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Two Board Panel Decisions Establish Board Jurisdiction for Determining §15(8) Reimbursement and Right of Payers to Obtain Reimbursement for Qualifying Expenses Paid More Than One Year Prior to the Reimbursement Request on Newly Established §15(8) Claims

For some time, the Special Funds Group (“SFG”) has argued that the Workers’ Compensation Board did not have jurisdiction to resolve disputes concerning reimbursement to carriers on established WCL §15(8) claims. SFG was able to obtain a Board Panel decision supporting their position and this has frustrated the efforts of carriers seeking reimbursement under §15(8) withheld by SFG. SeeCorning, Inc., 2017 N.Y. Work. Comp. 90203937 (9/15/2017). The Corning decision held that the Board did not have administrative jurisdiction over the WCL §15(8) reimbursement process. This left carriers without a forum to resolve disputes concerning §15(8) reimbursement.
On 1/11/18, a Board Panel, upon remand from the Full Board, issued a decision in Express Solutions, 2018 WL 1560704 (WCB #70106478; 1/11/18) in which it disavowed the prior holding in Corning, Inc., 2017 NY Work. Comp. 90203937 and established that the Board has jurisdiction over the reimbursement process as well as the right to adjudicate disputes concerning same. With the decision in Express Solutions, carriers can seek relief from the Board in these matters, subject to the process laid out in that decision.
The Board Panel ruled that once WCL §15(8) liability is established by the Board, the carrier and SFG must follow the following process:
1) File a timely request for reimbursement with the SFG using the appropriate form including all necessary information and documentation;
2) The SFG screens the request for any incomplete or improper entries, issues confirmation of receipt, and reviews the request to determine if each item is eligible for reimbursement and was paid in accordance with all appropriate laws, regulations, fee schedules, and other appropriate considerations;
3) The SFG issues a response to the carrier indicating the dollar amount approved for each indemnity payment along with an explanation for reductions from the amount requested (if any). If the total amount of the medical reimbursement requests was not produced, SFG will not respond to the request, and will process for payment;
4) The carrier may request reconsideration of a response from SFG in which the reimbursement amount requested was reduced;
5) A senior staff person in SFG shall review the reconsideration request and issue its final determination; and
6) The carrier may seek review of SFG’s final determination by filing a timely request for further action, subject to WCL §23.
Although this process seems (and probably will be) cumbersome, the upshot is that there is now a process that the SFG must follow concerning §15(8) reimbursement requests. SFG’s failure to follow the process can be held to task before a WCLJ who has the power to direct reimbursement to the carrier. Additionally, this decision puts to rest the argument from SFG that the Board lacks the jurisdiction to resolve disputes concerning §15(8) reimbursement.
Express Solutions was cited in a more recent Board Panel decision, Southco, 2018 N.Y. Work. Comp. 70107367 (4/10/18), which affirmed the Board’s repudiation of the CorningInc. decision.  The Southco decision also affirmed the rule, opposed by SFG, announced by the Board in Subject Number 046-223R dated December 12, 2008.  That Subject Number provided that as long as request for reimbursement is filed within one year of the date the Board establishes §15(8) applicability, the carrier is entitled to reimbursement of all qualifying expenses (indemnity and medical benefits paid beyond the 104 or 260 week retention period) even if such expenses were paid more than one year before the request for reimbursement.
In Southco, the date of accident was 2/21/2001.  A timely claim for §15(8) relief was filed in 2002, but the Board did not find that §15(8) applied until 8/12/2016.   The carrier filed its requests for reimbursement from Special Funds in May and July 2017 (within one year).  Thus, the carrier would be entitled to reimbursement of medical and indemnity benefits paid beyond the 260 week retention period, not just those made within one year that reimbursement request.

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