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New Medical Treatment Guidelines for Treatment to the Elbow, Foot, Ankle, Hip, Groin and Interstitial Lung Disease

The New York State Workers’ Compensation Board recently adopted new Medical Treatment Guidelines that cover treatment for the elbow, foot, ankle, hip, groin and interstitial lung disease. These guidelines will go into effect on January 1, 2021 . They are in addition to the guidelines that are currently in effect and cover treatment for the neck, back, knee, shoulder, carpal tunnel syndrome and non-acute pain. The Board has also proposed guidelines covering the hand, wrist, and forearm and occupational asthma.

The Board’s Guidelines regulate treatment (other than on an emergency basis) for the listed injuries or illnesses regardless of the date of injury and regardless of whether the treatment is provided in New York or elsewhere. They pre-authorize many medical tests, treatments and procedures, but also limit or prohibit many other tests and treatments.

The Guidelines are supposed to identify and ensure the best possible medical care for injured workers in New York. They are intended to (1) create a “standard of care” for injured workers; (2) expedite quality care; (3) improve medical outcomes; (4) speed up return to work wherever possible; (5) reduce disputes between insurance companies and medical providers; (6) promote timely payments to medical providers; and (7) reduce employer costs.

In general, treating medical providers do not need to request authorization for treatment covered by the Guidelines. One exception is a list of 11 procedures for which a request is required, including lumbar fusion, artificial disc replacement to the cervical or lumbar spine, total or partial knee replacement, spinal cord stimulators, and intrathecal pain pumps. Another exception is a second or repeat surgery.

A finding of “maximum medical improvement” or “MMI” does not mean that medical treatment must end. The Guidelines authorize continued medical treatment after “MMI” to maintain or improve function. They also authorize treatment following an exacerbation, provided that it is properly documented by the medical provider.

If a treating medical provider wants to provide more or different treatment than the Guidelines allow, the provider must file an MG-2 form asking for a “variance.” A variance request can be filed when (1) treatment should be extended because it is resulting in objective functional improvement; (2) the requested treatment is not listed in the Guidelines; (3) there are new studies supporting the treatment; or (4) there is an individual circumstance that makes the variance appropriate for the injured worker.

A variance request must include (1) a medical opinion stating why the proposed care is appropriate and medically necessary for the patient, (2) a certification by the requesting provider that the patient agrees to the proposed care, and (3) an explanation why alternatives under the guidelines are not appropriate or sufficient.

Requests to extend treatment beyond the period or amount listed in the Guidelines must include (1) objective evidence that the requested treatment has produced functional improvement; (2) an opinion that further improvement is expected and an explanation as to why that has not yet occurred; and (3) a proposed plan that includes duration, frequency, and functional goals.

For treatment or testing that is not recommended or not listed in the guidelines, the treating physician must document (1) the signs or symptoms that have failed to improve with previous treatment; (2) a proposed treatment plan and an explanation of why it is necessary, including specific functional goals; and (3) scientific evidence showing that the treatment is effective.

Variance requests must be sent to the Board and the insurance company by fax or email within two business days of the request. The insurance company may (1) grant the request; (2) deny the request on the grounds that the treating provider did not meet the “burden of proof” justifying a departure from the Guidelines; (3) have the request reviewed by its own medical professional; or (4) have the injured worker examined by its own medical consultant.

In most cases, the insurance company has fifteen days to reply to the variance request, but if it decides to get its own medical opinion then it must notify the injured worker and the treating provider within five business days and reply to the variance request within thirty days.

If the insurance company denies the request (whether the denial is based on “burden of proof” or a contrary medical opinion), then a request can be filed within twenty-one business days asking the Board to review the denial. Most requests for review are sent to the office of the Board’s Medical Director for a decision.

We regularly review the variance requests that are filed by treating doctors in our clients’ cases as well as insurance company denials. We also request Board review of almost every denial on behalf of our clients and their doctors. However, when we see that a variance request does not meet the Board’s standards, or where the Board has upheld the insurance company’s denial, we routinely write to our clients and their treating providers to explain what more is needed to have to requested treatment authorized. In some cases, a second variance request can be filed that has a better chance of being granted by the insurance company or approved by the Board.


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