Case # 70006024
Date of Accident: 05/11/2000
District Office: Rochester
Employer: Xerox Corp.
Carrier: Continental Casualty Company
Carrier ID No.: W063002
Carrier Case No.: 1K023256M6
Date of Filing of Decision: 12/05/2012
Claimant's Attorney: Segar & Sciortino
Panel: Robert E. Beloten

The Full Board, at its meeting held on October 16, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed March 2, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether Dr. Zeidman's variance request for a new mattress for the claimant should be authorized.

The Workers' Compensation Law Judge (WCLJ) denied Dr. Zeidman's variance request for a Tempurpedic mattress.

The Board Panel majority, modifying the WCLJ's decision, approved the variance request.

The dissenting Board Panel member would have affirmed the WCLJ's decision denying the variance.

The carrier filed an application for Mandatory Full Board Review on March 30, 2012.

The claimant filed a rebuttal on April 11, 2012.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This case is established for left thumb and back injuries sustained on May 11, 2000. Awards have been directed awards at various rates since May 19, 2000. On March 8, 2011, the claimant underwent lumbar laminectomies at L2-L5, which procedure was performed by Dr. Zeidman, the claimant's treating physician.

Following the claimant's surgery, Dr. Zeidman authored a March 29, 2011, report, and within this report, Dr. Zeidman requested authorization for a new mattress for the claimant. In support of this request, Dr. Zeidman indicated the claimant reported that she did not have a good mattress at home and has been sleeping on a recliner because the pain is very severe and the claimant does not currently have a supportive mattress. In an addendum dated April 7, 2011, Dr. Zeidman's physician's assistant requested a queen size Tempurpedic mattress (any model) to provide support to the claimant's spine for the claimant's known diagnosis of lumbar disc degeneration. The addendum was not countersigned by Dr. Zeidman.

On April 11, 2011, Dr. Zeidman filed a MG-2 form and requested approval of a variance, specifically requesting any model queen size Tempurpedic mattress. In support for this variance request, Dr. Zeidman attached his March 29, 2011, report and the physician's assistant's addendum.

The carrier denied Dr. Zeidman's variance request on April 14, 2011, pursuant to Sections D.2.e, D.2.3.ii, and D.2.3.iii of the Mid and Low Back Medical Treatment Guidelines (MTG), and on the basis that Dr. Zeidman failed to meet his burden of proof.

On April 20, 2011, the claimant acknowledged the carrier's denial of Dr. Zeidman's variance request and opted for a decision on this issue to be made at a Workers' Compensation Board hearing. The Board granted the claimant's request and scheduled a hearing for May 31, 2011.

On May 31, 2011, the WCLJ denied the variance request pursuant to Sections D.2.e and D.8 of the MTG. The WCLJ, in citing these sections, found that while the guidelines state that claimant should find a comfortable sleeping posture, at mid and low back guideline D.8 it states "there is no quality evidence that specific commercial products have any roles in primary prevention or treatment of acute, subacute, or chronic back pain." The WCLJ's denial, along with continuing awards, was memorialized in a decision filed on June 3, 2011.

LEGAL ANALYSIS

12 NYCRR 324.3(a)(1) provides that when a treating medical provider determines that medical care that varies from the MTG is appropriate for the claimant and medically necessary, he shall request a variance from the carrier. This act was completed on April 11, 2011, when Dr. Zeidman completed and forwarded a MG-2 form to the Board and the carrier requesting any model Tempurpedic mattress.

12 NYCRR 324.3(a)(3)(i)(a) provides that all variances require a medical opinion from the treating medical provider, including the basis for the opinion that the proposed medical care that varies from the MTG is appropriate for the claimant and medically necessary.

12 NYCRR 324.3(a)(3)(i)(c) provides that all variance requests provide an explanation of why alternatives under the MTG are not appropriate or sufficient.

12 NYCRR 324.3(a)(3)(ii)(a) provides that for all appropriate claims, the medical provider should provide a description of any signs or symptoms which have failed to improve with previous treatments provided in accordance with the MTG.

The MTG for the mid and low back contain a section regarding non-operative therapeutic procedures, including appliances such as mattresses and sleeping surfaces. In D.2.e of the mid and low back Guidelines, "[I]t is recommended that patients select mattresses, pillows, bedding, or other sleeping options that are most comfortable for them. There is no recommendation regarding mattresses other than that providers should be aware that ordering patients to sleep on firm mattresses or on the floor may be incorrect. There is no quality evidence to guide recommendations regarding other optimal sleeping surfaces (e.g., bedding, water beds, and hammocks)."

Section D.8, titled "Sleep Posture" states:

D.8.a.i

"Alteration of sleep posture may be recommended in acute, subacute or chronic back pain that results in nocturnal awakening, particularly if not amenable to other treatments. The most appropriate sleep posture is that which is most comfortable for the patient. If a patient habitually chooses a particular sleep posture, it would appear reasonable to recommend altering posture to determine if there is reduction in pain or other symptoms."

D.8.a.ii

"There is no quality evidence that specific commercial products have roles in primary prevention or treatment of acute, subacute or chronic back pain."

As there are no recommendations for any commercial product types, because of the stated lack of evidence of efficacy, the General Guideline Principles are an important reference point. The care and treatment provided to an injured worker "should be focused on restoring functional ability required to meet the patient's daily and work activities and return to work, while striving to restore the patient's health to its pre-injury status in so far as is feasible." (A.1)

The measure of positive results is based primarily on objective functional improvement. (A.2)

"If a given treatment or modality is not producing positive results, the provider should either modify or discontinue the treatment regime…Reconsideration of diagnosis should also occur in the event of poor response to a rational intervention." (A.4)

With respect to time frames, where a patient fails to make expected progress 6 to 12 weeks after an injury, "reexamination in order to confirm the accuracy of the diagnosis should be made. Thereafter, consideration of an alternate treatment program should be made. This may include an interdisciplinary rehabilitation program and may also include a psychosocial evaluation." (A.9)

Dr. Zeidman, in his variance request, states that he is requesting any model queen Tempurpedic mattress. His medical report shows that the patient is now roughly 11 years post-accident. She had lumbar laminectomies March 8, 2010, at L2-5. He lists pain in getting up, pain in her left leg and left buttocks, including radiating pain. She has difficulty sleeping on her left side. He does not indicate any objective functional improvement or a statement that he has evaluated her condition and recommends any particular therapeutic modalities, either passive or active. He provides no analysis with respect to her expected improvement, goals, or any method of improving her ability to function in terms of activities of daily living or work activities.

Nor does Dr. Zeidman provide any reason consistent with, or even in consultation of, the medical treatment guidelines, either in general guideline principals, or the specifics of non-operative therapeutic procedures. He provides scant justification for the mattress, stating merely that he is making the request to provide spinal support for her diagnosed lumbar condition. This would be insufficient to justify a mattress even under the pre-MTG approach of 'necessary treatment', because he has not documented any clinical basis for the mattress. It is wholly inadequate under the MTG, as the Doctor provides no basis, and thus has failed to carry his burden of proof.

The MTG do not indicate what type of mattress should be ordered or used by the claimant for a back disability, only that there are many options available. Thus, a medical provider is not able to provide a reason that a mattress request varies from the MTG (12 NYRCC 324.3[a][3][i][a]), why alternatives under the MTG are not sufficient (12 NYCRR 324.3[a][3][i][c]), or that the claimant's signs or symptoms failed to improve with previous symptoms provided in accordance with the MTG (12 NYCRR 324.3[a][3][ii][a]).

Here, Dr. Zeidman failed to meet the burden of proof that "a variance is appropriate for the claimant and medically necessary" (12 NYCRR 324.3[b][2][i][c]), as defined The regulation states that to meet the burden of proof, the provider must indicate that the varied treatment sought is appropriate for the claimant, that claimant agrees, and an explanation must be provided as to why alternatives under the guidelines are not appropriate or sufficient. Additionally, for appropriate claims, the provider must describe signs and symptoms which have failed to improve with previous treatments provided under the guidelines (12 NYCRR 324.3[a][3][i] and [ii]). Dr. Zeidman failed to provide a statement or analysis as to how the mattress would serve to provide appropriate care under the General Guideline Principles, such as how it is tied to functional goals, how prior treatment has been inadequate, and what functional deficits that failed under prior guideline treatments are expected to improve with the mattress. While a mattress can be an appropriate non-operative therapeutic appliance, so long as the provider meets the burden of proof. To meet that burden, the provider would have to demonstrate findings as set forth in General Guideline Principles outlined above, in conjunction with the statements regarding mattresses under section D of the guidelines, as summarized hereinabove. However, in this case, Dr. Zeidman has failed to meet the required burden of proof and therefore his variance request is denied.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed June 3, 2011, is AFFIRMED. No further action is planned by the Board.