Guidelines With Pre-Authorized Specific Procedure List for Medical Tests and Services Held Valid; Variance Procedure for Tests and Services Not on List Held Valid

In a full-fledged opinion by Justice Spain, the Third Department determined the Medical Treatment Guidelines created pursuant to Workers’ Compensation Law section 13-a (5) were valid and enforceable.  The Guidelines were adopted as the standard of care for all medical treatment for workplace injuries rendered on or after December 1, 2010, relating to injuries to the back, neck, shoulder and knee. The Guidelines include a preauthorized-specific-procedure-list for many common medical tests and services which do not require prior authorization. The regulations set forth a variance procedure in which treatment providers may request approval for medical care or testing that is not preapproved upon a showing that the treatment is appropriate and medically necessary.  In the case before the court, the denial of claimant’s request for a variance for acupuncture treatment was affirmed.  The dissenting justice argued there was “no support for the majority’s position that the [Guidelines] were intended to create a preordained and exhaustive list of medically necessary treatments, thereby rendering all non-listed treatments presumptively not medically necessary and creating a presumption that the employers/carriers could ‘rely on’ in fulfilling their statutory obligation to provide medical care to injured claimants.”  Matter of Kigin v State of New York Workers’ Compensation Board…, 515721, 3rd Dept 7-18-13