Clients have reported to me that when handling claims under the New York Workers’ Compensation Act if the claimant resides out of state they are not applying Medical Treatment Guidelines (“MTG”) to the ongoing treatment. This means that employers and their insurers are not getting the benefit of the MTG in these cases. (Note: If you are unfamiliar with the Medical Treatment Guidelines that went into effect on December 1, 2010, I recommend you read my earlier posts on these topics:
- The Medical Treatment Guidelines – this is a general overview article;
- Optional Prior Approval; and
- The Variance process.
- Observations on the Variance process.)
There is no case law examining this issue in light of the controlling statutory authority and the information published by the WCB is simply nonsensical. Why would an out-of-state claimant be entitled to more or less medical treatment than the in-state claimant?
What the law states.
The strongest authority is the Workers’ Compensation Law (“WCL”) statute itself. Section 13 of the WCL states:
(b) In the case of persons, injured outside of this state, but entitled to compensation or benefits under this chapter, the provisions as to selection of authorized physicians shall be inapplicable. . . All fees and other charges for such treatment and services, whether furnished by the employer or otherwise, shall be subject to regulation by the board as provided in section twenty-four of this chapter, and shall be limited to such charges as prevail in the same community for similar treatment of injured persons of a like standard of living.” None of the cases that cite to this provision indicate that an out-of-state claimant is entitled to less or more medical care than is required under WCL § 13-a.
That first part about the “selection of authorized physcians” just means that when the claimant is treating out-of-state, the treating physicians do not have to be “coded” or otherwise authorized by the WCB to treat the claimant. Nothing in the statute allows for an out-of-state claimant to get more or less treatment then a worker injured in New York.
What the WCB says.
This is where it gets confusing: I found this on the WCB website in a ‘Frequently Asked Questions’ response under the heading “Out of State” (link):
“Question: How do the Medical Treatment Guidelines apply if an injured worker lives or receives treatment outside of New York State?
Answer: If the injured worker either lives or is treated in New York State, the Medical Treatment Guidelines apply. If the injured worker both lives and is treated outside New York State, the Medical Treatment Guidelines do not apply.”
There is also this:
“Question: How can a party compel appearance at a deposition of an out of state provider, when a variance is denied by a health care provider?
Answer: First, the variance can only be denied by a carrier. It is submitted by the health care provider. Second, If the out of state provider is treating a claimant that both lives and is treated outside New York State, the Medical Treatment Guidelines do not apply. If the Medical Treatment Guidelines do not apply, then there is no need to request a variance and there will be no need to depose such provider. However, if the out of state provider is treating a claimant who lives in New York State, the Medical Treatment Guidelines apply. In that case the methods used to depose out of state providers for all other issues should be used. A subpoena is not necessary if the provider agrees to a date and time to be deposed.
Hmm. This seems to directly state that an out-of-state claimant is not bound by the MTG. Remember, answers to “Frequently asked Questions” on the Board’s website is not law or even persuasive authority.
The Regulations imply that the MTG applies to out-of-state claimants.
After reviewing the regulations and the MTG, I found only one Regulation that references a claimant who resides out of state in regards to treatment (in this case, IMEs). Here are some references in the Regulations that seem to imply that the Guidelines DO apply to claimants who reside out of state. For example, 12 N.Y.C.R.R. 325-1.4(a)5 states as follows:
In response to requests for authorization for treatment related to an established body part or illness, the self-insured employer or insurance carrier may have the [patient] claimant examined within four business days if the [patient] claimant is hospitalized or  thirty days if patient is not hospitalized, by an appropriate [medical board-certified] specialist who is [also] authorized [in such specialty,] by the [chair,] Chair to [treat] conduct independent medical examinations of workers’ compensation claimants. If such specialist is not available or where the claimant resides outside of state, consultation may be rendered by [an authorized physician who is acceptable to both the self-insured employer or insurance carrier and the physician requesting authorization, or in the event the parties cannot agree, a physician may be selected by the chair] a qualified provider who may conduct the independent medical examination as provided in Workers’ Compensation Law Section 137 (3) (a) and section 300.2 (b) (9) and (d) (7) of this Chapter.
This regulation clearly assumes that the Chair has the power to regulate out of state care, and that a patient who resides out of state (and presumably is getting treatment out of state) can still request authorization for treatment to established body parts.
The Regulations and the individual Guidelines for each body part certainly do not state that claimants who live out of State are treated any differently than in-state residents.
Of course, if out-of-state claimants with established cases were not subject to the MTG they could continue to direct and control their own medical care as they did in the pre-MTG era. Certainly, this creates a situation where the out-of-state claimant would be able to obtain more medical treatment than a similary-situated in-state claimant, which defies common sense.
Have any questions about this article? Contact Greg Lois