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NYS Workers' Compensation Board Medical Treatment Guidelines Equates to Bureaucrats Practicing Medicine without a License

The NYS Workers' Compensation Board implemented a series of "Medical Treatment Guidelines" that became effective December 1, 2010. Those guidelines pertain to the treatment of Workers' Compensation injuries to a claimant's Neck, Back, Shoulder or Knee. These Guidelines provide the specific treatment that will be paid for dependent on the symptoms presented by the claimant. If the treatment is not covered by the Medical Treatment Guidelines then it will not be authorized or paid for.

The Guidelines do provide for an opportunity to request a "Variance" from the Guidelines to authorize specific treatment. However, the bureaucracy appears to be more than most doctors can handle and the claimant's are suffering as a consequence.

A request for a variance must be filed on a specific form (MG-2 form) with the insurance company. The insurance company has 15 days from the date of the receipt of the request for the variance to notify the doctor if they intend to have the request for the variance reviewed by one of their consultants. If they elect to have that done, then the insurance company has 30 days from the date of the receipt of the variance to answer the request. In my experience representing claimants in these matters up to this point, the insurance companies rarely grant the variance.

If the variance is denied, then the doctor has 7 days to try to convince the insurance company that their decision was incorrect. After that, the claimant has 14 days to request a hearing before the Workers' Compensation Judge. Then the Workers' Compensation Board must schedule a hearing to address the issue of the Variance. So far, it has taken the Board at least 60 days to schedule such a hearing.

At the hearing, the Administrative Law Judge will only authorize the variance if the doctor can demonstrate that the treatment would improve the claimant's condition. Ironically, by the time that the Judge is ready to render a decision, it has been more than 3 months since the last treatment to the claimant. Therefore, any of the strides that the doctor and the claimant had made are often lost by the sudden suspension of the treatment while the parties wait for the variance request to be granted. If the claimant initially had 15 physical therapy appointments and the doctor requested an additional 15 therapy appointments to resolve the claimant's condition, by the time the Administrative Law Judge renders a decision granting the additional 15 therapy appointments the therapist is effectively starting from "square 1" all over again.

What this process has effectively done is placed a cap on the medical expenses of Workers' Compensation claims. The Workers' Compensation Board has taken the most frequent Workers' Compensation injuries and limited the amount of treatment that a claimant can receive for them. By doing this, it has saved the insurance company significant amounts of money on not only future claims but also past claims, which are subject to these new Treatment Guidelines.

The sad part about this is that the bureaucrats have disregarded the impact that this cap on treatment has on the claimant. A number of my clients have advised me that they have begun paying the doctor directly for the treatment because they cannot wait the 3 or 4 months to learn of the outcome of the variance request. So, while it is illegal for the doctor to charge the claimant for the therapy directly, the claimant is not complaining because the only way that they understand that they receive the treatment is by paying the doctor directly. This is money that the claimant will never recoup and which will never be reported to the licensing agency. In effect the Workers' Compensation Board is promoting fraud by their unrealistic and impractical efforts to cap the medical treatments expenses on behalf of the insurance companies.

It would appear that the only recourse for the claimant is for the legislature to get involved. However, this skeptic does not foresee that happening quickly since the insurance lobby in Albany is stronger than any pro-claimant lobby.

Therefore, the true victim in this circumstance is the injured worker who needs the treatment, so is forced to pay for it themselves or do without. This is all because the bureaucrats think that they know how to treat the claimant better than the doctors do. The bureaucrats who put this system into place should be ashamed.

-Bob Helbock

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