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New York


  (716) 852-0003


Presented by:

Renee E. Heitger, Esq.

Hamberger & Weiss


Livingston County, 2011 WL 5618432 (WCB No. 79905338)

3 Big Questions:

1)     Does the Chair have the Statutory Authority to issue the MTG and 12 NYCRR 324?

2)     Are the MTG and 12 NYCRR 324 contrary to the Statute, WLC Section 13?

3)     When will treatment for an exacerbation be deemed consistent with the MTG?


Legal Analysis re: Question 1

WCL Section 117 authorizes the Chair to make reasonable regulations consistent with the provisions of this chapter, and authorizes the Board to adopt reasonable rules consistent with and supplemental to the revisions of this chapter, so long as they are rational and not arbitrary and capricious.

WCL Section 141 authorizes the Chair to enforce Regulations & Orders.

WCL Section 142 grants the Board the power to hear and determine claims for compensation or benefits and power to require medical service for claimants.

Comparison to 12 NYCRR 300.38(f) which requires timely, PH-16.2 in controverted cases or all defenses waives.


Answer to Question 1

Yes, Chair has Regulatory Authority to promote overall Statutory framework of WCL Section 13, and provide swift and sure determination of scope of reasonable and necessary treatment.

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


Legal Analysis re: Question 2

WCL Section 13(a) requires the employer to pay for treatment for such period as the nature of the injury and process of recovery requires.

However, no payment required for unnecessary, duplicative or inappropriate treatments and tests.

Claimant is entitled to needed care, but not unlimited and unchecked.

MTG are a logical supplement to the statute, designed to decrease disputes and increase timely payment.

Burden of proof is on Treating Medical Provider (TMP) to establish evidence to support variance.

Basis for opinion

Claimant agrees

Why alternatives not appropriate

And if frequency and duration issue,

Objective functional improvement with treatment

Reasonably expected to improve with further treatment.


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.


Legal Analysis re: Question 3

General statements not supported by documented objected measures of functional improvement are insufficient, e.g.:

Periodic flare-ups with gradual and insidious onset.

Treatment decreases pain and restores and maintains positional tolerances and ROM.

Suspects continued exacerbations will occur.


Answer to Question 3

An exacerbation must be fully documented by

When and how it occurred.

Show objective changes from baseline function.

Show claimant’s response to treatment with documented measures of functional improvement.

Sometimes documenting past history of exacerbations supports that future exacerbations are likely.


Medical Director’s Office BulletinMDO-2012 #1

What is an exacerbation?

Temporary worsening of prior condition by an exposure/injury.

Following transient increase in symptoms and signs, and decrease in function, claimant recovers to baseline.


Variance Required?

Not for initial treatment if consistent with MTG.

Yes, if inconsistent, such as beyond recommended limits, or not showing objective functional gains.


What are the documentation requirements?

Reiterates findings by Board Panel inLivingston Co.


Treating provider cannot request treatment for future exacerbations.

What are the most relevant general principles pertaining to exacerbation?

General Principal  1:Medical Care

General Principal  3:Positive Patient Response

General Principal  4:Re-evaluate Treatment

General Principal  5:Education

General Principal 10:Active Interventions





How can objective functional improvement be documented?

Initial evaluation—compare to pre-exacerbation


Objective functional findings/abilities

Return to baseline (pre-exacerbation exam)?


If function not at baseline, what gains are expected and what treatment is planned in order to get there?

Ultimate goal: return to pre-exacerbation function


What forms to use?

C-4.2 or EC-4NARR if treatment consistent with MTG.

MG-2 if not consistent.


Additional Questions answered byLivingston Co.

Contrary medical evidence is not required to deny variance if

Treatment done before variance

Treating provider failed to meet burden of proof

Such denial must be articulated.

To respond to variance, no IME or formal record review is necessary, medical professional opinion is acceptable.

Suggests that partial granting of variance request is acceptable if treating provider did not meet burden of proof.

Full Board Review request was denied inLivingston Co., but Notice of Appeal to Appellate Division filed.

To be continued . . . .


Practice Tips

If you believe there is a Burden of Proof issue, specifically raise it on the MG-2 denial citing §324.3.a.3.

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.

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.

True exacerbations don’t require


           MG-2.  TMP frequently still utilize them. If the criteria outlined in the Livingston Co. case and the Medical Director’s Office Bulletin are not met:

Deny the MG-2 specifying that the criteria required to establish an exacerbation have not been met.

If there is no MG-2, file a C-8.1(B) objecting to treatment citing the MTG issues.


More relevant Board Panel Decisions

Place Optical Co. Inc., 2012 WL 369707   (WCB No. 78511469)

Prior WC Decision authorizing treatment without term limit, end date or statement that treatment authorized for life does not preempt MTG.

Suggested that a prior valid written stipulation (pursuant to 12 NYCRR 300.5) is binding.


Delphi Harrison, 2012 WL 607066            (WCB No. 80100230)

Treating provider may not collect fees from claimant for treatment for work-related injury.

Will be referred to Office of Health Provider Administration for review and appropriate action.


Evergreen Painting Studios, 2012 WL 606857 (WCB No. 00714529)

MTG do not apply to consequential headaches despite that they are consequential to neck, a covered site.


Vastly different opinions on medical necessity and appropriateness of prescription medications resulted in WCB referring the issue to its impartial specialist.

Note: Here C-8.1’s were filed against treating provider for prescriptions, but if filed against pharmacy, in some cases, examiners are simply advising carriers that C-8.1’s are not appropriate against a pharmacy, but direct employer/carrier to notify pharmacy, with copy to claimant and attorney, of the objection.


Tompkins Metal Finishing, 2011 WL 6963865 (WCB No. 70501432)

RFA-2 to address treatment with prescription narcotics filed prior to 12/1/10, based on pre-MTG IME.

WCLJ authorized narcotics per MTG at 12/6/10 hearing.

Board cited its Subject No. 046-457 which 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.”

Board found no variance request required and the WCLJ properly applied MTG in authorizing narcotic medications and properly found trial moot.


However, thereafter, variance request was filed, denied based on medical professional opinion, and development of the record took place with testimony of treating provider and prior IME.

WCLJ found Board’s prior decision only addressed whether variance was needed immediately after effective date of MTG.


WCLJ found treating provider did not meet burden of proof in establishing variance for further narcotics, and authorized weaning program recommended by IME.

Claimant appealed . . To be continued.


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 him 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 early IME if medications continue beyond the maximum.

If a claimant is already on medication long term, obtain an IME with a clear focus on the various prescription medications being utilized, 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.

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


If abnormal, consider IME for medical necessity and 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.







Subject No. 046-469

Enclosed proposed CTS Treatment Guidelines

Requested comments by 12/1/11.

Nothing new since then.


Proposed Guidelines


           ∙“Both documentation of appropriate symptoms and signs and a statement attesting to probable work-relatedness must be present for a CTS claim.”


History and Exam

Objective clinical findings should have preference if findings on clinical exam and other diagnostic procedures do not complement each other.


Laboratory testing rarely indicated unless another condition suspected.

Establishing work relatedness


Outcome (diagnosis)

Relationship to work stated as a “probability”

Usually see

Forceful use of hands, wrists

Repetitive use combined with some force

Constant firm gripping of objects

Moving or using hand and wrist against resistance or with force

Exposure to strong regular vibrations

Regular or intermittent pressure on wrist


Making Diagnosis:

Signs and symptoms



Non-operative treatment


Wrist splint at night

Restrict activities like forceful grip, awkward wrist position, repetitive motion

Patient education

RTW ASAP including light duty

Steroid injections

Nerve gliding exercises


Generally manual therapy not recommended nor is low level laser, iontophoresis, magnets or laser acupuncture


Surgical indications

Various indications recited.

Of interest, clinical impression of moderate-severe CTS, with normal EDS studies is generally a mistaken diagnosis.  Surgery may be considered only if these criteria are met.

Signs and symptoms are specific for CTS and

Significant temporary relief after steroid injection into carpal tunnel. 

Only under this circumstance is preauthorization required.


Operative procedures

Neurolysis—not proven advantageous

Internal neurolysis never; external neurolysis rarely indicated.

Tenosynovectomy generally only in unusual case when CTS accompanied by R.A. Would need C-4 AUTH.


Post-operative treatment

Home therapy and use of hand.

Immediate mobilization generally shown to be better, but possible splinting is at the discretion of the doctor.

Sometimes individualized rehabilitation program are helpful if no functional improvement or in patients with heavy or repetitive jobs.

Open communication re: RTW. It is the responsibility of the doctor to provide clear restrictions and the responsibility of the employer to determine if temporary LD is available.

Repeat surgery requires C-4 AUTH.




To develop additional guidelines for treatment of work related conditions, starting with management of chronic pain conditions.

9 doctors on the committee as well as a representative of the Business Council of NYS and Art Wilcox representing the NYS AFL-CIO

To be continued. . . . . . .

Question re: Licensing fee, in connection with use of the MTG, being charged by American College of Occupational and Environmental Medicine (ACPEM).

           *See WCB;’s official response attached.



For more information, contact Ronald Weiss at 585-262-6391, or

Mark Hamberger at 716-852-5200,