The Board’s new initiative to enforce EDI (“eClaims”).
Beginning in 2013, the Board has begun an increased tempo of “monitoring and compliance” initiatives intended to enforce the eClaims guidelines and generate more penalty income for the State. The Board has now established a “Compliance Unit” intended to do the following:
- monitor performance standards for timely submission of First Report of Injury,
- confirm timely first payment of indemnity benefits,
- check for timely submission of Subsequent Report of Injury showing first payment,
- monitor timely submission of Controversy; and
- track the Percentage of Claims Controverted (how many cases is the carrier denying?).
Timeline of the “Typical” case: Admitted Traumatic Accident with Lost Time.
- Initial investigation to confirm loss.
- If there is medical and lost time, begin benefits.
- File FROI-00.
- File update EDI documents as the case progresses.
The process in detail.
Investigation and Communication.
All accidents should be investigated fully. The employer should contact the insurance carrier and maintain those communications throughout the claim. The investigation’s results should be copied to your defense attorney in the case of a controverted claim.
Any written contact with the claimant’s health care provider should be copied to the claimant, the Board, and the claimant’s legal representative. See New York State Workers’ Compensation Board Subject No. 046-124, citing WCL Section 13-a(6), 137(1)(b) and (c), 12 N.Y.C.R.R. 300.2(B)(11). Any attempt to influence the health care provider in any way may be considered interference with the claimant’s treatment. This is often referred to as “undue influence.” Failure to so notify is grounds for preclusion of the medical reports and/or referral to the Board’s Fraud Inspector General and/or prosecutorial authorities. This works both ways – if the claimant’s attorney has been attempting to influence the course of care or has been communicating with a treatment provider, we can claim “undue influence” against the claimant and have the doctor’s medical records and testimony precluded.
No need to report “Minor Injuries.”
For minor injuries, defined as “requiring two or fewer treatments by a person rendering first aid, and with lost time of less than one day beyond the end of the working shift on which the accident occurred,” the employer may pay for the first aid treatments directly (instead of referring the incident to the workers’ compensation carrier and the Board). Instead, the employer completes a Form C-2F “Employer’s Report of Work-Related Injury/Illness” but does not send it to the Board or the insurance carrier – they hold the form in their files for the statutory 18-year period.2
From the carrier perspective, these “minor injuries’ which are treated on-site are not reported and there is nothing for the carrier representative to do.
When Injury Reporting is required.
New York Workers’ Compensation Law § 110 states that an accident must be reported when it:
will cause a loss of time from regular duties of one day beyond the working day or shift on which the accident occurred, or which has required or will require medical treatment beyond ordinary first aid or more than two treatments by a person rendering first aid.
In order to be reportable, the injury must:
- Cause the worker to lose one day of work in addition to the date of loss; OR
- Require more than ordinary first aid; OR
- Require at least three “first aid” visits.
The Workers’ Compensation Board has an official form for reporting injuries (Form C-2F “Employer’s Report of Work-Related Injury/Illness”).3 The form must be provided to the injured worker upon request and has to be maintained (held) by the employer for at least 18 years.
Timeline for reporting.
The C-2F report must be filed with the Workers’ Compensation Board within 10 days after the occurrence of the accident.
Failure to file the report subjects the employer to potential misdemeanor criminal liability, punishable by a fine of not more than $1000. A second penalty – not to exceed $2500 – can be imposed by the Board. See § 110(4) and 12 NYCRR § 310.2. Also, see Chapter 19 in my book (New York Workers’ Compensation Law 2015, “Penalties”).
Information regarding any injury or illness that does not meet the reporting requirements as set forth in § 110 must nonetheless be maintained by the employer for at least 18 years and shall be subject to review by the chair of the Board at any time. Even if an injury or illness is not reported, it must be monitored to determine if it meets the reporting requirements at a later date (for example, the claimant obtains more than two first aid treatments).
Timelines for denying (the “18/10 rule”).
A decision by the carrier to deny the compensability of an alleged injury (other than “minor injuries” discussed above) must be reported to the Board and insurance carrier by filing an eClaims form.
There are two different timelines that apply. The Board will allow for the greater of:
- 18 days: On or before the 18th day after lost time (“the disability event”); or
- 10 days: within 10 days after the employer has knowledge of the lost time (“disability event”).
How does the Board know if a denial was filed “timely”?
The Compliance Unit is measuring Timeliness of Controversy on only lost time claims. The timelines they are checking are (a) 18 days from Date of Accident, (b) 10 days from Date Employer had Knowledge of Injury, and/or (c) 10 days from Initial Date of Disability, whichever period is greater.
To determine he date that the employer had knowledge the Board will use the earliest date of “Date Employer Had Knowledge of the Injury” (DN0040), “Date Employer Had Knowledge of Disability” (DN0281), Board’s Assembly Notice Date, and/or the Indexing Notice Date.
To determine the initial Date Disability Began/Current Date Disability Began the Board will look to the filings to see Initial Date Disability Began (DN0056) and Current Date Disability Began (DN0144) are present, and the Initial Return to Work Date (DN0068) is less than or equal to 7 days then Current Date of Disability (DN0041) is used.
What are the penalties for “Untimely Controversy?”
As per WCL §25 (3)(e), “If the carrier or employer fails to file a notice within 18 days of disability or 10 days after employer knowledge, the Board may impose a $50 penalty.”
WCL §25 (2)(a) allows that when a carrier fails to file a notice of controversy or begin payment within the prescribed period or within 10 days of claims administrator knowledge (whichever period is greater), the Board may, after hearing, impose a $300 penalty in addition to any other penalty.
Use Caution When completing a C-2F.
Statements made on the C-2 form may be legally binding. Questionable claims and claims where the employer suspects fraud on the part of the claimant should be noted on the C-2. The insurance carrier can also be contacted for assistance with completing the form. The C-2 can be filed by a third party designated by the employer, however the employer is ultimately responsible for making sure it is filed.
Filing the C-2F is not necessarily an admission that you agree with the facts of an accident. It is a statement that an employee reported a work-related injury or illness to the employer.
As discussed above, filing this report (the report of accident) should not be treated lightly by the employer.
Although filing this report seems like a simple clerical task, the statements in the employer’s report of accident may be used by the claimant as an admission against interest, even if the information in the report is hearsay. Additionally, in cases where the employee dies before testimony is taken, the first report may be used to corroborate the claimant’s version of events.
A Board claims examiner may issue an Administrative Decision and impose a penalty of $50 for failure to file a form. The Board may impose a penalty up to $2,500 against an employer who refuses or neglects to file a C-2F. WCL § 10(4).
Given these penalties, employers should make every effort to fully complete the Form C-2F. In recognition of the fact that employers may not have the information to answer all of the questions on the Form C-2 within 10 days of the date of accident, the Board allows for filing of incomplete forms. When this occurs, the employer should complete the form to the best of its ability, indicate where it does not have the information, and timely file the form. However, if the Board receives a Form C-2F that is deficient because a significant number of the questions are unanswered, the employer may be penalized for not filing the form. The decision as to whether a form is deficient will be made by a Workers’ Compensation Law Judge or Conciliator.
How to report “No Lost Time” or “Medical Onlys”
The Board is now instructing carriers that when lost time does not exceed seven days, the claim administrator should file the FROI accepting liability for the medical portion of the claim. Although the Board initially instructed carriers that the FROI-PD form was accepted (for a “partial denial” medical-only filing) the Board rescinded this guidance and now states that a FROI-00 should be filed; the claim administrator may later file a denial if lost time is claimed (SROI-04). This can also be used when there is no evidence regarding the claim.
Reporting Lost time with No Medical.
In an abrupt change from prior practice where no lost time benefits were issued until medical showed a causally-related disability, the Board is now instructing carriers to begin issuing lost time benefits at the minimum rate once lost time is alleged by the claimant despite the lack of any correlating medical narrative. (Source: “Proper eClaims Filing,” slide 4 of 25, WCB training webinar, September 8, 2015. Link here: https://www.wcb.ny.gov/content/main/Monitoring/Controversy.pptx)
A medical only filing is not appropriate when the employer reports that there is compensable lost time. For example, a worker was injured at work, went to the doctor, and called the employer to say that the doctor told him to come back in ten days with no work until then. In that example, an Initial Payment (SROI-Initial Payment) indicating payment to the injured worker should be filed as described in the next paragraph.
Continued Wage Payment for an Injured Employee.
If an employer continues to pay an employee wages or advances the employee compensation payments following a work related injury or illness, the employer may seek reimbursement for those wage payments out of any subsequent compensation awards so long as the employer has made a claim for reimbursement prior to the award of compensation.9
The claim for reimbursement should be in writing, although it may be made at a Board hearing where a hearing reporter is present to transcribe the proceedings and thus make a record of the request.
The employer may be entitled to reimbursement whether the payments were made voluntarily or as a negotiated benefit (like a collective bargaining agreement).
Typical (“accepted/admitted”) Claim Path: Reporting, Filing, and Appearing.
At the time of the accident:
First, the worker gets medical treatment and notifies her supervisor about the accident and how it occurred.
The employee notifies the employer of the accident in writing, as soon as possible, but within 30 days. The Board may excuse the lack of notice if notice could not be given (for example: the claimant was taken to the hospital and could not inform her employer), the employer had knowledge, or if the employer is not harmed by lack of notice. WCL § 18.
The employee may file a claim with the Board by filing a Form C-3. This must be done within two years of the accident or within two years after the employee knew, or should have known, that the injury was related to employment.WCL § 28.
Within 48 hours of the first medical treatment:
The doctor completes a preliminary medical report on a Form C-4 and mails it to the appropriate District Office. Copies of the Form C-4 must also be sent to the employer or its insurance carrier, the injured worker, and her representative (if any). WCL § 13-(a)(4)(a).
Within 10 days of the accident:
The employer or its third party designee reports the injury to the Board and the insurance company with a Form C-2F.WCL § 110 (2).
Within 14 days of receipt of Form C-2F:
The insurer provides the injured worker with a written statement of his/her rights under the law (Form C-430S). This must be done within 14 days after receipt of the C-2F from the employer or with the first check, whichever is earlier.15 If the insurer requires the injured worker to use a provider within a network for diagnostic tests, it must provide the injured worker with the name and contact information for the network.
Within 15 days of initial treatment:
The doctor completes a 15-day report of the injury and treatment on a Form C-4 and mails it to the District Office of the WCB. See WCL § 13-a(4)(a).
Within 18 days after the first day of disability, or 10 days after the employer first has knowledge of the alleged accident, or within 10 days after the carrier receives the Form C-2F:
The insurer begins the payment of benefits if lost time exceeds seven days. If the claim is being disputed, the insurer must inform the Workers’ Compensation Board (and the claimant and his/her representative, if any) by filing an electronic data interchange form FROI-04. If the claim is not disputed, but payment is not being made for specific reasons stated on the notice (e.g., that there is no lost time or that the duration of the disability is less than the 7-day waiting period), the insurer must also notify all of the parties. WCL § 25 (1) and 12 NYCRR § 300.22.
The insurer files a FROI-00 or FROI-04 with the Board indicating either that payment has begun or the reasons why payments are not being made. A copy of the FROI must be transmitted to the claimant and his/her attorney/licensed representative, if any, within one business day of the electronic filing with the Board. If the employee does not timely notify the employer, this notice may be filed within 10 days after the employer learns of the accident.
Now is the time to controvert!
A case may be disputed because:
- The employer alleges that proper notice was not timely given;
- or The claim was not properly filed;
- or A lack of causal connection is alleged between the alleged injury and the accident;
- or The employer-employee relationship is denied; or
- The accident is alleged not to have occurred at work; or
- Any other reason for denying the claim (see Chapter 8).
A dispute will create an adversarial proceeding. The forum will be the Workers’ Compensation Board, and a Workers’ Compensation Law Judge will hear the dispute.
Timelines for denials.
As per Workers’ Compensation Law Section 25-2(a), a denial must be filed “on or before the eighteenth day after disability or within ten days after it has knowledge of the accident, whichever period is greater.” Failure to file a denial within this time period can result in a $300 penalty assessed against the carrier (but defenses are not stripped). Under Section 25-2(b), a denial may be filed “within 25 days from the date of mailing of a notice that the case has been indexed.” If the denial is not filed (by filing FROI-04 or SROI-04), then all defenses (substantive or legal) are barred. In practice, the Board rarely assesses the $300 penalty for late filing under Section 25-2(a) and instead rigorously enforces the preclusionary Section 25-2(b).
Completing the FROI-04 (denying the claim).
eClaims Denial Code Translation
1A: No Compensable Accident (Coming and Going) No Accident Arising Out of and In the Course of Employment
1B: No Compensable Accident (Horseplay) No Accident Arising Out of and In the Course of Employment
1C: No Compensable Accident (Willful Intent to Injure Oneself) No Accident Arising Out of and In the Course of Employment
1D: No Compensable Accident (Not WCL Definition of Accident) No Accident Within Meaning of WCL
1E: No Compensable Accident (Deviation from Employment) No Accident Arising Out of and In the Course of Employment
1F: No Compensable Accident (Recreational/Social Activity) No Accident Within Meaning of WCL
1I: Presumption Does Not Apply No Accident/Occupational Disease Arising Out of and In the Course of Employment
2C: No Causal Relationship (Stress non-work related) No Accident Arising Out of and In the Course of Employment
2D: No Causal Relationship (No Medical Evidence of Injury) No Prima Facie Medical Evidence
2E: No Causal Relationship (No Injury Per Statutory Definition) No Causally Related Accident or Occupational Disease
3A: No Employer-Employee Relationship No Employer-Employee Relationship
3B: Independent Contractor No Employer-Employee Relationship
3C: Not WCL Definition of Employee No Employer-Employee Relationship
3D: No Jurisdiction No Subject Matter Jurisdiction
3E: No Coverage (No policy in Effect on Date of Accident) Cancellation of Coverage
3F: Statute of Limitations Expire Timely Filing (Section 28)
3G: Statute Exempts Claimant Employer-Employee Relationship
5A: Failure to Report Timely Notice (Section 18)
Within 25 days of the notice of indexing:
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.
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 forms23 and place them in the Electronic Case Folder “within one day.”
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[b][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.
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.
Every 2 weeks:
The insurer makes payments of benefits to the injured employee (if the case is not being disputed).
Reporting to the Board:
The carrier must notify the Board by filing the correct SROI form (see below) when compensation is stopped or modified, within 16 days after the date on which payments were stopped or modified. The carrier/employer then must transmit the electronic form generated by the Board to the claimant and her attorney (if any) within one business day of the filing.26
EDI replacements for Deprecated Forms.
The following forms are now deprecated, and replaced with Electronic Data Interchange:
• C-2 (Employer’s Report of Work-Related Injury/Illness)
• C-7 (Notice That Right to Compensation is Controverted)
• C-8/8.6 (Notice That Payment of Compensation Has Been Stopped or Modified)
• C-669 (Notice to Chair of Carrier’s Action on Claim for Benefits)
• VAW-2 (Political Subdivision’s Report of Injury to Volunteer Ambulance Worker)
• VF-2 (Political Subdivision’s Report of Injury to Volunteer Firefighter)
The following forms replace the prior forms which were used to transmit the same information (see above):
• FROI 00 – Original (Mailing to parties is optional)
• FROI 01 – Cancel
• FROI 02 – Change
• FROI 04 – Denial
• FROI AQ – Acquired Claim (Mailing to parties is optional)
• FROI AU – Acquired/Unallocated (Mailing to parties is optional)
• FROI UR – Upon Request (Mailing to parties is optional)
• SROI 02 – Change
• SROI 04 – Denial
• SROI AP – Acquired/Payment
• SROI CA – Change in Benefit Amount
• SROI CB – Change in Benefit Type
• SROI CD – Compensable Death
• SROI EP – Employer Paid
• SROI ER – Employer Reinstatement
• SROI IP – Initial Payment
• SROI PD – Partial Denial
• SROI PY – Payment Report
• SROI RB – Reinstatement of Benefit
• SROI RE – Reduced Earnings
• SROI S1 – Suspension, RTW or Medically Determined/Qualified to RTW
• SROI S2 – Suspension, Medical Non-Compliance
• SROI S4 – Suspension, Claimant Death
• SROI S5 – Suspension, Incarceration
• SROI S7 – Suspension, Benefits Exhausted
• SROI SD – Suspension, Directed By Jurisdiction
• SROI SJ – Suspended Pending Appeal or Judicial Review
• SROI SA – Sub-Annual (Mailing to parties is optional)
• SROI UR – Upon Request (Mailing to parties is optional)
The doctor periodically submits progress reports following every treatment to the Board on Form C-4.2.
Practical Advice for Claims Handlers on EDI.
For adjusters handling claims, we provide the following practical tips:
- Download and print out the “event table” cheat sheet (PDF) that lists all the event triggers (for example, reduction in benefits) and identifies the correct electronic form to designate. This “cheat sheet” provides a list of all the prior forms filed (for example, Form C-8/8.6, showing a change or reduction in benefit) and then provides the corresponding EDI equivalents. The “cheat sheet” is available here: https://www.wcb.ny.gov/content/ebiz/eclaims/ReqTables/NYS_R3_EventTable.pdf
- Download and print out the PDF “cheat sheet” provided by the Board providing all the codes necessary to complete the electronic submissions. The “cheat sheet” is available here: https://www.wcb.ny.gov/content/ebiz/eclaims/ReqTables/NYS_R3_Quick_Code_RefRev.pdf
- When denying claims (filing FROI-04 or SROI-04) contact counsel to confirm you are entering the appropriate denial codes. A denial reason not raised is waived!