New York StateWorkers’ Compensation Board

“New” Medical Treatment GuidelinesEffective December 1, 2010

Craig E. Rosasco, Esq.1-877-NY-DBLAW

www.nydisabilitylaw.comcrosasco@nydisabilitylaw.com

WORKERS’ COMPENSATION

SOCIAL SECURITY DISABILITY

LONG TERM DISABILITY

VETERANS’ DISABILITY CLAIMS

OVERVIEW OF MEDICAL TREATMENT FOR INJURED

WORKERS• §13- Current Status• WCB Treatment Guidelines June 30, 2010

– Pre-authorized procedures– Mid & Lower Back Treatment Guidelines– Neck Treatment Guidelines– Knee Treatment Guidelines– Shoulder Treatment Guidelines

• Optional Prior Approval• Maximum Medical Improvement (“MMI”)• Variance for Denied Treatments

§13 OF WCL

• Establishes employer liability for treatment and care

• Providers must be authorized by WCB to treat claimants and IME’s

• Currently, §13-a(5) Requires prior authorization for treatment costing more than $1000– January 2010- C-4AUTH 4 day/30 day rule

– Denials 30 days/ conflicting M/E and c-8.1a

• Amendments to §13-a(5) pre-authorization procedures

WCB TREATMENT GUIDELINES

• Published June 30, 2010

• Available on the WCB website

• To be implemented December 1, 2010

• Only addressed neck, back, shoulders & knees

• Will apply to all cases-regardless of date of accident

GOALS OF TREATMENT GUIDELINES

• Improve quality of treatment/care• Improve speed of delivery of treatment• Reduce friction costs (treatment dispute

resolution)• Eliminate unnecessary medical treatments which

do not contribute to a positive outcome• Reduce costs

– Neck, Back, Shoulders and Knees amount to 36% of all claims

– Neck, Back, Shoulders and Knees amount to 60% of all costs

E-LEARN TUTORIAL PROGRAM

• Available on the WCB website as of

• Oct. 4, 2010

• CLE- 11/3/10– Albany Law School~ Statewide

FOCUS ON MEDICAL CARE

• Restoring functional ability• Restore health to pre-injury status• Providers “must” utilize guidelines• Positive results must be objectively measured

– Subjective pain should be considered

• Re-Evaluation – 2-3 weeks after initial– 3-4 weeks thereafter

PRE-AUTHORIZATION OF TREATMENT

• Diagnostics, testing procedures, non-surgical and surgical therapeutic procedures based on correct application of guidelines are authorized except:– Lumbar fusion– Artificial disk replacements– Vertebroplasty– Kyphoplasty– Electrical bone growth

stimulators– Spinal cord stimulators– Anterior acromioplasty-

shoulder

– Chrondroplasty– Osteochrondral autograft– Autologous chondrocyte

implantation– Meniscal allograft

transplantation– Knee arthroplasty (TKR +

PTR)– Duplicative Surgery

WCB REASONING FOR PRE-AUTHORIZATION LIST

• Procedures are subject to abuse

• Procedures are complex

• Procedures are invasive

JOB SITE EVALUATION

• Treating Medical Doctor’s can communicate with employer regarding return to work duties

• If return to work is unattainable at former job, doctor can inquire about light duty

• Frequency: 1-2 calls– 1st Call

• Can perform some work

– 2nd Call• Can perform enhanced

work

– Doctor documents conversation on a soon to be released form

EXPERIMENTAL TREATMENT

• Treatment that is experimental or not approved by the FDA is not permitted under the new guidelines

TREATMENT GUIDELINES- ALL FOUR

• History• Past History• Examination• Causal Relationship• Red Flags

– Fractures– Infections– Progressive neurological deficits

PRACTIONER ISSUES- BACK- MRI

• Not recommended in 1st 6 weeks for acute Lower Back pain with no red flags

• Recommended in 1st 6 weeks for acute lower back pain with demonstrated progressive neurological deficit (others)

• Recommended for sub-acute or radicular pain lasting at least 6 weeks with no symptoms of improvement

• Recommended if considering ESI’s • Subject to §13a(7)

PRACTIONER ISSUES- BACK- EMG/NCV

• Not recommended for patients with acute, sub-acute or chronic back pain who do not have “significant” leg pain or numbness

• Recommended where CT/MRI is equivocal with ongoing pain/numbness and may identify neurological problem

• Recommended after 4-6 weeks and conservative care fails to resolve radicular pain.

• Subject to §13a(7)

PRACTIONER ISSUES- BACK- THERAPEUTIC PROCEDURES

(PT/DC)• WCB wants injured worker to return to work

full or modified duty as soon as possible• If not responding-cessation of treatment,

consider alternatives• Educate injured worker about treatment plan• Consider psychological evaluation if no

progress and subjective outweighs objective

PHYSICAL THERAPY- BACK, KNEES, NECK

• Time to produce effect: 2-6 treatments

• Frequency: 3-5 times per week

• Optimal Duration: 4-8 weeks (max)

• Max Visits: 40 visits

• Variance

• Post-operative PT

MICRODISCECTOMY (P. 55)

• Pre-authorized procedures per §13a(5)• Recommended- patients with Radiculopathy due to

ongoing nerve root compression/failed conservative care

• All of the following “should” be present:1. Radicular Pain Syndrome with numbness or weakness

consistent with HNP at corresponding level2. Positive MRI confirming nerve root compression3. Continued significant pain + functional limitation after

6-12 weeks conservative care4. Must be informed that no need to rush procedure

PRACTIONER ISSUES- NECK- CONSERVATIVE CARE

• Physical therapy- 40 visits max until variance

• Chiropractic- 20 visits max until variance – may now perform PT/stabilization

• Massage therapy- 16 visits max until variance

• Acupuncture- 10 visits max until variance

MENISCUS REPAIR- PRE-AUTHORIZED UNDER §13a(5)

MENISCAL ALLOGRAFT TRANSPLANTATION- REQUIRES

PRE-AUTHORIZATION FROM CARRIER

PRACTIONER ISSUES- SHOULDER

• MRI’s preauthorized with failure of conservative treatment after 6 weeks

• Extensive physical therapy available typically 8-12 weeks for conservative care

• Post operative physical therapy- additional 8-12 weeks

ANTERIOR ACROMIOPLASTY- REQUIRES PRE-

AUTHORIZATION FROM CARRIER

MAXIMUM MEDICAL IMPROVEMENT “MMI” PRE

12/1/2010• SCHEDULE LOSS OF USE

– Treatment terminated

– No further improvement expected

– 6 months digits

– 1 year major extremities

– 1 year post surgery

• CLASSIFICATION – Continuing or progressive impairment resulting in

disability

– 2 years post accident

MAXIMUM MEDICAL IMPROVEMENT “MMI”

• §324.1 of 12NYCRR– “MMI” means an assessed condition of a

claimant based on medical judgment that1. Claimant has recovered from work injury, illness or

occupational diseases to the greatest extent that is expected

AND

2. No further improvement in condition is expected.

MAXIMUM MEDICAL IMPROVEMENT “MMI” PER

DISABILITY DURATION GUIDELINES 9/2010

• Classification should not occur until MMI reached

• If no surgery/fractures can be within 6 months from d/a, db or by stipulation

• Right to medical treatment does not terminate upon reaching MMI

MAXIMUM MEDICAL IMPROVEMENT (“MMI”)

NYCRR 324.4- OPTIONAL PRIOR APPROVAL

• Carriers are in – but can opt out - not mandatory

• Must designate contact and notify WCB

• Treating Medical Provider sends request (MG1) to all parties

• Carrier has 8 business days to respond

• If approved- all parties notified.

NYCRR 324.4- OPTIONAL PRIOR APPROVAL (CONT.)

• If denied, carrier and Treating Medical Provider can attempt resolution

• If not resolved, Treating Medical Provider requests review within 14 days of denial

• Medical Arbitrator rules on request with 8 business days.

NYCRR §324.3- VARIANCES

• Treating Medical Practitioner determines medical care that “varies” from guidelines is appropriate and medically necessary

• Treating Medical Practitioner files form requesting variance from carrier

• Treating Medical Practitioner files w/ WCB, carrier, claimant & attorney1. Email- same day2. Fax- same day3. Mail- with certification – 5 Days

ATTACHMENTS- SUPPORTING VARIANCE

• Burden of proof rests on Treating Medical Practitioner

• Medical treatment- appropriate & necessary• Claimant agrees to proposed care• Explanation why alternatives not appropriate• Can submit citations- relevant literature in

support of variance

WCB/CARRIER REQUIREMENTS

• Carrier must designate point of contact and notify WCB within 30 days of 12/1/10

• Provide name & contact info to be placed on NYS WCB website as contact

• Carrier must notify WCB of change in contact information within 10 days.

CARRIER’S RESPONSE TO VARIANCES

• Review without IME or record review

• IME

• Record Review

REVIEW WITHOUT IME OR RECORD REVIEW

• Review of variance must be within 15 days• All parties CC’d on approval/denial• Can deny based on failure to meet burden

– Treatment is not appropriate– Not medically necessary

• If claim that burden not met, must raise all reasons or deemed waived in future

• Receipt - date sent - email/fax » 5 business days later by mail

VARIANCE REVIEW VIA IME OR RECORD REVIEW

• If carrier plans to secure IME, it must notify all parties within 5 business days of intention to do so

• Final response to variance request within 30 days• If claimant fails to appear for IME without reasonable

cause, requested variance deemed denied• If claimant requests review of variance denial that

failure to appear was reasonable, carrier has 30 days from decision or failure to appear to secure IME

RESPONSES TO VARIANCES

• Shall be on same form as variance request

• All parties CC’d

• Variance response- fax, email, mail

REQUESTING REVIEW OF VARIANCE DENIAL

• Claimant/attorney must consult with Treating Medical Practitioner to verify if variance is still appropriate and necessary

• If still appropriate & necessary, review request must be made within 21 business days of receipt of denial

• If request for review is not received within 21 business days, denial deemed final

RESOLUTION OF REQUESTS FOR DENIAL REVIEW

• Informal Resolution

• Expedited Hearing Process

• Medical Arbitration Process

INFORMAL RESOLUTION

• Treating Medical Practitioner may discuss variance denial with carrier during first 8 business days after denial

• If claimant/attorney is aware of Treating Medical Practitioner’s attempts to resolve, then no filing of review request until after 8th business day (File day 9-21)

• If resolved, all parties notified.• If not resolved, Treating Medical Practitioner

notifies all parties

EXPEDITED HEARING PROCESS

• Hearing shall be scheduled within 30 days if:– Informal resolution period has passed (8

business days)– Informal resolution failed– No party has waived rights to expedited hearing

• Hearing adjudicated by WCLJ• Testimony of Treating Medical Practitioner or

IME Doctor can be taken at or prior to expedited hearing

EXPEDITED HEARING PROCESS (cont.)

• Adjournments may be granted for good cause

• Determination shall be made at hearing or by Reserved Decision

• Further development is permissible on complex issues

MEDICAL ABRITRATION PROCESS

• Parties must waive right to expedited hearing requesting determination by arbitration

• Arbitration issues notice of resolution setting forth ruling and basis for same

• Notice of resolution is binding and no appealable under WCL §23

WE ARE THE COUNSEL TO THE PROFESSION…..Call us

with any questions!

Craig Rosasco, Esq.

516-745-5666 x 113

www.nydisabilitylaw.com