| Matter of Rivera v North Cent. Bronx Hosp. |
| 2012 NY Slip Op 08600 [101 AD3d 1304] |
| December 13, 2012 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Daisy Rivera,Claimant, v North Central Bronx Hospital, Appellant. Workers' Compensation Board,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York City (Terri E. Gerstein of counsel), forrespondent.
Rose, J. Appeal from a decision of the Workers' Compensation Board, filed May 23, 2011,which ruled, among other things, that claimant failed to comply with Workers' CompensationLaw § 13-a (7).
When claimant was injured and applied for workers' compensation benefits, the self-insuredemployer, a hospital, advised her that it had contracted with a specific provider for certaindiagnostic tests, including electromyography (hereinafter EMG), and that failure to utilize thatprovider would result in nonpayment for such services. Despite this warning, claimant underwentan EMG test performed by her treating physician. The employer objected to paying for theprocedure because claimant had not used the specified provider. The Workers' CompensationBoard ultimately agreed that claimant was required to undergo EMG tests with the specifiedprovider, but nevertheless directed the employer to reimburse claimant's treating physician for thetest "at its in-network payment rate."
The employer appeals, arguing that the Board improperly interpreted Workers' CompensationLaw § 13-a (7) by requiring it to reimburse claimant's doctor for the EMG test. Added in2007 (see L 2007, ch 6, § 29), Workers' Compensation Law § 13-a (7) (a)permits self-insured employers, among others, to contract with a provider "to perform diagnostictests, x-ray examinations, magnetic resonance imaging, or other radiological examinations ortests of claimants." If the requisite notice is given to a claimant (see Workers'Compensation Law §§ 13-a [7] [b]; 110 [2]), the employer is further entitled to"require claimant to obtain or undergo such . . . tests with" the specifiedprovider (Workers' Compensation Law § 13-a [7] [a] [emphasis added]). There is nodispute that an EMG test is encompassed by the terms of Workers' Compensation Law §13-a (7). Also, none of the statutory exceptions applies, and claimant does not deny that she wasgiven the proper notice requiring her to use the specific provider.
While the Board argues that its interpretation of the statute is entitled to deference, we viewthe issue as "one of pure statutory reading and analysis, dependent only on accurate apprehensionof legislative intent" (Matter ofBelmonte v Snashall, 2 NY3d 560, 566 [2004] [internal quotation marks omitted]; see Matter of LaCroix v Syracuse Exec. AirServ., Inc., 8 NY3d 348, 352 [2007]). Nevertheless, we find no support for theemployer's contention that it should not have to pay anything to the provider. The statute itself issilent on the question of the appropriate response where a claimant fails to use an employer'sspecified provider, and nothing in the legislative history suggests that nonpayment is theappropriate remedy (see Assembly Mem in Support, Bill Jacket, L 2007, ch 6 at 24).Rather, the determination to require the employer to pay its in-network rate is in accord with theoverall goal of the Workers' Compensation Law to provide "a swift and sure source of benefits toinjured employees" (Crosby v State of N.Y., Workers' Compensation Bd., 57 NY2d 305,313 [1982]; see Matter of Simpson v Glen Aubrey Fire Co., 86 AD2d 909, 910 [1982]),as well as the specific provisions of the statute requiring employers to pay for medical expensesand preventing providers from collecting payment from injured workers (see Workers'Compensation Law §§ 13 [a]; 13-f [1]). Further, allowing the employer to avoid anypayment to the provider would harm medical providers who may not be aware that the employerhas contracted with a specified provider and could, as a result, deter providers from participatingin the workers' compensation system (see Workers' Compensation Law § 13-a [1];[7] [b]). We also note that the employer did not argue before the Board that there would be anybroader or indirect financial impact resulting from its paying the rate set with its specifiedprovider to others, and no proof in the record before us supports that claim.
In sum, the employer's interpretation finds no support in the statute or its history, it wouldsubvert those statutory provisions requiring employers to pay medical expenses and would haveno obvious deterrent effect upon claimants who ignore their employers' provider contracts.Accordingly, we decline to disturb the Board's decision (see Matter of Hope v Warren County Bd. of Elections, 89 AD3d1365, 1367 [2011]; Matter of Carterv Von Roll Isola, USA, Inc., 25 AD3d 987, 989 [2006]; Matter of Coratti v Jon Josef Hair & ColourGroup, 17 AD3d 768, 769-770 [2005]).
Mercure, J.P., Lahtinen, McCarthy and Egan Jr., JJ., concur. Ordered that the decision isaffirmed, without costs.