New York’s Workers’ Compensation Law, as it stands, permits an injured worker to treat with any physician authorized by the Chair of the Workers’ Compensation Board to render medical care as provided under the Medical Treatment Guidelines, where applicable. Currently, only physicians, chiropractors, podiatrists and psychologists can be authorized to treat injured workers. Additionally, only physicians authorized by the board may provide an opinion on causal relationship, degree of temporary disability, and permanent impairment, if applicable. However, as part of Governor Cuomo’s 2020 New York State Budget, a new law was passed expanding the types of medical providers that can be authorized to treat injured workers in the workers’ compensation system. Effective January 1, 2020, licensed social workers and acupuncturists, as well as current ancillary providers including nurse practitioners, physician assistants, occupational therapists and physical therapists, may apply to become board-authorized providers.
While one might be wary that the name “Expanded Provider Law” in and of itself could create a windfall of providers from whom an injured worker would be permitted to produce reports and opinions to evidence causal relationship to a work accident or occupational disease and degree of disability, upon a closer analysis of the legislation, such is not the case. The legislation explicitly indicates, in pertinent part, that “a record, report or opinion of a physical therapist, occupational therapist, acupuncturist or physician assistant shall not be considered as evidence of the causal relationship of any condition to a work related accident or occupational disease . . . nor may a record, report or opinion of a physical therapist, occupational therapist or acupuncturist be considered evidence of disability. Nor may a record, report or opinion of a physician assistant be considered evidence of the presence of a permanent or initial disability or the degree thereof.” Workers’ Compensation Law § 13-b(2)(e).
On its face, the legislation excludes physical therapists, occupational therapists, acupuncturists and physician assistants from the category of professionals who may provide reports to support causal relationship. By failing to explicitly include licensed social workers and nurse practitioners in that section, the legislation implies that it is expanding the category of providers from whom reports and opinions may be produced as evidence to support causal relationship to include licensed social workers and nurse practitioners. Similarly, the legislation only excludes physical therapists, occupational therapists, and acupuncturists from the category of professionals who may provide reports that may be considered evidence of disability. By failing to include physician assistants, licensed social workers, and nurse practitioners in that section of the legislation, it implies that it is also expanding the category of providers from whom reports and opinions may be produced as evidence to support an ongoing disability to include physician assistants, licensed social workers and nurse practitioners. However, the legislation explicitly excludes physician assistants from the category of professionals who may provide records, reports, or opinions that may be considered evidence of a permanent or initial disability or the degree thereof. Thus, the legislation on its face implies that it will allow only licensed social workers and nurse practitioners to produce reports that may be considered evidence of a permanent disability, or that may be relied upon as the first report giving a degree of disability.
The legislation is an attempt to modernize workers’ compensation treatment as it aims to be more consistent with the wider choice of providers that other, non-workers-compensation patients enjoy. It will benefit injured workers by, ideally, cutting down on the delay in treatment that an injured worker may be able to obtain by allowing for more licensed providers who routinely practice in hospitals and medical offices to treat them. Additionally, expanding the category of providers authorized to treat injured workers may expedite the authorization of treatment, which will ultimately help push cases through the system more efficiently and may facilitate a faster rehabilitation of the injured worker back into the workforce. After all, the premise upon which workers’ compensation is based is to provide injured workers with the medical care and treatment necessary to facilitate their recovery in as quickly a fashion as possible that will ultimately allow them to be able to return to some type of gainful employment.
On the other end of the spectrum is the potential for injured workers to seemingly “skirt-by” certain requirements imposed on them with regard to the production of medical reports. For example, the law currently requires that an injured worker produce a medical report evidencing an ongoing disability every 90 days in order to maintain an entitlement to temporary disability benefits. While the legislation expands the category of providers that are authorized to provide an opinion on disability to physician assistants, licensed social workers and nurse practitioners, it also fails to clarify whether there is any limitation on the specialty for which a certain provider would be authorized to produce an opinion on disability. For instance, a reading of the legislation on its face seems to infer that an injured worker that suffers from only physical injuries and not any causally-related mental injuries could potentially produce a report from a licensed social worker evidencing an ongoing disability to support an entitlement to continued temporary disability benefits. Likewise, the new legislation infers that an injured worker who solely suffers from physical injuries could produce a permanency report from a licensed social worker commenting on the severity of an injured worker’s permanent impairment to those physical injuries.
Thus, what may be most jarring about the new legislation is the potential for providers to produce opinions on physical or mental conditions that are outside of their areas of specialty. So, while the legislation attempts to modernize workers compensation by easing treatment options available for injured workers, we anticipate that it may cause an increase in litigation regarding the credibility of opinions provided in certain reports. Presumably, and hopefully, in practice, the Board will only permit licensed social workers to opine on mental health conditions, consistent with their specialty and license.
While the legislation attempts to ease the process by which an injured worker can seek treatment from authorized providers under the law, that same flexibility is not afforded to either the injured worker or an insurance carrier when either party seeks an independent medical examination. Workers’ Compensation Law § 13-b(2)(f) states that “an independent medical examination . . . may only be performed by a physician, podiatrist, chiropractor or psychologist authorized to perform such examinations by the chair, or as specified in regulation, when qualified by the board.” Unfortunately, insurance carriers will not have the benefit of the Expanded Provider Law and will remain subject to the already-existing pressure to find an authorized physician, podiatrist, chiropractor or psychologist to examine an injured worker within the timeframe – sometimes excessively short, if the case is expedited – set by the Law Judge.
While we mostly see IMEs being used by insurance carriers, injured workers have sought reports from IMEs on occasion as well. In the past, injured workers generally sought out IMEs when their treating physician had no availability to see the claimant within the timeframe directed by the Law Judge, or if seeking an examination from their treating physician was no longer geographically feasible. However, as pointed out previously, expanding the category of providers authorized to treat injured workers eases that barrier, which we anticipate could lead to an elimination of the need for an injured worker to seek out IMEs altogether. That being said, injured workers may still seek out IMEs for opinions on permanency, particularly where they are unhappy with the reported findings of their treating physicians, and since the legislation only expanded the types of professionals that may opine on permanency to nurse practitioners and licensed social workers.
The Expanded Provider Law may be responsive to other recent amendments regarding the administrative process for providing treatment to an injured worker that seem to have deterred some providers from maintaining their Board authorization. In recent months, we have seen more and more providers voluntarily resign their authorization to treat within the workers compensation system due to the increase in procedures and paperwork involved in being authorized to treat under Workers’ Compensation Law, and in obtaining authorization for certain types of treatment. We expect further changes in these required procedures and paperwork to ease the administrative burdens on providers and encourage them to join or remain in the system. The impact of these changes on carriers’ exposure remains to be seen. While we are hopeful that the Expanded Providers Law will provide injured workers with an ease of treatment options, and thus, will expedite cases filtering through the system, this is a double edged sword as it could lead to increased medical costs if injured workers treat more frequently, as well as increased litigation costs if these non-physician providers produce opinions that are overly worker-friendly such that their credibility is called into question.