WHAT HAPPENS AFTER A DENIAL OF A VARIANCE REQUEST?

There are three possible resolutions to the denial of a variance: informal discussion between the Health Care Provider and the Carrier, review by a WCB Law Judge, or submission for a Decision by a Medical Arbitrator. 

INFORMAL DISCUSSION - 8 DAYS
The Health Care Provider and the Carrier have 8 business days to attempt to resolve their dispute regarding the authorization for a variance.  If the dispute is resolved, the Carrier completes secion G of form MG-2 indicating that the matter was resolved by agreement. 

FORMAL REVIEW - 21 BUSINESS DAYS FROM RECEIPT OF DENIAL
If the informal road leads to nowhere, the Health Care Provider must notify the Claimant and the Claimant's Attorney.  The Claimant and his/her Attorney can then decide whether they will seek a formal review of the denial, either by the WCB or a Medical Arbitrator.  If a formal review is sought, the Claimant must file Section F of form MG-2 within 21 business days from the date of the receipt of the denial.  The Claimant has a choice of whether to use the WCB Law Judge or a Medical Arbitrator to review the variance and denial.  That choice is made by checking the appropriate box in Section F of form MG-2.  If no choice is made the default option is expedited review by a WCB Law Judge "Rocket Docket".  If the Claimant chooses a Medical Arbitrator the Carrier must also agree to that method of resolution, and vice-versa. 

A Medical Arbitrator's Decision is not subject to Appeal.  The review happens without the participation or appearance of the parties.  All documents are reviewed.  

If the Expedited Hearing option is chosen, the Hearing will be held within 30 days after the period of informal resolution expires.  One or both parties must request this type of resolution (meaning the right to an expedited hearing cannot be waived).  Medical testimony will be required by virtue of depositions.  Adjournaments will only be permitted for up to 30 days and only for cases involving complex medical issues of causation or diagnosis.     

Carriers' Roles Under the New Medical Treatment Guidelines

Carriers will have to designate a qualified employee who the WCB can contact about variance requests.  These contacts will be published on the WCB's Website.  This is designed to help the Health Care Providers so that they know who to send their variances to. 

WHAT CARRIERS SHOULD DO AFTER RECEIVING A VARIANCE REQUEST
Carriers have to decide whether they will obtain an IME or review of the records report.  If the Carrier plans to obtain either an IME or a review of records report, they must notify the WCB of that intention within 5 days of receipt of the variance request.  If the variance was sent by e-mail or fax, the received date is deemed the same date of transmission, whereas if the variance was sent via mail the received date is five days from the date of postage.  The Carrier notified the WCB of their intention to obtain an IME or review of the records by completing section "D" of of the form MG-2. 

If the Carrier does not plan on getting an IME or review of the records report, the Carrier must notify the WCB within 15 calendar days after receipt of the variance request.  If the Carrier has chosed to get an IME or review of records, the Carrier must issue a responde to the varriance request within 30 days of receipt of that variance request.  Since this creates a huge burden on Carriers, one suggestion has been to get examining physicians to set aside one day per month for these varriance requests. 

POSSIBLE RESPONSES TO VARIANCE REQUESTS
1) Approval.
2) Denial - Denials must be issued even if the Carrier has already filed a C-7 controverting the case.  Controverting the case is not enough to constitute a denial of the variance. 
3) AuthorizeWithout Prejudice - available only if the claim has been controverted or the time to respond has not yet expired.
4) No response - if a Carrier does not respond within the time allotted the Chair will issue an Order of the Chair.  This decision will likely result in an approval of the variance.  An Order of the Chair issued for no response or for an untimely response is not subject to an Appeal under WCL Sec. 23.

DENIAL OF VARIANCES
Denials must be fully explained by the Carrier under Section "E" of form MG-2.  Any reason for denial that is not explained is waived.  There are 4 possible grounds for denial:

• Treatment requested has already been rendered
• Health Care Provider did not meet burden of proof
• Treatment requested is not medically appropriate or necessary (must be supported by an IME or review of the records report)
• Claimant failed to appear to a scheduled IME. 

If the Carrier's denial is based on the treatment not being medically necessary or appropriate, the Carrier must have had the request examined/reviewed by an IME or records reviewer, must attach the IME reports or review reports, and must submit citations to peer-reviewed medical journals in support of the denial. 

Overview of Medical Treatment After December 1st 2010

As of December 1st 2010, the New York Workers' Compensation Board has fully adopted the new Medical Treatment Guidelines.  These Guidelines, which only affect treatment for the neck, back, shoulders and knees, have now become the mandatory standard of care for ALL injured workers, REGARDLESS of the date of accident.


TWO - PRONG TEST:
1) Medical treatment provided for work related injuries to the neck, back, shoulders and/or knees must be "consistent with the MTG". 
2) "Consistent with the MTG" means that the treatment is provided within the criteria and correct application of the MTG.  The determination of whether the treatment being rendered falls within the criteria and correct application of the MTG is left for the WCB Judges to interpret. 


GENERAL PRINCIPLES
Each first section of the MTGs contains statements of "General Principle", which are crucial to ensure correct application and interpretation of the MTGs.  In total there are 23 General Principles, which are divided into 6 categories.  Here are the two most important general principles: 
1) The purpose of medical care is to restore functional ability required to meet daily and work-related activities, to obtain a positive patient response primarily defined as functional gains which can be objectively measured, and to provide effective treatment which includes evaluations and re-evaluations of treatment and which discontinues ineffective treatments.
2) Treatment should emphasize active interventions over passive modalities (i.e., therapeutic exercise instead of manipulation), should include passive intervention as a means to facilitate progress in an active rehabilitation program, and should resort to surgical interventions only when there is correlation of clinical findings, clinical course, imaging and other diagnostic tests.


PRE-AUTHORIZATION FOR TREATMENTS
Under the MTGs all treatment consistent with the criteria and application are deemed pre-authorized.  There are 13 exceptions to that rule, or, 13 specific procedures for which a doctor must obtain pre-authorization:

• Back: lumbar fusion, vertebroplasty, kyphoplasty, low-back artificial disc replacement, and spinal cord stimulator
• Neck: Artificial disc replacement and spinal cord stimulator
• Shoulder: anterior acromioplasty
• Knee: Chrondroplasty, osteochondral autograft, autologous chdrondrocyte implantation, meniscal allograft transplantation and knee arthroscopy (total or partial knee replacement) and any duplicative surgery/treatment. 

Health Care Providers who wish to perform any of these procedures must request authorization from the Carrior prior to performing these procedures.  It is also important to note that the new MTGs specifically prohibit any treatment that is experimental or not yet approved by the FDA.  If the treatment being requested is not listed, the Medical Provider must request a variance to determine whether a Carrier will have to pay for the treatment being requested. 


As noted above, any repeat surgery or treatment requires pre-authorization. 


VARIANCES
These licenses to perform a treatment either not listed or within the exceptions in the MTGs are much like the old "Request for Authorization" formally filed by virtue of a C-4AUTH.  There are four circumstances in which variances must be sought:
1) If the Health Care Provider believes that the Claimant would benefit from a treatment not listed in the MTGs;
2) If the Health Care Provider believes that the Claimant would benefit from a treatment that is within the MTGs but not recommended by the MTGs;
3) If the Health Care Provider believes that the Claimant would benefit from treatment found in the MTGs but not specified at this point in the course of the Claimant's treatment; or
4) If the Health Care Provider believes that the Claimant would benefit from treatment that is within the MTGs but exceeds the maximum number or frequency limit for that particular treatment. 


HOW TO REQUEST VARIANCES
Variances must be requested by filing the form MG-2 (accessible via this link http://www.wcb.state.ny.us/content/main/forms/MG2.pdf).  The entire form must be completed and signed by the Health Care Provider and submitted both to the Carrier and the Workers' Compensation Board (can be faxed to the WCB at 1-877-533-0337).  If the Health Care Provider is requesting more than one treatment, he/she should use the form MG-2.1 for each additional treatment being requested (accessible via this link http://www.wcb.state.ny.us/content/main/forms/MG2_1.pdf).    Both forms must be transmitted at the same time to the WCB.  The Health Care Provider must provide: 

• the basis for the opinion that the treatment or test being requested is appropriate and medically necessary;
• a statement that the Claimant agrees to the proposed treatment/test;
• any signs or symptoms which failed to improve with treatment provided in accordance with the guidelines; or
• the objective improvements made by a particular treatment and the expected improvements with more of the same treatment.  

For treatments being requested that are not addressed by the MTGs, the Health Care Provider should also submit copies of peer reviewed medical journals and relevant articles which lend support for the treatment being requested. 


Treatments that are specifically eliminated by the MTGs, such as discography) will not be approved. 


OPTIONAL PRE-APPROVAL REQUEST
Health Care Providers who wish to make sure that the treatment being rendered is in accordance with the MTGs can file an optional request for approval by submitting a form MG-1 (accessible via this link http://www.wcb.state.ny.us/content/main/forms/MG1.pdf).  The form should be completely filled out and submitted to both the Carrirer and the WCB for review.  If more than one treatment is being contemplated for which optional prior approval is being sought, the Health Care Provider should file form MG-1.1 (accessible via this link http://www.wcb.state.ny.us/content/main/forms/MG1_1.pdf) for prior each additional treatment. 


 

The Insurance Carrier Sent Me a Notice Saying That I Have to See a Specific Doctor on a Specific Date. Do I Have To Go to That Appointment? What Is That?

Yes, you do.  That notice, which should have come in a form labeled “IME-5” is an IME notice, or Independent Medical Examination.  The Carrier can request that you see an IME so that they can get a second opinion regarding your doctor’s medical evaluation of your condition.  Although these IMEs are supposed to be independent, in reality they represent the interests of the insurance companies and will most likely not know much about your case, or even examine you thoroughly.  Independent of how awful that examination goes, the Carrier has the right to rely on their IME’s opinion and if that opinion is different than that of your doctors’, your attorney will have to depose both doctors in order to demonstrate that your doctor is the more credible one.  Until the Judge makes a final decision regarding which medical opinion best reflects your current situation, the Carrier can pay you according to the IME’s opinion.  If the IME says you are not disabled at all, that will mean you will not receive benefits until the Judge rules otherwise.

If My Employer Terminates Me, Can I File For Unemployment and Still Collect Compensation?

It depends on your degree of disability.  In order to file for unemployment you must be ready, willing, and able to work and you must be actively looking for work.  If you are claiming total disability from work, you cannot collect unemployment because a totally disabled person is not ready, willing, and able to work.  However, if you are claiming to be only partially disabled, you may be able to collect unemployment as long as you demonstrate that your work search is within the medical restrictions set out by your doctor.  The total amount you collect on both Workers’ Compensation wage benefits and unemployment combined cannot exceed what you were making at work.

Can My Employer Terminate Me If I Have to be Out of Work Due to My Injuries/Disability?

The short answer is yes, however, this is true not just because of your disability, but rather because like most states, New York is an “employment at will” state, meaning that your employer can terminate you for any reason except the few enumerated discriminatory exceptions.  What happens to your position if you are unable to return to work due to a disability will be dependent on your employment agreement with your employer and if no such agreement or employment contract exists, then your employer may terminate you based on the fact that your position cannot be left open.  However, and importantly, your employer cannot terminate you in retaliation for you filing a Workers’ Compensation claim.  A retaliation claim is very difficult to prove because you would have to show that the sole reason for your termination was the fact that you filed the Workers’ Compensation claim.  Remember, despite termination you would still be entitled to wage benefits from that employer’s Carrier for as long as you can demonstrate that you are disabled as a result of that work accident. 

My Employer is Using My Sick/Vacation Time and Paying Me Wages While I Am Out of Work. Will I Be Able to Get My Sick/Vacation Time Back? What Will Happen When I Run Out of Sick/Vacation Days?

If your employer is paying you wages while you are out of work due to your disability, your employer is entitled to file a reimbursement request with the insurance company.  The important thing to know here is that your employer is only going to be entitled to receive the amount that you would be receiving under workers’ compensation had you been receiving compensation instead of your wages.  That amount will not be the same as your wages.  The amount you are entitled to receive in compensation benefits is determined according to your average weekly wage and your degree of disability, and it is capped at a statutory maximum existent on your date of accident.  This means that your employer will likely return to you some – but not all – of your sick/vacation days (the amount of days equivalent to the amount your employer will be receiving). 

If you run out of sick/vacation days and are still out of work, you will be entitled to workers' compensation wage benefits in the amount equivalent to your disability level according to your AWW and limited to the statutory maximum for your date of accident.