Montemaggi Law - Workers Compensation Attorneys


07 Jul 2011

NYS Workers' Compensation Board Medical Guidelines - a quagmire for claimants

Posted by Paul J. Antonowicz
As many people with Workers' Compensation Claims know, the Workers' Compensation Board put in place Medical Treatment Guidelines (guidelines) which limit some treatment and provide for pre-authorization of many types of treatment that previously required prior authorization from the insurance carrier. These guidelines are supposed to make treatment easier and quicker by clarifying when treatment is and is not appropriate and by eliminating the need for specific authorization in many cases. However, the actual effect has been to deny necessary and helpful treatment in many cases and to unnecessarily delay treatment. Currently, the guidelines only address treatment of neck, back, shoulder and knee injuries. There are a number of reasons for this. First, doctors are unwilling, often justifiably, to provide extensive treatments such as surgery without some assurance that the bill will be paid. While there is a mechanism for "voluntary pre-approval", an opt-out was made available to insurance carriers and self-insured employers. Virtually 100% of insurance carriers exercised this opt-out. I am personally aware of no insurance carrier that did not exercise this option. This leaves doctors in the position of hoping that the insurance entity they are dealing with will agree with their interpretation of the guidelines, which are excessively long and complicated. The neck guidelines alone are over seventy pages. Many doctors have continued to request authorization despite the guidelines. Although some insurance companies have responded to these requests, most are simply ignoring them or at best responding by saying the treatment does not require prior authorization. This results in the medical treatment of often severely disabled individuals coming to a standstill. This benefits no one in most instances since it will simply prolong periods out of work and periods of total disability. It is a fantasy on the part of the Workers' Compensation Board to believe that this aspect of the guidelines can work. Second, the guidelines have been applied to all treatment on all existing claims, including chronic claims where longstanding treatment that was always approved in the past is now considered unnecessary. This has resulted in objections to and mostly denial of treatment that injured individuals have found helpful for many years and to which they were told they would be entitled for life. Many of these individuals and there doctors would tell you that these treatments are extremely helpful and keep them working or functioning. Currently, there is legislation stalled in the state senate that would address the issue of application of the guidelines to older cases. I would urge everyone reading this to contact your state senator to urge passage of this bill and to contact the governor's office to encourage him to sign the bill. This bill would limit application of the guidelines to injuries on or after 12/1/10. Third, some insurance carriers are denying treatments that are, in fact, covered under these guidelines because they misread or misunderstand then and a small number appear to be using the guidelines to try to essentially cut-off all treatment. This results in hearings having to be held to resolve virtually every treatment provided to claimants or treatments that are specifically authorized. This not only delays the treatment to the injured worker but is a terrible waste of resources. It costs the Workers' Compensation Board money to hold the hearing, it costs the insurance company money to have representation at the hearing and it often costs claimant's money to be represented. I would urge everyone reading this to call your state senators, legislators, the governor's office and the Workers' Compensation Board to urge repeal of these guidelines. The old system where prior approval was required for treatment over $1000 and insurance companies could object to treatment based upon evidence specific to an individual case was working just fine for the most part. While there probably could have been some improvements to that system from all perspectives, the Workers' Compensation Board used a cannon where a fly swatter would have done.