New “Medical Treatment Guidelines” Do Not Exceed Statutory Authority of the Workers’ Compensation Board

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissent, determined that the Workers’ Compensation Board did not exceed its statutory authority when in promulgated its “Medical Treatment Guidelines” ( 12 NYCRR 324.2 [a]-[f]).  The Board had rejected payment for claimant’s acupuncture treatments which exceeded the duration of such treatments allowed by the guidelines:

The Guidelines include the list of pre-authorized medical procedures and set forth limitations on the scope and duration of each procedure. They also set forth a variance procedure, under which medical treatment providers can, on behalf of a claimant, request authorization for medical care not included in the Guidelines or in excess of the scope and/or duration that is pre-authorized (see 12 NYCRR § 324.3 [a] [1]). The medical treatment provider requesting a variance must demonstrate that the requested treatment is appropriate for the claimant and medically necessary … . * * *

The Board is authorized to “adopt reasonable rules consistent with and supplemental to the [Workers’ Compensation Law]” (Workers’ Compensation Law § 117 [1]). Courts will uphold regulations that have “a rational basis and [are] not unreasonable, arbitrary, capricious or contrary to the statute under which [they were] promulgated” … . * * *

Under the regulations, the burden of proof to establish that a variance is appropriate and medically necessary rests on the treating medical provider (12 NYCRR 324.3 [a] [2]). Whether a treating medical provider has met this burden is a threshold determination that must be made whenever a carrier properly and timely articulates an objection to a variance request. Matter of Kigin v State of NY Workers’ Compensation Bd, 2014 NY Slip OP 08052, CtApp 11-20-14