In the Matter of Maureen Kigin, Appellant,v.State of New York Workers' Compensation Board et al., Respondents.BriefN.Y.October 14, 2014To be Argued by: ROBERT E. GREY (Time Requested: 30 Minutes) APL-2013-00295 Workers’ Compensation Board Case No. 2970-1573 Appellate Division–Third Department Docket No. 515721 Court of Appeals of the State of New York In the Matter of MAUREEN KIGIN, Claimant-Appellant, – against – NEW YORK STATE WORKERS’ COMPENSATION BOARD, Employer-Respondent, – and – SPECIAL FUNDS CONSERVATION COMMITTEE, Carrier-Respondent. BRIEF FOR CLAIMANT-APPELLANT ROBERT E. GREY GREY & GREY, L.L.P. Attorneys for Claimant-Appellant 360 Main Street Farmingdale, New York 11735 Tel.: (516) 249-1342 Fax: (516) 420-0667 Date Completed: December 20, 2013 TABLE OF CONTENTS Page Table of Authorities ………………………………………………….. ii Jurisdictional Statement ……………………………………………... 1 Preliminary Statement ………………………………………………. 1 Questions Presented ………………………………………………… 4 Statement of Facts …………………………………………………… 6 Argument …………………………………………………………… 14 POINT I: THE WORKERS’ COMPENSATION BOARD EXCEEDED ITS STATUTORY AUTHORITY TO PREAUTHORIZE MEDICAL TREATMENT BY USING THE MEDICAL TREATMENT GUIDELINES TO ALSO PRE-DENY MEDICAL TREATMENT….………………… 15 POINT II: THE MEDICAL TREATMENT GUIDELINES CONFLICT WITH THE STATUTE BY IMPROPERLY SHIFTING THE BURDEN OF PROOF REGARDING THE NEED FOR MEDICAL TREATMENT FROM THE EMPLOYER TO THE INJURED WORKER.…..…………………………………. 26 POINT III: THE MEDICAL TREATMENT GUIDELINES DENY DUE PROCESS TO INJURED WORKERS.…………………… 30 Conclusion ………………………………………….……………… 36 ii TABLE OF AUTHORITIES CASES PAGE Matter of Alonzo M. v. New York City Dept. of Probation, 72 N.Y.2d 662, 536 N.Y.S.2d 26, 532 N.E.2d 1254, (1988)…… 19 Balcerak v County of Nassau, 94 NY2d 253, 723 N.E.2d 555, 701 N.Y.S.2d 700 (1999)..…… 23 Belmonte v. Snashall, 2 N.Y.3d 560, 813 N.E.2d 621, 780 N.Y.S.2d 541 (2004)……. 24 Bd. of Regents v Roth, 408 US 564 (1972)…………………………. 31, 32 Matter of Boreali v. Axelrod, 71 N.Y.2d 1, 517 N.E.2d 1350, 523 N.Y.S.2d 464 (1988)……. 25 The Civil Rights Cases, 109 U.S. 3 (1883)…………………………… 30 Matter of Consolidated Edison Co. of New York v. Dept. of Environ. Conservation, 71 N.Y.2d 186, 519 N.E.2d 320, 524 N.Y.S.2d 409 (1987)……. 24, 25 Freitag v New York Times, 260 AD2d 748, 687 N.Y.S.2d 809 (3d Dept.1999)…………….. 28 People v Graham, 55 NY2d 144, 432 N.E.2d 790, 447 N.Y.S.2d (1982)………… 16 Matter of Gruber [New York City Dept. of Personnel], 89 N.Y.2d 225, 674 N.E.2d 1354, 652 N.Y.S.2d 589 (1996)….. 24 Matter of Hoffman v. Creedmore State Hosp., 22 A.D.2d 736, 253 N.Y.S.2d 510 (3d Dept. 1964)……………. 23 iii Matter of Maureen Kigin v. Workers' Compensation Bd., 109 A.D.3d 299 (3d Dept. 2013)………………………………. 1, 2, 11, 12 13, 15, 16 23, 29 Lutz v. Lakeside Belkirk Nursing Home, 301 A.D.2d 688, 753 N.Y.S.2d 190, (3rd Dept. 2003), lv. den. 99 N.Y.2d 651, 790 N.E.2d 278, 760 N.Y.S.2d 104 (2003)………………………………………. 24 In re Magna, 258 NY 82, 179 N.E. 266 (1932)……………………….. 22 Mathews v. Eldridge, 424 U.S.319 (1976)…………………………… 30 McCluskey v Cromwell, 11 NY 593 (1854)…………………………. 16 New York C. R. Co. v White, 243 US 188 (1917)………………….. 31, 33, 34 Scott v. Massachusetts Mut. Life Ins. Co., 86 N.Y.2d 429, 657 N.E.2d 769, 633 N.Y.S.2d 754 (1995)…… 20 Smith v. Albany County Sheriff’s Dept., 82 A.D.2d 1334, 918 N.Y.S.2d 245 (3d Dept. 2011)………… 24 Matter of Spinex Laboratories, Inc. (Patton), 213 A.D.2d 884, 623 N.Y.S.2d 944 (3d Dept. 1995)………… 28 Surace v Danna, 248 N.Y. 18, 161 N.E. 315 (1928)………………… 18 U.S. v Two Hundred Barrels of Whiskey, 95 US 571 (1877)……….. 24 People ex rel. Wallington Apartments v Miller, 288 NY 31, 41 N.E.2d 445 (1942)…………………………… 22 Waters v William J. Taylor Co., 218 NY 248, 112 N.E. 727 (1916). …………………………. 18 Matter of Weingarten v. Pathmark Stores, Inc., 256 A.D.2d 648, 681 N.Y.S.2d 168 (3d Dept. 1998)………… 23, 26, 27 iv STATUTES Workers’ Compensation Law Section 11…………………………… 31, 34 Workers’ Compensation Law Section 13(a)………………………… 1, 17, 21, 26, 27, 32 Workers’ Compensation Law Section 13-a(5)……………………… 2, 7, 14 15, 17, 18 19, 20, 21 26 Workers’ Compensation Law Section 21(5)……………………….. 2, 21, 26, 27 U.S. Const. Amend 14, § 1………………………………………… 30 REGULATIONS 12 NYCRR § 324.1(c)…………………………………………….. 21 12 NYCRR § 324.2 (a) …………………………………………… 7 12 NYCRR § 324.3 (a) (1) ………………………………………. 8 12 NYCRR § 324.3 (a) (2)………………………………………… 8 12 NYCRR § 324.3 (a) (3) ………………………………………… 8 12 NYCRR § 324.3 (b) (2) (i) (c)………………………………….. 9, 27 12 NYCRR § 324.3 (d) (4)………………………………………… 9, 27 APPENDICES http://www.dfs.ny.gov/insurance/press/2007/p0712032cov.pdf. .......... 7 v Chair Robert Beloten Statement on the Release of the Medical Treatment Guidelines Proposed Regulations, July 1, 2010, http://www.wcb.ny.gov/content/main/PressRe/2010/MTGProposed.jsp... 7 Adoption and Implementation of the Medical Treatment Guidelines. http://www.wcb.ny.gov/content/main/wclaws/RecentlyAdopted/ Adopted_MTG_Public_Comment.jsp………………………………….. 7 New York Mid and Low Back Injury Medical Treatment Guidelines, First Edition, June 30, 2010 …………………………………………… 9 New York Neck Injury Medical Treatment Guidelines, First Edition, June 30, 2010……………………………………………. 9 http://www.wcb.ny.gov/content/main/hcpp/ MedicalTreatmentGuidelines/2010TreatGuide.jsp. …………………… 10 1 JURISDICTIONAL STATEMENT The Court of Appeals has jurisdiction over this appeal pursuant to CPLR § 5602. The order of the Appellate Division was a final determination of the case, and this Court granted Claimant-Appellant leave to appeal on October 22, 2013. Matter of Maureen Kigin v. State of New York Workers' Compensation Bd., 2013 N.Y. LEXIS 2937, 2013 NY Slip Op 88891 (N.Y. Oct. 22, 2013). This appeal presents questions of law that are novel and of great public importance. The questions presented are (1) whether the Workers’ Compensation Board exceeded its statutory authority by enacting a comprehensive regulatory scheme contrary to a limited statutory direction; (2) whether the regulations improperly shift a burden of proof that is established by statute; and (3) whether the regulations deprive injured workers of their constitutional right to due process. These issues were raised before the Appellate Division in Claimant- Appellant’s Brief at pages 20-34 (questions 1 and 2) and 34-43 (question 3). They are further delineated in the Preliminary Statement below. PRELIMINARY STATEMENT Workers’ Compensation Law Section 13(a) provides that “[t]he employer shall promptly provide for an injured employee such medical [treatment] for such period as the nature of the injury or the process of recovery may require.” WCL § 2 13 (a). Workers’ Compensation Law Section 13-a(5) permits an employer or insurance carrier to deny authorization for treatment that costs more than $1,000 only if it obtains “a conflicting second opinion rendered by a physician authorized by the workers’ compensation board.” WCL § 13-a(5). These two statutory provisions are further supplemented by Workers’ Compensation Law Section 21(5), which provides that “[i]n any proceeding for the enforcement of a claim for compensation under this chapter, it shall be presumed in the absence of substantial evidence to the contrary … [t]hat the contents of medical and surgical reports introduced in evidence by claimants for compensation shall constitute prima facie evidence of fact as to the matter contained therein.” WCL § 21 (5). The 2007 amendments to the Workers’ Compensation Law included the addition of one sentence to Section 13-a(5): “The board, with the approval of the superintendent of financial services, shall issue and maintain a list of pre- authorized procedures under this section.” WCL § 13-a(5). Based on this amendment, ostensibly aimed at expediting the delivery of medical services, the Workers’ Compensation Board (“the Board”) promulgated Medical Treatment Guidelines (“the Guidelines”) that pre-determine medical necessity “without an individualized, case-by-case determination.” Kigin v. Workers’ Compensation Board, 109 A.D.3d 299, 308; 970 N.Y.S.2d 111, 118 (3d Dept. 2013). 3 While the Guidelines pre-authorize treatment as required by the statute, they also pre-deny all other treatment. As described by the Appellate Division, Third Department, the Guidelines “preordain that the listed medical care is medically necessary for the conditions indicated and those not included are not medically necessary.” Id. On this appeal, Claimant-Appellant contends that the Board exceeded its statutory authority by promulgating Guidelines that “preordain” or “pre-determine” medical necessity, resulting in the “pre-denial” of medical care. The statute in question only directed the Board to pre-authorize certain treatment. Thus, the Guidelines are contrary to the statute and amount to an improper administrative attempt to legislate through regulation. Claimant-Appellant further contends that the Guidelines impermissibly shift the burden of proof established by the Legislature on the question of medical necessity from the employer or insurance carrier to the injured worker. Finally, Claimant-Appellant contends that the Guidelines deprive injured workers of their constitutional right to due process. The pre-determination of claims for medical treatment by the Guidelines undermines the injured worker’s right to a meaningful hearing on the issue in his or her case. 4 QUESTIONS PRESENTED Question 1: Did the Workers’ Compensation Board exceed its statutory authority to “issue and maintain a list of pre-authorized procedures” by promulgating the Medical Treatment Guidelines, which instead “preordain” or “pre-determine” medical necessity, rendering all treatment outside the Guidelines unauthorized or “pre-denied?” Answer: Yes. The Guidelines are contrary to the statutory structure ensuring that injured workers receive medical care, and exceed the Legislative instruction to “pre-authorize” treatment by pre-denying other medical care. Question 2: Do the Medical Treatment Guidelines conflict with the statute by improperly shifting the burden of proof regarding the need for medical treatment from the employer to the injured worker? Answer: Yes. The Guidelines cannot be reconciled with the statute, which establishes that the burden of proof rests with the employer or insurer to deny authorization for medical treatment or payment of medical bills and also includes a presumption in favor of the report of the treating physician. 5 Question 3: Do the Medical Treatment Guidelines deprive injured workers of due process? Answer: Yes. The Guidelines deny injured workers a meaningful hearing by preordaining or predetermining their medical treatment without individualized consideration. 6 STATEMENT OF FACTS On December 13, 1996, Claimant-Appellant Maureen Kigin (“Kigin”), a Hearing Reporter for the New York State Workers’ Compensation Board (“the Board”), injured her neck and back in a motor vehicle accident while driving work product from a field location to the Post Office. R. 13.1 On June 20, 1997, the Board accepted her claim for wage replacement benefits and ongoing medical treatment. R. 129. On December 14, 2006, the Board classified Ms. Kigin permanently partially disabled, after Dr. Steven Nissenbaum, consulting physician for her employer’s workers’ compensation insurance carrier credited her longstanding account of her chronic, causally related neck and back pain. R. 145. Liability for the claim was subsequently transferred to the Special Funds Conservation Committee (“the carrier”) pursuant to Section 25-a of the Workers’ Compensation Law. R. 141. Kigin suffers chronic neck and back pain as a result of the injuries she sustained in her work accident, for which her doctors have prescribed various treatments. (R. 15-121). Ultimately, Kigin’s treating physician, Dr. Andrea Coladner, prescribed acupuncture, which substantially relieved her pain. R. 89 – 1 References are to the Record on Appeal before the Appellate Division, Third Department. 7 113. The carrier authorized and paid for acupuncture treatment without objection until 2011. R. 149 – 150. On March 13, 2007, the Workers’ Compensation Law was amended to direct the Workers’ Compensation Board (“the Board”) to “issue and maintain a list of pre-authorized procedures.” WCL § 13-a (5). On December 3, 2007, the Insurance Department (“the Department”) issued draft guidelines for the low back, cervical spine, knee and shoulder.2 On June 30, 2010, the Board proposed regulations incorporating a revised set of medical treatment guidelines. “This week, the Board fulfilled a promise of the 2007 Workers' Compensation reforms by publishing proposed regulations that will make evidence based medical treatment guidelines mandatory in our system.”3 The Board also stated that “additional guidelines will be developed that will address chronic conditions.”4 On December 1, 2010, the Board implemented the Medical Treatment Guidelines (“the Guidelines”), which now apply to all claims, regardless of the date of accident. 12 NYCRR § 324.2 (a). 2 http://www.dfs.ny.gov/insurance/press/2007/p0712032cov.pdf. [Appendix B to the Brief for Appellant before the Appellate Division, Third Department] 3 Chair Robert Beloten Statement on the Release of the Medical Treatment Guidelines Proposed Regulations, July 1, 2010, http://www.wcb.ny.gov/content/main/PressRe/2010/MTGProposed.jsp. [Appendix D to Appellant’s Brief before the Appellate Division, Third Department] 4 Adoption and Implementation of the Medical Treatment Guidelines. http://www.wcb.ny.gov/ content/main/wclaws/RecentlyAdopted/Adopted_MTG_Public_Comment.jsp. [Appendix E to Appellant’s Brief before the Appellate Division, Third Department] 8 The Guidelines are exclusive, in that all medical treatment not included is deemed denied. If a treating physician seeks to provide “medical care that varies from the Medical Treatment Guidelines” s/he must “request a variance.” 12 NYCRR § 324.3 (a) (1). The Guidelines further provide that “the burden of proof to establish that a variance is appropriate for the claimant and medically necessary shall rest on the Treating Medical Provider requesting the variance.” 12 NYCRR § 324.3 (a) (2). A variance request must include: a medical opinion by the Treating Medical Provider, including the basis for the opinion …, and a statement that the claimant agrees to the proposed medical care, and an explanation of why alternatives under the Medical Treatment Guidelines are not appropriate or sufficient; and for appropriate claims, a description of any signs or symptoms which have failed to improve with previous treatments provided in accordance with the Medical Treatment Guidelines; or if the variance involves frequency, or duration of a particular treatment, a description of the functional outcomes that, as of the date of the variance request, have continued to demonstrate objective improvement from that treatment and are reasonably expected to further improve with additional treatment. 12 NYCRR § 324.3 (a) (3). Under the Guidelines, the employer or insurer is not required to submit a conflicting medical opinion in order to deny a request for treatment. “The insurance carrier or Special Fund may deny a request for a variance on the basis 9 that the Treating Medical Provider did not meet the burden of proof that a variance is appropriate for the claimant and medically necessary … without review by the insurance carrier or Special Funds’ medical professional, a review of the records, or an independent medical examination.” 12 NYCRR § 324.3 (b) (2) (i) (c). The burden of proof remains with the injured worker and the treating physician throughout the process. “The claimant and the Treating Medical Provider who requested the variance shall have the burden of proof that such variance is appropriate for the claimant and medically necessary.” 12 NYCRR § 324.3 (d) (4). On March 4, 2011, after the Guidelines took effect, Dr. Coladner recommended that Ms. Kigin “resume acupuncture treatment 3 times per month for 6 months to the cervical and lumbar spine [to] increase joint flexibility, increase circulation, decrease headaches, [and] decrease muscle tightness to maintain function and activities of daily living.” R. 155. Dr. Coladner requested variances from the Guidelines in order to resume acupuncture treatment to Ms. Kigin’s neck and back, both because Ms. Kigin had already had more treatment than the Guidelines permit and because this next round, totaling 18 treatments, would exceed the Guidelines’ permitted maximum 10 of 10 treatments for the neck and 12 for the back. R. 156 – 159.5 Following receipt of Dr. Coladner’s variance requests, the carrier obtained an examination of Ms. Kigin by Dr. Peter Chiu. R. 162 – 168. Contrary to the Board’s prior determination that Ms. Kigin was permanently partially disabled, Dr. Chiu stated that “[t]he claimant is not disabled.” He further concluded that “further acupuncture treatments are not medically necessary.” R. 166. Kigin requested that the Board review the denial of Dr. Coladner’s variance request, and depositions were taken from both Dr. Coladner and Dr. Chiu. R. 173- 193. On June 2, 2011, WCL Judge Shore upheld the carrier’s denial of Dr. Coladner’s variance request because it failed “to meet the burden of proof that the additional acupuncture treatment requested is medically necessary within the meaning of the Guidelines.” R. 195 - 196. This decision was based not on Dr. Chiu’s opinion, but rather on the provisions of the Guidelines. On February 9, 2012, the Board upheld WCL Judge Shore’s decision. R. 8 – 12. The Board held “that Dr. Coladner’s variance application failed to meet the burden of proof that the additional acupuncture treatment requested was medically necessary within the meaning of the Guidelines.” R. 9. Again, this decision was 5 New York Mid and Low Back Injury Medical Treatment Guidelines, First Edition, June 30, 2010, pp. 20, 21; New York Neck Injury Medical Treatment Guidelines, First Edition, June 30, 2010, pp. 20, 21; the Guidelines are incorporated by reference at 12 NYCRR § 324.2 (a) (1), (2). http://www.wcb.ny.gov/content/main/hcpp/MedicalTreatmentGuidelines/2010TreatGuide.jsp. 11 not based on a divergence in medical opinion, but rather was founded on the Guidelines. Kigin appealed the Board’s decision to the Appellate Division, Third Department. R.1. In an opinion filed July 18, 2013, a majority of the Appellate Division upheld the Board’s decision. Matter of Maureen Kigin v. State of New York Workers' Compensation Bd., 109 A.D.3d 299 (3d Dept. 2013). The majority held that (1) “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 of authority to the Board was lawful;” (2) that “the Board acted lawfully, as the regulations and incorporated Guidelines are ‘consistent with and supplemental to’ the provision of the Workers’ Compensation Law and statutory scheme, and ‘fulfill the policy goals embodied in the statute;’” (3) that the statutory amendment that directed “the Board to devise a list of preauthorized procedures … purposefully conferred the authority on the Board to predetermine medical necessity” (and thus to pre-deny all treatment that is not preauthorized); (4) that the variance procedure does not improperly shift the statutory burden of proof from the employer to the injured worker; and (5) that the variance process does not deprive injured workers of due process under the law. Kigin, 109 A.D.3d at 307. 12 The dissenting Justice would have held that “the Workers’ Compensation Law requires employers/carriers to pay for medical care for employees who sustain causally related injuries ‘for such period as the nature of the injury or the process of recovery may require,’” and that the Legislature authorized the Board to promulgate Guidelines “in furtherance of that objective, in order to remove impediments to prompt diagnostic and treatment measures for injured claimants.” The dissenter found “no support for the majority’s position that they were intended to create a preordained and exhaustive list of medically necessary treatments, thereby rendering all non-listed treatments presumptively not medically necessary and creating a presumption” in favor of employers and carriers. Kigin, 109 A.D.3d at 313. The dissent would have further held that “the procedure specified in the regulations for requesting a variance from those Guidelines conflicts with the statutory scheme,” and in particular that it vitiates the statutory presumption in favor of the treating physician’s reports. Id. Finally, the dissent would have held that “the variance procedures set forth in the Guidelines undermine the remedial purpose of the Workers’ Compensation Law and are contrary to the legislative purpose behind authorizing the Board to promulgate such Guidelines.” Id. 13 Both the majority and the dissent expressed concern regarding the provision of the Guidelines that permits “a non-physician to offer medical opinions as the basis for denial of a claimant’s variance request for medical care,” although the application of that provision was not squarely before the Court in this case. Kigin, 109 A.D.3d at 310, 315. On October 22, 2013 this honorable Court granted Kigin leave to appeal from the decision of the Appellate Division, Third Department. 14 ARGUMENT The court below erred in upholding the Guidelines promulgated by the Workers’ Compensation Board for three reasons. First, the Legislature did not instruct the Board to “predetermine,” “preordain,” or prescribe medical care, which is indisputably the intent and effect of the Guidelines. The statutory amendment pursuant to which the Guidelines were issued merely directed the Board to “issue and maintain a list of pre- authorized procedures under this section.” WCL § 13-a(5). The Board exceeded its authority under the statute in promulgating the Guidelines, which in their present form are in irreconcilable conflict with the statute. Second, the Guidelines impermissibly transfer the burden of proof on the question of the need for medical care from the employer and insurer, where it was placed by the Legislature, to the injured worker and his or her physician. The Board cannot employ its regulations to vitiate the requirements of the statute it is charged with administering. Third, the Guidelines deprive injured workers of their due process right to a meaningful hearing. The Guidelines effectively predetermine the outcome of a request for treatment without an individualized determination. Such predetermination vitiates the right to a meaningful hearing on the merits and violates due process. 15 POINT I: THE WORKERS’ COMPENSATION BOARD EXCEEDED ITS STATUTORY AUTHORITY TO PREAUTHORIZE MEDICAL TREATMENT BY USING THE MEDICAL TREATMENT GUIDELINES TO ALSO PRE-DENY MEDICAL TREATMENT. The statutory amendment at upon which the Guidelines were founded directed the Board to “issue and maintain a list of pre-authorized procedures under this section.” WCL § 13-a(5). The Guidelines are inconsistent with the plain language of the enabling statute, conflict with the structure of the Workers’ Compensation Law, and exceed the authority delegated to the Board by the Legislature. A. The Guidelines Are Inconsistent With The Plain Language Of The Statute. The majority below concluded that the term “pre-authorized” entitled the Board “to preordain that the listed medical care is medically necessary for the conditions indicated and those not included are not medically necessary,” and may therefore be summarily denied. Kigin v. Workers’ Compensation Board, 109 A.D.3d 299, 308; 970 N.Y.S.2d 111, 118 (3rd Dept. 2013). To the contrary, the dissent found “no support for the majority’s position that [the Legislature] intended to create a preordained and exhaustive list of medically necessary treatments, thereby rendering all non-listed treatments 16 presumptively not medically necessary and creating a presumption that employers/carriers could ‘rely on’ in fulfilling their statutory obligation to provide medical care to injured claimants.” Kigin, 109 A.D3d at 313. This Court must therefore decide the meaning of the term “pre-authorized,” whether standing alone or considered in the context of the other provisions of the statute and of the Workers’ Compensation Law as a whole. To the extent that the term is self-explanatory, the Court need look no further. “When the Legislature enacted the statutes and when the Governor signed them into law, they stood for what their words manifested and not the inner thoughts …” People v Graham, 55 NY2d 144, 151; 432 N.E.2d 790, 447 N.Y.S.2d 790 (1982). “It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning … The office of interpretation is to bring sense out of the words used, and not bring a sense into them.” McCluskey v Cromwell, 11 NY 593, 601 (1854). The majority below repeatedly stated that the Legislature intended the Guidelines to “preordain” or “pre-determine” the course of treatment for injured workers. See, e.g., Kigin, 109 A.D.3d at 307-310. However, the statute itself makes no such direction. The Legislature did not direct the Board to preordain, pre-determine or prescribe medical treatment, nor did it direct the Board to develop 17 a comprehensive set of medical treatment guidelines. The statute enacted by the Legislature simply directed the Board to “issue and maintain a list of pre- authorized procedures.” WCL § 13-a(5). Moreover, the use of the term “pre-authorized” does not necessarily imply that all other treatment must be “pre-denied.” As discussed below, the Board could have issued the list required by the Legislature in order to “reduce litigation costs and disputes between medical providers and payers; to lower costs for employers and increase benefits to injured workers,” without abrogating existing statutory mechanisms for authorization of treatment. Kigin, 109 A.D.3d at 305. Thus, the Guidelines are inconsistent with the plain language of the statute. B. The Guidelines Conflict With the Statutory Structure For Medical Treatment Authorization. The central statutory provision regarding the “treatment and care of injured employees,” is Workers’ Compensation Law § 13(a). The statute provides that “[t]he 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 assistance and adaptive devices and apparatus for such period as the nature of the injury or the process of recovery may require.” WCL § 13 (a). 18 The statutory language is broad because the legislature’s purpose in enacting the WCL was to protect injured workers and their dependents from consequential harm following an injury on the job. This Court has long held that the statute should be interpreted liberally: “That act is framed on broad principles for the protection of the workman … It rests on the economic and humanitarian principles that compensation should be given at the expense of the business to the employee …, and this not only for his own benefit but for the benefit of the state which otherwise might be charged with his support.” Waters v William J. Taylor Co., 218 NY 248, 252; 112 N.E. 727 (1916). Chief Judge Cardozo explained the rationale of the statute as follows: “The Workmen's Compensation Law was framed to supply an injured workman with a substitute for wages during the whole or at least a part of the term of disability. He was to be saved from becoming one of the derelicts of society, a fragment of human wreckage.” Surace v Danna, 248 NY 18, 20 – 21; 161 N.E. 315 (1928). Authorization for medical treatment is covered more particularly by Workers’ Compensation Law § 13-a (5). Both before and after the addition of the sentence at issue in this case, the statute explicitly prescribed the circumstances, time frame, manner and method in which an employer may pre-deny medical care. Under Section 13-a(5), only medical services in excess of $1,000 can be pre- 19 denied, and then only if the employer or carrier obtains a contrary medical opinion within 30 days of receiving the request: No claim for [special services] costing more than one thousand dollars shall be valid and enforceable, as against such employer, unless such special services shall have been authorized by the employer or by the board, or unless such authorization has been unreasonably withheld, or withheld for a period of more than thirty calendar days from receipt of a request for authorization, or unless such special services are required in an emergency, provided, however, that the basis for a denial of such authorization by the employer must be based on a conflicting second opinion rendered by a physician authorized by the board. WCL § 13-a(5). The statute is silent on the issue of whether pre-authorization is required for treatment that costs less than $1,000, thus establishing the absence of any such requirement. “When a statute describes the particular situations in which it is to apply and no qualifying exception is added, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.” Matter of Alonzo M. v. New York City Dept. of Probation, 72 N.Y.2d 662, 665; 536 N.Y.S.2d 26, 28-29; 532 N.E.2d 1254, 1256-57 (1988). The Legislature could plainly have granted employers and carriers broader rights to pre-deny authorization for medical treatment, but chose not to. The Guidelines are in direct conflict with the provisions of the statute that relate to authorization for medical treatment. The statute provides for general 20 approval of all medical treatment, reserving to employers and carriers the right to pre-authorize special services with a cost in excess of $1,000. To the contrary, the regulations deny all medical treatment except that which is expressly approved by the Guidelines. In essence, the Guidelines not only disregard the plain statutory mandate to simply issue a list of pre-authorized procedures, but attempt to overrule the existing statutory structure regarding the circumstances in which medical treatment must be authorized. If the Board’s interpretation of the final sentence of Section 13-a(5) (the 2007 amendment) were to be upheld, then the balance of the statute would become irrelevant. This would violate the rule against surplusage: Indeed, were we to accept plaintiff's approach and conclude that the statute outlaws general discrimination by "any person" against "any person," there would be no need for the numerous remaining subdivisions of the statute, which prohibit particular discriminatory practices in certain well-defined areas, such as in residential rental leases (see, e.g., Executive Law § 296 [2-a]), in places of public accommodation or amusement (id., § 296 [2] [a]), in defining membership on a real estate board (id., § 296 [5] [d]) or in referral services provided to applicants by an employment agency(see, id., § 296 [1] [b]). Accordingly, we decline to adopt an interpretation of the intended scope of section 296 (13) which would render the statute's remaining provisions mere surplusage. Scott v. Massachusetts Mut. Life Ins. Co., 86 N.Y.2d 429, 435; 657 N.E.2d 769; 633 N.Y.S.2d 754 (1995). 21 The Board’s regulatory disregard for the statute is exemplified by the provision that an employer or carrier need only engage a “medical professional,” who need not be a physician, to deny authorization for treatment. The regulation defines “medical professional” as “a physician, registered physician assistant, registered professional nurse, or nurse practitioner … who is employed by an insurance carrier or Special Fund or has been directly retained by the insurance carrier or Special Fund; or is employed by a URAC [formerly the Utilization Review Accreditation Commission] accredited company retained by the insurance carrier or Special Fund through a contract to review claims and advise the insurance carrier or Special Fund.” 12 NYCRR § 324.1 (c). This regulation is squarely at odds with the statute, which specifically requires “a conflicting second opinion rendered by a physician authorized by the workers’ compensation board.” WCL § 13-a(5). Workers’ Compensation Law Sections 13(a) and 13-a(5) are buttressed by Workers’ Compensation Law § 21(5), which provides that “[i]n any proceeding for the enforcement of a claim for compensation under this chapter, it shall be presumed in the absence of substantial evidence to the contrary … [t]hat the contents of medical and surgical reports introduced in evidence by claimants for compensation shall constitute prima facie evidence of fact as to the matter contained therein.” WCL § 21 (5). 22 The Board must accept as true what treating doctors report to it about their injured patients until employers or carriers offer substantial evidence to the contrary. The presumption controls until the evidence is specifically controverted: “Not infrequently the carrier does not wish to contest the extent or nature of the injuries. In such circumstances, the claimant is permitted to make out his case in the first instance by a verified report. If, however, the carrier disputes the injury and produces substantial evidence that the report is wrong, the case ceases to be one for presumptions.” In re Magna, 258 NY 82, 84; 179 N.E. 266 (1932). The presumption operates to place the burden of proof on the party whom the legislature intended to bear it, serving “in place of evidence until the opposing party comes forward with his proof … [it] is merely another way of saying that the burden of proof,” in workers’ compensation, is on the employer or carrier. People ex rel. Wallington Apartments v Miller, 288 NY 31, 33; 41 N.E.2d 445 (1942). Moreover, the presumption aids the liberal construction of the statutory scheme to favor injured workers: “The Workers' Compensation Law … is the State's most general and comprehensive social program, enacted to provide all injured employees with … medical expenses … when the Legislature wishes to create presumptions in the social legislation field, it does so unmistakably. There are precise ‘presumptions’ set forth in the Workers' Compensation Law, which favor 23 employees by granting easy initial access to benefits.” Balcerak v County of Nassau, 94 NY2d 253, 259 – 260; 723 N.E.2d 555, 701 N.Y.S.2d 700 (1999). Taken together, these statutory provisions establish a presumption that the injured worker is to receive the medical care and treatment that has been prescribed by the treating physician, and place the burden of proof on the employer to demonstrate a lack of causal relationship or medical necessity. See, e.g., Matter of Hoffman v. Creedmore State Hosp., 22 A.D.2d 736, 253 N.Y.S.2d 510 (3d Dept. 1964); Matter of Weingarten v. Pathmark Stores, Inc., 256 A.D.2d 648, 681 N.Y.S.2d 168 (3d Dept. 1998). Thus the Guidelines are wholly inconsistent with the statutory structure regarding medical treatment authorization. C. The Guidelines Exceed the Authority Delegated To The Board By the Legislature. Both the Board and the court below justified the Guidelines for reasons that were inappropriate as a matter of law. The Board contended that the Guidelines “reasonably supplement WCL Section 13,” while the court below commented that “it is fair to require” compliance with the Guidelines.” R. 10; Kigin, 109 A.D.3d at 309. It is the role of neither the Board nor the Court to create by regulation or decision a “reasonable” or “fair” system that has not been authorized by the Legislature. 24 “Regulations … cannot have the effect of amending the law. They may aid in carrying the law as it exists into execution, but they cannot change its positive provisions.” U.S. v Two Hundred Barrels of Whiskey, 95 US 571, 576 (1877). While an administrative agency may “adopt regulations consistent with and supplemental to the provisions of the” statute, such regulations must have “a rational basis and [not be] unreasonable, arbitrary, capricious or contrary to the statute under which [they] were promulgated.” Smith v. Albany County Sheriff’s Dept., 82 A.D.2d 1334, 1335, 918 N.Y.S.2d 245, 246 (3d Dept. 2011); Lutz v. Lakeside Belkirk Nursing Home, 301 A.D.2d 688, 691, 753 N.Y.S.2d 190, 193 (3d Dept. 2003), lv. den. 99 N.Y.2d 651, 790 N.E.2d 278, 760 N.Y.S.2d 104 (2003). Moreover, the agency may not “stray[] from the administrative into the legislative field.” Matter of Consolidated Edison Co. of New York v. Dept. of Environ. Conservation, 71 N.Y.2d 186, 192, 519 N.E.2d 320, 322, 524 N.Y.S.2d 409, 412 (1987). Finally, an agency’s interpretation of its statutory authorization is entitled to no deference where “the question is one of pure statutory reading and intent, dependent only on accurate apprehension of legislative intent.” Belmonte v. Snashall, 2 N.Y.3d 560, 565, 813 N.E.2d 621, 624, 780 N.Y.S.2d 541, 544 (2004) quoting Matter of Gruber [New York City Dept. of Personnel], 89 N.Y.2d 225, 231, 674 N.E.2d 1354, 652 N.Y.S.2d 589 (1996). 25 In the case at bar, the Board’s regulations are inconsistent with the plain language of the statute and conflict with the structure established by the Legislature regarding authorization for medical treatment. It is clear that the Board failed to properly interpret the authority granted to it by the Legislature, and consequently promulgated regulations and Guidelines that are unreasonable, arbitrary, and contrary to the statute under which they were issued. Instead of simply preauthorizing medical treatment as directed by the Legislature, the Guidelines also pre-deny all other medical treatment. The Board’s interpretation of the statute is entitled to no deference, and the Board may not enforce a “code embodying its own assessment of what public policy ought to be” through regulation. Matter of Consolidated Edison Co. of New York, 71 N.Y.2d at 192, quoting Matter of Boreali v. Axelrod, 71 N.Y.2d 1, 517 N.E.2d 1350, 523 N.Y.S.2d 464 (1988). We therefore respectfully submit that the Workers’ Compensation Board exceeded its statutory authority to preauthorize medical treatment by using the Medical Treatment Guidelines to also pre-deny medical treatment. Thus, the Guidelines must be invalidated. 26 POINT II: THE MEDICAL TREATMENT GUIDELINES CONFLICT WITH THE STATUTE BY IMPROPERLY SHIFTING THE BURDEN OF PROOF REGARDING THE NEED FOR MEDICAL TREATMENT FROM THE EMPLOYER TO THE INJURED WORKER. The Workers’ Compensation Law places the burden of proof squarely on the employer and carrier to deny a request for medical treatment. See, e.g., WCL § 13(a); § 13-a(5), § 21(5). As discussed above, Workers’ Compensation Law Section 13(a) broadly defines and authorizes medical care, while Workers’ Compensation Law Section 13-(a)(5) prescribes the limited circumstances in which the employer may withhold approval for medical treatment. Taken together, these statutes establish that the injured worker is entitled to receive treatment that costs less than $1,000 without pre-authorization, and that the employer or insurer bears the burden of proof (through the production of a contrary medical report) if it wishes to deny authorization for treatment that costs in excess of $1,000. The Legislative determination through Sections 13(a) and 13-a(5) that the burden of proof should rest with the employer or insurer to deny medical care is further reinforced by the provisions of Workers’ Compensation Law Section 21. The dissent below correctly observed that the Section 21(5) presumption in favor of the report of a treating physician applies to the question of medical treatment. In Matter of Weingarten v. Pathmark Stores, Inc., the issue was whether the 27 employer could deny medical treatment in the absence of a contrary medical opinion. Matter of Weingarten v. Pathmark Stores, Inc., 256 A.D.2d 648, 681 N.Y.S.2d 168 (3d Dept. 1998). The Court held that Workers’ Compensation Law § 13(a) “is to be broadly interpreted” and that Workers’ Compensation Law § 21(5) places “the burden on the employer to establish that any award was improper.” Weingarten, 256 A.D.2d at 650. Moreover, the Court held that “it is clear that the party with the burden of proof cannot prevail without putting on any evidence.” Id. (quoting 8 Larson, Workers’ Compensation Law § 81.33(c)). The Guidelines explicitly attempt to overrule the burden of proof that has been established by the Legislature. The Board’s regulations provide that “[t]he insurance carrier or Special Fund may deny a request for a variance on the basis that the Treating Medical Provider did not meet the burden of proof that a variance is appropriate for the claimant and medically necessary … without review by the insurance carrier or Special Funds’ medical professional, a review of the records, or an independent medical examination.” 12 NYCRR § 324.3 (b) (2) (i) (c) (emphasis added). The Board’s regulations further provide that “[t]he claimant and the Treating Medical Provider who requested the variance shall have the burden of proof that such variance is appropriate for the claimant and medically necessary.” 12 NYCRR § 324.3 (d) (4). In short, the Guidelines remove the burden of proof from 28 the employer and carrier and shift it to the injured worker and the treating physician. This is directly contrary to the statute. Finally, the efficiency value of the statutory presumption is entirely defeated by the Guidelines. The Third Department has observed: “The presumption that medical reports introduced by a claimant constitute prima facie evidence of their contents is intended to reduce the necessity for actual testimony of the claimant’s expert.” Freitag v New York Times, 260 AD2d 748, 749, 687 N.Y.S.2d 809 (3d Dept. 1999). The majority below erroneously relied upon the decision in Matter of Spinex Laboratories, Inc. (Patton), 213 A.D.2d 884, 623 N.Y.S.2d 944 (3d Dept. 1995) in arriving at a contrary conclusion. The issue in Spinex was not whether the injured worker was entitled to receive treatment, but rather whether the health care provider was entitled to be paid. Id. The injured worker in Spinex had already been treated, and the dispute was solely between the health care provider and the insurer. Id. An arbitration panel in the service of the Board determined that the services were unnecessary and thus that they had no value. Id. This conclusion was upheld in part on the basis that the injured worker in Spinex was found to have no disability, in contrast to the claimants in Weingarten and the case at bar, both of whom were found to be permanently partially disabled. Id. 29 By transferring the burden of proof from the employer and insurer to the injured worker, the Guidelines fundamentally transform the workers’ compensation system, to the substantial detriment of injured workers. As observed by the majority below, “[p]rior to the enactment of the Guidelines, for treatments that were not special medical services enumerated in Workers' Compensation Law § 13-a (5) or which cost less than $500, disputes over the medical necessity or the frequency/duration of medical care — and whether the medical provider would be paid and to what extent — were often made after the care was provided, on a case- by-case basis when the employer disputed the bill; they were ordinarily resolved through the relevant arbitration panel for the medical provider's profession with few appeals to this Court.” Kigin, 109 A.D.3d at 306. In short, prior to the enactment of the Guidelines the injured worker was able to receive basic medical care, after which billing disputes were adjusted between the insurer and the health care provider. To the contrary, as a result of the Board’s regulatory decision to reverse the burden of proof established through statute by the Legislature, injured workers are now unable to obtain treatment at all, or suffer delays while they fruitlessly pursue the Board’s variance process. We therefore respectfully submit that the Medical Treatment Guidelines conflict with the statute by improperly shifting the burden of proof regarding the 30 need for medical treatment from the employer to the injured worker and must be invalidated. POINT III: THE MEDICAL TREATMENT GUIDELINES DENY DUE PROCESS TO INJURED WORKERS. The Guidelines deny injured workers due process by predetermining their need for medical treatment. The Guidelines do not provide an opportunity to be heard in a meaningful time and in a meaningful manner. See, e.g., Mathews v. Eldridge, 424 U.S. 319 (1976). The United States Constitution guarantees that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Amend 14, § 1. Workers compensation implicates due process in two respects: First, workers’ compensation’s wage replacement and medical treatment benefits are administered by a government agency, the Board, which adjudicates claims brought by injured workers, and therefore involves state action sufficient to trigger the requirements of due process prior to a government deprivation of property. The Civil Rights Cases, 109 U.S. 3 (1883). Second, the workers’ compensation claim is the exclusive remedy available to injured workers against their employers, a statutory substitute for a common law right of action, an individual property right to bring a claim seeking redress for a wrong, the abridgement of which is limited by the strictures that due process places on legislative abrogation of common law 31 rights. WCL § 11; New York C. R. Co. v White, 243 U.S. 188 (1917). As workers’ compensation is, then, a hybrid right to benefits and to seek redress, or a measure of justice, the Guidelines must withstand due process scrutiny in two respects in order to be held constitutional. Because the Guidelines apply blanket proscriptions on continued medical care, they deny injured workers a meaningful hearing, something more than the summary denial of treatment that is routine administrative practice under the Guidelines, and therefore deprive them of property without due process of law. Further, by curtailing injured workers’ rights to recover their losses in the form of necessary medical treatment, the Guidelines diminish the workers’ compensation exclusive remedy and therefore deny injured workers their right to an adequate opportunity to remedy the harm they suffered, a distinct deprivation of property, again without due process of law. The Guidelines deprive injured workers of their right to a meaningful hearing during which to adjudicate their claims to medical treatment. The Due Process Clause protects property interests that “are defined by existing rules or understandings that stem from an existing source such as state law – rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents v Roth, 408 U.S. 564, 577 (1972). Notably, states 32 must hold pre-termination hearings before depriving welfare recipients of their cash benefits because those benefits are constitutionally protected property: In Roth, the Supreme Court held that the Due Process Clause protects property rights which have already inhered, and because injured workers are due compensation upon suffering their injuries, the Constitution protects the rights of workers’ compensation claimants. Roth, 408 U.S. at 577. The Roth court stated: “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.” Id, 408 U.S. at 577. Under the Workers’ Compensation Law, injured workers have far more than a unilateral expectation of medical treatment for their work-related injuries; they have a legitimate claim of entitlement to that treatment. WCL § 13(a). The property interest in medical treatment affords injured workers a strong claim against having their benefits reduced by the adoption of the Guidelines and the implementation of the variance process, which deny them care to which they are entitled, without adequate procedural safeguards. Injured workers’ legitimate claim to medical treatment is constitutionally protected and merits an 33 individualized determination of what care they require, far more than the summary prejudgment available under the Guidelines and the variance process. The Guidelines also substantially undo the bargain at the heart of the Workers’ Compensation Law. Before workers’ compensation, injured workers could sue their employers and recover for their entire losses if they could prove the employer’s fault and disprove the employer’s defenses; employers held liable were responsible for paying the damages awarded by a jury. White, 243 U.S. at 188. The law, enacted by the Legislature and administered by the Board, is a century- old compromise between workers and employers; workers gave up the right to sue their employers in exchange for a limited remedy without regard to fault. Id, 243 U.S. at 196. White upheld the strict liability scheme of the WCL against a due process challenge to the payment of benefits without proof of fault, because “liability may be imposed for the consequences of a failure to comply with a statutory duty, irrespective of negligence in the ordinary sense.” Id, 243 U.S. at 198. The White court also observed that the constitutional requirement of due process could limit the extent to which statutory enactments like the Workers’ Compensation Law could abrogate common law rights of action: Considering the vast industrial organization of the State of New York … with hundreds of thousands of plants and millions of wage-earners, each employer … having embarked his capital, and each employee … having taken 34 up his particular mode of earning a livelihood, in reliance upon the probable permanence of an established body of law governing the relation, it may perhaps be doubted whether the State could abolish all rights of action on the one hand, or all defenses on the other, without setting up something adequate in their stead … The statute under consideration sets aside one body of rules only to establish another system in its place. Id, 243 U.S. at 201. Under White, there is a right to an adjudicated remedy; while the Legislature could displace the common law of workplace torts to the degree defined by the Workers’ Compensation Law, it likely could not simply abolish it. Id, 243 U.S. at 201. Workers’ compensation, like the common law before it, affirms a worker’s right to a safe workplace by providing a remedy when workplace accidents occur. The remedy is part and parcel of the right; where there is no remedy, there is no right. While the WCL limits the remedy, compared to tort law, it does so in the context of significantly expanded access to that limited remedy, by eliminating the role of fault and employer defenses. The Guidelines significantly erode the remedy in the Workers’ Compensation Law. Not only is an injured worker typically limited to workers’ compensation benefits under the exclusive remedy provision of Workers’ Compensation Law § 11, but that remedy is now diminished to exclude previously available medical care, care which would also presumably be available in the tort system, assuming the ability to prove fault and the inapplicability of defenses. 35 Under the Guidelines, the adequacy of the exclusive remedy is in serious doubt, implicating fundamental due process concerns. We therefore respectfully submit that the Medical Treatment Guidelines deny due process to injured workers and must be invalidated. 36 CONCLUSION. The Board exceeded its statutory authority by promulgating Guidelines that “preordain” or “pre-determine” medical necessity, resulting in the “pre-denial” of medical care. The statute in question only directed the Board to pre-authorize certain treatment. Thus, the Guidelines are contrary to the statute and amount to an improper administrative attempt to legislate through regulation. The Guidelines also impermissibly shift the burden of proof established by the Legislature on the question of medical necessity from the employer or insurance carrier to the injured worker. Finally, the Guidelines deprive injured workers of their Constitutional right to due process. The pre-determination of claims for medical treatment by the Guidelines undermines the injured worker’s right to a meaningful hearing on the issue in his or her case. As a result, this honorable Court should reverse the decision of the Appellate Division, Third Department and invalidate the Medical Treatment Guidelines and 37 associated regulations promulgated by the Workers’ Compensation Board. Dated: Farmingdale, New York December 16, 2013 ________________________ Robert E. Grey, Esq. Grey & Grey, LLP Attorneys for Claimant-Appellant 360 Main Street Farmingdale, NY 11735 (516) 249-1342