In an attempt to streamline the treatment approval process, the Workers’ Compensation Board enacted Medical Treatment Guidelines (MTGs), for causally related injuries to the neck, back, shoulders and knees.
The Workers’ Compensation Board maintains that the MTGs were created to help claimants obtain required treatment in an expedited fashion, although it is readily apparent that traditional forms of conservative management such as physical therapy and chiropractic treatment have been significantly limited. Irrespective of the board’s motivations for these limitations, there are unintended consequences that the practitioner must face that have made this system more challenging, and quite frankly, more frustrating, especially for those of us who represent injured workers. The following is a brief discussion of the difficulties facing claimants and their representatives attempting to navigate the MTG process.
In order to reach its goal of expediting the treatment process, regulations were promulgated that place strict requirements on treating physicians who wish to deviate from the MTGs. Called “variances,” these requests must be made upon a specific form (MG-2). The forms must be accompanied by treatment notes which are submitted to support the attending physician’s assertion that a variance from the guidelines are medically necessary and that he/she believes that this departure from the guidelines will bring about functional improvements. Physicians are encouraged to include additional medical authority in support of their opinions. Carriers are provided with five days to respond if requesting independent exams, 15 days for a final response if not (variance requests must still be reviewed by a medical professional), and 30 days for a final response if not requesting an IME. If denied, a claimant is provided with 21 days to request a review. Depositions of medical witnesses are often required.
The MTGs at first blush, appear to place a heavy burden upon insurance carriers, in terms of the strict time requirements. However, defenses to variance requests have been increasingly successful for a number of reasons. “Medical professionals” are usually in house and rejections are often boilerplate. Attending physicians frequently fail to properly complete the variance request forms or commit other ministerial errors resulting in technical denials by the board. Finally, a spate of recent Board Panel decisions have rejected variances previously granted by law judges, based upon the fact that the law judges did not strictly adhere to the requirements of the variance process.
Although it had become readily apparent that the timely delivery of appropriate treatment was a glaring deficiency within the Workers’ Compensation system, these new regulations are fraught with, what we can assume are unintended consequences. The Workers’ Compensation Board is presently swamped by the volume of requests that must be addressed within the strict time requirements, to the point where other non-treatment related issues have been supplanted on calendar by variance– related matters, not to mention the inordinate amount of time spent by board examiners processing the avalanche of supporting documentation. Quite frankly, many practitioners have commented that cases will appear on calendar for the consideration of a variance issue before they will be scheduled for the suspension of a claimant’s indemnity benefits.
A second deficiency is that treatment for chronic injuries is notably absent from the MTGs. Although other states have included such considerations in their regulations, New York has failed to do so. Therefore the question arises where claimants are denied treatment for therapeutic benefit where all other treatment modalities have been exhausted. Many individuals who were receiving such therapeutic intervention prior to the enactment of the MTGs are now being denied palliative care.
It should also be noted that although the board has been successful in expediting conservative treatment immediately following an accident, issues arise when surgery becomes a consideration. Although the MTGs explicitly permit certain surgical procedures without authorization, physicians are reluctant to proceed without explicit authorization from a carrier. Claimants are left waiting for authorization that is not required and which will not be forthcoming as the MTGs have made such requests a moot issue. The general lack of understanding and inherent distrust in the system has led to delays.
Finally, it should be noted that the burden of proof has been subtly shifted to the claimant, which is proving to be problematic given the vast resources available to insurance carriers to deny variance requests. Claimants are in no position to ensure that their attending physician’s competently complete the variance requests nor do they possess the sophistication required to translate the codes and diagnoses which are crucial to an application of the MTGs. Even claimant’s representatives are placed at a disadvantage as they are not compensated for prosecuting variance issues and instead hope to be compensated when indemnity issues are eventually adjudicated. Due process considerations must be examined.
The short-term result is that there is no consensus as to whether the delivery of treatment to the injured worker has improved enough, if at all, to justify the continued survival of these guidelines. Assuming, however, that they are here to stay, we can only hope that the board recognizes these inadequacies and addresses them in a manner consistent with the remedial intent of the Workers’ Compensation Law. Continued education is certainly a key to the success of this program.
Note: Craig J. Tortora is a founding member of Goldsmith & Tortora, which concentrates in the areas of Worker’s Compensation and Social Security Disability Benefits Laws. He is the Co- Chair of the WCL/SSDB Committee for the SCBA and is a past lecturer for the Suffolk Academy of Law. He is also an Advisory Board Member for the Long Island Occupational and Environmental Health Center (L.I.O.E.H.C.).
