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12.02.14

An Important Decision regarding the Workers Compensation Medical Treatment Guidelines

The Court of Appeals of the State of New York (the State’s highest court) issued an important decision on November 20, 2014 that affirmed the Medical Treatment Guidelines first promulgated by the NYS Workers Compensation Board in 2010. These guidelines defined the treatment an injured claimant could receive for certain parts of his/her body (initially the back, neck, knee and shoulder). In this case, known as Kigin v. State of New York, Workers Compensation Board, http://www.nycourts.gov/ctapps/Decisions/2014/Nov14/181opn14- Decision.pdf the claimant challenged Board’s authority to limit her medical treatment and particularly the Board’s efforts to limit the treatment on an injury that occurred before the comprehensive legislative changes to the Workers Compensation law that took effect in 2007. The Court of Appeals ruled that guidelines were authorized by the reforms and that they can apply to any treatment rendered after the effective date of the guidelines.

The guidelines outline the expected treatment for certain injuries to be prescribed by the treating doctor. For example, the guidelines would pre-authorize a certain number of visits for physical therapy for a person who suffers an injury to the knee. If, after the initial treatment, the claimant and the doctor wish to have more physical therapy, the Guidelines require the doctor to file a “variance” (form MG-2) explaining how the initial therapy improved the claimant’s medical condition, and how additional therapy is expected to further improve the condition. The doctor must provide functional or numerical evidence of that improvement on the variance form, such as the degrees of increased movement as a result of that therapy. If the doctor can justify the need for the therapy, the treatment is supposed to be granted without the need for a hearing in the matter.

The problem that claimant’s have with the guidelines is that the insurance companies are constantly alleging that the doctors have “not met their burden of proof” because they have failed to provide documentation of the functional improvement resulting from the therapy. As a result the insurance carriers are denying the treatment and Workers Compensation Board is pro forma agreeing with the insurance companies and refusing to authorize the treatment. Further appeals of these decisions take months to get the decision and the effect of the treatment is nullified.

Claimants have argued that the Board exceeded its authority in limiting the treatment the claimant can get under these Guidelines in the first place. Unfortunately, the Court of Appeals has now ruled that the Board had the authority to issue the Guidelines restricting the treatment..

Helbock Nappa & Gallucci, LLP is continuing to work with the treating doctors of our clients to show them how to meet the burden of proof to get the treatment authorized.

-Bob Helbock

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