME. The request must be in the form of the affidavit as required by Board Rule 300.38(g)(8) or it will not be considered.
For the opportunity to obtain a permanency examination as directed by the Board, if the failure to schedule an IME, or the claimant's inability to attend an IME, is attributable to circumstances surrounding the coronavirus outbreak, the carrier can request an extension of time by correspondence with the Board, which includes an affidavit or affirmation that demonstrates the circumstances related to the coronavirus outbreak that warrant an extension. The request will be reviewed by conciliation or a WCLJ, depending on the exact circumstances, and a decision will be issued. Failure to provide an affidavit or affirmation may lead to the adjudicator not granting the extension request.
Depositions (Cross-Examination of Medical Witnesses)
For off-calendar depositions of medical witnesses, it is anticipated that there will be problems with scheduling that are caused by the coronavirus outbreak, centered around the limited availability of the medical witnesses. Requests for extensions of time that are necessitated by these scheduling difficulties should include a description of the situation. The Board will take these circumstances into consideration when setting depositions, and when deciding whether an extension in scheduling of depositions and filing of the minutes should be granted.
Appeals and Rebuttals
WCL § 23 and Board Rule 300.13 requires a party seeking review of a WCLJ or Board Panel decision to file a written application for review with the Board within 30 days of the filing of the decision. Similarly, a rebuttal to an application for review or full board review must be filed with the Board within 30 days after service of the application.
If a party is unable to comply with the requirements of WCL § 23 and Board Rule 300.13 due to the coronavirus outbreak, the Board will consider exercising its discretion to excuse an untimely filing pursuant to Board Rule 300.13(b)(4)(iii), if the reason for lateness is fully set forth in the application or rebuttal, stating in detail the circumstances directly related to coronavirus that caused the delay. The application or rebuttal must be filed as soon as feasible after the filing deadline has passed, and the Board will determine whether the application or rebuttal was filed within a reasonable time. An untimely filing by an unrepresented claimant may also be excused pursuant to Board Rule 300.13(f), so long as the circumstances are explained. As a reminder, the formal filing and formatting requirements set forth in 300.13 do not apply to unrepresented claimants.
The appeals regulation allows for proof of service by 'affidavit, affirmation, or other satisfactory proof of service as prescribed by the chair' [300.13 (b)(2)(a), italics added]. For any carrier, self-insured employer or legal representative that, because of work being completed remotely during the coronavirus outbreak, is unable to obtain notarization on an affidavit of service, the Chair will allow an attorney or representative's staff member to sign the affidavit of service without the staff member's signature being notarized. If that occurs, the legal representative preparing the application for review of the WCLJ or Board Panel decision, or the rebuttal, and who is supervising the staff person who will serve the application or rebuttal, MUST include a full description within an attached brief or a standalone statement of the circumstances, and indicate that all staff, including attorneys and support staff, are working remotely, or indicate there is no notary in the office, so there is no ability for the staff person serving the application or rebuttal to obtain notarization, and that the legal representative directed the staff person to serve the appeal or rebuttal on the listed parties by the method indicated, and upon information and belief, such service was completed. This flexibility does not apply to any circumstances other than described above.
The regulation provides that service on a party by email or other electronic means is permissible only with the explicit permission of that party.
Bureau of Compliance
WCL §§52 and 220 provide for the imposition of penalties for a failure to maintain proper benefits coverage and WCL §131 provides for penalties for the failure to timely provide requested records. These provisions impose strict timelines for the filing of requests for redetermination of penalties assessed in connection with violations of these provisions. In light of the coronavirus outbreak, the Board will consider applications to excuse delays and defaults in complying with the timelines to seek redetermination. NOTE: The potential waiver of the timeline for requesting review of penalties issued pursuant to WCL §§ 52, 220, and 131 has no application whatsoever to the requirement to obtain the required coverage, or maintain the required payroll records, in the first instance. Any application to excuse a delay or default in requesting a redetermination must be in affidavit form, indicate that the delay or default was caused by conditions over which the applicant had no control, and include a statement indicating the date the applicant filed the late document. Employers may make one application pertaining to numerous Bureau of Compliance penalties as long as each penalty ID # is referenced in the application. All novel coronavirus-related applications to excuse a delay or default should mailed to the Bureau of Compliance, PO Box 5200, Binghamton, NY 13902. Any application seeking relief based on novel coronavirus must be filed with the Board within fourteen (14) business days of the deadline date that is the subject of the application.
WCL §25 contains numerous provisions that impose strict timelines for the filing of documents and the payment of benefits. In light of the coronavirus outbreak, Payor Compliance will consider applications to excuse delays and defaults in complying with various WCL provisions used in the measurements of timely First Report of Injury (FROI), timely Subsequent Report of Injury (SROI) showing initial payment, timely initial payment, timely initial installment payment and timely Notice of Controversy. NOTE: The potential waiver of penalties for untimely filings would be applicable solely to the penalties that are payable to the Board and would have no application to any compensation or penalties that are otherwise payable to an injured worker or third-party. Any application to excuse a delay or default must be in affidavit form, indicate that the delay or default was caused by conditions over which the applicant had no control, and include a statement indicating the date the applicant filed the late document or paid the late compensation. Employers or Claims Administrators may make one application pertaining to numerous Payor Compliance penalties as long as each case number is referenced in the application. All coronavirus-related applications to excuse a delay or default should be emailed to Monitoring@wcb.ny.gov. Any application seeking relief based on the coronavirus outbreak must be filed with the Board within fourteen (14) business days of the deadline date that is the subject of the application.
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