The Full Board, at its meeting on June 18, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on September 21, 2012.
The issue presented for Mandatory Full Board Review is whether an MRI to the claimant's back should have been authorized absent a request for a variance.
In a notice of decision filed on June 8, 2011, the Workers' Compensation Law Judge (WCLJ), among other things, authorized MRI testing for the claimant's left knee and back.
The Board Panel majority affirmed the decision of the WCLJ, finding that the MRI of claimant's back was recommended in accordance with the Medical Treatment Guidelines (Guidelines) and that a variance was not required.
The dissenting Board Panel member would have denied the request for an MRI of the claimant's back because the medical reports establish that a repeat MRI is not warranted in this instance, and that the requesting physician should have sought a variance in order to obtain such authorization.
On October 19, 2012, the State Insurance Fund (SIF) filed an application for Mandatory Full Board Review arguing that the repeat MRI of the claimant's back was not justified under the Guidelines and should not have been authorized. Specifically, the requesting physician failed to establish that the claimant had experienced "significant clinical deterioration in symptoms and/or signs," as required by the Guidelines.
On November 5, 2012, the claimant filed a rebuttal asserting that the treating physician's request for a repeat MRI to claimant's back is permissible under the Guidelines as the treating physician documented that there was a significant question of nerve root compression.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This case has been established for work-related left knee and back injuries resulting from the claimant's May 12, 2009, accident, when he slipped and fell down approximately 12 stairs.
An MRI of claimant's back performed on June 7, 2009, showed bilateral posterolateral herniation of the L4-5 intervertebral disc.
The claimant had left knee surgery (removal of hardware and total knee replacement) on April 21, 2010. On May 12, 2010, Dr. Alexiades noted moderate knee swelling and a good deal of pain; however, the doctor's notes for June 3, 2010, indicate that the claimant's pain had markedly improved with full extension and flexion. On July 14, 2010, Dr. Alexiades noted that the claimant was complaining of a lot of cracking-type noises, but that the exam was consistent with normal crepitation, post total knee replacement. Dr. Alexiades' notes for September 2, 2010, and October 14, 2010, show improvement; however, the October 14, 2010, report noted that the claimant was experiencing discomfort at night.
In a report, dated February 9, 2011, Dr. Alexiades stated that the claimant had been doing well until about a week prior when he started having increasing pain in the knee, particularly at night, and that the claimant had been unable to work since that time. Based on an examination of the claimant's knee, it was unclear to the doctor whether the claimant's condition involved radiculopathy or was local to the knee. Dr. Alexiades recommended that the claimant get an MRI of the knee, and an MRI of the lumbar spine to evaluate for cervical nerve root compression.
The claimant saw Dr. Alexiades on March 3, 2011. The doctor noted in his medical narrative that the claimant presented with vascular claudication in both legs.
In a C-4AUTH (Attending Doctor's Request for Authorization and Carrier's Response) filed with the Board on March 23, 2011, Dr. Alexiades requested authorization for an MRI of the claimant's left knee, and an MRI of claimant's lumbar spine to evaluate nerve root compression.
Claimant's attorneys filed an RFA-1 (Claimant's Request for Further Action) on April 7, 2011, requesting that the case be placed on the next available hearing calendar to consider amending the claim to include additional injury sites.
The Board issued a Form EC-4AR dated April 13, 2011, indicating the Board would not take any action with respect to the C-4AUTH filed by Dr. Alexiades on March 23, 2011, because the C-4AUTH was incomplete and because "[p]rior authorization from the employer or carrier is not required for injury sites covered in the New York State Medical Treatment Guidelines and services not specifically stated as exceptions to pre-authorization in 12 NYCRR Section 324.2(d)(2)."
A hearing was scheduled for June 3, 2011, to consider additional sites of injury based on claimant's RFA-1. At the June 3, 2011, hearing, the WCLJ, at the request of claimant's attorney, authorized MRI testing for the claimant's left knee and back. The carrier's attorney objected to authorization of an MRI of the back, arguing that pursuant to the Guidelines, Dr. Alexiades was required to request a variance in order to perform a repeat MRI of claimant's back.
By a notice of decision filed June 8, 2011, the WCLJ, among other findings, authorized MRI testing for the claimant's left knee and back. The carrier requested administrative review of that decision.
The Guidelines for the mid and low back apply to all treatment provided to the mid and low back 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.).
Section A.12 of the Guidelines pertaining to mid and low back injury (Diagnostic Imaging and Testing Procedures), generally states that "[i]t may be of value to repeat diagnostic procedures (e.g. imaging studies) during the course of care to reassess or stage the pathology when there is a progression of symptoms or findings…" However, the general procedures referenced in Section A.12, are subject to the more specific requirements for MRIs contained in Section C.1.b of the Guidelines.
Under Section C.1.b.i of the Guidelines pertaining to mid and low back, "MRI is not recommended for acute back pain or acute radicular pain syndromes in the first 6 weeks, in the absence of red flags." Under Section C.1.b.iii, "MRI testing is recommended for acute radicular pain syndromes in the first 6 weeks if the symptoms are severe and not trending towards improvement and both the patient and the physician are willing to consider prompt surgical treatment, assuming the MRI confirms ongoing nerve root compression." A repeat MRI is not recommended without significant clinical deterioration in symptoms and/or signs (id.).
Under Section C.1.b.iv of the Guidelines pertaining to mid and low back, "MRI is recommended for patients with subacute or chronic radicular pain syndromes lasting at least 6 weeks, in whom the symptoms are not trending towards improvement, if both the patient and surgeon are considering prompt surgical treatment, assuming the MRI confirms ongoing nerve root compression."
In the present case, the record contains no testimony or medical evidence documenting that the claimant's condition is significantly deteriorating, that the claimant's condition is not trending towards improvement, or that the claimant and the physician are considering prompt surgical treatment if the MRI confirms ongoing nerve root compression. The record only contains medical evidence which suggests that on July 14, 2010, the claimant was experiencing "cracking-type noises" in his knee; on October 14, 2010, the claimant reported experiencing knee discomfort at night; and that on February 9, 2011, the claimant reported that he had begun experiencing increasing pain in his knee a week earlier.
After examining the claimant's knee on February 9, 2011, Dr. Alexiades was unable to determine whether the claimant's condition was local to the knee or involved radiculopathy. Dr. Alexiades recommended that the claimant get an MRI of the knee, and an MRI of the lumbar spine to evaluate for cervical nerve root compression. At this time the claimant had only been experiencing the potentially radicular symptoms for approximately a week. The medical evidence in the record does suggest that on February 9, 2011, the claimant's symptoms were severe as the claimant reported that he was no longer able to work. However, there is no evidence in the record that the claimant's condition was not trending towards improvement as Dr. Alexiades recommended the MRI based upon the symptoms that the claimant had only been experiencing for one week, without waiting to see if the claimant's symptoms would improve with treatment and/or time. In addition, nothing in the record suggests that both Dr. Alexiades and the claimant are considering prompt surgical treatment if the MRI confirms ongoing nerve root compression. In fact, Dr. Alexiades' notes from February 9, 2011, merely state that the claimant "will return once the studies have been done."
On March 23, 2011, exactly 6 weeks after the claimant complained of increasing pain in his knee, Dr. Alexiades completed a C-4AUTH, requesting an MRI of claimant's left knee, as well as an MRI of claimant's lumbar spine to evaluate nerve root compression. The claimant only saw Dr. Alexiades once after the February 9, 2011, appointment, prior to completing the March 23, 2011, C-4 authorization request. Based on an examination of the claimant on March 3, 2011, Dr. Alexiades noted that the claimant presented with vascular claudication in both legs, and that the claimant's left knee was aspirated because of increased sedimentation rate. No radicular symptoms are noted and it is not clear if the claimant's radicular symptoms are trending towards improvement. The doctor does not mention the previously recommended MRIs and there is no evidence to suggest that the claimant and Dr. Alexiades are considering prompt surgical treatment, assuming the MRI of the claimant's back confirms ongoing nerve root compression.
Therefore, the Full Board finds, based upon a preponderance of the evidence, that a repeat MRI of the claimant's back should not have been authorized absent a request for a variance.
ACCORDINLY, the WCLJ decision filed on June 8, 2011, is MODIFIED to rescind the authorization for a repeat MRI of the claimant's back and to find that a variance is required before a repeat MRI of the claimant's back can be performed. No further action is planned by the Board at this time.