The Workers Comp Mess

Westchester Med. Ctr. v Lincoln Gen. Ins. Co.
2009 NY Slip Op 02589 (2d Dept. 2009)
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_02589.htm

This case has a few issues. The first issue can be resolved relatively easily. Factually, the carrier apparently failed to indicate to the provider the specific person from whom verification was sought. This defect rendered the EUO scheduling letters and the ensuing denials improper. The cases the Westchester court cited explain this principle quite well. To explain for those unfamiliar with this concept, a delay letter has to say what you are delaying for and who you are seeking the information from. The letters have to be highly specific, lest you wish to be subject to Presbyterian preclusion.

The better issue is the Workers Comp issue. The Court, for the first time that I can remember, is apparently holding that a Workers Comp denial must be timely. The Court fails to consider Workers Comp as a coverage issue. This is problematic, because I believe the law is clear.

In O’Hurley-Pitts v. Diocese of Rockville Centre 57 A.D.3d 633 (2d Dept. 2008), the Court held as follows:

“The Court of Appeals has held that the Workers’ Compensation Board “has primary jurisdiction over the issue of the availability of [workers’ compensation] coverage,” and if a plaintiff fails to litigate that issue before the Board, “the court should not express an opinion as to the availability of compensation but remit the matter to the Board,” since “[t]he compensation claim is a jurisdictional predicate to the civil action” (Liss v Trans Auto Sys., 68 NY2d 15, 21 [1986]; see Botwinick v Ogden, 59 NY2d 909 [1983]; O’Rourke v Long, 41 NY2d 219 [1976]). Accordingly, in considering the defendants’ motion, the Supreme Court should not have entertained their contention that the plaintiff was barred from recovery pursuant to Workers’ Compensation Law § 11. The case must be referred to the Workers’ Compensation Board for a determination as to whether the plaintiff has a valid cause of action for damages or whether he is relegated to benefits under the Workers’ Compensation Law”

The Regulation states the following:

11 NYCRR Sec. 65-3.9(a)(9): “Pursuant to section 5102(b)(2) of the Insurance Law, when the applicant is entitled to workers’ compensation benefits due to the same accident, the workers’ compensation carrier shall be the sole source of reimbursement for medical expenses.

I believe the Appellate Division messed up. I just hope a good record was preserved.