Workers' Compensation Update - December 2019

The NYSCA would like to thank our membership in assisting to drive necessary changes to New York's Workers' Compensation system.  On October 31, 2019, our president, Dr. Jason Brown, once again led the discussion with executive members of the Workers' Compensation Board which was also attended by NYSCA Insurance Chair Dr. Robert Martin and NYSCA Lobbyist Amy Kellogg.  In the continued spirit of unity, the meeting was also attended by representatives of the NY Chiropractic Council.

Fee Schedule Increase

Dr. Brown opened the meeting acknowledging and thanking the WCB executive committee for the most recent proposed conversion factor increase, which will effectively double reimbursement within a 12-month time frame.  Although we have achieved parity with respect to the treatment of our patients, it was noted that evaluation and management services were not increased, noting the importance and expertise necessary in providing this service.  Given the limited funds that were available to the WCB, the WCB determined that the majority of services rendered by Doctors of Chiropractic was relative to patient care, and parity with respect to patient care was the priority.  We will be following up with them to provide evidence supporting appropriate E/M conversion factor.  The WCB advised they will give further consideration to increasing E/M services as funds permit.   At this time, we appreciate the significant strides forward regarding parity and reimbursement for NY chiropractors. 

Fee Schedule Restrictions

Dr. Brown continued our discussion from last meeting with the WCB to determine how providers may receive reimbursement for procedures NOT listed on the fee schedule.  Examples included Manipulation Under Anesthesia, Manual Muscle Testing and ROM Measurements and Reports.  The WCB reaffirmed that providers should complete a Variance, as the Variance Process takes precedence over the Fee Schedule.  The WCB will develop language to insure that all stakeholders are aware of this issue and will publish this information on the WCB's Frequently Asked Questions.  Further guidance remains necessary on determining reasonable reimbursement for services approved via Variance when no fee schedule exists.  We believe prudent guidance may be using established RVU values and the WC conversion factor, the NYSCA WC Committee is working on drafting more detailed guidance for members. The NYSCA continues to reach out to our membership for examples as the WCB contemplates further guidance.

Inappropriate Exacerbation Denials, Payment Delays and Case Review

A standing agenda item at these meetings is the review of cases which appear to have been inappropriately reviewed by carriers and occasionally at the WCB.  Dr. Robert Martin again lead this discussion, sharing examples from NYSCA members, predominantly from Dr. Chris Piering, Dr. Jorge Delgado, Dr. Michael Bernstein, Dr. Mark Craft, Dr. Peter Holst and Dr. Denice Munier-Martin.   The two primary areas of concern were lack of reimbursement (down coding, or simply failure to pay even after an Order of the Chair from the WCB), and the denial of well documented exacerbations by carriers who inappropriately request a variance.  Case examples of delayed or deficient reimbursement are being reviewed by the WCB.

We are pleased to announce that the WCB has already responded that they have completed review and training of their adjudication staff to reduce, and hopefully eliminate improper denials and requests for variances when an injured worker suffers an exacerbation.  Internal meetings with WCB Judges are held on a periodic basis.  As noted by the WCB, 'the lack of theMG-2 is not the issue, as if it is truly an exacerbation there will be no MG2.  We need to look at the report to see if it is a well-documented exacerbation (or, in contrast, not well documented, or a ‘regularly scheduled exacerbation’), and make the appropriate ruling.'  We thank the WCB for their timely intervention and look to the NYSCA membership for short term verification of board review, and long-term verification of carrier change in behavior.


New York State has directed the WCB to review and implement necessary changes to the IME process.  It is recognized that the process is unnecessarily biased, negatively impacting the injured worker for whom this system exists.  Over the past year, the New York Chiropractic Council has taken the lead on providing feedback and suggestions on improving the IME process.  As such, Dr. John Lamonica from the Council lead the discussion on IME review status, expressing the mutual concerns of our membership.  We anticipate a report from the WCB in the next few months; however, the WCB did acknowledge there was little agreement amongst the key stakeholders.


The WCB looks to enhance and simplify communication between providers, carriers, employers and the WCB.  The CMS-1500 initiative continues to be tested to 'consolidate and eliminate certain medical billing forms and convert to the CMS-1500 form'.  Once implemented, the combination of the CMS-1500 and provider attached narrative report will replace the C4 and C4.2 forms (not the C4.3, which will remain).  The challenges of extracting necessary information from our narrative reports was discussed, with the WCB noting three key components necessary to facilitate communication include:

  1. Causal relationship
  2. Degree of disability
  3. Work status/return to work date

The NYSCA previously developed a template to assist in expediting reporting and review by the carriers and WCB and will look to assist in finding the balance between provider reporting and carrier review.  Simple guidance to incorporate these 3 key components at the top of the narrative may expedite review.

There is no mandatory implementation date at this time.  For more information and updates on this initiative, please refer to the following link:

Deposition Guidance 

Several NYSCA members inquired above deposition reimbursement over the past month.  After our meeting, the WCB responded with the following details

When a deposition is ordered, the standard abbreviation contains the following language:

“A medical witness is entitled to a witness fee pursuant to Part 301 of Title 12 of the Official Compilation of Codes, Rules and Regulations of the State of New York.  Within ten days of the completion of a witness’s deposition, the party responsible for such witness’s fee, if any, pursuant to the Workers’ Compensation Law and regulations, shall remit payment of the fee to the witness.  The fee is to be awarded in like manner as a witness fee, awarded for attendance at a hearing, irrespective of the location where the deposition takes place (including telephone and video testimony).  If the witness believes that t fee in excess of that set in Part 301 is warranted, such witness must submit a request to the Board within ten days of the deposition.  The Board will review such request and issue a subsequent decision concerning whether an additional fee is warranted.”

When a claimant’s physician testifies, the fee should be paid within ten days.  For chiropractors, 301.3 applies, for a $350 standard deposition fee.  If the doctor is not timely paid, the doctor should send a letter to the carrier, saying “I was deposed on X date, directing that I be paid within 10 days of my testimony. I have not been paid to date.  Please pay me within 10 days of this letter.”   Then, if the carrier still doesn’t pay within the stated time frame, the doctor should send a letter to the Board, laying out the dates,  saying “ I still have not been paid”, and attach the letter that was sent to the carrier.  Then, the Board will issue an Administrative Determination directing payment of the standard fee under Regulation 301 (the administrative decision cannot provide for any requested extra fee--- as the standard language above says, that has to be ordered by the WCLJ in the decision regarding the disputed issue for which testimony was taken).  This will get doctors paid timely.  The NYSCA again thanks the WCB for their timely, proactive, and detailed response.

Ground Rule 3 Clarification

As discussed with the WCB at our previous meeting, the modification of this Ground Rule now applies the daily unit cap to all providers combined when care is rendered by multiple providers on the same date of service.  Previously providers who could demonstrate that care was not duplicative qualified for separate reimbursement up to the daily unit cap individually.  The new language around treatment for a 'date of injury' has some inconsistency with prior FAQs, the WCB will look into this and provide an update.  Although this may be an attempt to control inappropriate billing, it does the greatest disservice to those injured workers with the most complicated and serious cases involving multiple body parts.  We have provided examples where treatment for different body parts from the same injury date may be medically necessary, appropriate, and prudent to avoid added lost time or chronicity. The WCB understands our concerns.


The meeting was closed by Dr. Martin who recognized the accomplishments of the WCB over the past 6-12 months, including their selection the winner of the IAIABC Excellent Award for the Virtual Hearing process.  He noted that this information has been shared with hundreds of NYSCA doctors at webinars, conferences, and local NYSCA district meetings. 

Dr. Martin also discussed how group insurance carriers are driving patients towards conservative musculoskeletal care (particularly chiropractic care), reducing not only excessive costs, but to address the opioid addiction crisis.  He provided the WCB with an article just published in the British Medical Journal indicating the reduction in opioid use and addiction when the initial treating provider is a Doctor of Chiropractic or physical therapist.  It is time for New York to lead the country in providing the best opportunity for injured workers!

Creating an environment for change takes a dedicated team.  It also requires the day to day support of NYSCA leaders such as Dr. George Rulli and Dr. Joseph Merckling, who assist NYSCA members with challenges in navigating the workers' compensation system.

Again, the NYSCA would like to recognize our lobbyist Amy Kellogg who provided the WCB with a clear opportunity to obtain funds from NYS to increase our fees and drive our profession towards long overdue parity.  The relationships we have developed with the WCB (both at these meetings and one on one) over the past decade have been based upon mutual respect, with a mindful eye on the needs of the injured worker and the doctors who treat them.  To paraphrase President John Kennedy, Partnership is a continuous process that grows stronger each year, as we devote ourselves to common tasks.

If you continue to have challenges in understanding and appropriately documenting an exacerbation, download the NYSCA Notice of Exacerbation developed in 2013 in the members only section at where you will find other templates and tools to assist you.  If you receive an inappropriate WC denial, contact the NYSCA Workers' Compensation Committee and send us blinded examples. You can also receive assistance at your local NYSCA District Meeting or attend a NYSCA webinar or conference (of which there were 3 on this topic alone during the last several months).

Again, a heartfelt thanks to all the NYSCA members who have shared cases, educated others, and participated in improving the workers' compensation environment.

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