Practice Tips and Tactics Involving Additional Providers in New York

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On January 1, 2020, additional medical providers have been authorized to treat claimants under the New York State workers’ compensation system. Physicians, chiropractors, podiatrists, and psychologists are joined by physical therapists, occupational therapists, physician’s assistants, nurse practitioners, licensed clinical social workers, and acupuncturists as Board-authorized providers. Not all approved providers have blanket approval from the Board, though. The differences in approval of the expanded providers give the carriers and self-insured employer the upper hand in some situations under New York State workers’ compensation.

Of note, not all providers are authorized to give an initial opinion on causal relationship or an initial diagnosis. Carriers must be aware that initial opinions on causal relationship or an initial diagnosis from a physical therapist, occupational therapist, physician’s assistant, and acupuncturist are still insufficient under New York State workers’ compensation. This is extremely important for claims professionals to be aware of when determining whether to accept or deny a claim. Not all medical evidence from a Board-approved provider would be considered prima facie medical evidence. If the initial medical evidence is from one of these providers, there may be cause to deny a claim on the basis of no prima facie medical evidence. This should be further discussed with your legal counsel. For example, if the claimant’s only medical evidence for the injury is from an occupational therapist, it is appropriate to deny the claim for a lack of prima facie medical evidence.

Physical therapists, occupational therapists, physician’s assistants, and acupuncturists are approved providers, but are not authorized to comment on permanency. If a claimant has an opinion on permanency from one of the above-mentioned providers, it is imperative to argue that their evidence is insufficient. Claimants are still required to obtain medical evidence from the appropriate type of provider. The burden to present competent medical evidence still falls on the claimant. Claims professionals need not provide claimants with medical evidence in certain claims until they have successfully submitted their own. For example, if the claimant submits evidence of a scheduled loss of use opinion from a physician’s assistant, the carrier should not yet obtain an Independent Medical Examination (IME) opinion on the same, as the claimant’s medical evidence is insufficient. If there is an IME and an opinion from a physical therapist, the physical therapist’s opinion would likely be deemed insufficient; thus, we would be providing the claimant with evidence of permanency and be directed to pay the claimant a lump sum of money.

In regard to depositions, physical therapists, occupational therapists, and acupuncturists are still not permitted to participate. However, physician’s assistants can be deposed under very limited circumstances. Carriers and self-insured employers have the upper hand in situations where the opinion provided is weak or outside of the Medical Treatment Guidelines because the provider is not afforded the opportunity to confirm or clarify their opinion during cross-examination. The carrier’s representatives may have the upper hand in cross-examining a nurse practitioner and a licensed clinical social worker, as they have been recently authorized to be deposed. These providers will not be acclimated to being cross-examined often and may not be able to anticipate the types of questions asked. The carrier’s representatives may be able to get the unexperienced providers to change their opinion in their favor more easily than the experienced providers.

In all, the expanded provider list affects all parties under New York workers’ compensation law. The changes discussed give carriers an advantage in some situations. Claims professionals can use the expansion of Board-authorized providers to the carrier and self-insured employer’s advantage in situations involving a new provider’s inexperience and claimant’s burden to present medical evidence.