N.Y. Comp. Codes R. & Regs. tit. 12 § 300.23

Current through Register Vol. 46, No. 45, November 2, 2024

Section 300.23 - Requirements relative to suspension or reduction of compensation benefits

(a) In any case where the carrier or employer has made payment without waiting for an award by the board, the filing of an electronic notice as prescribed in section 300.22(f) of this Part is not authority to suspend or reduce payments of compensation unless supporting evidence that the suspension or reduction of payment is justified is submitted in the format prescribed by the chair together with or on the same day as such notice. Supporting evidence may include:

(1) a copy of the payroll report if the compensation rate is not based on information contained in the C-2 and is below the maximum;

(2) medical or other reports (including notice of return to work) justifying the suspension or reduction of payments, or by indicating on such notice the name and date of the medical or other reports, if they have been previously filed; or

(3) proof of incarceration upon conviction of a felony, which allows for the suspension of both wage replacement benefits and payment for causally related medical treatment.

(b) In any case where the board has made an award of compensation for a temporary total or temporary partial disability at an established rate of compensation, and there is a direction for continuation of payments, the employer or carrier shall continue payments at such rate, and such payments shall not be suspended or reduced until:

(1) there is filed with the chair in the district office where the case is assigned, a notice of intention to suspend or reduce in a format prescribed by the chair accompanied by supporting evidence justifying such suspension or reduction. A copy of the notice and supporting evidence shall be transmitted to the claimant and his or her attorney or licensed representative, if any, on the same day it is submitted to the board or if submitted electronically within one business day of the date it is filed electronically with the board; and

(2) the chair, upon receipt of above, has scheduled a hearing or meeting or conference on the issue within 20 days during any period when regular hearings or meetings or conferences are scheduled, and there is a finding that such suspension or reduction is justified. At said hearing or meeting or conference, if either party fails to appear or fails to submit or file electronically any evidence as to the above issue, the board shall take such action as is appropriate under the circumstances including continuation, suspension or reduction of the award. Cases at hearing points which do not have regularly scheduled hearings or meetings or conferences within the 20 days, may be scheduled at another available hearing point. Upon a determination by the board that a suspension or reduction in payments is justified, the carrier, special fund or TPA shall file electronically the notice prescribed in section 300.22(f)(1) of this Part;

(3) notwithstanding any provision to the contrary in this subdivision, the employer or carrier upon the filing of an electronic notice as prescribed in section 300.22(f) of this Part may suspend or reduce such payments:

(i) where a notice of return to work, or other written substantial legal evidence of claimant's return to work, has been submitted to the board in the format prescribed by the chair together with or on the same day that the notice to suspend or reduce is electronically filed; or

(ii) where the supporting evidence submitted to the board in the format prescribed by the chair together with or on the same day that the notice to suspend or reduce is electronically filed includes payroll records for at least two calendar weeks which warrant such suspension or reduction; or

(iii) where the claimant's medical evidence indicates that the claimant has no disability. When such medical evidence is not part of the official board file, it shall be submitted to the board in the format prescribed by the chair together with or on the same day that the notice to suspend or reduce is electronically filed; or

(iv) where supporting evidence submitted to the board in the format prescribed by the chair together with or on the same day that the notice to suspend or reduce is electronically filed includes proof of incarceration upon conviction of a felony.

(c)

(1) In any case where the board has made an award for compensation for permanent total or permanent partial disability, payments shall not be suspended or modified until an application on a prescribed form accompanied by supporting evidence, is made to reconsider the degree of impairment or wage-earning capacity; a copy of the application shall be transmitted to the claimant and his or her attorney or licensed representative, if any, on the same day it is submitted to the board or if submitted electronically within one business day of the date it is filed electronically with the board; and, the board has made a final determination of such application, finding that such suspension or modification is justified; provided, however, that if such supporting evidence includes payroll records which show earnings for at least eight weeks immediately prior to the date of the application which warrant modification of the rate fixed and evidence identifying the claimant as the person whose payroll records are being submitted, the employer or carrier shall continue to pay compensation at such modified rate as the evidence submitted indicates is proper, or may suspend payments if the evidence submitted supports such suspension, pending final determination of the application by the board. Upon a determination by the board that a suspension or reduction in payments is justified, the carrier, special fund or TPA shall file electronically the notice prescribed in section 300.22(f)(1) of this Part.

(2) Notwithstanding any provision to the contrary in this subdivision, the employer or carrier may, within 16 days of stopping such payments in accordance with Workers' Compensation Law section 25(1)(d) and upon filing electronically a notice as prescribed in section 300.22(f) of this Part, stop, suspend or reduce such payments:

(i) where supporting evidence, submitted to the board in the format prescribed by the chair together with or on the same day as such electronic notice, includes proof of incarceration upon conviction of a felony; or

(ii) where compensation payable for permanent partial disability has reached the maximum benefit weeks allowed pursuant to Workers' Compensation Law section 15(3)(w). In either of the above circumstances, the employer or carrier must submit an electronic notice as prescribed in section 300.22(f) of this Part.

(3) Payment of death benefits shall not be suspended unless an application in the format prescribed by the chair is made, accompanied by supporting evidence, and the board approves such suspension.

(d) Whenever an employer or carrier shall seek to terminate medical care or refuse authorization for special medical services, except when a request for variance is denied, the chair prescribed form shall be completed and filed with the chair within five days after such termination or refusal, together with:

(1) medical report by authorized physician that need for medical care has ended;

(2) copy of notice to claimant's physician to discontinue medical care, or to refrain from commencing medical care, together with report of authorized physician establishing basis of discontinuance or refusal; and

(3) proof of mailing notice under paragraph (2) of this subdivision to the claimant and his physician.

(e) In any case in which a penalty has been imposed arising out of the failure to make payment of compensation according to the terms of the award within 10 days thereafter, the employer or his insurance carrier must file notice with the chair of the payment of such penalty within 10 days after the imposition thereof as set forth in section 300.22(f)(4) of this Part.

(f) Where any notice is required to be transmitted to a claimant or his or her attorney or licensed representative, if any, the date such notice is actually mailed or otherwise transmitted shall be the date of transmittal, regardless of when received by the intended recipient.

(g) In the event that the carrier, self-insured employer or third-party-administrator seeks to recover for an alleged overpayment of benefits to the claimant, such carrier, self-insured employer or third-party administrator must file notice to the Board in the format prescribed by the Chair that identifies the amount of such overpayment. Such prescribed notice shall be due as follows:

(1) When a request for further action is submitted to the Board by the carrier, self-insured employer or third-party administrator, such prescribed notice requesting recovery of an overpayment shall be submitted on the same day as the request for further action.

(2) When a hearing is scheduled and the carrier, self- insured employer or third-party administrator will request recovery of an overpayment at the scheduled hearing, the carrier, self- insured employer or third-party administrator must file the prescribed notice identifying the amount of the overpayment no less than ten days before the date of the hearing. The Workers' Compensation Law Judge will not consider any requests to direct recovery of an overpayment that are not timely made.

(3) When the Board directs recovery of an overpayment, the carrier, self- insured employer or third-party administrator must file the prescribed notice identifying the amount of the overpayment within ten days of such decision.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 300.23

Amended New York State Register April 14, 2021/Volume XLIII, Issue 15, eff. 1/24/2022