By: Board Members Lower, Bell and Dudley
The Special Funds Conservation Committee (Special Funds) requests review of the Workers' Compensation Law Judge (WCLJ) decision filed March 21, 2011. No timely rebuttal has been filed.
The issues presented for administrative review are:
This case is established for a November 6, 1996, accident involving the claimant's low back. The claimant has received chiropractic care from Dr. Borio since 1996. On December 21, 2010, Dr. Borio filed a form MG-2 requesting "additional chiropractic spinal corrective care adjustments" twice per month until April of 2011. Dr. Borio's statement of medical necessity, in support of his variance request, states the following:
"This patient's medical condition is chronic with functional and symptomatic improvement present after every adjustment – based on the patients (sic) activity level, quality of life, family activity and overall condition, additional chiropractic corrective care adjustment are necessary at the level requested. The new Guidelines do not address chronic conditions which can be exacerbated during regular daily activities and therefore puts this patient outside the Guidelines – a variance request is appropriate as this patient suffers from a chronic condition."
In an accompanying report attached to his MG-2 form, Dr. Borio states:
"[The claimant] has had an exacerbation. These are episodic marked deterioration of the patient's condition due to acute flare-ups of the presenting conditions. * * * The patient's present condition and examination findings indicates the need for spinal adjustments at two times per month. This care frequency will continue until a reconsideration is made on the patient's next progress evaluation."
On January 20, 2011, Special Funds denied the variance request indicating on the MG-2D form "Denied Per IME4 Exam 1/14/01 (sic)." Special Funds' consultant's report, which was dated January 14, 2011, and attached to the MG-2D form, concluded that: "The MG-2 variance submitted by the attending chiropractor is not supported by the Workers' Compensation Board Medical Treatment Guidelines for mid and low back injury."
At the hearing of March 16, 2011, the WCLJ informed the claimant that:
"I want you to understand treatment of exacerbations, if you have a sudden onset of increased symptoms due to some activity or something of that nature, it's possible that type of treatment could fall under the Medical Treatment Guidelines. I'm not ruling on that issue because that's not before me. *** My ruling [to grant the variance request] based on the Special Funds' failure to set forth an adequate basis to challenge the variance request. I haven't ruled on the question of whether the variance request as [Dr. Borio has] written it would be sufficient."
In the corresponding decision, the WCLJ granted the variance request and found the form C-8.1B filed February 24, 2011, for treatment on January 17, 2011, in favor of the provider.
Special Funds maintains that the treating medical provider failed to meet his burden of proof and therefore the variance request should have been denied.
12 NYCRR 324.3[a] and 12 NYCRR 324.3[d] clearly provide that the burden of proof to establish that a variance is appropriate for the claimant and medically necessary rests on the treating medical provider requesting the variance. The Board Panel notes however, that it is necessary to determine whether a variance is required for the treatment of an exacerbation, and how a carrier must articulate their denial of a variance request, before it can decide whether the variance request in this case should be approved or denied.
Dr. Borio's variance request states the claimant has had an exacerbation. If true, a variance request is not required and Dr. Borio can treat the exacerbation consistent with the Medical Treatment Guidelines (MTG). An exacerbation occurs only when the treating medical provider can fully document the exacerbation, including when and how it occurred, the objective changes from baseline function, the expected type and frequency of treatments anticipated to return claimant to baseline function and the claimant's response to treatment through documented measures of objective functional improvement. Matter of Livingston County, 2011 NY Wrk. Comp. 79905338. "Objective functional improvement" means functional gains as defined in Section A.3 of the MTG (see 12 NYCRR 324.2[b]). They "include, but are not limited to positional tolerances, range of motion, strength, endurance, activities of daily living, cognition, psychological behavior, and efficiency/velocity measures which can be quantified. Subjective reports of pain and function should be considered and given relative weight when the pain has anatomic and physiologic correlation." In the present case, Dr. Borio simply states claimant had an exacerbation without providing any medical evidence to support such a conclusion. The Board Panel concludes that what Dr. Borio characterizes as an exacerbation is a chronic condition which warrants a variance request.
Denial of a Variance Request
The regulations that incorporate the MTG provide four reasons for a carrier or Special Funds to deny a variance: (i) the medical care requested has already been rendered (12 NYCRR 324.3[b][i][b]); the treating medical provider did not meet the burden of proof (12 NYCRR 324.3[b][i][c]); the test or treatment requested is not medically necessary or appropriate for the claimant (12 NYCRR 324.3[b][ii][a]); and (iv) the claimant fails to appear without reasonable cause for a scheduled IME examination (12 NYCRR 324.3[b][ii][b]).
In the instant case, Special Funds checked the deny box on the MG-2 form and added "Denied Per IME4 Exam 1/14/01 ". Special Funds' denial raised the objection that the proposed treatment is not medically necessary or appropriate for the claimant (see 12 NYCRR 324.3[b][ii][a]). Although Special Funds did not explicitly raise the issue that the treating medical provider failed to meet his burden of proof on its MG-2 form, such objection is preserved when the carrier articulates any objection. As noted above, Part 324 clearly provides that the burden of proof to establish that a variance is appropriate for the claimant and medically necessary rests on the treating medical provider (12 NYCRR 324.3[a]). Whether a treating medical provider has met this burden of proof is a threshold determination which is triggered whenever a carrier articulates an objection to a variance request. Interestingly, 12 NYCRR 324.3[b][d] provides that when a carrier or Special Funds denies a variance request on the basis that the treating medical provider did not meet the burden of proof, the carrier or Special Funds must also assert any other basis for denial or such basis will be deemed waived. However, there is no regulatory provision which indicates that if a carrier or Special Funds denies a variance on grounds other than burden of proof, it waives its burden of proof objection, if not also raised. Therefore, it is logical to conclude that the burden of proof objection is preserved whether articulated or not, as long as the carrier or Special Funds articulates some objection.
Conversely, if a carrier fails to object to a variance request or simply checks the deny box on the MG-2 form without articulating an objection, the carrier waives its objections and the variance request should be approved. 12 NYCRR 324.3[b][iv] requires that "if the insurance carrier or Special Fund denies a variance request, it shall state the basis for the denial in detail…". Moreover, the MG-2 form very clearly states that if a carrier denies a variance request, an explanation is required on the reverse side of the form. Part E of the MG-2 provides a half-page field for the "Carrier's/Employers Response to Variance Request" and states "If request is denied, give reason(s)". This Board Panel concludes that the regulatory framework established by 12 NYCRR Part 324 requires a carrier to articulate its objection to a variance request, and that the failure to file an objection or articulate any objection at all on the MG-2 form, relieves the treating medical provider of his or her burden of proof.
The Present Variance Request
Special Funds denied Dr. Borio's variance request and did articulate an objection on the MG-2 form. Therefore, a threshold determination must be made whether Dr. Borio met his burden of proof that a variance is appropriate for the claimant and medically necessary.
Pursuant to 12 NYCRR 324.3[a], all variances must include: "[A] medical opinion by the Treating Medical Provider, including the basis for the opinion that the proposed medical care that varies from the Medical Treatment Guidelines is appropriate for the claimant and medically necessary, and a statement that the claimant agrees to the proposed medical care, and an explanation of why alternatives under the Medical Treatment Guidelines are not appropriate or sufficient." Furthermore, "if the variance involves frequency or duration of a particular treatment, a description of the functional outcomes that, as of the date of the variance request, have continued to demonstrate objective improvement from that treatment and are reasonably expected to further improve with additional treatment."
The Mid and Low Back Injury Medical Treatment Guidelines provide in relevant part that:
Manipulative treatment is defined as the therapeutic application of manually guided forces by an operator to improve physiologic function and/or support homeostasis that has been altered by the injury or occupational disease, and has associated clinical significance.
Manipulation is recommended for treatment of acute and sub-acute back pain when tied to objective measures of improvement. Time to produce effect for all types of manipulative treatment: 1 to 6 treatments. Frequency: Up to 3 times per week for the first 4 weeks as indicated by the severity of involvement and the desired effect, then up to 2 treatments per week for the next 4 weeks with re-evaluation for evidence of functional improvement or need for further workup. Continuance of treatment will depend upon functional improvement. Optimum Duration: 8 to 12 weeks. Maximum Duration: 3 months.
Extended 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. There is no efficacy for chronic treatment (manipulation several times a month for years) and chronic treatment is not recommended.
In this case, Dr. Borio has not provided any documentation to indicate claimant has suffered an exacerbation. The chiropractic treatment has already exceeded the maximum duration of three months set forth in the Guidelines, and there is no evidence or demonstration of objective improvement or expected further improvement. If a variance request, as in this case, involves frequency or duration of a particular treatment, the treating medical provider has the burden to describe the functional outcomes that, as of the date of the variance request, have continued to demonstrate objective improvement from the treatment and are reasonably expected to further improve with additional treatment (12 NYCRR 324.3[a][ii][b]). Dr. Borio has not met his burden of proof in this case. The report he attached to the MG-2 form only provided conclusory statements such as "functional and symptomatic improvement present after every adjustment".
The MTG regulations require more, including objective evidence of functional improvement, to justify a deviation from the frequency and durational limits contained in the MTG for chiropractic care.
Finally, the Board Panel notes that the WCLJ approved this variance request because Special Funds failed to set forth an adequate basis to challenge the variance request. Clearly, Special Funds' objection, as contained in their IME report, was insufficient. The IME report simply stated the variance should be denied because the proposed treatment is outside the MTG. That objection totally misses the point of a variance request, which by definition requests treatment inconsistent with the MTG. Nevertheless, as detailed above, the variance request in this case is being denied because Dr. Borio failed to meet his burden of proof to establish that the proposed treatment was medically necessary and appropriate for the claimant. If the treating medical provider had met his burden of proof, Special Funds' IME report would have been inadequate to defeat the variance request.
Therefore, the Board Panel finds, upon review of the record and based upon a preponderance of the evidence, that the treating medical provider has not met his burden of proof to justify a variance and that the variance request for continued chiropractic treatment should be denied.
ACCORDINGLY, the WCLJ decision filed March 21, 2011, is REVERSED. The variance request of December 21, 2010, is denied and the form C-8.1B filed February 24, 2011, for treatment on January 17, 2011, is found in favor of Special Funds. No further action is planned at this time.