(Part 2 pp. 12-20)
Section 21. 8 Workers' Compensation Leave - July 1, 1992
TABLE OF CONTENTS (of this Part (2 of 2))
Eligibility for Overtime (continued from Part 1)
...without pay counts as time worked. For example, a 40-hour per week employee who has two days of intermittent workers' compensation disability leave without pay in a workweek and who works or charges credits for the remaining three days in that workweek is deemed to have met the 40-hour threshold and any additional work performed in that workweek is paid at the overtime rate.
The State and CSEA are engaged in the development of a mandatory alternate duty policy. Information on that program will be issued in a separate bulletin.
Eligibility for the workers' compensation benefit under the contracts is dependent upon the State Insurance Fund/Workers' Compensation Board determination that a disability exists which resulted from an occupational injury or disease. Whenever the SIF controverts a claim (because it is alleged that the injury or disease did not occur on the job or it is alleged that the employee has not suffered any such injury or disease), the employee is not eligible for benefits under the contracts.
In the case of nonwork-related illness or injury, the employee continues to be eligible to use his/her leave credits and to be granted sick leave at half-pay as is the case for any ordinary disability. On the other hand, if the SIF has denied benefits because they believe there is no illness or injury, an employee is expected to be present at work. Any such absence may be considered unauthorized, until such time as the controversy is resolved, if the employee does not, in fact, return to work. Such employee should be placed on unauthorized leave without pay pending resolution of the claim, return to work or termination pursuant to Section 71 CSL, whichever occurs first.
If the controverted claim is resolved in favor of an employee by the Workers' Compensation Board, the SIF must begin making wage replacement payments. The employee, if charging leave accruals because the controversion was based on a nonwork-related illness or injury, would stop charging credits as of the date of notification from the SIF and no longer receive his/her State salary; the agency must file a PR-75 to place the employee on workers' compensation disability leave without pay effective as of the date of notification by the SIF. Any credits (including sick leave at half-pay) used prior to that point for which the Workers' Compensation Board issues a Notice of Decision and New York State...
...receives a credit, will be restored to the employee on a prorated basis. (See Restoring Leave Credits for further information.)
The employee whose case was controverted due to non-disability will, upon a decision of the Workers' Compensation Board which overturns the controversion, have his/her status changed via PR-75 to an authorized workers' compensation disability leave without pay effective as of the first day of unauthorized leave and the SIF will make wage replacement payments for this period. The agency will credit the employee with the leave accruals he/she should have earned during this period since the unauthorized leave without pay is now retroactively workers' compensation disability leave without pay.
The Statutory Benefit Program in no way changes the provisions of Civil Service Law. Section 71 of the Civil Service Law provides that an employee who is disabled as the result of an occupational injury or disease is entitled to a leave of absence for a minimum of one cumulative year (365 calendar days) unless found to be permanently disabled.
The cumulative year of mandatory leave includes periods of absence charged to leave credits and periods of workers' compensation disability leave without pay. For calculation of the "cumulative year," see page 3, [R-3] of Section 21.8 of the Attendance and Leave Manual.
Employees absent for one cumulative year because of an occupational injury or disease may be continued in employment at the discretion of the appointing authority but are not entitled to be so continued. The benefits provided by the negotiated Statutory Benefit Program (accrual of biweekly leave credits, continuous service credit, retirement service, Employee Benefit Fund contributions and health insurance benefits) have a one cumulative year maximum.
Procedural guidelines for the implementation of Rule 5.9 of the Rules for the Classified Service, which details the notification and appeal provisions required by Section 71, are contained in the State Personnel Management Policy Bulletin #90-02 dated July 5, 1990.
[Since replaced by Policy Bulletin #93-02.]
The injured employee and the supervisor have the first responsibility for reporting the accident to the personnel office or designated agency contact. Appropriate agency forms and accident investigation must be completed and, upon receipt of this information, the agency should determine if the accident/injury is reportable to the SIF.
The criteria for determining whether an incident/injury is reportable to the SIF are:
If any of these conditions are met, the incident should be reported to the SIF as soon as practicable, but no later than 10 calendar days from the employee's notice of the incident.
Agencies should refer to the SIF Intake Form (see Attachment D) and provide the SIF with all the information contained within that document.
It is imperative that accidents be reported promptly to avoid delays in processing the employee's claim for benefits.
Following the initial telephone or FAX report of the accident the
agency must file a C-2 (Employer's Report of Accident/Injury) with
the SIF and WCB. Any additional information discovered after the initial
report should be forwarded to the SIF as quickly as possible following
the normal course of ongoing communication between the agency and
SIF concerning the claim.
The employee is responsible for ensuring that his/her treating physician submits the necessary medical information to the SIF. Without medical documentation, the SIF cannot process payment to the employee who will have no other source of income.
The agency is responsible for informing the employee of the need to have his/her physician submit medical documentation to SIF. In addition, the agency should provide SIF with copies of any medical documentation regarding the case which has been submitted to the agency; it should not be assumed that SIF has received copies of such documentation.
Apart from the requirement to share medical documentation with SIF, any medical documentation should be handled consistent with agency policy and practice regarding the confidential treatment of such information.
For purposes of determining eligibility for benefits under the program, SIF makes the final determination regarding what constitutes satisfactory medical documentation. However, nothing in the provisions of this program precludes the agency from requiring that the employee submit periodic medical documentation directly to the agency to substantiate the absence nor is the agency precluded from requiring the employee to undergo a medical examination by a management-selected physician as a condition of return to work.
Agencies should clearly communicate to employees any requirements concerning medical documentation in connection with return to work procedures to prevent delays in employees being able to return as quickly as possible.
Accurate and timely communication with the State Insurance Fund is the critical link needed for employees to receive benefits under this program. For the first time SIF is required to make payments to State employees on a current basis in accordance with the Workers' Compensation Law because the employee will not be receiving salary continuation after the first week of absence. This is not possible without the information that is supplied by the agency. Agency staff should err on the side of providing too much information rather than too little if there is any doubt as to SIF's need for the information. The SIF must document all the actions taken in connection with a claim and the agency receives...
...copies of each of these forms. The agency is responsible for reviewing these forms and communicating with SIF whenever there is a question about benefits or a change in status which the agency does not understand.
Initial Accident Report
The first piece of information to flow between the agency and SIF is the initial accident report. The employer is required by the New York State Workers' Compensation Law to report accidents within 10 days of the incident or of first learning of the incident. Therefore, agency staff have an obligation to report to SIF within this time frame or possibly be subject to a fine by the Workers' Compensation Board (WCB). Aside from this negative action, if the employers' report of injury is not on file, SIF cannot proceed to process the claim which could result in the employee not receiving timely benefits. This lack of timely payment also can lead to a fine by the WCB. The most important reason for timely reporting, however, is to ensure that the injured employee receives benefits from SIF on time so he/she is not without income (since he/she will be off the agency payroll).
Initial accident reporting can be done by telephone or telefax. Attached to this memo as Attachment D is the SIF Intake Form that is mentioned under the Reporting Accidents section. (Attachment E is a list of SIF District Offices and the counties each office services.) This information is needed by SIF to start a claim file. Once the agency accident report has been reviewed and it has been determined that the accident is reportable to SIF, that initial information should be provided to SIF immediately. If there is any issue of reportability, SIF should be contacted for a determination. After the initial contact has been made, the C-2 must be filed with the WCB within 10 days.
Employee Status Changes
In addition to the initial accident report, all other employee status changes (including address changes) need to be reported to the SIF so that employees receive the correct benefits and are neither underpaid nor overpaid. For example, if the agency does not report that the employee has returned to work, the employee will continue to receive compensation payments from SIF while back on the payroll and receiving regular salary. In the same vein, the employee could be removed from the regular payroll and placed on workers' compensation disability leave without pay, but not receive benefits from SIF because SIF was not notified of the absence. The SIF will continue to complete the C-11, "Employer's Report of...
...Injured Employee's Change in Employment Status Resulting From Injury," but they must receive notice from the agency of changes so that they can complete and file the form with the WCB.
The SIF has established procedures to provide medical reports to the employer; it is incumbent upon each agency to ensure that any medical documentation they obtain concerning an employee absent due to a workers' compensation disability be shared with the SIF, even in-house clinic reports for agencies with those capabilities. Many times the critical information in determining compensability of a particular absence is the supporting medical documentation. The agency has an obligation to ensure such documentation is made available to the SIF.
In providing information to SIF, agency staff have an obligation to respond to SIF inquiries in a timely and thorough manner. As New York State's representative before the WCB, SIF needs to have complete knowledge of the case. If SIF receives a medical report indicating a work-related disability but has no agency report, they will contact the agency for confirmation that the accident occurred. An agency investigation should be undertaken immediately to ascertain the facts of the case.
Agency staff's second role in communicating with the SIF is to respond to the information received on the copies they get of the forms SIF is required to file with the WCB. Questions about these forms or their purpose should be directed to SIF. These forms include:
The State Insurance Fund will complete the following forms on behalf of state agencies:
In summary, agencies should communicate early and often with SIF throughout an employee's absence. They should ensure that SIF knows when the employee is at work or absent and specifically for which days of absence the agency has provided payment or placed the employee on leave without pay. This is necessary so SIF can claim reimbursement for wages paid on behalf of the agency and subsequently credit New York State or pay the employee as appropriate. The agency must respond to information provided by SIF so that an employee's status is changed correctly and the person is not underpaid or overpaid.
The Statutory Benefit Program relies on the employee, agency and SIF all communicating with each other in a timely fashion with accurate and complete information. Unlike the Supplemental Pay Program, the employee's benefits from SIF are processed on a current basis. It is essential, therefore, that the agency communicate to the employee his/her responsibilities, obtain the information needed for the SIF to process the claim and ensure that the employee receives all the benefits to which he/she is entitled, but no more than the program allows. Refer to the section entitled Communication With the State Insurance Fund for a discussion of the agency's responsibilities to SIF.
After ensuring that the employee receives medical attention as needed,
the agency must obtain a completed accident report form from the employee
and the supervisor and conduct any investigation deemed appropriate.
Once the employee has provided medical documentation, the name, address,
and phone number of the attending medical practitioner should be noted
in the employee's file.
Agencies must contact the employee regarding his/her option to charge leave credits or be placed on leave without pay during the initial 7 calendar day waiting period. This choice must be noted on the time record and the agency must process a payroll transaction for leave without pay when applicable.
Employees should be provided with a copy of the informational brochure "Workers' Compensation for CSEA-Represented NYS Employees" and receive notification of their payroll status. When employees are placed on workers' compensation disability leave without pay, notification to the employee of this change in status must be accompanied by information on how to make direct payments of those items normally deducted from his/her paycheck.
In all communications with the employee it is imperative for the agency to stress that without medical information from the employee's physician, SIF cannot process the claim and begin payments. If the SIF cannot begin payments, the employee will have no other source of income.
Throughout the absence, the agency should maintain contact with the employee, including making arrangements for completion of time records, since the employee continues to accrue leave credits during periods of workers' compensation disability leave without pay. When credits are restored pursuant to a WCB hearing, the employee should be notified. (Refer to Earning of Leave Accruals and Restoring leave Accruals.)
Before the 21st day of absence the agency must notify the employee of his/her rights pursuant to Rule 5.9 and Section 71 of Civil Service Law. Should the employee not return to duty after an absence of 12 cumulative months, the agency may terminate the employee pursuant to Section 71. The specific notifications required prior to termination under the Rules and Law are detailed in the State Personnel Management Manual Policy Bulletin 90-02. [Since replaced by Policy Bulletin #93-02]
Agencies should advise employees of return to work procedures as part of the ongoing contact with the employee.
If the employee's case is controverted by the SIF, the agency must notify the employee to either return to duty (where no disability is found) or obtain necessary medical documentation to support use of leave credits in cases of non-job related disability. The employee must be advised of his/her payroll and leave status in either case. Should the controversion be resolved in the employee's favor, the agency should prepare a memo to the employee and the file which details all necessary adjustments in...
...accruals and changes in status which were processed as a result of the Workers' Compensation Board decision.
An employee's time record needs to reflect all transactions concerning the employee's absence due to each individual occupational injury or disease. It is recommended that agencies use the SIF case file number or date of accident on time records so that each absence is associated with the appropriate case. This is important not only for payment purposes, but also to calculate the one calendar year minimum entitlement available for a single injury or disease and to be able to restore leave credits accurately.
Time records must be maintained throughout an employee's absence since leave is credited to the employee as if he/she were in full pay status (up to 12 cumulative months). See Earning of Leave Accruals for further information.
Additional information that needs to be kept with an employee's time records includes restored leave accruals (kept separately) and the date when leave credits are restored if the restoration brings the employee over the allowable maximum. Employees have one year from return to work or restoration of leave credits, whichever occurs later, to reduce leave credits below the maximum, and employees continue to earn leave credits throughout this period.
The Workers' Compensation Board and State Insurance Fund do not maintain records of benefit enhancements provided to State employees. It is advisable to retain records on each workers' compensation case for six years after an employee retires or, if an employee transfers to another agency, to make them available to that agency. The agency needs the information in these records to ensure that an employee receives only the benefits to which he/she is entitled if the case is reopened.
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