May 2011
Does the MTG apply to out-of-state claimants?
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:
(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.
"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.
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 [30] 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.
- The Medical Treatment Guidelines - this is a general overview article;
- Optional Prior Approval; and
- The Variance process.
- Observations on the Variance process.)
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 [30] 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.
Rejecting variance requests based on defective MG-2s.
What makes an MG-2 form complete?
The MG-2 variance request form is a multi-page document with plenty of small type. Certain information is essential to the Board's internal procedures and if that information is missing or incomplete, the Board cannot process the form. In order for the Board to take action on an MG-2 form, the Board requires that the following fields be completed (required items are denoted by the "checklist" symbol "☑".Check the MG-2 - if any the following sections are incomplete or missing - issue a denial and alert the Board as to your reasons!
Required in Section A:
☑ Patient's name, and☑ Insurance Carrier's Name & Address.
Please note that the Insurance Carrier's or TPA's name and address must match the information the Board has on file.
Required in Section B:
☑ Individual Provider's WCB Authorization Number for all providers authorized by the New York State Workers' Compensation BoardRequired in Section C:
☑ Date Variance Request Submitted and Method of Transmission,☑ Guideline Reference for the body part followed by the 2 to 4 character corresponding reference in the Medical Treatment Guidelines or followed by the four letters N-O-N-E if there is no listed procedure,
☑ Approval Requested For requires a written description of the treatment requested,
☑ Statement of Medical Necessity requires a description directly on the form. If there is a supporting medical report in the Board's case file, the requesting physician should enter the date of service or if there is no supporting medical report in the case file, attach a medical report and enter "See attached medical report" on the form;
☑ A check box selected for how the carrier was contacted; and
☑ the Provider's signature or stamp. Please note that initials next to the signature or stamp are not acceptable.
Also remember that physical therapists are not "medical providers" under the the MTG and cannot issue an MG-2 to request authorization for addiitonal physical therapy visits beyond the Guidelines - only a doctor can issue the MG-2 to request addiitonal PT. Issue a summary denial to any variance request issued by a physical therapist.
Using Facebook to nail frauds.
Did I tell you the one about the petitioner in one of
my New Jersey cases who was too disabled to work by
day but was still fighting in the "squared
circle" by night as a professional wrestler?
True story, it really happened.
We busted him with videos he posted himself to MySpace showing him engaged in title fights while out of work and collecting temporary total disability. His attorney argued that "wrestling is fake." Needless to say, that case got dismissed at trial.
"If you want to stop using your account you may deactivate it or delete it. When you deactivate an account, no user will be able to see it, but it will not be deleted. We save your profile information (connections, photos, etc.) in case you later decide to reactivate your account."
In other words - the information isn't going anywhere even after they delete their "profile"!
A lawyer printing out images that a claimant has posted themselves and made "public" on a social network is entirely permissible and the resulting images are admissible, just as a video of the claimant made in public would be.
A defense lawyer CANNOT friend a claimant - that would violate the ethical rule against communication with a represented party, unless the claimant (through her attorney) permits the activity (unlikely).
However, if the employer/insurer's INVESTIGATOR "friends" the claimant and obtains useful posts, and then provides these posts to the employer's attorney, no foul (but only if the investigator was not employed, retained, or associated with the defense attorney).
However, in NJ, there are no depositions and interrogatories are allowed in certain cases only (occupationals). Therefore, if you suspect your New Jersey claimant may be leading a "double life," and in certain other high-exposure claims, a motion for specific discovery can be filed seeking the names of any social networking sites used by the employee.
Have any questions about this article? Contact Greg Lois.
True story, it really happened.
We busted him with videos he posted himself to MySpace showing him engaged in title fights while out of work and collecting temporary total disability. His attorney argued that "wrestling is fake." Needless to say, that case got dismissed at trial.
Is using Facebook or MySpace to check claimant activity OK?
Claimants have no "reasonable expectation" of privacy for information posted to a social networking site like Facebook or MySpace and anything they publicly post there is fair game. A recent 75-page law review article concludes that "just as a workers‘ compensation attorney may use informal discovery to observe an employee in a public place, such as a park or a restaurant, so too is an attorney able to observe and search information publicly available online." Using Facebook or MySpace or any other social network to "check in' on claimants by viewing their publicly-posted photos, videos, or "wall posts" is A-OK, and any useful information you get can be presented in a workers' compensation court (or a fraud proceeding).But what about "private" profiles?
Facebook accounts can have different settings regarding sharing. If a Facebook account has "low" security settings, the general public can access the individual‘s profile by searching the internet or by searching for the person‘s name on the Facebook website. Attorneys and others can discover the individual‘s list of friends, shared postings, photographs, and videos. If the claimant has set "high" security settings, attorneys may still be able to discover that the individual has a Facebook account, but will not be able to view the individual‘s profile or information. If the claimant has a "private" account, posted information (like videos, photos of the claimant, etc) that are not publicly available can be obtained through the formal discovery process.How about subpoenas to site operators?
Subpoenas to social networking site operators have been allowed by the courts when the discovery sought is relevant to the lawsuit. Obtaining social networking information from the site operator, however, would likely be a very lengthy and costly process - probably not worth the cost and time. The fact that subpoenas can be served serves as a "check" on the employee‘s ability to destroy or hide social networking information in a workers‘ compensation case.What if the claimant just deletes their profile when we make the request for information?
Deleting doesn't work - because the social networking site operators keep the information. The Facebook "terms of use" document states:"If you want to stop using your account you may deactivate it or delete it. When you deactivate an account, no user will be able to see it, but it will not be deleted. We save your profile information (connections, photos, etc.) in case you later decide to reactivate your account."
In other words - the information isn't going anywhere even after they delete their "profile"!
How about "friending" the claimant to get access to their private posts?
This is where it gets interesting.A lawyer printing out images that a claimant has posted themselves and made "public" on a social network is entirely permissible and the resulting images are admissible, just as a video of the claimant made in public would be.
A defense lawyer CANNOT friend a claimant - that would violate the ethical rule against communication with a represented party, unless the claimant (through her attorney) permits the activity (unlikely).
However, if the employer/insurer's INVESTIGATOR "friends" the claimant and obtains useful posts, and then provides these posts to the employer's attorney, no foul (but only if the investigator was not employed, retained, or associated with the defense attorney).
Do New Jersey workers' compensation courts permit "social networking" discovery?
New Jersey is on the leading edge of this issue. Recently a federal magistrate judge in New Jersey found writings shared on social networking sites to be discoverable. In Beye v. Horizon Blue Cross Blue Shield an insurer sought production of all e-mails, journals, diaries, and communications and the judge ordered the plaintiffs to produce all entries on web pages, such as Facebook and MySpace, which the plaintiffs had shared with others. There is precedent for workers‘ compensation courts to permit discovery of all entries on social networking sites that relate to an employee‘s physical abilities.Best Practices for WC in NJ?
Workers‘ compensation defense attorneys should ask in their interrogatories, or other form of discovery demand pursuant to their state‘s rules governing discovery, for the names of any social networking sites used by the employee and request copies of all relevant photographs, videos, postings, communications, and discussions from social networking sites relating to the employee‘s physical or employment abilities.However, in NJ, there are no depositions and interrogatories are allowed in certain cases only (occupationals). Therefore, if you suspect your New Jersey claimant may be leading a "double life," and in certain other high-exposure claims, a motion for specific discovery can be filed seeking the names of any social networking sites used by the employee.
But, are the information, videos, and photos we obtain admissible in workers' compensation court?
Workers‘ compensation judges generally have broad discretion and are not bound by state or federal rules of evidence, and therefore social networking evidence may be admitted even more liberally in workers‘ compensation courts than in state or federal court.Recent New York Workers' Compensation case involving Facebook fraud.
On September 13, 2010, Alexis Muniz was sentenced to three years probation for stealing $8,975 in workers' compensation benefits. It turns out she was working full-time while collecting benefits - and was stupid enough to post about her "dual life" on Facebook - boasting about her income! Click here to see the whole story.Have any questions about this article? Contact Greg Lois.
