State News : New York

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New York


  (716) 852-0003


Presented by

Renee E. Heitger,  Esq.

Kigin v. State of NY WCB, 109A.D.3d 299 (3d Dept. 2013)

2 Big Questions:

1)Does the Board have the Statutory Authority to issue the MTG and 12 NYCRR 324? 2)Are the MTG and 12 NYCRR 324 contrary to the Statute, i.e., WCL Section 13, by impermissibly shifting the burden to treating medical providers (TMP) to demonstrate medical necessity?

Answer to Question 1

Yes, the Board has Regulatory Authority to promote the overall Statutory framework of WCL Section 13, and to decrease bill disputes and delays in providing effective and necessary treatment.

Therefore, the MTG and 12 NYCRR 324 were lawfully promulgated.

Answer to Question 2

MTG comport with the spirit and intent of, and are not contrary to Section 13(a), in providing appropriate and medically necessary treatment.

Additional Questions Addressed by the Court:

MTG do not deprive claimants of due process as the Board authorizes an expedited procedure.

MTG and variance process do not exclude any particular care, just changes the process in determining medical necessity.

Application of the MTG to all prospective treatment on or after 12/1/10 does not constitute retroactive application.

Additional Questions Addressed by the Court:  (cont’d)

Proposed Non-Acute Pain Treatment Guidelines will only supplement current MTG so the current MTG can apply to chronic cases.

Court of Appeals accepted claimant’s motion for leave to appeal.   . . . . to be continued . . . .

Practice Tips Re:  Variances

If you believe there is a Burden of Proof issue, specifically raise it on the MG-2 denial:  there is now a specific box for that denial.

If you only raise a Burden of Proof issue, and the Medical Arbitrator or ALJ disagrees and finds the TMP met his or her burden, then the treatment will be authorized. 

Therefore, if you want to preserve your right to submit a contrary medical opinion, you cannot wait and it must be submitted with the denial.  Include Burden of Proof and the contrary medical opinion as the basis for denial.

The contrary medical can be from an IME, a records review with an IME or authorized provider, or from your medical professional.   Watch the deadlines!!

If you obtain a contrary medical opinion, make certain your consultant comments on more than just the maximum amount of treatment permitted under the Guidelines and focuses on the substance of what TMP has provided to support his variance request, as TMPs are getting more proficient in supporting their MG-2 requests.

Partial granting of variance is now permitted.

If there is no evidence of a re-examination by the TMP within the first   2-3 weeks after initiating treatment, TMP really cannot meet Burden of Proof.

The Narcotic Prescription Dilemma

Board Subject No. 046-457 states:

  “The Medical Treatment Guidelines do not require, and are not intended to recommend,  the immediate cessation of prescription narcotics … for claimants who have been using such medication long term.

   There are very significant health risks associated with the sudden withdrawal of narcotics and other pain medications.  The MTG allow for the use of pain medication beyond the maximum duration.

  Therefore, carriers should continue to pay for these medications without a variance request.”

Practice Tips

Before a claimant begins using medication “long term”, notify the prescribing doctor from the very beginning that the Medical Treatment Guidelines apply and inform TMP that those Guidelines generally state “narcotic medications should be prescribed with strict time, quantity and duration guidelines and with definitive cessation parameters . . . “  Then refer the TMP to the Guidelines for specific details.

Consider C-8.1(B) and (A) if TMP does not provide this treatment plan for prescriptions.

Consider C-8.1(B) and early IME if medications continue beyond the maximum.

If a claimant is already on medication long term, obtain an IME on the various prescription medications being utilized, request review of those prescription medications and any tox screens, and have the doctor comment on the medical necessity and appropriateness of those ongoing medications.  If not medically necessary and appropriate, have the doctor outline a weaning program which you are willing to authorize.  Then request a hearing to address the issue.

Board Decisions

Strong Independent Medical Examination from pain management specialist, and contrary opinion from TMP pain management specialist resulted in litigation and affirmation of discontinuation of narcotics with proper weaning. NYS Dept. of Corrections, 2013 WL 6512422 (12/10/13)

TMP, not pain management specialist, and SFCC’s consultant, pain management specialist performed record review without exam gave contrary opinions on medications.  The Judge found the consultant lacked credence and authorized the medications.  Board Panel held that decision in abeyance pending referral to an impartial specialist.  Quality Engine Dist. Inc., 2013 WL 6512423 (12/10/13)

Impartial specialist reviewed and noted one narcotic moot (claimant stopped), and one could “possibly be tapered”.  Board relied on that and opinion of new pain management TMP to continue the one narcotic. Tomkins Metal Finishing, 2013 WL 3287889 (6/24/13).

TMP pain management specialist and SFCC’s medical record review by specialist in physical medicine and rehabilitation gave conflicting opinions on MG-2 for prescription narcotics.  Board Panel rescinded granting of the variance since no variance required and rescinded direction that TMP formulate transition plan to non-opioid.  Narcotics were continued. Elderwood Affiliates, Inc. 2013 WL 1853849 (4/25/13).

Practice Tips (cont’d)

Request that the prescribing doctor conduct regular tox screens to ensure compliance.  They should provide the results.

If abnormal, consider IME for medical necessity,  appropriateness, and treatment plan.

If multiple providers prescribing medication, advise each what else is being prescribed and ask if still medically necessary and appropriate.  Consider IME.


No clear indication or time frame with regard to when a claimant’s pain goes from acute to “Non-Acute”, and when the Non-Acute Pain Medical Treatment Guidelines would be applied.

The Board has characterized the Non-Acute Pain Treatment Guidelines as a supplement to the current recommendations on chronic pain, which are reflected in each of the Medical Treatment Guidelines.

Provide a strong focus and restrictions on the use of opioid medications, and alternatives should they not work.

Additional focus is on decreased pain levels and objective increase in function with treatment, as well as self-management.

No evidence to support increased efficacy of brand name meds, yet proposed MTG do not specifically recommend generics.

Proposed MTG state that Urine Drug Testing results are not to be shared with the Board, carriers, or employers, yet they are subject to interpretation and that interpretation can be “challenging” at times.

Comments were to be submitted by 6/10/13.  To be continued  . . . . .