It’s a common problem for employers and carrier in New York workers’ compensation claims: the injured worker gets medical attention and treatment for a specific body part. When they are ready to return to work from that injury, they allege a “consequential” loss – injury to another body part that needs treatment – and remain out of work. We were recently successful in defending against additional sites being added to an accepted claim. In our case the Board Panel ruled that additional injuries to the neck and back were not causally related to a work-related accident because the claimant did not have contemporaneous documentation of complaints to the neck and back at the time of loss. Here are the facts of our case and practical tips for challenging consequential loss in New York. Continue reading How To: Challenging Additional Body Parts In New York
In New York, pursuant to Workers’ Compensation Law § 114-a (1), a claimant may be disqualified from receiving workers’ compensation benefits “[i]f for the purpose of obtaining compensation . . . or for the purpose of influencing any determination regarding any such payment, [he or she] knowingly makes a false statement or representation as to a material fact.” A fact is “material” if it is “significant or essential to the issue or matter at hand,” and it need not be demonstrated here that claimant received compensation to which he was not otherwise entitled or that he did not sustain a compensable injury (Matter of Losurdo v Asbestos Free, 1 NY3d 258, 265 .
Recently the Third Department of the New York Appellate Division entertained an appeal in which the claimant was disqualified from receiving future benefits and forced to pay back past benefits as a result of violating Workers’ Compensation Law § 114-a, therefore committing fraud. The case, Matter of Poupore v Clinton County Highway Dept. 2016 NY Slip Op 03037 was decided on April 21, 2016. In this case, the penalty imposed by the Law Judge and the Board Panel was upheld on appeal.
The New York Workers’ Compensation Board announced the creation of a Medical Portal to enable electronic submission of C-4AUTH, MG-1 and MG-2 authorization requests. The portal will provide users with real time status of requests and send a notification when a status changes. The Board claims that users will no longer need to know which form to complete when submitting a request and the portal’s user interface will ask the user questions, the answers will determine the correct path and type of treatment authorization request.
Use of the portal is not required
Health care providers may continue to submit requests using the paper forms, if they choose. It is anticipated, however, that electronic submission will make the approval process faster, reduce errors, improve data quality, and eliminate the need to submit paper authorization forms. Additionally, if a health care provider submits a treatment authorization request electronically, the payer will be required to respond to the request electronically. If the medical provider submits a paper form, the payer must respond in kind via paper submission.
The use of opioids is widespread in the treatment of numerous injuries in New York. Although prescribed by a number of doctors, great care must be taken when opioids are found to no longer be necessary. Recently, Judges have ordered both the carrier and the claimant to submit drug weaning programs when an IME doctor finds that the use of opioid drugs is no longer necessary for the claimant’s continued treatment.
What is a Drug Weaning Program and Why is It Necessary?
In New York Workers Compensation claims the use of opioids by the claimant is subject to the 2014 Non-Acute Pain Medical Treatment Guidelines (“MTG”) recommendations in section F.2.b, Long Term
Use of Opioids: Transitioning/Managing Patients on Existing Opioid Therapy. The claimant’s physician must abide by the MTG recommendations to ensure that the management and treatment of a patient with non-acute pain is performed according to the principles for safe long-term opioid management and guidelines for optimizing opioid care pain (F.2.c [F.2.c.i-F.2.c.ii] and F.3 [F.3.a, F.3.b.i-iv, F.3.b.c.i-ii, F.3.d.i-iv, F.3.e.i-vi]).
Some of the MTG recommendations include: the need to routinely monitor the safety and effectiveness of treatment (improved function and pain control), an informed consent form (F.3.c), opioid understanding form (F.3.c.ii), appropriate monitoring and screening (random urine drug testing (F.3.d.i-iv), unannounced pill count(s), and evaluation and monitoring for adverse effects of and interactions with medications (F.3.b.i-ii and Table 3: Adverse Effects of Opioids). Continue reading Opioid Weaning Programs under the New York Non-Acute Pain Medical Treatment Guidelines
What is a Spinal Cord Stimulator?
A spinal cord stimulator is a system that uses implanted electrical leads and a battery powered implanted pulse generator to stimulate the back. A spinal cord stimulator is implanted in a surgical procedure that is not pre-authorized under the Non-Acute Pain Guidelines. Providers who want to perform this procedure must therefore request pre-authorization from the carrier before performing the procedure.
When is a Spinal Cord Stimulator Appropriate?
A spinal cord stimulator is prescribed for treatment of select patients with chronic back or neck radicular pain, specifically patents with failed neck or back surgery that have:
- Persistent severe and functionally disabling radicular pain.
- Been provided with conservative non-surgical treatments.
- Undergone surgical treatment that failed to relieve symptoms and improve function and further surgery has been considered but not approved this time
- Complex regional pain syndrome, phantom limb and spinal cord injury dysethesias
Under 12 NYCRR 300.23(c)(1,), in any case where the board has made an award for compensation for … permanent partial disability, “payments shall not be suspended or modified until an application on a prescribed form accompanied by supporting evidence, is made to reconsider the degree of impairment or wage-earning capacity…and the Board has made final determination of such application finding that suspension or modification is justified.” The prescribed form referred to in the statute is the RB-89. Continue reading Raising Attachment in Permanent Partial Disability Claims