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Case # 89315867
Date of Accident: 02/15/1991
District Office: Buffalo
Employer: Harrison Radiator
Carrier: Special Funds Cons. Comm.
Carrier ID No.: W997001
Carrier Case No.:
Date of Filing of Decision: 03/28/2013
Claimant's Attorney: Viola, Cummings & Lindsay LLP
Panel: Robert E. Beloten


The Full Board, at its meeting held on February 26, 2013, considered the above-captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on April 13, 2012.


The issue presented for Mandatory Full Board Review is whether the claimant's medical provider presented sufficient evidence to meet the burden of proof to justify granting a variance for continued treatment.

The Workers' Compensation Law Judge's (WCLJ) approved chiropractic treatment at the rate of "24 treatments per year," noting that the approval was subject to "regular examinations, showing continued objective evidence of functional improvement."

The Board Panel majority affirmed the WCLJ decision, finding that the claimant's physician demonstrated objective measures of functional improvement that justified deviation from the frequency and durational limits set forth in the Guidelines. The Board Panel majority construed the WCLJ decision as authorizing a maximum of 24 visits in the year following the WCLJ decision, and noted that the authorization was subject to "periodic re-evaluation."

The dissenting Board Panel member found that the WCLJ decision should be reversed. The dissenting Board Panel member noted that the physician's records showed some setbacks and minimal improvement. The dissenting Board Panel member also noted that the physician did not indicate why alternative treatment would not be appropriate.

In the Special Funds Conservation Committee's (Special Funds) request for Mandatory Full Board Review, it argues that the record indicates that no other treatment protocols were tried, that the claimant showed minimal improvements that fluctuated significantly, and the claimant's physician's assertion that the claimant experienced an exacerbation is not supported by the medical records.

In rebuttal, the claimant relies upon its previously submitted rebuttal to the Special Funds' application for administrative review.

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


The claimant, a factory worker, has an established claim for a back sprain as a result of an accident on February 15, 1991. The claimant did not suffer any lost time and has not been classified with a permanent disability

The claimant began treating with a chiropractor, Dr. Bergmann, in 1991. In 2004, the claimant began treatment with another chiropractor, Dr. Syracuse, and treated with him on a weekly and/or biweekly basis over the next several years.

The Special Funds Conservation Committee (Special Funds) became liable for this claimant pursuant to WCL § 25-a in 2004.

At an examination on April 15, 2010, Dr. Syracuse noted that the claimant had slight pain on straight leg raising, lumbar flexion of 45 degrees and lumbar extension of 15 degrees. At an examination on July 22, 2010, the claimant exhibited a left straight leg raise to 45 degrees, lumbar flexion of 80 degrees, and lumbar extension of 20 degrees, with pain. At an examination on January 7, 2011, Dr. Syracuse noted a left straight leg raise to 60 degrees, lumbar flexion of 60 degrees, with pain, and lumbar extension of 10 degrees, with pain. At an examination on February 21, 2011, the claimant exhibited a left straight leg raising to 50 degrees, lumbar flexion of 65 degrees, and lumbar extension of 20 degrees, with pain.

On June 6, 2011, Dr. Syracuse filed a Form MG-2 (Attending Doctor's Request for Approval of Variance and Carrier's Response), requesting authorization for chiropractic treatment at a "frequency of 24 visits/year." The section of the Form MG-2 regarding medical necessity was blank. However, Dr. Syracuse attached a letter dated June 6, 2011, stating that the Board's Medical Treatment Guidelines (Guidelines) do not address "complex health conditions" and therefore extended durations of treatment may be necessary. The letter also states that "improvements and/or exacerbations" had been documented. Dr. Syracuse also attached his April 25, 2011, medical report noting an improvement in range of motion, and an excerpt from the April 7, 2009, report from the carrier's consultant indicating that chiropractic treatments at a frequency of eight times per year should be authorized.

The Special Funds filed a denial of Dr. Syracuse's request on June 7, 2011. The Special Funds indicated that it was denying the request because the Form MG-2 did not include a statement of medical necessity; Dr. Syracuse did not set forth why alternative treatment would not be appropriate; and the medical records did not indicate objective evidence of functional improvement.

At a hearing on July 27, 2011, the Special Funds argued that Dr. Syracuse's medical records did not indicate any functional improvement, and the doctor's request was simply a request for continuing treatment, which is not authorized under the Guidelines. The WCLJ found that Dr. Syracuse's reports indicated improvements in straight leg raising and range of motion between January 2011 and April 2011 and this was sufficient to justify authorization for the chiropractic treatment requested, subject to regular examinations and continued functional improvement. The WCLJ's findings were memorialized in a Notice of Decision filed on August 1, 2011.


Medical Treatment Guidelines (Guidelines) for the mid and low back, neck, knee, and shoulder were adopted by the Chair of the Workers' Compensation Board on November 3, 2010, when subchapter C of Title 12 NYCRR was amended to add new Part 324. The Guidelines apply to all treatment provided to their respective body parts on or after December 1, 2010, regardless of the accident date or the date of disablement (12 NYCRR 324.2[a]). Except for occasions when a variance request to depart from the Guidelines has been approved by the self-insured employer/insurance carrier or authorized by the Board, treating providers must treat all existing and new work-related injuries, illnesses, or occupational diseases involving those body parts in accordance with the Guidelines (id.).

Prior to providing a specific treatment for the mid and low back, neck, knee, and shoulder, a treating provider may request approval to vary from the Guidelines on Board form MG-2 by answering all questions completely (12 NYCRR 324.3[a][3]). The claimant and the provider have the burden of proof that the treatment requested is appropriate and medically necessary for the claimant (12 NYCRR 324.3[a][3][i][a]; 324.3[d][4]). In addition, the provider must set forth that claimant agrees to the proposed medical care and explain why alternatives under the Guidelines are not appropriate for the claimant (12 NYCRR 324.3[a][3][i][b] and [c]). For appropriate claims, the provider may describe any signs or symptoms that have failed to improve in accordance with treatment provided by the Guidelines or may describe functional outcomes that have continued to demonstrate objective improvement with a specific course of treatment (12 NYCRR 324.3[a][3][ii]). Failure to meet the burden of proof shall result in a denial of the variance request.

The Mid and Low Back Injury Guidelines provide that chiropractic treatment is recommended for a maximum duration of three months when accompanied by objective measures of improvement (Guidelines § D.10.a). The Guidelines note that "[e]xtended durations of care beyond what is considered 'maximum' may be necessary in cases of re-injury, interrupted continuity of care, exacerbation of symptoms, and in those patients with comorbidities," but "[t]here is no efficacy for chronic treatment (manipulation several times a month for years) and chronic treatment is not recommended." (Id.).

In the present case, Dr. Syracuse did not submit sufficient evidence to justify the variance requested. Instead of stating the medical necessity of the treatment requested on the Form MG-2, Dr. Syracuse submitted what appears to be a form letter, setting forth general statements regarding the Guidelines, and indicating that the claimant has experienced improvements and/or exacerbations, without any reference to specific reports or conditions. Furthermore, Dr. Syracuse's medical records indicate that the claimant's condition fluctuated in the year prior to his request for additional chiropractic treatment without any clear trajectory of improvement, and do not record any exacerbations. Thus, despite Dr. Syracuse's unspecific statements of improvement, the record does not reflect that claimant has shown any significant or lasting objective functional improvements as a result of the chiropractic treatment.

Therefore, Dr. Syracuse did not meet his burden of producing sufficient evidence to justify a variance, and that request is therefore denied.


ACCORDINGLY, the WCLJ decision filed on August 1, 2011 is AMENDED to deny the request for additional chiropractic treatment. No further action is planned at this time.