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Case # 00317998
Date of Accident: 03/17/2003
District Office: NYC
Employer: HRA/Social Service
Carrier: City of NY Other Than Ed, High
Carrier ID No.: W847008
Carrier Case No.: 0069-03-40066
Date of Filing of Decision: 05/30/2014
Claimant's Attorney: Alan M. Cass & Associates
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on February 11, 2014, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on May 24, 2013.

ISSUE

The issue presented for Mandatory Full Board Review is whether the C-8.1 objections dated September 8, 2011, September 9, 2011, September 19, 2011, September 29, 2011, and October 27, 2011, to invoices for physical therapy should be resolved in favor of the self-insured employer (SIE).

In a decision filed on January 11, 2012, the Workers' Compensation Law Judge (WCLJ), among other findings, resolved all C-8.1 objections in favor of the medical provider.

The Board Panel majority affirmed.

The dissenting Board Panel member agreed with the Board Panel majority insofar as the C-8.1 objections dated September 8, 2011 [sic-Majority found that September 9, 2011 C-8.1 objection only was untimely filed], and September 9, 2011, were not timely filed and therefore are properly found in favor of the medical provider. However, the dissenting Board Panel member also found that the C-8.1s dated September 19, September 29, and October 27, 2011, were timely filed and should be found in favor of the SIE as the subject treatment was not provided in accordance with the MTG, thus requiring a variance.

On June 24, 2013, the SIE filed an application for Mandatory Full Board Review, arguing that that the C-8.1 objections dated September 19, 2011, September 29, 2011, and October 27, 2011, should be resolved in its favor in that the physical therapy treatment was rendered after claimant had exceeded the maximum duration provided by the MTG and a variance was not first secured.

On June 26, 2013, the claimant filed a rebuttal, asserting that the Board Panel majority made no errors in fact or law, and therefore, the decision should not be disturbed.

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

FACTS

On March 17, 2003, the claimant, then a 76 year old case worker, slipped and fell at work. The case is established for the back and both knees. Knee replacement surgeries were performed on June 24, 2003 (right), and June 22, 2004 (left).

In an Order of the Chair dated March 23, 2009, the Board authorized additional sessions of physical therapy three times per week for twelve weeks, as recommended by the claimant's treating physician, Dr. Reddy, in a report dated August 23, 2008.

In a C-4 medical report dated December 15, 2010, Dr. Reddy recommended that the claimant receive continued physical therapy for both knees. Dr. Reddy's reports throughout 2011 recommend that the claimant receive continued physical therapy.

The carrier's application for review pertains to five C-8.1 objections to bills for physical therapy from Diana Barrios, P.T.

In a C-8.1 dated September 9, 2011, and filed with the Board on September 16, 2011 (ECF Doc. ID # 186198533), the SIE objected to the bill dated July 7, 2011, for physical therapy from June 20, 2011, and July 1, 2011, in the amount of $373.20. The attached medical report includes a date stamp received by the employer of July 22, 2011.

In a C-8.1 dated September 8, 2011, and filed with the Board on September 16, 2011 (ECF Doc. ID # 186198904), the SIE objected to the bill dated July 21, 2011, for physical therapy on July 6, 2011, and August 11, 2011, in the amount of $129.28.

In a C-8.1 dated September 19, 2011, and filed with the Board on September 26, 2011 (ECF Doc. ID # 186587859), the SIE objected to the bill dated August 18, 2011, for physical therapy from July 25, 2011, to August 5, 2011, in the amount of $387.84.

In a C-8.1 dated September 29, 2011, and filed with the Board on October 7, 2011 (ECF Doc. ID # 187072911), the SIE objected to the bill dated September 1, 2011, for physical therapy from August 8, 2011, to August 19, 2011, in the amount of $386.06.

In a C-8.1 dated October 27, 2011, and filed with the Board on November 10, 2011 (ECF Doc. ID # 188689570), the SIE objected to the bill dated September 22, 2011, for physical therapy from August 22, 2011, to September 9, 2011, in the amount of $517.12.

The physical therapy reports for the dates of treatment to which the SIE objected show that the claimant was treated with hot/cold pack, electrical stimulation (unattended) and massage to his back. It is noted that the Diagnosis Code in each of the physical therapy reports is 724.2, which is noted as "Lumbago-Lower Back Pain."

All C-8.1 objections were premised upon the SIE's position that the treatment provided was not based on a correct application of the Medical Treatment Guidelines (MTG) and that the treatment deviates from the MTG without securing a variance.

On January 4, 2012, Dr. Reddy filed a form MG-2 requesting a variance for long term physical therapy for claimant's low back and both knees. Dr. Reddy indicated that the therapy was necessary to maintain the range of movement of the knees, and muscle-strengthening exercises were necessary to help the claimant ambulate and live independently. Dr. Reddy noted that long term physical therapy was necessary for the claimant's back for symptomatic relief to avoid pain medication and help ambulate and maintain gait. Dr. Reddy further indicated given the claimant's age (85), that absent long term physical therapy, his condition will deteriorate to a bed-ridden state.

At the hearing on January 6, 2012, the SIE's attorney noted that the case was on calendar for the five C-8.1's filed for the claimant's physical therapy with Diana Barrios, P.T. The WCLJ acknowledged that a variance had been received from Dr. Reddy within the last twenty-four hours. The claimant was present at the hearing and testified that he attends therapy three times per week. The claimant also receives home health care for 28 hours per week, which the attorneys acknowledged was authorized in 2006. The SIE's attorney argued that the fact that Dr. Reddy submitted a variance demonstrated there was a need for one in connection with the C-8.1's at issue. The WCLJ found that:

Under [the] circumstances, I'm going to find the C-8.1's in favor of the provider. Claimant has advanced in age and is getting a lot of home care and I think his medical evidence shows he's in need of physical therapy to keep him going.

The SIE's attorney took exception to the ruling.

By amended decision filed on January 11, 2012, the WCLJ resolved the C-8.1 objections in favor of the medical provider. The SIE filed a request for review of the WCLJ's decision in which it asserted that per section D.9.a. of the MTG, physical therapy to the back is recommended for a maximum duration of eight weeks. The SIE states that, here, the claimant's physical therapy exceeded eight weeks. The SIE further maintained that massages are recommended for up to six weeks and that hot and cold packs are recommended for up to two months pursuant to MTG sections D.10.c and D.10.f.

LEGAL ANALYSIS

MTG 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 MTG 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 MTG 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 MTG (id.).

When presented with a C-8.1 Part B in which the carrier has objected to payment of a bill for treatment rendered by a physician, self-employed occupational or physical therapist, podiatrist, or psychologist, the Board must first ascertain whether the objection was timely filed. When treatment has been provided by a physical therapist, and a bill submitted, the employer shall within 45 days (1) pay the bill or (2) notify the provider and the Board on a form prescribed by the Chair for such purpose that the bill is not being paid and the reasons for non-payment (12 NYCRR 325-1.25[c][1]).

C-8.1 Objection dated September 9, 2011

As to the claimant's treatment on June 20, 2011, and July 1, 2011, the record shows that the physical therapist's bill was submitted to the SIE on July 22, 2011, and that the SIE filed its objection (dated September 9, 2011) 56 days later on September 16, 2011. Thus, the objection was not timely filed within 45 days, and the objection, therefore, is properly resolved in favor of the medical provider.

Remaining C-8.1 Objections

The SIE's C-8.1 objections dated September 8, 2011, September 19, 2011, September 29, 2011, and October 27, 2011, were timely filed. Those C-8.1s pertain to the application of hot and cold packs (D.10.f.), electrical stimulation (unattended) (D.5.f.), and massage (D.10.c.) for the claimant's low back.

Based on the foregoing, it appears that the claimant had been receiving what is characterized as "Passive" therapeutic treatment under the First Edition of the MTG (Section D.10) for the Mid and Low Back.

It appears that the claimant had been undergoing physical therapy for several years, without interruption, including on or after December 1, 2010. The MTG 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]). Thus, effective December 1, 2010, the claimant would have been subject to treatment pursuant to the MTG, unless his doctor sought a variance.

With respect to the massage, the SIE is correct in concluding that the optimum duration is six weeks. This section of the MTG further provides that "[a]s with all passive therapies, massage must be accompanied by exercise and patient education. Objective benefit (functional improvement along with symptom reduction) must be demonstrated in order for further treatment to continue." (Section D.10.c., MTG, December 1, 2010).

The SIE is also correct that the optimum duration of the use of hot and cold packs (per Section D.10.f. of the MTG) is three weeks as primary, or intermittently as an adjunct to other therapeutic procedures up to two months.

Furthermore, although not addressed by the SIE, Section D.5.f. states that the use of electrical stimulation therapy (unattended) is not recommended.

Based on the foregoing, the claimant's passive therapeutic treatment and electrical stimulation therapy administered by Diana Barros, P.T., the invoices for which are the subject of the SIE's C-8.1 objections dated September 8, 2011, September 19, 2011, September 29, 2011, and October 27, 2011, was not rendered in accordance with the MTG. Furthermore, a variance for such treatment was not filed.

Therefore, based upon a review of the record and the preponderance of the evidence, the Full Board finds that SIE's C-8.1 objection dated September 9, 2011, to an invoice for physical therapy treatment rendered on June 20, 2011 and July 1, 2011, is resolved in favor of the medical provider, Diana Barrios, P.T. The SIE's C-8.1 objections dated September 8, 2011, September 19, 2011, September 29, 2011, and October 27, 2011, to invoices for corresponding physical therapy treatment rendered by Diana Barrios, P.T., are found in favor of the SIE.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on January 11, 2012, is MODIFIED to find that the SIE's C-8.1 objections dated September 8, 2011, September 19, 2011, September 29, 2011, and October 27, 2011, to invoices for corresponding physical therapy treatment rendered by Diana Barrios, P.T., are found in favor of the SIE. The WCLJ decision otherwise remains in effect. No further action is contemplated by the Board at this time.