In the Matter of Maureen Kigin, Appellant,v.State of New York Workers' Compensation Board et al., Respondents.BriefN.Y.Oct 14, 2014To be Argued by: Jill B. Singer, Esq. Time Requested: 15 minutes Appellate Division, Third Depmiment Index No.: 515721 STATE OF NEW YORK COURT OF APPEALS In the Matter of the Claim for Compensation Under the Workers' Compensation Law Made by MAUREEN KIGIN, -against- NEW YORK STATE WORKERS' COMPENSATION BOARD, FUND FOR REOPENED CASES, Workers' Compensation Board Case No.: 2970 1573 RESPONDENT'S BRIEF APL-2013-00295 Claimant- Appellant, Employer-Respondent, Carrier-Respondent. SPECIAL FUNDS CONSERVATION COMMITTEE STEVEN M. LICHT, ESQ. Attorney for Special Funds Conservation Committee Submitted by: JILL B. SINGER, ESQ. Of Counsel 2 Tower Place Albany, New York 12203 Telephone No.: (518) 438-3585 Dated: January 31, 2014 TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................. ii-iii PRELIMINARY STATEMENT ................................................................... 1 QUESTIONS PRESENTED ............................................................................ 3 STATEMENT OF NATURE OF THE CASE AND THE FACTS .................. .4 ARGUMENT .................................................................................. 9 POINT 1. ............................................................................. 9 THE BOARD HAS THE AUTHORITY TO IMPLEMENT THE MEDICAL TREATMENT GUIDELINES PRE-DETERMINING MEDICALLY NECESSARY TREATMENT. POINT II ............................................................................ 16 THE BURDEN OF PROOF HAS NOT SHIFTED FOR MEDICALLY NECESSARY CARE. POINT III. .......................................................................... 19 THE RULES AND REGULATIONS INCORPORATING THE MEDICAL TREATMENT GUIDELINES DO NOT VIOLATE AN INJURED WORI(ER'S DUE PROCESS. CONCLUSION ............................................................................. 21 TABLE OF AUTHORITIES COURT DECISIONS Pages Casiano v. CCIP, 19 A.D.3d 719 (3rct Dept. 2005) ....... ·········· ................................................................... 9, 10 Consolidated Edison of New York v. Dept. of Environment Conservation, 71 N.Y.2d 186 (1988); ............................................... ·············· ....................... 16 Freitag v. New York Times, 260 A.D.2d 748, 749 (3'ct Dept. 1999) .................................................................................... 19 Kigin v. State ofNewYork, 109 A.D.3d 299 (3rd Dept. 2013) ..................................................................... 7,9,10,13,17,18 Livingston County, 2011 WL 5618432, (N.Y.Work.Comp.Bd, November 9, 2011) ................................................... ·············· ........................ 14 Lutz v. Lakeside, 301 A.D.2d 688, 691 (3rct Dept. 2003) ....................................................................................... 14 Medical Society of State v. Serio, 100 N.Y.2d 854 (2003) ...................................................................................... 15 Mitchell v. William, 43 A.D.2d 616 (3rd Dept. 1973) ....................................................................................... 10 Nicholas v. Kahn, 47 N.Y.2d 24, 31 (1979) ....................................................................................... 16 Smith v. Albany County, 82 A.D.3d 1334 (3rd Dept. 2011) ...................................................................................... 13 Matter of Spinex Laboratories, 213 A.D.2d 884 (3'ct Dept. 1995) ....................................................................................... 9 11 Weingarten v. Pathmark, 256 A.D.2d 648 (3rd Dept. 1998) .................................................................................... 18 STATUTES §13ofthe New York State Workers' Compensation Law ...................... 13 §13(a) of the New York State Workers' Compensation Law ................ 7,8,9 §13-(a)(5)of the New York State Workers' Compensation Law ..................................................................... 3, 7 ,8, 10, 11,12,15 §15-(a)(S) of the New York State Workers' Compensation Law ........................................................................................ 16 §21(5) of the New York State Workers' Compensation Law ................................................................................ 8,18,19 §117(1) of the New York State Workers' Compensation Law ................................................................................ 13, 14,16 §141 of the New York State Workers' Compensation Law ....................................................................................... 13 §142 of the New York State Workers' Compensation Law .................................................................................... 13,16 REGULATIONS 12 NYCRR §324 ................................................................ 11,13 12 NYCRR 324(b )(2) ................................................................ 20 12 NYCRR 324(b )(c) ................................................................ 20 12 NYCRR 324.3 ..................................................................... 17 12 NYCRR 324.3( c )(3) .............................................................. 20 lll PRELIMINARY STATEMENT The Decision under appeal involves the denial of a variance request for acupuncture treatment which falls outside of the Medical Treatment Guidelines, ("MTG" or "Guidelines"), for the neck and back. Appellant does not dispute that the requested treatment falls outside of the Guidelines or that the provider did not meet the burden of proof for seeking a variance under the rules and regulations. Appellant instead challenges the Workers' Compensation Board's, ("Board"), authority to promulgate the MTG and corresponding rules. Appellant also challenges the constitutionality of the MTG and the variance process. It is within the expertise and mandate of the Workers' Compensation Board to ensure that injured workers obtain medically necessary treatment. The Board has the authority to implement rules and regulations to assist in its administration and regulation of the statute. The legislature amended the workers' compensation law to direct the Board to issue a list of pre-authorized procedures. The resulting Treatment Guidelines pre-authorize and pre-determine medically necessary treatment in order to standardize care in New York upon an evidence-based system. Essentially, treatment must be medically necessary and appropriate for the claimant and tied to objective measures of functional outcomes. The burden of proof to show that treatment is necessary only shifts to the claimant and his or her provider if the treatment sought varies or falls outside of the MTG. Employers 1 have always only been obligated to pay for medically necessary care and that remains the same today. The MTG is consistent with the statute and spirit of the workers' compensation law. 2 QUESTIONS PRESENTED QUESTION 1: Does the Board have the authority to promulgate the medical treatment guidelines and corresponding rules and regulations? ANSWER: Yes, the legislature expressly directed the Board to issue lists of pre- authorized procedures pursuant to WCL 13(a)(5). Additionally, the Board is the administrative agency charged with the administration of the workers' compensation law with the expertise to formulate Medical Treatment Guidelines. QUESTION2: Do the Medical Treatment Guidelines shift the burden of proof from the employer to the provider, and violate the due process of injured workers? ANSWER: No. Injured workers have always been entitled to treatment that was medically necessary. The burden of proof has always been on the provider to demonstrate medical necessity upon such a challenge. 3 STATEMENT OF NATURE OF THE CASE AND THE FACTS This appeal involves the Worker's Compensation claim of Ms. Maureen Kigin, ("claimant"), who suffered injuries to the neck and back occurring on December 13, 1996, while employed by the Workers' Compensation Board ("employer"). (R. 13, 129). 1 On November 7, 2006, Dr. Nissenbaum performed a chiropractic examination on behalf of the carrier. The claimant described her treatment consisting of chiropractic care since the accident in 1996 until 2005. She also received physical therapy two times per week and trigger point injections. (R. 122- 128). The doctor opined that the claimant exhibited a mild disability with permanency. (R. 127). The claimant returned to work and there was no compensable lost time as of January 15, 1998, with only some minimal intermittent lost time thereafter. (R. 134). Workers' Compensation Law §25-a was fonnd to apply at a hearing on June 16, 2006, effective February 21, 2006, shifting liability from the original carrier to the Special Fund for Reopened Cases, ("Special Funds"). (R. 141). The claimant was classified with a permanent partial disability thereafter on December 8, 2006. (R. 145). 1 References are to page numbers in the record on appeal 4 Dr. Turkel requested authorization to perform acupuncture three times a week for six weeks on November 9, 2009. (R. 148-149). The Special Funds authorized this request. (R. 150). Subsequently, on March 4, 2011, Dr. Coladner requested additional acupuncture treatment three times per month for six months. (R. 153-155). The doctor filed a variance request seeking this treatment modality to increase flexibility, increase circulation, decrease headaches and muscle tightness and to maintain function and activities of daily living at the post maximum medical improvement level. (R. 156). Dr. Chiu examined the claimant on March 24, 2011, at the request of the Special Funds in response. The doctor found no objective findings to support the claimant's subjective complaints. Therefore, he found that further acupuncture treatment was not medically necessary. (R. 162-168). As a result, the Special Funds denied Dr. Coladner's variance request. (R. 169-170). Dr. Coladner was deposed on April 21, 2011. The doctor explained that acupuncture was requested because the claimant underwent several modalities of treatment in the past and that acupuncture helps her to maintain her present level of function. (R. 179). The claimant first started acupuncture in February of 2010. (R. 1 79). She experienced symptomatic improvement since it helped her pain. (R. 180). The doctor denied that the treatment improved her range of motion. Id. The doctor did not document functional improvement, but only subjective complaints 5 of pain. (R. 181 ). The doctor indicated that the claimant has continued to work. Id. The doctor believed that the claimant returned for the additional treatment due to worsening pain. (R. 182). Dr. Chiu testified on April 21, 2011, that the variance should be denied because Dr. Coladner failed to mention any treatment response or improvement based upon objective findings. (R. 189). In Reserve Decision filed June 2, 2011, the Workers' Compensation Law Judge, ("WCLJ"), denied the variance as the provider did not meet the burden of proof. Pursuant to the rules and regulations, the provider requesting a variance must show that the treatment is medically necessary, and must demonstrate objective improvement in functional outcomes and note that further improvement is expected. The medical treatment guidelines for the neck limit acupuncture to ten treatments unless objective functional gains are documented. (R. 195-197). The Board Panel, in unanimous Decision filed February 9, 2012, affirmed the finding of the WCLJ, denying the variance, since Dr. Coladner's request failed to meet the burden of proof that additional acupuncture treatment to the neck is medically necessary; especially absent evidence of range of motion improvement. Citing to the lack of objective improvement of functional outcomes, or an expectation that further treatment will result in improvement, as required under the 6 medical treatment guidelines; the Board agreed that the WCLJ's denial was proper. (R. 8-12). Appellant filed a Notice of Appeal to the Appellate Division on February 10, 2012. (R. 1). The Appellate Division majority, in Decision entered on July 18, 2013, affirmed the Decision below and upheld the validity of the Medical Treatment Guidelines. There was one dissenting Justice. (R. 212-229). Kigin v. rd State of New York, 109 A.D.3d 299 (3 Dept. 2013). The Kigin majority found that WCL §13-(a)(S) empowered the Board to issue and maintain a list of pre-authorized procedures. The Medical Treatment Guidelines consist of services, treatments and tests which are pre-authorized and are incorporated by reference into the Rules and Regulations which the Board is authorized to promulgate. The Medical Treatment Guidelines are consistent with the legislative intent and the purpose of the 2007 reform legislation and the statute. Treatment provided under WCL §13 has always needed to be medically necessary and appropriate before an employer was obligated to pay. The standard has not changed with the implementation of the Medical Treatment Guidelines. The burden shifts to the provider to show medical necessity only when treatment is deemed to not be medically necessary, as predetermined by the Board. Id. Thus, 7 the variance process does not represent an improper shift of the burden of proof. The variance procedure does not conflict with the statutory presumption in WCL §21(5) that medical records establish facts and information contained therein. Id. The Medical Treatment Guidelines do not violate due process since the Rules and Regulations provide an opportunity to be heard with an expedited review process. Id. " ... [T]he foregoing did not deprive claimants of any right to seek medically necessary care or alter the ongoing obligation of employers/carriers to pay for such treatment under Workers' Compensation Law§ 13(a)." I d. at 311. The Court of Appeals granted leave to appeal on October 22, 2013 from the Decision of the Appellate Division, Third Department. 8 ARGUMENT POINT I THE BOARD HAS THE AUTHORITY TO IMPLEMENT THE MEDICAL TREATMENT GUIDELINES PRE-DETERMINING MEDICALLY NECESSARY TREATMENT. WCL § 13(a) provides for treatment to injured workers by mandating that the employer shall "promptly provide for an injured employee such medical, dental, surgical, optometric or other attendance or treatment, nurse and hospital service, medicine, optometric services, crutches, eye-glasses, false teeth, artificial eyes, orthotics, prosthetic devices, functional assistive and adaptive devices and apparatus for such period as the nature of the injury or the process of recovery may require." Id. Thus, the statute is broad for the benefit and protection of injured workers. However, treatment cannot be without any parameters. As the Appellate Division majority highlighted, employers are obligated to pay only for treatment "for such period as the nature of the injury or the process of recovery may require." (Kigin, WCL § 13(a)). Accordingly, it is well established that employers are not liable for treatment that is unnecessary or duplicative. In Matter of Spinex Laboratories, 213 A.D.2d 884 (3rct Dept. 1995), the use of a MedX machine after the claimant returned to work was not deemed medically necessary. Likewise, in Casiano v. CCIP, 19 A.D.3d 719 (3rd Dept. 2005), the Board denied surgery where 9 there were no objective neurological findings to support the need for such surgery. Id. Whether treatment is necessary and reasonable is a factual determination for the Board. Mitchell v. William, 43 A.D.2d 616 (3rd Dept. 1973). Thus, it logically follows that the Board be empowered to promulgate guidelines for defining the nature and scope of treatment considered medically necessary. As part of the 2007 refmm legislation, WCL § 13-a(S) was amended to expressly authorize the Board to ... "issue and maintain a list of preauthorized procedures under this section." Id. As a result, the Medical Treatment Guidelines were formulated, and list treatment and tests considered medically necessary and appropriate for the back, neck, shoulders and knees. Accordingly, the Appellate Division found that the "Legislature expressly delegated to the Board the authority and obligation to promulgate the regulations (and incorporated Guidelines containing the list of preauthorized procedures) and that the Legislature's delegation ofthis authority to the Board was lawful." Kigin, 109 A.D.3d at 306. Appellant argues that the Medical Treatment Guidelines are inconsistent with the statute as the statute pre-approves all treatment under one thousand dollars. However, it is a fallacy to suggest that all treatment under one thousand dollars is automatically authorized under WCL §13, simply because the statute is silent regarding same. As discussed above, the employer is only obligated to pay for medically necessary treatment. Thus, the fact that treatment under one 10 thousand dollars is not mentioned does not mean that such treatment does not need to be medically necessary. Medical necessity has always been the standard. The Medical Treatment Guidelines and 12 NYCRR §324 complement the statute and are not inconsistent with the purpose or spirit of the law. The MTG outline what is medically necessary care reducing litigation and bill disputes on a case by case basis, easing the path to treatment by pre-authorizing it. The amendments to WCL § 13(a)(5) also raise the dollar amount from five hundred to one thousand dollars on specialist treatments needing pre-authorization in furtherance of this goal. The Governor's program bill memorandum summarizing the 2007 reform legislation, (Bill Jacket, L 2007, ch. 6), states the following regarding the amendment to WCL § 13-(a)(5): Section 28 ofthe bill amends subdivision (5) of section 13-a of the Workers' Compensation Law to raise from $500 to $1,000 the maximum cost of specialist treatments for which an employer is automatically liable without prior authorization from the carrier, the State Insurance Fund or an employer. In addition, the Board, with the approval of the Superintendent oflnsurance, shall issue and maintain a list of preauthorized procedures. The purpose of both provisions is to remove impediments to prompt diagnostic and treatment measures and to better reflect current medical service costs. The provision permitting the creation of a pre-authorized list allows the Board appropriate regulatory flexibility to add or remove procedures depending on best practices, increases or decreases in costs, or opportw1ities presented by managed care approaches. The provision requiring the approval of the Superintendent focuses consideration on the effect that pre-authorizing any specific procedure may have on premmms. 11 Id. Notably, the amendment to WCL §13-(a)(5) directing the Board to issue a pre- authorized list is in addition to the amendment increasing the maximum amount from five hundred to one thousand dollars for treatment not requiring prior authorization. Both provisions aim to remove impediments to treatment. Contrary to what Appellant urges, the provision authorizing the Board to issue a list of pre- authorized treatments is not to be construed so narrowly as to only apply to treatment above one thousand dollars. These are two separate provisions. If the legislature only intended the list of pre-authorized procedures to refer to specialist treatments, costing over one thousand dollars; then it would have referenced or incorporated that provision. However, it did not. The plain language of the statute expressly directs the Board to issue a list of pre-authorized procedures. Since the Board has the power to determine medically necessary treatment, it follows logically that the Board be empowered to implement guidelines determining and setting forth medically necessary treatment. The Medical Treatment Guidelines supplement WCL § 13 as they pre-determine what constitutes medically necessary treatment. Thus, Appellant's contention that the Guidelines are inconsistent with the statute as they "pre-deny" treatment is misplaced. The Guidelines simply pre-authorize treatment by pre-determining what is medically necessary. "The Guidelines do not pre-deny or exclude previously available care, as claimant contends. Rather, medical necessity has always been an underlying 12 prerequisite to an employer/carrier's obligation to pay for medical care." Kigin at 311. The Board acted within its authority by promulgating the Medical Treatment Guidelines and 12 NYCRR §324, as it has the authority to regulate medical treatment under WCL §13, §141 and §117(1). Moreover, the Workers' Compensation Board has the specialized knowledge to determine medically necessary and appropriate treatment. Under WCL § 142, the legislature granted the Board the power to hear and determine all claims for compensation or benefits, and to "require medical service for injured employees." Id. Additionally, the legislature granted the Chair of the Board the power to "make reasonable regulations consistent" with the statute and labor law. (See WCL § 117(1 )). The Courts have routinely upheld the Board's rules and regulations unless inconsistent with the statute. Recently in Smith v. Albany County, 82 A.D.3d 1334 (3rd Dept. 2011), the Third Department upheld the Board's new rule requiring carriers to file pre-hearing conference statements or to face penalties of waiver of defenses in controverted claims; rejecting the employer's argument that this was an unlawful expansion ofthe statute and the Board's exercise ofWCL §117. The Court noted that pursuant to Workers' Compensation Law §117(1), the Board is authorized to adopt regulations consistent with and supplemental to the provisions 13 of the Workers' Compensation Law, and will be upheld as long as it "has a rational basis and is not unreasonable, arbitrary, capricious or contrary to the statute under which it was promulgated." (Id. at 1335). (internal citations omitted). In Livingston County, 2011 WL 5618432, (N.Y.WorlcComp.Bd, November 9, 2011), when faced with a similar challenge to its authority to promulgate the Medical Treatment Guidelines the Board found: that the Medical Treatment Guidelines are well within the general regulatory authority delegated to the Chair by the Workers' Compensation Law, and promote the overall statutory framework of WCL §13. The MTG regulations provide injured employees, as well as their health care providers, with a swift and sure determination of the scope of the reasonable and necessary medical treatment to which injured employees are entitled under the statute. Id. Notably, in 2007 when Governor Spitzer directed the Superintendent of the Department of Insurance to deliver a plan for developing treatment guidelines for consideration by the Worker's Compensation Board; he recognized that the Board was "the body in whose direction promulgation of regulations is vested." (Governor's letter, March 13, 2007). The Workers' Compensation Board is the agency afforded with specialized knowledge to carry out the workers' compensation law. It is well recognized that '[d]eference is accorded to an agency's judgment where its interpretation involves knowledge and understanding of underlying operational practices . . . '. Lutz v. Lakeside, 301 A.D.2d 688, 691 (3'd Dept. 2003). (internal citations omitted). 14 In Medical Society of State v. Serio, 100 N.Y.2d 854 (2003), the Court of Appeals upheld rule changes implemented by the Superintendent of Insurance shortening the time for filing of claims. The Court recognized that the responsibility for administering the Insurance Law rests with the Superintendent who has "broad power to interpret, clarify, and implement the legislative policy." (Id. at 863-864). The Court of Appeals rationalized that the Superintendent's "interpretation, if not irrational or unreasonable, will be upheld in deference to his special competence and expertise with respect to the insurance industry" . . . . (Id. at 864). The Court went on to note that the . . . Superintendent has, for more than 25 years and without any interference from the Legislature, promulgated regulations - never before challenged - establishing notice and proof-of-claim periods. The Legislature's failure to enact time limits, despite having repeatedly considered doing so, thus evinces a legislative preference to yield to administrative expertise in filling in an interstice in the statutory scheme by the setting of such limits. New York regulators have commonly filled in statutory interstices by prescribing time limits when an enabling statute has been silent. (I d. at 866). Similarly, in the instant matter, WCL§ 13 is silent regarding details of treatment, such as the nature and duration. Thus, the intent is to yield such matters to the administrative expertise of the Board; which is exactly what the legislature did by directing the Board to issue a list of pre-authorized procedures. (See WCL § 13-(a)(5)). The Court of Appeals expressed that, "[t]he cornerstone of administrative 15 law is derived from the principle that the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation." Nicholas v. Kahn, 47 N.Y.2d 24, 31 (1979). (internal citations omitted). Accordingly, the Court of Appeals acknowledged the expertise of the Depmiment of Environment Conservation upon upholding its right to promulgate storage regulations for petroleum; recognizing that "the regulations at issue are well within the traditional agency role of applying technical expertise to implement legislative goals in situations too complex and detailed to be dealt with individually by the Legislature." Consolidated Edison of New York v. Dept. of Environment Conservation, 71 N.Y.2d 186 (1988). Appellant's argument that the Board does not have the power to regulate or pre-detennine medical treatment through the Medical Treatment Guidelines is faulty; as the determination of medical issues clearly fall within the expertise of the Board, and have been expressly delegated to the Board by the legislature. (See WCL §15-(a)(S); WCL §117(1), and §142). POINT II THE BURDEN OF PROOF HAS NOT SHIFTED FOR MEDICALLY NECESSARY CARE. Appellant argues that the Medical Treatment Guidelines must fail as they impermissibly shift the burden of proof from the carrier to the medical provider, in 16 contradiction to statute. However, the Appellate Division majority rejected the theory that prior to the Guidelines, the ultimate burden of proof on contested issues of medical necessity rested with the employer and carrier. Kigin, 109 A.D.3d.at 314. That is, while prior to the Guidelines it was incumbent upon the employer/carrier to challenge the medical necessity for requested care, by contrast, the Guidelines establish in advance the necessity of medical care and its parameters. Given that threshold predetermination of no medical necessity for care falling outside the Guidelines, it would be illogical to then further require - as an initial matter- the employer/carrier to disprove- on a case- by- case basis - the medical necessity of care falling outside the Guidelines, as the Board has already made that standardized threshold determination by excluding that care from the list. Id. at 314. Thus, the burden only shifts to the provider for care not deemed to be medically necessary. This is no different than what was occurring before the Guidelines. The only difference is that since the Board has predetermined what is medically necessary, the employer/carrier no longer needs to object on a case by case basis as to medical necessity. Upon a challenge to medical necessity, the provider must still show medical necessity. The process for seeking treatment falling outside of the Medical Treatment Guidelines, for care deemed not to be medically necessary, is through the variance process under 12 NYCRR 324.3. The burden of proof in such instance falls on providers to submit evidence proving that the medical treatment that varies from 17 the Guidelines is appropriate and medically necessary. "While changing the process for determining medical necessity, the foregoing did not deprive claimants of any right to seek medically necessary care or alter the ongoing obligation of employers/carriers to pay for such treatment under the Workers' Compensation Law 13(a)." Kigin at. 311 The burden of proof only shifts to the provider when seeking a variance to treat outside of the Medical Treatment Guidelines. "There is nothing impermissible in requiring treating providers (on behalf of claimants) who wish to provide care outside of that evidence-based standard to make a threshold showing of medical necessity ... " Kigin at 308-309. In order to obtain treatment outside of the Guidelines, the provider must demonstrate objective evidence documenting functional improvement. (See 12 NYCRR §324.3). Cases relied upon by appellant such as Weingarten v. Pathmark, 256 A.D.2d 648 (3rct Dept. 1998), are not relevant to the issue of medical necessity. Weingarten involves the question of causally related treatment and not medically necessary treatment. In Weingarten, the employer had the burden of proof to show that the treatment was not causally related, in light of substantial evidence in the record supporting that it was causally related. Moreover, the Presumption in favor of the claimant contained in WCL §21(5), is aimed at reducing the need for the provider to actually testify regarding 18 the factual medical evidence contained in a medical repoti. "The presumption that medical reports introduced by a claimant constitute prima facie evidence of their contents is intended to reduce the necessity for the actual testimony of the claimant's expert ( see, Minkowitz, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 64, Workers' Compensation Law§ 21)." Freitag v. New York Times, 260 A.D.2d 748, 749 (3rct Dept. 1999). There is no support for the theory that this presumes medical necessity. POINT III THE RULES AND REGULATIONS INCORPORATING THE MEDICAL TREATMENT GUIDELINES DO NOT VIOLATE AN INJURED WORKER'S DUE PROCESS. Appellant argues that previously available medical care is excluded and or reduced by the implementation of the Guidelines and the variance process. However, the standard for care has not changed. Claimants are still entitled to medically necessary treatment. The only change is that the Board has predetermined what is medically necessary treatment in response to the legislature's direction, in furtherance of reasonable policy goals to streamline the process and avoid case by case disputes, as pmi of a larger effort to reform the workers' compensation system. Thus, the Guidelines do not deprive claimants of a property interest as medical treatment has not been improperly taken away. 19 Injured workers are still afforded the care to which they are entitled, which has always been medically necessary treatment. Appellant also argues that the Guidelines deprive claimants of their right to a meaningful hearing. However, the variance process sets forth a specific and expedited time frame for disputes to be heard. 12 NYCRR 324(b )(2) directs carriers to respond to a variance request within fifteen days, or thirty days of receipt, depending on whether an independent medical examination was obtained. Id. The caniers must state the basis for the denial in detail, and the claimant can request review of the denial within twenty one days via an expedited hearing or a medical arbitration process. 12 NYCRR 324(b)(c). If an expedited hearing is requested, it is to be heard by a Workers' Compensation Law Judge, and the parties may take the testimony of the provider, and the canier's independent medical examiner upon which the denial was based. 12 NYCRR 324.3(c)(3). The transcripts are to be presented to the Law Judge on or before the expedited hearing and within thirty days of the request for the hearing; and a decision is to be issued at that hearing. I d. Thus, the Guidelines do not deprive workers of their right to a meaningful hearing based upon individualized consideration. 20 CONCLUSION The Board's authority to promulgate the rules and regulations incorporating the Medical Treatment Guidelines is consistent with the statute and within the regulatory powers of the Board. The legislature empowered the Board to determine medically necessary, pre-authorized treatment. Thus, there is no due process violation. Medical providers have always had to meet the standard of medically necessary treatment before an employer was obligated to pay. The standard has not changed. Thus, for treatment falling outside of the Medical Treatment Guidelines, not considered medically necessary, providers must still meet this burden, now set forth under the variance process, of showing medical necessity. Wherefore, the Decision of the Appellate Division should be affirmed, upholding the Rules and Regulations and the utilization of the Medical Treatment Guidelines. Respectfully Submitted, ;1:;;/S~ JILL B. SINGER, ESQ. Special Funds Conservation Committee 2 Tower Place Albany, New York 12203 Telephone No.: (518) 438-3585 Of Counsel to STEVEN M. LICHT, ESQ. 21
