Two Arbitrations on Occupational Therapy and Rehabilitation
February 10, 2010
11 NYCRR Section 65-3.16 (5) states:
If the applicant’s injuries warrant occupational therapy or rehabilitation based on an attending physicians recommendation or if the injuries have rendered the applicant unable to resume the applicant’s occupation , the insurer shall inform the applicant of the coverage for occupational therapy or rehabilitation required by 5102 (a)(1) of the Insurance Law and the insurer shall assist the applicant in obtaining such occupational therapy and rehabilitation.
The Regulation further states:
(b) Loss of earnings. In determining loss of earnings from work: (9) Refusal by an eligible injured person to accept reasonable rehabilitative treatment may be the basis for denial of future payment of benefits for loss of earnings…
A few days ago, arbitrator Thomas J. McCorry addressed these provisions in two different arbitrations.
Applicant_1 and State Farm Insurance Company
Amount in dispute: $16,458.69
Here, the issue was whether the insurer could deny benefits for the Applicant EIP’s refusal to actively participate in vocational rehabilitation services. The vocational counselor assigned to the Applicant stated that the Applicant did not cooperate in the process, thus leading to a denial of lost earnings benefits pursuant to section (b)(9) above.
The Applicant in this matter did not have a high school diploma, had a past history of drug use, was on a number of medications, had a disabled 14 year-old son to care for, had clinically diagnosed depression, and had previously been homeless. Arbitrator McCorry questioned whether in cases such as this, the EIP is actually employable, or whether vocational counseling is unrealistic where failure and frustration are inevitable.
Arbitrator McCorry thus held:
I do not find that in light of all of the physical, mental and employment handicaps that this EIP presented with, that she unreasonably refused to accept rehabilitative treatment. I even question under the facts of this case, whether vocational counseling, could or should be considered “reasonable rehabilitative treatment.”
The denial was thus inappropriate and Arbitrator McCorry granted a full award of $16,458.69.
Applicant_1 and Geico Insurance Company
Amount in dispute: $28,000.00
Here, the Applicant EIP was formerly a tractor-trailer driver. The Applicant brought a claim for lost earnings, but testified at the hearing that he was no longer physically disabled during the time in dispute.
There is evidently a $3,000 driver re-training fee, required by the New York State Department of Transportation for tractor-trailer drivers who have been out of work for more than six months. Arbitrator McCorry determined that the Applicant was no longer actually physically disabled and was merely unable to continue working on account of his inability to pay this fee.
The arbitrator then stated:
I don’t know if there would be coverage under the EIP’s policy of insurance for a retraining expense. In this case, it was not claimed, documented , asserted or researched. I do know that the insurer has an obligation under section 5102(a)(1) (ii) of the insurance law to “inform the applicant of the coverage for occupational therapy or rehabilitation. I don’t venture an opinion on whether such coverage for retraining exists.
Thus, where the Applicant failed to specifically make a claim for coverage for the re-training fee under Insurance Law 5102(a)(1)(ii), the arbitrator would not read this into the present claim, nor give an opinion as to whether such a claim would have been covered.
Award: Denied.
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Roy Mura
Bethany Mazur
Scott Mancuso
