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Case # G1010725
Date of Accident: 07/10/2013
District Office: Hauppauge
Employer: Food Service Sales
Carrier: Indemnity Ins. of N America
Carrier ID No.: W112502
Carrier Case No.: 004063074838WC01
Date of Filing of Decision: 01/25/2017
Claimant's Attorney: Grey and Grey LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on December 20, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed July 7, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the carrier's request to discontinue the claimant's prescription for Tizanidine was properly before the Board.

The Workers' Compensation Law Judge (WCLJ) found that the carrier failed to properly request to discontinue the claimant's prescription for Tizanidine, and authorized the continued use of the medication.

The Board Panel majority affirmed the WCLJ's decision.

The dissenting Board Panel member would find that the carrier made a proper request to discontinue the claimant's use of Tizanidine by submitting an RFA-2, along with the IME report in support.

The carrier filed an application for Mandatory Full Board Review on July 14, 2016.

The claimant filed a rebuttal on August 12, 2016.

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

FACTS

This claim is established for a work-related back injury that occurred on July 10, 2013.

By a report of Independent Medical Examination (IME-4) dated September 15, 2015, the carrier's medical consultant, Dr. Litman, opined that the temporary use of Tizanidine fell within the Non-Acute Pain Medical Treatment Guidelines (NAPMTG) but "the claimant has exhausted use of the Tizanidine and her pain complaint has extended beyond the normal duration of use of muscle relaxants for pain" according to the NAPMTG. As such, the medical consultant recommended that "no further Tizanidine should be prescribed."

By an RFA-2 (Request for Further Action by Carrier/Employer) dated September 22, 2015, the carrier requested a hearing in light of the IME report which recommended that the claimant discontinue using Tizanidine. At a hearing held on December 2, 2015, the claimant told the WCLJ that she took Tizanidine, a muscle relaxer, in the evening when she got home from work. The WCLJ noted there were no current outstanding C-8.1s (Notice of Treatment Issue/Disputed Bill) or MG-2s (Attending Doctor's Request for Approval of Variance and Carrier's Response), and authorized treatment including the prescription Tizanidine. The carrier objected pursuant to Section F.1.e.x of the Non-Acute Pain Medical Treatment Guidelines, and requested the testimony of the claimant's treating physician (see notice of decision filed December 7, 2015).

The carrier filed an application for administrative review, arguing that pursuant to the NAPMTG, chronic usage of muscle relaxants including Tizanidine was not recommended because of the habit forming potential, severe sedation, seizure risk following abrupt withdrawal and documented contribution to deaths of patients on chronic opioids due to respirator depression. The carrier noted there was no variance request (MG-2) from the claimant's treating physician in the case file requesting the continued use of Tizanidine, and as such, the carrier could not object to the variance request on the MG-2. The carrier requested the authorization for Tizanidine be rescinded and the use of the medication denied. Further, the carrier contended the NAPMTG were sufficient to deny the continued use of the medication without any variance request, and the request to cross examine the claimant's treating physician was not required.

LEGAL ANALYSIS

In their application for Mandatory Full Board Review, the carrier argues the filing of the RFA-2 with the IME was a proper route for requesting a hearing for the WCLJ to determine whether the claimant's use of medication should be discontinued and it was not required to file a C-8.1 or MG-2 to initiate a hearing. In the alternative, the carrier argues it should have been permitted to cross-examine the claimant's physician concerning the claimant's use of Tizanidine and whether it complied with the NAPMTG.

The claimant filed a rebuttal, maintaining that the WCLJ properly considered the evidence and testimony, and authorized the claimant's use of Tizanidine as consistent with the NAPMTG. Further, the claimant contends the proper method to dispute a bill for treatment is to file the C-8.1B.

Section F.1.e.x of the NAMPTG provides:

SKELETAL MUSCLE RELAXANTS (e.g., baclofen, cyclobenzaprine, carisoprodol, metaxalone, tizanidine) are most useful for acute musculoskeletal injury or exacerbation of injury. Chronic use of benzodiazepines or any muscle relaxant is not recommended due to their habit-forming potential, severe sedation, seizure risk following abrupt withdrawal, and documented contribution to deaths of patients on chronic opioids due to respiratory depression.

Workers' Compensation Law (WCL) § 13(a) provides in relevant part that an employer "shall promptly provide for an injured employee such medical, surgical, optometric or other attendance or treatment ... for such period as the nature of the injury or the process of recovery may require." Whenever a carrier shall terminate treatment, it must file a C-8.1 Part A with the Board within five days of termination together with (1) a medical report by an authorized physician that need for medical care has ended; (2) a copy of notice to claimant's physician to discontinue medical care together with the report from the authorized physician establishing the basis for the discontinuance; and (3) proof of mailing such notice to the claimant and his/her physician (12 NYCRR 300.23[d]). Here, the carrier could have filed a C-8.1 Part A with the Board, based on Dr. Litman's report, indicating that it was no longer providing Tizanidine insofar as continued use of that muscle relaxant was inconsistent with the NAMPTG. However, the carrier chose not to file a C-8.1 Part A.

The carrier, when presented with a bill for Tizanidine, could also have filed a C-8.1 Part B objecting to the bill, citing Dr. Litman's report (see 12 NYCRR 325-1.24). The carrier failed to do so.

Finally, had claimant's treating provider sought a variance from the NAMPTG concerning claimant's ongoing use of Tizanidine, the carrier could have denied that variance (see 12 NYCRR 324.3); however, claimant has not sought a variance.

Insofar as none of these three avenues for properly raising this issue for adjudication by the Board have been taken, the issue of the discontinuance of Tizanidine was not properly before the Board.

Subsequent to the development of the record in the instant matter, the Board issued Subject Number 046-892, October 31, 2016. That Subject Number sets forth the procedure for a carrier to utilize when long-term opioid use needs to be evaluated, under the rubric of the NAMPTG guidelines. If an issue arises herein involving long-term use of opioids, the carrier should follow the provisions of the Subject Number to commence the hearing process.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed December 7, 2015, is AFFIRMED. No further action is planned by the Board at this time.