It has been nearly a year since the Medical Treatment Guidelines become the mandatory standard of care for injured workers, regardless of the date of injury or accident for injuries to the back, neck, shoulder, or knee. N.Y.C.R.R. 324.2. Now the Board has proposed Carpal Tunnel Syndrome Medical Treatment Guidelines. This will impact handling of these claims as currently treatments (such as release surgeries) which cost more than $1,000 are subject to carrier approval for body parts not covered by the MTG. Under the proposed Guideleines, nearly all carpal tunnel release surgeries will be considered pre-approved.

What do the current Guidelines cover?

Under the current Medical Treatment Guideliness, medical care provided to injured workers must satisfy a two-prong test:

The Medical Treatment Guidelines include statements of "General Principles" in each MTG's first section. These are the key principles necessary to apply and interpret the MTGs. There are 23 general principles divided into 6 categories. Of these, the two most important are:

When are Authorizations Required?

All medical consistent with the MTG is pre-authorized and the health care provider is not required to obtain prior authorization. See N.Y.R.R.C. 324.2(d)(1). For carpal tunnel syndrome, all release surgeries will be considered pre-approved under the proposed Guidelines except where there is no electrodiagnostic evidence of carpal tunnel injury (must be EMG and NCV). Further, some therapies, including: low level laser, iontophresis, magnets, or "laser acupuncture" are specifically deprecated.

The Board is accepting comments on the proposed CTS Guidelines and will likely adopt regulations to incorporate the Carpal Tunnel Syndrome Medical Treatment Guidelines into the law after December 1, 2011. Of course, I will keep you up to date with the progress of this reposed change.

Now, where's that pain management guideline we need so badly?!?

Since May the WCB has assembled a new Medical Advisory Committee to provide guidance and commentary on new pain management treatment guidelines. The Medical Advisory Committee is expected to review and consider standards for evidence-based medicine applied to pain management and rehabilitation. More on this as it develops!

Clients have reported to me that when handling claims under the New York Workers' Compensation Act if the claimant resides out of state they are not applying Medical Treatment Guidelines ("MTG") to the ongoing treatment.  This means that employers and their insurers are not getting the benefit of the MTG in these cases. (Note: If you are unfamiliar with the Medical Treatment Guidelines that went into effect on December 1, 2010, I recommend you read my earlier posts on these topics:

• The Medical Treatment Guidelines - this is a general overview article;
• Optional Prior Approval; and
• The Variance process.
• Observations on the Variance process.)

There is no case law examining this issue in light of the controlling statutory authority and the information published by the WCB is simply nonsensical. Why would an out-of-state claimant be entitled to more or less medical treatment than the in-state claimant?

What the law states.

The strongest authority is the Workers' Compensation Law ("WCL") statute itself. Section 13 of the WCL states:
(b) In the case of persons, injured outside of this state, but entitled to compensation or benefits under this chapter, the provisions as to selection of authorized physicians shall be inapplicable. . . All fees and other charges for such treatment and services, whether furnished by the employer or otherwise, shall be subject to regulation by the board as provided in section twenty-four of this chapter, and shall be limited to such charges as prevail in the same community for similar treatment of injured persons of a like standard of living." None of the cases that cite to this provision indicate that an out-of-state claimant is entitled to less or more medical care than is required under WCL § 13-a.

That first part about the "selection of authorized physcians" just means that when the claimant is treating out-of-state, the treating physicians do not have to be "coded" or otherwise authorized by the WCB to treat the claimant. Nothing in the statute allows for an out-of-state claimant to get more or less treatment then a worker injured in New York.

What the WCB says.

This is where it gets confusing: I found this on the WCB website in a 'Frequently Asked Questions' response under the heading "Out of State" (link):
"Question: How do the Medical Treatment Guidelines apply if an injured worker lives or receives treatment outside of New York State?
Answer: If the injured worker either lives or is treated in New York State, the Medical Treatment Guidelines apply. If the injured worker both lives and is treated outside New York State, the Medical Treatment Guidelines do not apply."

There is also this:
"Question: How can a party compel appearance at a deposition of an out of state provider, when a variance is denied by a health care provider?
Answer: First, the variance can only be denied by a carrier. It is submitted by the health care provider. Second, If the out of state provider is treating a claimant that both lives and is treated outside New York State, the Medical Treatment Guidelines do not apply. If the Medical Treatment Guidelines do not apply, then there is no need to request a variance and there will be no need to depose such provider. However, if the out of state provider is treating a claimant who lives in New York State, the Medical Treatment Guidelines apply. In that case the methods used to depose out of state providers for all other issues should be used. A subpoena is not necessary if the provider agrees to a date and time to be deposed.
 
Hmm.  This seems to directly state that an out-of-state claimant is not bound by the MTG.  Remember, answers to "Frequently asked Questions" on the Board's website is not law or even persuasive authority.
 

The Regulations imply that the MTG applies to out-of-state claimants.

After reviewing the regulations and the MTG, I found only one Regulation that references a claimant who resides out of state in regards to treatment (in this case, IMEs). Here are some references in the Regulations that seem to imply that the Guidelines DO apply to claimants who reside out of state. For example, 12 N.Y.C.R.R. 325-1.4(a)5 states as follows:

In response to requests for authorization for treatment related to an established body part or illness, the self-insured employer or insurance carrier may have the [patient] claimant examined within four business days if the [patient] claimant is hospitalized or [30] thirty days if patient is not hospitalized, by an appropriate [medical board-certified] specialist who is [also] authorized [in such specialty,] by the [chair,] Chair to [treat] conduct independent medical examinations of workers' compensation claimants. If such specialist is not available or where the claimant resides outside of state, consultation may be rendered by [an authorized physician who is acceptable to both the self-insured employer or insurance carrier and the physician requesting authorization, or in the event the parties cannot agree, a physician may be selected by the chair] a qualified provider who may conduct the independent medical examination as provided in Workers' Compensation Law Section 137 (3) (a) and section 300.2 (b) (9) and (d) (7) of this Chapter.

This regulation clearly assumes that the Chair has the power to regulate out of state care, and that a patient who resides out of state (and presumably is getting treatment out of state) can still request authorization for treatment to established body parts.
 
The Regulations and the individual Guidelines for each body part certainly do not state that claimants who live out of State are treated any differently than in-state residents.

Of course, if out-of-state claimants with established cases were not subject to the MTG they could continue to direct and control their own medical care as they did in the pre-MTG era. Certainly, this creates a situation where the out-of-state claimant would be able to obtain more medical treatment than a similary-situated in-state claimant, which defies common sense.

Have any questions about this article? Contact Greg Lois.

What makes an MG-2 form complete?

The MG-2 variance request form is a multi-page document with plenty of small type. Certain information is essential to the Board's internal procedures and if that information is missing or incomplete, the Board cannot process the form. In order for the Board to take action on an MG-2 form, the Board requires that the following fields be completed (required items are denoted by the "checklist" symbol "☑".

Check the MG-2 - if any the following sections are incomplete or missing - issue a denial and alert the Board as to your reasons!

Required in Section A:

☑ Patient's name, and
☑ Insurance Carrier's Name & Address.
Please note that the Insurance Carrier's or TPA's name and address must match the information the Board has on file.

Required in Section B:

☑ Individual Provider's WCB Authorization Number for all providers authorized by the New York State Workers' Compensation Board

Required in Section C:

☑ Date Variance Request Submitted and Method of Transmission,
☑ Guideline Reference for the body part followed by the 2 to 4 character corresponding reference in the Medical Treatment Guidelines or followed by the four letters N-O-N-E if there is no listed procedure,
☑ Approval Requested For requires a written description of the treatment requested,
☑ Statement of Medical Necessity requires a description directly on the form. If there is a supporting medical report in the Board's case file, the requesting physician should enter the date of service or if there is no supporting medical report in the case file, attach a medical report and enter "See attached medical report" on the form;
☑ A check box selected for how the carrier was contacted; and
☑ the Provider's signature or stamp. Please note that initials next to the signature or stamp are not acceptable.

Also remember that physical therapists are not "medical providers" under the the MTG and cannot issue an MG-2 to request authorization for addiitonal physical therapy visits beyond the Guidelines - only a doctor can issue the MG-2 to request addiitonal PT. Issue a summary denial to any variance request issued by a physical therapist.

The new Medical Treatment Guidelines aren’t that new anymore. In the four months since the Guidelines came into effect clear patterns have emerged for those of us regularly handling variances and medical treatment issues before the Board. This article provides our observations and practical tips for handling disputes post-MTG.

(If you are unfamiliar with the Medical Treatment Guidelines that went into effect on December 1, 2010, I recommend you read my earlier posts on these topics:

• The Medical Treatment Guidelines - this is a general overview article;
• Optional Prior Approval; and
• The Variance process.)

Observation #1: Magic Words

There is a literalist quality to the review of medical disputes before the Board. The Workers' Compensation Board has always been doctrinaire - and never more so than in the interpretation and application of the new Guidelines. How can we use this to our advantage in controlling runaway medical?

Magic words: Challenging treatment during the Optional Prior Approval process

If you have not "opted out" of the prior approval process, a medical provider can seek "prior approval" to provide treatment where there is a potential that the care is not pre-authorized under the MTG (using form MG-1). If the approval is denied by the carrier, the matter then goes to the Medical Arbitrator who will issue a decision within 8 days. The decision of the Medical Arbitrator is not appealable under WCL Section 23.

The arbitrator who reviews the denial will be in the Medical Director's Office - the review process includes MDO nurses. In our experience, they are looking for documentation of clinical symptoms, correlation of those symptoms to the medical treatment sought, and a statement as to how the proposed medical treatment follows under the MTG.

In our experience, this process can be aided by careful documentation by the carrier and carrier's medical reviewer.

First, a denial of treatment must include a specific reference to which Medical Treatment Guidelines applies. In the case of the carrier seeking to deny care, a statement must be made that the treatment sought is not authorized by the MTG. The denial should include the name of a licensed medical professional (and that could be a LPN, PA-C, MD or RN) who reviewed the medical request. The report supporting the denial should be as detailed and complete as possible - make is easy for the reviewer at the Medical Director's office. This means that specific reference to the MTG "chapter and verse" that applies should be provided, along with references to the treating records as to how the claimant's prior symptomatology and improvement departs from the symptoms and functional improvement documentation required under the MTG.

Second, carefully review the Board's file (e-case) to see what medical records have been submitted to the Board. Often, a supporting MRI report or EMG result is not filed. A treating physician may refer to the report or record and rely on same in formulating an opinion that the medical treatment is necessary. However, if the report is not submitted to the Board - part of the e-case file - the attending doctor's opinion is weakened. The Board should be made aware that supporting diagnostic testing has not been submitted.

Because the reviewers are taking a "literalist" approach to reviewing medical disputes, missing records will be construed against the claimant. Use this to your advantage! If the record is missing be sure to have your reviewing medical professional note that for the Board.

Finally, be mindful of the deadlines in a prior approval request - failure to respond will result in an unappealable determination.

More magic words: Defending variance requests

The carrier must explain any denial of requested variance in Section "E" of Form MG-2. Any reason for denial that is not raised is deemed waived. The possible grounds for denial are:

• The medical care requested has already been rendered (if the request was submitted after treatment already rendered, an IME or records review is not necessary, See N.Y.C.R.R. 324.3(i)(b));
• The Treating Medical Provider did not meet the burden of proof (appropriateness and medical necessity);
• The treatment requests is not medically necessary or appropriate for the claimant - this would be coming from your IME or records review; or
• The claimant failed to appear for the scheduled IME examination. In this situation, the WCB may extend the time for IME by thirty days. See N.Y.C.R.R. 324.3.

If the denial is based on the grounds that the treatment sought is not medically necessary or appropriate, the carrier must:

• Have the case reviewed by its own medical professional, independent medical examiner, or records reviewer;
• Attach the written report of the chosen medical professional;
• (Optional) Submit citations to peer-reviewed medical journals in support of the denial (if such articles formed the basis of the denial).

First, be mindful of the time constraints. If the carrier submits a notice of an IME or Medical Records Review within 5 business days of the variance request, the carrier has 30 calendar days to get the IME exam or Medical Records Review and submit Form IME-4. If no notice of an IME or Record Review is submitted, the carrier has 15 calendar days from the date of the request to reply to the variance request. These are extremely short time periods to respond - therefore, prepare, prepare, and prepare. A successful defense requires an action plan - a "go to" medical professional to issue a response. This could be a a physician, registered physician assistant, registered professional nurse, or nurse practitioner licensed in ANY state.

The denial: the carrier must explain why the treatment request was denied and attach the written report of the medical professional that reviewed the variance request. Such report shall include a list describing the medical records reviewed by the medical professional when considering the variance request. The carrier has the option to submit citations or copies of relevant literature published in recognized, peer-reviewed medical journals in support of a denial of a variance request.

Here is where the "magic words" are important. Most variance denials will be for "burden of proof" reasons. Specifically, that the treatment is not medically necessary and appropriate in the individual claimant's situation. This requires the report of a medical reviewer, who must review the medical records (and list in her report the records reviewed). If the claimant failed to respond to prior treatment (for example, physical therapy) and the claimant simply seeks more of the same, the reviewer should note that the request for treatment violates the MTG. Specifically, the reviewer should state that "medical necessity is not established where there is no evidence of functional improvement related to the previously delivered therapy modalities." (This is a reference to the "general principle" common to all MTGs). We have seen the Board adopt this exact language in decisions denying variance requests.

Controverted Claims: If the compensation case is controverted, the carrier must still respond to the variance request timely and in the same manner as requests in non-controverted claims. If the carrier approves a variance request when a claim is controverted or the compensability of the body part is controverted, the approval only relates to medical necessity and shall not be construed as an admission that the condition for which variance is requested is compensable. The carrier shall not be responsible for the payment of medical care which is the subject of the variance request until the question of compensability is resolved.

Failure to Timely Respond to Form MG-2: The variance shall be deemed approved by an Order of the Chair issued by the Workers' Compensation Board if the carrier fails to respond within the time frames specified above. The Order of the Chair is the final decision of the Board.

Magic "Missing" words.

One final caution: "missing" magic words can sink a defense. In a recent case I handled, the claimant's chose physician recommended cervical fusion surgery in a case where the claimant had minimal objective findings and no improvement in his subjective complaints from protracted prior treatment. The IME physcian - an orthopedic surgeon - opined that the claimant's clinical presentation did not warrant surgery and found the claimant able to return to the pre-injury job. The reviewer at the office of the Medical Director was not so concerned about whether the treatment was necessary so much as she was concerned that the IME doctor was not a neurologist. Furthermore, the IME doctor did not record any positive findings regarding a neurological exam.

In other words, the reviewer presumed that because the the IME physician did not enumerate neurological findings, that meant there could be findings. Obviously, this is flawed.

We recommend that IME physicians clearly state where no symptoms are noted. For example, a "checklist" type exam would likely have appeased the institutional bias.

Observation #2: No one is an expert. Even the people who are supposed to be experts.

In a typical scenario, a claimant is seeking additional medical care and the carrier is defending an IME opinion that states the medical treatment sought is unnecessary. A common argument raised by claimant's counsel is that "the treatment sought is covered by the MTG."

Once this argument is raised, carrier's counsel must be ready to respond. Why? Because many judges will simply order "Medical Treatment as per the Medical Treatment Guidelines is authorized." This argument effectively short-circuits the carrier posiiton - that there is not further causally related disability. This often arises in a context where the carrier is seeking to take medical testimony and put the claimant to his proofs.

The defense must be able to explain why the medical treatment is not pre-authorized under the MTG. Alternatively, defense counsel must be able to explain why even if the treatment is pre-authorized under the MTG, the claimant's clinical presentation does not warrant the treatment.

Your best defense will be reliance on your IME opinion and a careful argument as to why the claimant's prior diagnosis and treatment does not meet the requirements for additional care under the MTG.

All too often, both parties are not prepared to explain to the presiding judge as to why the treatment is either covered by the MTG or disallowed. Too often, specific reference to the medical record is not prepared. Many times the parties merely shrug at each other, and the Judge issues an Order stating "All treatment as per the MTG is authorized," effectively sidestepping the issue.

Disputing medical care in a post-MTG world requires more than a shrug of the shoulders and deferral to a judge's inclination. When the treating physician wants to perform an invasive procedure like a surgery, and the IME opinion has stated that the claimant does not have the necessary objective findings to warrant same, a challenge to the proposed treatment, even though it is pre-authorized under the Medical Treatment Guidelines, is essentially a denial based on ripeness (where the he treating doctor believes that the claimant would benefit from medical care that is within the Guidelines but not specified at that point in the claimant's treatment - see N.Y.C.R.R. Sect. 324.

Defense could argue that given the conflict, the treating physician should file an MG-2, which must include information about the body part, the section of the MTG that applies, the specific treatment requested, a statement as to why the treatment is medically necessary, reference to records in the WCB's file, and a certification that the claimant understands and agrees to undergo the proposed medical care. Fight for this!

Where there is a good faith dispute about whether or not the treatment is authorized under the MTG, the carrier must be prepared fully to raise all defenses. Too often available arguments are not raised. If you have an IME that has conflicting clinical findings (neurological test, dermatonal distribution, lack of objective observations, etc) and treatment is an issue knowledge of the specific medical treatment guidelines that apply in your case is a must!

Observation #3: Everyone gets one "Do over"

No matter how old the claim the variance judges have been instructed to treat December 1, 2010 as "day zero" for all claims. Even where the claimant has had three years of physical therapy and pain medications with absolutely no functional improvement - December 1, 2010 begins a "do over." Essentially, all claimants get a "mulligan" and treatment starts over as of that day.

The exception to this will be surgery - "repeat" surgery always requires pre-approval. So, expect that at a variance hearing where the claimant is seeking additional physical therapy, the treatment will be authorized as per the MTG (usually 4-6 weeks for "active" therapy modalities) After this required period, claimant's physician must file reports showing improvement. Where there has been no objective improvement, alternate treatment paths within the MTG should be followed. The game of merely continuing to pursue physical therapy or chiropractic for years after a soft-tissue injury will be tolerated by the variance judges for the initial period allowed by the MTG. After that, the claimant should be moving on to either more invasive (often surgical) treatment paths or be deemed at MMI.

C-8.1s should still be used for treatment falling outside the MTG. This means that when the claimant continues to pursue these modalities of care after the "maximum" period allowed by the MTG (and post December 1, 2010), file your C-8.1s. The attending physician's next step should be to file an MG-2, which should tee up the case for a variance proceeding. Get your review report ready and defend as discussed above!

Final thoughts.

The Guidelines specify an outcome oriented approach with the goal of returning injured workers to employment in a reasonable time frame. While it may seem like common sense, this approach is all new to the judges and medical office staff that are reviewing the disputes that arise under the MTG. The challenge for employers, carriers, and defense counsel is as much changing prevailing attitudes as it is adapting to new procedures.

Have any questions about this article? Contact Greg Lois. Check out the book New York Workers' Compensation Law 2011 available in print here, on Amazon, or for for Kindle or e-reader.