To Pay or Not to Pay While Investigating a Claim

New York State Workers’ Compensation law §21-a allows an employer/carrier to pay lost wage benefits or prescribed medicine for up to one year without admitting liability and without prejudice to the right to controvert the claim. The purpose of this section of the law is to provide workers lost wage benefits and payment of prescription medicine while the employer/carrier continues to investigate the compensability of the claim.

However, § 21-a is only available when payments for lost wages or payments for prescribed medicine (prescribed medication was added to the statute as part of the 2007 comprehensive workers’ compensation reform legislation) are requested (§21-a(1)). Claims that involve medical treatment only cannot invoke this section of the law (NYS WCB Subject No. 046-696).

If an employer/carrier chooses this route, the Board and the claimant must be notified that the temporary payment of lost wages and prescribed medicine is not an admission of liability (§21-a(2)). The Board, upon receipt of notice, advises the claimant of their rights under §21-a(2)(a-d) and 12 NYCRR §300.22(d).

At any point during that one year period, the employer/carrier can provide notice to the claimant and the Board that temporary lost wage benefits will be suspended within 5 days of the last payment and controvert the claim. If the employer/carrier does not notify the claimant and the Board of termination of §21-a within one year of the injury, the case is accepted and treated as an accepted claim (§21-a(3)).

Acceptance without prejudice under §21-a may be useful when an employer/carrier needs more time to investigate the claim and simply filing notice of controversy is not enough time. Examples include where the employer/carrier believes that there are prior medical records that could be useful in defending against the claim or additional time is needed to obtain video footage from the accident site or obtain personnel files.

A downside to using this section of the law is that the money spent cannot be recovered if the claim is ultimately disallowed. However, the cost of one year in lost time payments or payments for medicine would likely outweigh the cost of having a claim deemed compensable because the carrier did not have enough time to conduct a proper investigation.

Thus, if you are not sure if controverting the claim would provide enough time to investigate a claim, §21-a is a viable option to protect your interests.


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