Denying Claims in New York

Completing the FROI-04 (denying the claim).

To deny a workers’ compensation claim in New York, the carrier/self insured employer must file an electronic denial. The electronic denial form is mandated by the EDI/eClaims process and designated a “FROI-02” (where the denial is the first document filed by the carrier or self-insured employer) or a SROI-04 (where the carrier/self insured employer has already filed an electronic claim form).

Denial Codes.

Greg Lois
Gregory Lois, Esq.

When denying a claim, the carrier/self-insured employer must designate a, EDI denial code (“MTC code”) which is specific to the legal defense raised. For example, the legal defense of “No Accident Arising Out of and In the Course of Employment” is coded as “1A: No Compensable Accident.” It is general practice for the risk professional handling the claim to contact counsel in advance of filing a denial pleading to confirm the legal defenses to be raised and the denial codes to be used.

Timing.

After the Board notifies the employer (or its insurance carrier) that a workers’ compensation case has been indexed against the employer, the employer may file a notice of controversy (FROI-04) within 25 days from the date of mailing of the notice of indexing. Failure to file the notice of controversy within the prescribed 25 day time limit could bar the employer and its carrier from pleading certain defenses to the claim. WCL § 25(2)(b).

Where the employer is not controverting (challenging) the claim – If payment has not begun because no compensation is presently due, a FROI-00 must be filed with the Board within 25 days after the Board has transmitted a notice of indexing.

Should I wait for indexing before controverting?

A common question for adjusters is whether to wait for the Board to formally “index” a claim before filing the Notice of Controversy/FROI-04 (thereby disputing the compensability of the claim). Strategically, if the claimant does not file the appropriate forms or if medical is not submitted to the Board, there is a possibility that the case will not be indexed – in which case, the employer/carrier may not have to file any formal notice disputing the case.

Generally speaking, if a claim is going to be controverted, the FROI-04 and Pre-hearing Conference Statement should be filed regardless of the state of Board indexing. Simply put, the potential for a missed Notice of Indexing, tight timelines for filing the Notice of Controversy, etc., make the “waiting” strategy risky.

Serving the denial on the claimant.

The Regulations require that the claimant and her attorney be served with a paper copy of the denial. However, as of May 23, 2014, the Board is no longer accepting paper denial forms. The Board has issued new regulations which provide that the claimant and her attorney can be served with a paper copy of the denial “within one business day” of the electronic filing being issued, The Board has also issued a statement that the Board will generate these paper denial forms and place them in the Electronic Case Folder “within one day.”

The Board has mandated service on the parties of a paper form in when a FROI 00 – Original (Mailing to parties is optional), FROI 01 – Cancel, FROI 02 – Change, and/or FROI 04 – Denial is filed (note: there are many other FROI-types which require service, not listed here).

So, when a denial is made, the FROI-04 must be printed out and mailed to the claimant and her attorney within one business day (12 NYCRR 300.22[2][b][1][ii]). If the defense attorney did not also prepare and serve a paper C-7 (paper only on the claimant and her attorney) then defense should prepare and file a Form OC-400.5 certifying the controversy. See 12 NYCRR 300.38.

Penalties for Frivolous Denials.

If the Board finds that the denial was “interposed without just cause,” the law allows for a penalty of $300 to be paid to the claimant. This $300 is in addition to any amount found payable under the award.

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Greg Lois is the managing partner of LOIS LLC, a 21-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 & 2017 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com