New York Workers' Compensation is an intricate area of law that is often subject to a number of misconceptions. This site is intended to help readers seeking clarification on the topic of NY Workers' Comp. Whether you are an injured worker lost amidst the complexities of Workers' Comp, a doctor who is not sure how to properly handle a Workers' Comp patient's file, or simply a curious New Yorker who worries about what would happen if you were ever injured on the job, I hope that the content of this site will deliver the answers you seek, even to questions you didn't know to ask.

It is my pleasure to welcome you into the world of New York Workers' Compensation. I hope you enjoy your visit, spread the word, and come back soon.

Best regards,

Camila P. Medici, Esq.

Saturday, April 2, 2016

What makes an MG-2 form complete?

All Board forms should be completely filled out with all available information. Certain information is essential to the Board's internal procedures. Without that essential information, 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.

Section A:
(1) Patient's name, and
(2) 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.

Section B:
(1) Individual Provider's WCB Authorization Number for all providers authorized by the New York State Workers' Compensation Board
Section C:
(1) Date Variance Request Submitted and Method of Transmission,
(2) 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,
(3) Approval Requested For requires a written description of the treatment requested,
(4) Statement of Medical Necessity requires a description directly on the form and if there is a supporting medical report in the Board's case file, 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;
(5) A check box selected for how the carrier was contacted. Please note if you listed your fax number at the top of the form, do not select the second check box; and
(6) the Provider's signature or stamp. Please note that initials next to the signature or stamp are not acceptable.

All other information that is requested on the form should be filled in if available.

Example of a Properly Completed MG-2 Form adobe pdf

If a carrier denies a variance request based on the opinion of a non-physician "medical professional," will that opinion be afforded the same weight as the opinion of a claimant's physician, whether at arbitration or hearing?

Questions of credibility, reasonableness and weight of medical evidence are for the Board to decide. It is within the province of the Board to resolve conflicts in the medical testimony as well as to determine the reasonableness of and the weight and credibility to be given to such testimony (see Matter of Forrest v Grossman's Lumber, 175 AD2d 498 [1991], lv denied 78 NY2d 862 [1991]).

Typically petitioning the Board for a finding involves depositions of all medical experts involved, both the Claimant's treating physicians and the Carrier's IMEs.  

What is the "burden of proof" for a provider seeking a variance?

There are three basic types of variance requests. The provider must present documentation showing that the proposed treatment, which may be 1. An extension beyond the maximum duration or frequency recommended in the MTG, 2. Not recommended in the MTGs, or 3. Not addressed in the MTG is medically necessary and likely to be effective for the patient. The documentation required varies depending upon the type of variance (treatment) the provider is seeking. To satisfy the burden of proof, the provider must meet the documentation requirements for the type of variance requested. All variance requests must include:
1. A medical opinion stating why the proposed care is appropriate and medically necessary for the patient
2. Certification by the requesting provider that the patient agrees to the proposed care, and
3. An explanation why alternatives under the MTGs are not appropriate or sufficient

Additionally, requests to extend treatment beyond recommended maximum duration/frequency must include:

4. Objective evidence that the requested treatment has produced functional improvement,
5. Further improvement is reasonably expected with additional treatment. Documentation should include explanation as to why treatment has not produced maximum effect and
6. Proposed plan for additional treatment with the treatment duration and frequency, and functional goals.

Finally, for treatment or testing that is not recommended or not addressed, the following must be documented:

1. A description of any signs or symptoms which have failed to improve with previous treatments provided according to MTG recommendations
2. Proposed treatment plan and an explanation of why proposed treatment or testing is necessary at this time, including specific functional goals, if applicable.
3. Medical evidence in support of efficacy of the proposed treatment or testing – may include relevant medical literature published in recognized peer reviewed journals.


The insurance carrier has 30 days from the date of receipt of the variance request to have the IME performed and respond to the variance request. Review by the insurance carrier's medical professional is not an IME or a record review. An IME involves a physical examination of the claimant and must be performed by an examiner authorized by the Chair pursuant to Workers' Compensation Law §§ 13-a (4) (b) and 137 (3)(a). A review of records, as defined in 12 NYCRR §324.1(i), is an evaluation of the medical records, test results, depositions, transcripts, and other records and reports in the Workers' Compensation Board's electronic case folder by a medical provider authorized by the Chair to treat claimants or to conduct IMEs. Review of the insurance carrier's medical professional is new and allows the insurance carrier to use a medical professional it already employs or contracts with to provide utilization review services. Specifically, an insurance carrier's medical professional, as defined in 12 NYCRR §324.1 (c), is a physician, physician's assistant, nurse practitioner, or registered professional nurse licensed by New York or the state where the professional practices who is either: 1) employed by the insurance carrier; 2) has been directly retained by the insurance carrier to review its claims and advise the insurance carrier; or 3) is employed by a URAC accredited company retained by the insurance carrier through a contract to review claims and advise the insurance carrier or Special Fund.

If the insurance carrier has a variance request reviewed by its medical professional, it must respond to such request within 15 calendar days of receipt of the request (12 NYCRR §324.3[b][2][i]). If the insurance carrier decides to obtain an IME or review of records to respond to a variance request, it must notify the Chair within 5 business days of such decision and respond within 30 calendar days of receipt of the request (12 NYCRR §324.3[b][2][ii]).

What steps are necessary if the carrier wants to obtain an IME after receiving an MG-2 Variance Request?  

Step 1:If the carrier wants to schedule an IME, the first step is to respond to the MG-2 within 5 business days of receipt by completing Section D (Notice of Independent Medical Examination [IME] or Medical Records Review.) The MG-2 response must be sent by same day transmission (or regular mail to the provider if the provider has no electronic means of receipt) to the treating medical provider and the Workers' Compensation Board. 

Step 2:When the IME report has been completed, the carrier must then complete the second step which is to provide a final response to the MG-2 within 30 days of receipt of the MG-2 by completing Section E (Carrier's/Employer's Response to Variance Request). The MG-2 final response must be sent by same day transmission (or regular mail to the provider if the provider has no electronic means of receipt) to the treating medical provider, the Workers' Compensation Board, claimant, claimant's legal representative, if any, and any other parties. In Section E the carrier must state the basis for the denial in detail and attach the IME report or identify the IME report by document identification number and the date received by the Board if the IME report is already in the Board's electronic file (12 NYCRR 324.3[b][2] and [3]). 

If the Carrier does not follow the procedure properly or does not respond, then the variance request is deemed automatically authorized.  


Since their establishment, the new Medical Guidelines have been both a blessing and a curse.  Although the goal was to:
  • Set a single standard of medical care for injured workers,
  • Expedite quality care for injured workers,
  • Improve the medical outcomes for injured workers,
  • Speed return to work by injured workers,
  • Reduce disputes between payers and medical providers over treatment issues,
  • Increase timely payments to medical providers, and
  • Reduce overall system costs.
that was not all that it did.  It also created a climate of distrust by doctors, who refuse to provide even the pre-approved treatments under the guidelines without written pre-authorization by the insurance Carrier themselves.   The guidelines foresaw this issue, and provided solutions as follows:

A. Pre-authorization (C4AUTH): For treatment of injuries to the mid and low back, neck, knee, shoulder and Carpal Tunnel Syndrome, pre-authorization is only required for procedures listed in question #1 Pre-Authorization. The pre-authorization process, used for treatments or procedures exceeding a $1,000 threshold, continues to be used for all other body parts. The pre-authorization process uses the C-4 AUTH form and it gives the carrier 30 days to respond to a request. During that period, the carrier has the right to obtain an IME or records review. To deny a pre-authorization request, the carrier must show a conflicting medical opinion.

B. Optional Prior Approval (MG-1):This process is more limited in focus, and is designed to only answer one question, "is the requested treatment or test a consistent application of the guidelines?" Providers must electronically submit the (MG-1) form. Carriers have eight business days to respond. Disputes are resolved by a binding decision of the Board's Medical Director's Office. The process allows medical providers to obtain a determination prior to treating on whether the requested treatment is consistent with MTG recommendation. It allows carriers to object before a test or treatment is performed.

But here is the catch: Although the regulations provide for an optional prior approval procedure where the medical provider can request optional prior approval from a PARTICIPATING insurance carrier to determine correct application of the Guidelines (A Board form (MG-1) adobe pdf is available for this purpose on the Board's web site), this process is only available if the insurance carrier or employer is participating in the optional prior approval program. A list of insurance carriers and employers who have opted out of the optional prior approval process is available on the Board's web site. Search for Carrier Contacts and Participation.  .  An insurance carrier who is not participating is not required to respond to an Optional Prior Approval request.

Somehow, many doctors, often due to the policy of certain hospitals, refuse to perform treatments such as surgeries without pre-authorization, and given that the Carrier is not required to give such authorization in writing, the Claimant suffers.   Ifa carrier has opted out of the Optional Prior Approval program, the Board will not respond to MG-1 requests submitted by the claimant's medical provider. Medical providers are encouraged to treat the claimant in accordance with the Medical Treatment Guidelines and submit timely bills to the carrier or self-insured employer.  Hospitals and treating physicians must familiarize themselves with the law and understand that the Carrier CANNOT DENY PAYMENT FOR TREATMENTS PRE-AUTHORIZED UNDER THE GUIDELINES.  As an attorney, I often find myself being the voice of reason with doctor's offices, but it doesn't always work.  Often times this means a switch in doctor is warranted.

Saturday, March 12, 2016

Am I Covered By Workers' Compensation Law if I Fall at My Work's Parking Lot?

Depending on certain situations, yes.  Under the ingress/regress rule you have the right to safely enter and exit your place of work.  But many factors come into play, such as where you fall in the parking lot, you will be able to get workers' comp.  However, even if you are not covered by workers' compensation, you probably will be able to sue the party responsible for to properly maintaining the parking lot.  So you won't be left with no recourse. 

Friday, February 5, 2016

How Do I Calculate My Average Weekly Wage?

Your Average Weekly Wage (AWW) is an important factor in the value of your workers’ compensation claim, because your wage benefits will be highly dependent on how much you made per week before taxes while working the year prior to the accident.  It is the basis for all monetary calculations the workers’ compensation board will make throughout your case.  Making sure your AWW is accurately calculated  from the beginning of your case can mean the difference between hundreds or even thousands of dollars in your pocket over the course of your claim.  There are several different methods for calculating an AWW.  These methods, which are usually decided upon by the Judge but argued by your lawyer, depend heavily on how long you held the job you were in at the time of the accident.

Employed in the same industry, for a full year, 5 days per week

If you held pretty much the same job, 5 days per week, for a full year your AWW is calculated using the “260 multiplier.”  First, take your total wage for the year prior to the injury and divide that number by the actual number of days you worked to get your “daily wage.”  Then, take your daily wage and multiply it by 260 (which is the average number of days per year worked by a 5-day per week worker).  Then, divide that amount by 52 to get your “Average Weekly Wage.”
For instance, let’s say you made $40,000 in the year before your accident and you worked 248 days.  Your average weekly wage calculation would look like this:
$40,000 ÷ 248 = $161.29; then $161.29 X 260 = $41,935.48; then $41,935.48 ÷ 52 = $806.45
So, your average weekly wage using the 260 multiplier would be $806.45

Not employed in the same industry for substantially a whole year

If you only worked part of the year, or if your job changed substantially halfway through the year, it is important to figure out what you actual average wage was in the job you held at the time you were injured.  In order to do that your employer may be asked to provide the payroll information for a “similar worker” who has worked the whole year, so that the Workers’ Compensation Board can see what your AWW would be if you had worked that position for a full year.  In that situation the same calculation as above would be applied, but using the similar workers’ wages instead of yours.  That means your employer would have to supply the Carrier with a similar worker's payroll.  If none existed the next step would be to look at the industry standard.

Seasonal or Intermittent Workers

If you hold a job in which you are only employed for part of the year, in road construction or landscaping, the court may apply a “200 multiplier” to determine your AWW.  So, if you made $40,000 in the year before your accident, but you only work April-November (160 days), your average weekly wage calculation would look like this:
$40,000 ÷ 160=$250; then $250 X 200=$50,000; then $50,000 ÷ 52= $961.54
So you’re average weekly wage in this scenario, using the 200 multiplier would be $961.54