On Monday, January 23, 2012 the WCA released an estimate to the New York State Legislature of the cost of the Medical Treatment Guidelines.  The state Workers’ Compensation Board implemented the Guidelines on December 1, 2010, and has applied them both retroactively and prospectively.

The original intent of the Legislature in authorizing the Board to create a list of "pre-approved" medical treatment and surgery was to expedite medical treatment to injured workers, reducing red tape and litigation.  It was expected that both injured workers and insurers would benefit not only from the reduction in litigation costs but also from speedier return to work.

In practice, the Medical Treatment Guidelines have vastly expanded red tape and litigation, slowed and limited medical treatment for injured workers, and dramatically increased costs for insurers.

The WCA analysis shows that – measured conservatively and using the Board’s own data – the cost of the litigation process associated with the Medical Treatment Guidelines is twice the cost of the medical treatment the Guidelines cut off. 

Instead of reducing costs and speeding medical care to injured workers, the Medical Treatment Guidelines have expanded costs and slowed treatment.  In view of the evidence, the WCA has called on the Board to withdraw the Guidelines and all associated process and to reconsider how to best achieve the Legislature’s intent.  In the interim, the WCA has called on the Legislature to prohibit the Board from retroactive application of the Guidelines as a matter of justice and due process.

The WCA analysis can be found here.

New York Workers Compensation Alliance

The Workers’ Compensation Alliance has reviewed the 2012 Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity (2012 Guidelines) (a copy of the Guidelines can be found here).  We note with approval the continuation of schedule loss criteria from the 1996 Guidelines.  These criteria have served participants in the system well for decades and no compelling argument has been presented for any alterations or revisions.

The WCA recognizes that the medical impairment guidelines are adopted in their entirety from the September, 2010 report from the New York State Insurance Department.  The WCA comments regarding that report can be found here.  The Board has, however, added a “crosswalk” that permits severity ratings for different body parts to be compared on a 0-6 scale. 

The 2012 Guidelines repeatedly state that medical impairment does not translate into loss of wage earning capacity, and that worker’s compensation benefits depend on the loss of wage earning capacity, rather than medical impairment.  This represents a significant shift from present workers’ compensation practice, which tends to minimize the consideration of functional loss and vocational factors except in rare instances (claims for total industrial disability).

The Insurance Department’s Task Force and Advisory Group specifically designed its medical impairment guidelines to prevent comparison of severity rankings across body parts in order to assist in shifting the system’s focus from medical impairment to loss of wage earning capacity.  The WCA is concerned that the Board’s creation of a “crosswalk” will undermine this goal.  Instead of converting medical impairment into a series of letter rankings that cannot be translated into traditional “degrees of disability” as intended by the Task Force and Advisory Group, the “crosswalk” facilitates such translation.  It is therefore of critical importance that in training its personnel the Board place a strong emphasis on the multiple portions of the 2012 Guidelines that prohibit conversion of medical impairment into compensation benefits and which require consideration of other factors.

The WCA is generally supportive of those portions of the 2012 Guidelines that mandate evaluation of the impact of functional loss and vocational characteristics on loss of wage earning capacity.  The WCA commends the Board for recognizing that there are few employment options available for many workers who are limited to sedentary work as the result of occupational injury.  Such workers have little if any earning capacity and must be protected by the workers’ compensation system.

The WCA regrets the lack of guidance in the 2012 Guidelines regarding the respective weight of medical impairment, functional loss, and vocational factors, as well as the specific weight to be accorded to any given vocational factor.  The WCA recognizes that this approach permits an individualized assessment of each injured worker.  However, the absence of guidance may well result in dissimilar outcomes in otherwise similar cases due to the variability inherent in the litigation process. 

If the 2012 Guidelines are applied so that full and fair weight is given to the impact of functional loss and vocational factors on wage earning capacity, then the system may well achieve more substantial justice than it has in the past when inquiry was limited largely to medical impairment.  If, however, the Board fails to properly emphasize the impact of functional loss and vocational factors, or if those factors are accorded insufficient weight in the ultimate determination, then substantial loss of benefits may occur due to the minimization of medical impairment under the new guidelines.

The WCA will continue to monitor the implementation of the 2012 Guidelines and comment as appropriate.

Special Note:  The WCA will be conducting its second Continuing Legal Education Seminar (in conjunction with ACE-CLE) on November 18, 2011. 

New York Workers Compensation Alliance

The Workers’ Compensation Alliance has continued its fight to defend injured workers and their access to medical care.  On June 6, 2011, the WCA sent its third letter to the Chair of the Workers’ Compensation Board, this time opposing the creation of more Medical Treatment Guidelines proposed by the Board.  The letter is posted here.

New York Workers Compensation Alliance

On April 14, 2011, the Workers’ Compensation Alliance released a letter calling on the New York State Workers’ Compensation Board to rescind its Medical Treatment Guidelines and the associated processes. 

The Medical Treatment Guidelines, or MTG, became effective on December 1, 2010.  Over the objections of the WCA and others, the Board declared that the MTG would be applied retroactively to cases in which the injury had occurred years earlier.  Over four months later, it has become apparent that the MTG are being used by the insurance industry to contest and eliminate medical treatment for injured workers.  

The WCA letter states "that the MTG are illegal, have been substantially misapplied by the Board, and that the associated process has imposed new and substantial burdens on injured workers, health care providers, employers, carriers, and the Board’s own staff.  We are frankly unable to envision any modification of the process that would salvage any benefit from this ill-conceived system.  We therefore request that all MTG regulations, paperwork and process be withdrawn by the Board."

Read the full letter here.  

New York Workers Compensation Alliance

Download file

On September 15, 2010, the New York State Insurance Department issued Proposed Disability Duration Guidelines for consideration by the Workers’ Compensation Board in deciding claims for permanent partial disability under the "caps" imposed by the 2007 amendments to the Workers’ Compensation Law.

The communication from the Insurance Department to the Workers’ Compensation Board and the "Proposed Disability Duration Guidelines" envision a three-part process.  The document that has been issued only addresses two parts of that process.  The third part of the process has been left for determination by the Board, and therefore the document does not actually provide guidance on how to calculate awards until the third piece of the process has been completed.

The Flow Chart on pages 6 and 7 of the Guidelines is instructive in terms of outlining the process.

The process does not begin until the claimant has arrived at “maximum medical improvement,” or MMI.  There may, of course, be dispute between the treating physician and the IME whether the claimant has arrived at MMI, and until there is a judicial determination that the claimant is at MMI the process does not begin.

Once MMI has been found, the process first requires an impairment determination, which is a medical issue.  The doctors are asked to identify the diagnosis, clinical findings, and diagnostic test results and to arrive at a "severity ranking."  Much of the Guidelines are devoted to the methodology and criteria for the severity rankings, which are ultimately largely unrelated to benefit awards.

The impairment determination is intended only to provide a foundation for a functional loss assessment.  The doctor is to identify (for example) that the patient has a herniated disc confirmed by a positive MRI with radiculopathy confirmed by a positive EMG, restricted range of motion, and radiating pain.  Those doctors are then to proceed to a functional evaluation.  The main purpose of the severity ranking is simply to serve as a “check” on the functional opinion (it would seem inconsistent to have a high severity ranking and few functional limitations, or vice versa).

The functional evaluation is to specify what limitations (sitting, standing, lifting, pushing, pulling, walking, climbing, etc) the claimant has.  The functional evaluation is to be made by the treating doctor and the IME with a neutral functional evaluator as an option if there is disagreement.

Once the functional limitations have been identified, the remaining step is to determine the extent to which those functional limitations impair the claimant’s earning capacity.  That step was not resolved by the Task Force.  The options that were considered are outlined in the Superintendent of Insurance’s Letter to the Chair.  The Board will be required to develop a methodology to translate a reduction in functional capacity (exertional and non-exertional impairments) into a loss of wage earning capacity, taking into consideration such factors as age, education, and transferable skills. 

Since benefits depend on loss of wage earning capacity and the document does not ultimately address wage earning capacity, but merely the factors that provide the underlying basis for the loss of wage earning capacity determination, these "Disability Duration Guidelines" do not resolve the issue of benefit calculation in cases of permanent partial disability.  We look forward to a further document from the Workers’ Compensation Board linking functional loss to loss of wage earning capacity in PPD cases.

New York Workers Compensation Alliance

Training on the Medical Treatment Guidelines

Date: September 30, 2010

The Workers’ Compensation Board (Board) is preparing to implement a major change in the manner medical care is provided to injured workers. The NYS Workers’ Compensation Medical Treatment Guidelines will become the mandatory standard of care for the mid and low back, neck, shoulder, and knee, effective for dates of service on or after December 1, 2010. These four body parts were chosen because they represent the most frequent claims and the highest medical costs.

The Medical Treatment Guidelines will:

• Establish a standard of medical care for injured workers,
• Expedite quality care for injured workers,
• Improve the medical outcomes for injured workers,
• Speed return to work by injured workers whenever possible,
• Reduce disputes between payers and medical providers over treatment issues,
• Increase timely payments to medical providers, and
• Reduce overall system costs.

It is essential for medical providers, insurers, legal professionals, and their staffs to become familiar with the Guidelines. The Medical Treatment Guidelines are mandatory for all work-related injuries or illnesses to these four body parts experienced by employees in New York State. With few exceptions, all treatment in accordance with the Guidelines is pre-authorized, so providers will no longer have to obtain prior approval if their treatment conforms to the Guidelines. The regulations require that insurers pay providers for services rendered in accordance with the Guidelines. Treatment that is outside the Guidelines will not be paid unless a variance is approved by the insurer or the Board.

Variety of Training Opportunities Offered

This is a completely new process that involves new procedures, with both new and revised forms, so the Board is collaborating with many stakeholder groups to offer a comprehensive training program. The Board is strongly encouraging medical providers, insurers, legal professionals, and their staffs to take the available training, to ensure a smooth transition into the new Medical Treatment Guideline process.

Free Web-based, LEGAL, CME, and CCE Training

A major component of the training program is free web-based training. The courses will be available starting October 4, 2010 on the Board’s web site, at the following URL: http://www.wcb.state.ny.us/content/main/hcpp/MedicalTreatmentGuidelines/MTGOverview.jsp

There are several programs available, each designed for different audiences. The medical provider program is accredited for CME credits; the chiropractor program is accredited for CCE credits. There are also courses designed for attorneys and claimant representatives, as well as for insurers, medical providers’ staffs, and other non-medical persons.

The topics covered include:

• Medical Treatment Guidelines General Principles,
• Mid and Low Back Guidelines,
• Neck Guidelines,
• Shoulder Guidelines,
• Knee Guidelines, and
• Forms and Processes.

CLE Training

In addition to the web-based legal training, the Board, in cooperation with Albany Law School, will offer a Continuing Legal Education (CLE) program on the Medical Treatment Guidelines. The program, worth 3.5 CLE credits including .5 hours of Ethics, is tentatively scheduled for the morning of November 3, 2010, and will be broadcast to locations around the state. No hearings will be scheduled for that morning to allow practitioners to attend the program. More information concerning the CLE program will be placed on the Board’s web site, www.wcb.state.ny.us, when it becomes available.

In preparation for the CLE program, it is recommended that legal professionals take the free web-based training and become familiar with the various standards of care that the Guidelines specify for treatment of injuries to the mid and low back, neck, shoulder, and knee. It may also be helpful to review some of the new Board forms and processes concerning use of the Medical Treatment Guidelines.

Questions and Additional Information

Please contact the Board’s Bureau of Health Management at (800) 781-2362 if you have any questions. Additional information on the Guidelines may also be found on the Board’s web site under Board Announcements at www.wcb.state.ny.us.

You are strongly encouraged to review the information on the Board’s web site regarding the Guidelines and to take advantage of the available training. Thank you for your cooperation in this critically important initiative.

Robert E. Beloten
Chair

New York Workers Compensation Alliance

On December 1, 2010, the New York State Workers’ Compensation Board implemented its Medical Treatment Guidelines.  The Medical Treatment Guidelines limit the treatment available to injured workers and create a complex set of regulations for doctors to ask for a "variance" from the process.

The Board has indicated in several "Subject Numbers" that the Guidelines will apply to all cases, even those with dates of accident before December 1, 2010 and those in which medical treatment has been ongoing.  The Workers’ Compensation Alliance is deeply concerned about the impact of retroactive application of the Guidelines to pending workers’ compensation claims.  As a result, the WCA has issued the following email and letter to the Workers’ Compensation Board:

Honorable Chairman Beloten:

 I am writing to you regarding the Medical Treatment Guidelines, which are effective today.

 The Board has stated that it will apply the Guidelines to all cases past, present, and future, despite the expressed opinion of claimants, attorneys, and health care providers that this is unworkable.

 One issue created by the Board’s insistence that the Guidelines apply to existing claims is that carriers will immediately apply the Guidelines to existing treatment that already exceeds the Guidelines, which means they are going to immediately suspend medical payments in thousands (if not tens of thousands) of cases.

 One example is that the guidelines call for four weeks of physical therapy, followed by a progress report showing functional improvement, which would justify another four weeks.  If the doctor wants continue physical therapy beyond eight weeks, then a variance would have to be requested.

 Another example is that the guidelines call for a maximum of two weeks of narcotic pain medication after an injury and/or after surgery.

 There are tens of thousands of existing cases where more than two weeks of narcotic medication and/or more than eight weeks of physical therapy have already been provided, and it is to be expected that the carriers will immediately suspend payments in virtually all of these cases.  This will result in a flood of MG-2 and C-4AUTH filings, as well as hearing requests.  We frankly wonder whether the staff of the Medical Director’s Office and the Board’s hearing process will be able to cope with the volume of requests that will be generated by the retroactive application of the Guidelines. 

 To the extent that the Board is capable of processing variance requests for continued treatment in cases that were previously not subject to the Guidelines, injured workers will still be faced with having their treatment cut off while the variance requests are being decided.  This will plainly have adverse consequences for injured workers and may increase or prolong disability in many cases where there is a gap in treatment due to the variance dispute.

 There are also thousands of cases in which the Board (through Orders of the Chair and the hearing process) or carriers have already authorized treatment (including courses of physical therapy, medication, diagnostic tests, surgery) that are now not in compliance with the Guidelines.  The Board has offered no guidance on whether the Guidelines invalidate previous authorizations, whether such prior authorization is tantamount to an approved variance, or whether previous voluntary or judicial authorization supersedes the Guidelines.

 We would respectfully suggest that the most appropriate course of action would be to apply the Guidelines prospectively to accidents occurring on or after December 1, 2010.  Failing that, we would suggest that the Guidelines should not be applied to courses of physical therapy or medication that pre-dated December 1, 2010, nor should they be applicable to any treatment or testing that was authorized prior to December 1, 2010.

 Injured workers who were receiving medication or therapy prior to December 1, 2010, and those who have already received authorization for treatment which may not be in accordance with the Guidelines, should have a right to rely upon the continuation of prior practice.  While those who begin such treatment under the Guidelines can be informed at the outset of what their reasonable expectations should be based on the Guidelines, injured workers with existing claims had no such opportunity, and the retroactive application of the Guidelines in these circumstances is unjust and may have adverse health consequences for these individuals.

  Thank you for your careful consideration of these issues. 

 
                                                                                   Very truly yours,

                                                                                    Robert E. Grey

                                                                                    Chair

                                                                                    Workers’ Compensation Alliance

New York Workers Compensation Alliance