As part of Gov. Cuomo’s 2019-20 executive budget, a new law was passed expanding the types of medical providers that can apply to be authorized to treat injured workers under the New York State Workers’ Compensation System. The law will be effective January 1, 2020.
Prior to the legislation taking effect, only physicians, chiropractors, podiatrists, and psychologists could apply to be board-authorized to treat injured workers while nurse practitioners (NPs), physician assistants (PAs), occupational therapists, physical therapists and licensed clinical social workers (LCSWs) could only treat injured workers under the personal supervision of a board-authorized provider.
Once this new legislation goes into effect, these medical providers may also apply to become a board-authorized provider. Acupuncturists may also apply to become board-authorized to treat injured workers but would require a referral from a treating medical provider.
While this legislation appears to be good news for the injured workers and their counsel, the further legal implications do not posit bad news for the insurance carriers and their counsel after all.
Causal Relationship and Disability Opinions
By Workers’ Compensation Law Section 13-b(2)(e), only NPs and LCSWs have independence to give evidence of causal relationship, initial diagnosis, degree of disability, and permanent impairment. They can also appear to testify at depositions. PAs can only give evidence of ongoing disability and cannot give evidence of the initial diagnosis or permanent disability.
The legislation leaves technical legal loopholes to attack the credibility or sufficiency of medical opinions from the wrong-type providers as we will begin to see injured workers submit evidence of causal relationships from PAs and/or evidence of ongoing disability from physical or occupational therapists.
Further, once the law takes effect, we will begin to see an influx of medical opinions from NPs and LCSWs as injured workers might be able to obtain quicker appointments and treatments with these providers than with physicians.
This would mean cheaper medical expenses for the insurance carriers. More importantly, though, insurance carriers and their counsel will stand a better chance to attack the credibility of medical opinions submitted by these new providers. For example, as it stands now, injured workers’ attorneys simply write a letter to the medical provider requesting that a supervising doctor co-signs an NP’s report. Now, Workers’ Compensation Law Section 13-b(1)(c) provides that supervision “shall be evidenced by signed records of instructions for treatment and signed records of the patient’s condition and progress.” As such, even though the law requires “active and personal supervision,” a supervising physician is only required to review and co-sign the NP’s report without actually seeing the injured worker personally.
More often than not, the supervising physician has never seen the injured worker, but has co-signed numerous reports, merely rubber-stamping whatever the NP records without proper review. There have been cases where a supervising physician testifies that, as of the date of the deposition, he/she agreed that the injured worker is totally disabled, but, upon review of subpoenaed medical records from the medical provider, the same supervising physician co-signed an NP’s report, which opined that the injured worker had a moderate disability and pre-dated the deposition. The judge’s attention was drawn to this during summations, yet the judge found the supervising doctor’s opinion to be credible. The same supervising doctor could not confirm if the injured worker had a normal gait, whether he got on and off the examination table without assistance, etc. As the law stands, defense attorneys find it difficult to obtain concessions from supervising doctors, which could have been obtained if the actual treating NPs were cross-examined. With this new legislation, we can anticipate that defense attorneys would find it easier to attack opinions on degree of disability and even causal relationship.
Independent Medical Examinations (IMEs)
By Workers’ Compensation Law Section 13-b(2)(f), only a board-authorized physician, podiatrist, chiropractor or psychologist can perform IMEs and this means that NPs and LCSWs cannot. Even though this means that insurance carriers and their counsel would continue to seek IMEs under impossible time constraints, the bright side is that the defense counsel is able to produce contrary medical opinions from physicians against opinions from NPs or LCSWs. Judges would likely attach more weight and credibility to the IME report.
Overall, the implications of the expanded provider legislation may turn out to be more of a blessing to the insurance carrier and the defense than it is to the injured workers and their counsel.