In 2010, the Workers’ Compensation Board created “Medical Treatment Guidelines” that control treatment for injuries to the neck, back, knee and shoulder. The Guidelines pre-approve some treatment, but pre-deny other treatment.
We challenged the Board’s Guidelines, contending that when the Legislature directed the Board to create a list of “pre-approved” treatment, it did not authorize the Board to “pre-deny” everything else. A divided Appellate Division, Third Department upheld the Board’s authority to issue the Guidelines, and we appealed to the Court of Appeals, New York’s highest court.
In a 4-3 decision, a majority of the Court of Appeals upheld the Board’s Guidelines, finding that the Board did not exceed the authority it was given by the Legislature and that the Board’s “variance” process to permit a departure from the Guidelines was adequate to provide due process to injured workers. Three judges, including the Chief Justice, issued a vigorous dissent that agreed with much of our argument.