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Case # 80113005
Matter of Visiting Nurse Association
2012 NY Wrk Comp 80113005

BOARD PANEL DECISION

By: Board Members Dudley, Bell and Beloten

Ruling:

The Special Funds Conservation Committee (SFCC) requests review of the Workers' Compensation Law Judge (WCLJ) decision filed on February 14, 2012. The claimant filed a timely rebuttal.

ISSUE

The issues presented for administrative review are:

  1. whether the claimant's treating provider has met the requisite burden of proof to support a variance request to substitute the opiate medication, Opana ER, for previously prescribed opiate medications which have not adequately addressed the claimant's chronic back pain; and
  2. whether SFCC's application for administrative review is frivolous pursuant to Workers' Compensation Law (WCL) 23.

FACTS

This claim has been previously established for an injury to the claimant's back and left leg. Permanency has been established and the claimant has been classified as having a permanent partial disability.

In a Request for Approval of Variance and Carrier's Response (Form MG-2), Dr. Waghmarae, requested variance from the New York State Workers' Compensation Medical Treatment Guidelines 2012 (MTG), on December 5, 2011, to prescribe the claimant Opana, an opioid. Dr. Waghmarae wrote that the claimant "tried Nucynta but developed tremulousness, shakiness and sleep problems"; that Methadone created excessive sweating; and that the claimant "did not tolerate Kadian as this caused insomnia". Dr. Waghmarae added that the claimant "also had a [spinal] stimulator [but] that didn't help". Dr. Waghmarae's December 5, 2011, MG-2 referenced a medical report in the Board file from Dr. Salcedo, dated November 22, 2011. The MG-2 also contains SFCC's denial of the variance request, submitted on December 9, 2011, which states Dr. Waghmarae's request does not adequately demonstrate "medical necessity to warrant opiod(sic)/narcotic use beyond" the 2-week maximum duration set forth in the MTG.

On December 19, 2011, Dr. Waghmarae submitted a second MG-2 with the same contents of the first request and a handwritten note which said "see attached notes and letter". SFCC entered the same response as the December 5, 2011, variance denial. Both variance requests in the Board file, by Dr. Waghmarae, reveal that he delivered them by facsimile to SFCC, rather than to the Board.

On December 21, 2011, Dr. Salcedo submitted to the Board a third MG-2 requesting variance to prescribe Opana ER to the claimant to treat her chronic back pain. In the statement of medical necessity section, Dr. Salcedo had the same notes that Dr. Waghmarae submitted in his two previous requests and wrote "see attached notes". SFCC wrote the same response, submitted on December 22, 2011, as the two previously submitted, but also wrote by hand "no indication of success of OPANA IR per medicals".

Drs. Waghmarae and Salcedo submitted two C-4.2 medical reports in support of the three variance requests. In the first C-4.2, dated November 22, 2011, Dr. Salcedo concluded that the claimant cannot return to work due to causally related lower back pain. The claimant reported a constant stabbing sensation in her low back in the range of 6-9 out of 10 on the pain scale. The claimant reported that she experiences pain "throughout the day" to Dr. Salcedo, but most severe in the morning. In the C-4.2, Dr. Salcedo explained that "[c]urrent medications are not helping completely [since the claimant] is having side effects of insomnia from the Morphine". As a result of his examination, Dr. Salcedo diagnosed chronic lower back pain - multifaceted and lumbar facet pain" and prescribed Opana. Dr. Salcedo set out the course of the claimant's treatment plan to "start the claimant on Opana IR 5 mg and, if well-tolerated, that the plan was to consider [Opana] ER preparation". Dr. Salcedo made clear his intention to "monitor if this may consistently reflect facetogenic type of pain at which time treatment options such as RFA may be considered". Dr. Salcedo explained the claimant did not tolerate Kadian due to insomnia, Methadone due to profuse sweating or Nucynta due to tremulousness and restlessness.

In the second C-4.2 submitted to support variance, dated December 22, 2011, Dr. Salcedo noted that the claimant had undergone back surgeries including a lumbar discectomy and fusion. Dr. Salcedo noted the claimant "tried various pain treatments in the past" all of which have had adverse side effects or were ineffective. Thus, Dr. Salcedo concluded, "the proposed use of Opana is appropriate for the claimant's condition and medically necessary to control her pain". Dr. Salcedo also wrote "[t]he duration and frequency of treatment will be determined at a later time [and] Opiate medications will need to be tried and titrated to optimal levels [given] patients have varied response to medications".

A medical record from an examination on May 11, 2010, by Dr. Hsu, the claimant's treating pain management provider, reveals that the claimant has been treating her progressive August 25, 2001, work-related back injury with opiate pain medications since June 2008.

At a hearing on February 9, 2012, SFCC's attorney argued that the variance request for Opana-ER is improper given "there's been no discussion of any other treatment option in the MTG [and that] the requesting provider has not demonstrated in the medical statement or attached medical reports the medical necessity to warrant opiate/narcotic use beyond what is described in the [MTG]". SFCC's attorney further argued that the absence of "cessation parameters in either of the MG-2's" also requires denial of the request. The claimant's attorney argued that the claimant has been on opiate therapy "in excess of four or five years", but because there were some side effects from it the claimant's medical providers switched drugs.

In a decision filed on February 14, 2012, the WCLJ found that the carrier improperly denied a variance request by Dr. Salcedo for Opana ER because the "provider has sufficiently explained the need for medication" and it is in compliance with the Board's Subject No. 046-457. However, the WCLJ denied Dr. Waghmarae's variance requests, dated December 5, 2011, and December 19, 2011, because "the provider failed to file the requests with the Board".

LEGAL ANALYSIS

The SFCC asserts that Subject Number 046-457 does not apply to the claimant's request as it only applies to claimants who were prescribed specific opioid treatment "prior to the inception of the Medical Treatment Guidelines", that the carrier was to continue to pay for medications which it was "already paying for", and not discontinue medications that the claimant was "currently being prescribed" given Subject Number 046-457 addresses concerns that claimants would "have their medications discontinued...". Thus, Subject Number 046-457 does not apply to an initial prescription of a different opioid drug given after the MTG took effect. Also, SFCC asserts "several alternatives to opioid medication exist [in the MTG] which were never discussed, or even attempted prior to the request for Opana ER". Finally, SFCC argues that the MG-2 was properly denied because the Opana ER was not requested as an adjunct to other more efficacious treatments and there were no definitive cessation parameters for the use of an opioid narcotic, specifically 2 weeks.

In rebuttal, the claimant contends Subject Number 046-457 is applicable to the present variance requests given the claimant's doctors have been prescribing opiate drugs to address her chronic back pain. The claimant further contends that her treating doctors have met the burden of proof for variance by providing supporting documentation of their effort to try to find the right fit in pain relief and that Dr. Salcedo switched to Opana ER because the "most recent opiates [which Dr. Salcedo prescribed the claimant] caused serious side effects". The claimant further requests that SFCC be sanctioned pursuant to WCL 23 as the SFCC application for Board review is frivolous.

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 Medical Treatment Guidelines (MTG) 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 MTG 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 MTG 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 Board Panel notes that Subject Number 046-457 was issued by the Chair of the Board on December 1, 2010, to address "[c]oncerns [that] have been raised that claimants on long term narcotics and other pain medications will have their medications discontinued because of recommendations in the [MTG]. This is not true. Claimants who have been receiving long term narcotics and/or other pain medications prior to December 1, 2010, should continue to have their prescriptions paid for by carriers and filled by pharmacies." The Chair noted that the MTG provide for "[u]se beyond two weeks is acceptable in appropriate cases. Any use beyond the maximum should be documented and justified based on the diagnosis and/or invasive procedures." In addition and most importantly, this Subject Number states that:

"It is critical to note that the MTG do not require, and are not intended to recommend, the immediate cessation of prescription narcotics or other medication for claimants who have been using such medication long term. There are very significant health risks associated with the sudden withdrawal of narcotics and other pain medications. The MTG allow for the use of pain medication beyond the maximum duration. Therefore, carriers should continue to pay for these medications without a variance request." See also Matter of Green Belting Industries, 2012 NY Wrk Comp 80313217.

Section D.7.i of the Mid and Low Back Injury MTG provides that use beyond two weeks is acceptable in appropriate cases and should be documented and justified based on the diagnosis and/or invasive procedures. However, The Board Panel notes that Subject Number 046-457 clarifies that the MTG allow for continued medication without a variance request (Section D.7.i of the Mid and Low Back Injury MTG).

The Board file shows an extensive history of claimant's medical providers using opiates as pain management treatment for the claimant's low back claim, dating back to 2008. The Board Panel finds that the Chair's Subject Number 046-457 is squarely applicable to Dr. Salcedo's efforts to prescribe Opana ER to the claimant as the next step in treating the claimant's chronic and severe back pain. The claimant's medical providers initially prescribed narcotics in 2008 and have continued to prescribe the opiate drugs thereafter in order to treat the claimant's chronic and severe back pain. Thus the claimant was treated with narcotic drugs well before December 1, 2010. The Board Panel notes the language in Subject Number 046-457 which explains concerns raised to the Board that long term pain medications will be "discontinued", and further notes in the next sentence, the Subject Number's instruction, that "[c]laimant's who have been receiving long term narcotics and/or other pain medications prior to December 1, 2010, should continue to have their prescriptions paid for by carriers and filled by pharmacies.

The Board Panel disagrees with SFCC's interpretation of the Chair's Subject Number 046-457 and its assertion that Subject Number 046-457 only applies to claimants who were prescribed a specific opioid treatment prior to the inception of the Medical Treatment Guidelines and that the carrier was to continue to pay for medications which it was "already paying for", and Subject Number 046-457 does not apply to an initial prescription of an different opioid drug given after the MTG took affect (emphasis added). Initially, the Board Panel notes that the plain language of the Subject Number does not include the words "specific" or "already paying for" and the Board Panel finds that a reading of the Subject Number's plain language does not require such an interpretation. The Subject Number uses the terms "long term narcotics and/or other pain medications" when referring to what the carriers should continue to pay for, without reference to a single or specific drug, and with reference to what is subject to the MTG, the Subject Number uses the term "initial prescription of narcotics and/or other types of pain medications" being considered on or after December 1, 2010, the Subject Number does not say that the initial prescription refers to a "different drug" but rather it states the initial prescription of "narcotics and/or other types of pain medications". Therefore, the Board Panel finds that as the claimant's pain management treatment with narcotic medications commenced prior to December 1, 2010, the carrier is liable to continue to pay for the claimant's narcotic i.e. opioid pain medication.

Further, the Board Panel finds, based upon its plain language, that Dr. Salcedo was not required to submit a variance request to prescribe Opana ER to the instant claimant pursuant to Subject Number 046-457, so long as use of the pain medication prescribed is justified.

The Board Panel finds that the variance request which Dr. Salcedo submitted, dated December 21, 2011, documented a valid justification for him to prescribe, and the claimant to try, a different opiate pain relief, Opana ER. Dr. Salcedo set out the history of previous pain management methods / medication which had failed to adequately address the claimant's low back pain, e.g. Kadian, Methadone, Nucynta and a spinal stimulator, all of which created varying undesirable side effects for the claimant or were outright ineffective. Given the claimant's medical history of adverse reaction to different opioid pain medicine, the Board Panel finds that, though not required, Dr. Salcedo has sufficiently set forth the history of long-term treatment with the prescription of opioids and alternate methods of treatment in the present matter, to support a variance request for a change in type of opioid medication without the need for an exact duration, yet consistent with the MTG. And as such, the Board Panel finds that sufficient justification has been submitted for the claimant to be prescribed and to try Opana ER for pain management.

Therefore the Board Panel finds, upon review of the record and based upon a preponderance of the evidence, in particular, the variance request for the prescriptions of Opana ER submitted by Drs. Salcedo and Dr. Waghmarae, against the backdrop of Subject Number 046-457's clear emphasis on the importance of continuity in the treatment of chronic pain management, and based on the submission showing a lengthy history treating the claimant's chronic back pain with opioids in conjunction with varying forms of treatment since 2008, that the claimant's doctor has adequately spelled out a justification to prescribe opiate pain relief to the claimant beyond the two-week ceiling established in MTG.

Finally, the Board Panel notes that SFCC stated in its application that the claimant's attorney raised the application of Subject Number 046-457 at the February 9, 2012, hearing and that it responded in part that SFCC did not believe that the Subject Number applied to a different opioid drug. Review of the minutes of the February 9, 2012, hearing does not reveal that this argument was made on the record, and the minutes also do not reveal any off the record discussions. SFCC is cautioned to adequately represent the record in its applications for review.

In light of the foregoing, with regard to SFCC's remaining arguments regarding the adequacy of the claimant's doctor's variance request, the Board Panel need not address them given Dr. Salcedo was not required to submit a variance request relative to the instant claimant. However, the Board Panel notes that SFCC's assertion that Dr. Salcedo failed to include necessary additional treatment is errant given the language of Section D.7.i.ii of the Mid and Low Back Injury MTG is permissive in that it states that "[o]pioids may be recommended as adjuncts to more efficacious treatments". Such language cannot logically be viewed as a necessary condition for approval, rather set out as factor which can be used to support a treating provider's request. As discussed infra, Dr. Salcedo set forth a valid justification to stray from any requirement that a maximum duration be set forth.

Frivolous Claim Penalty pursuant to WCL 23

WCL 23 provides, in relevant part:

"Whenever a notice of appeal is served or an application made to the board by the employer or insurance carrier for a modification or rescission or review of an award or decision, and the board shall find that such notice of appeal was served or such application was made for the purpose of delay or upon frivolous grounds, the board shall impose a penalty in the amount of five hundred dollars upon the employer or insurance carrier, which penalty shall be added to the compensation and paid to the claimant" (see also Matter of Jampolski v Ashley Music Supply Co., 277 AD 329 [1950], compare with Matter of Marino v Demettriades, 275 AD 879 [1949]; Matter of Walsh v New York Tel. Co., 55 AD2d 765 [1976])

In Matter of Walsh, the Appellate Division found that application for Board review of a WCLJ decision which resolved a medical issue of fact between medical providers was not frivolous (Walsh, 55 AD2d 765 [1976]). While the Board Panel finds SFCC's denial of the December 21, 2011, variance request generally improper as it flies in the face of the Chair's unequivocal policy statement in Subject Number 046-457, the Board Panel finds that SFCC's application for Board review is not frivolous due to the legitimate issue of fact in front of the Board Panel for resolution concerning the sufficiency of Drs. Waghmarae and Dr. Salcedo's medical justification submitted in support of the variance requests and the question of law on the interpretation of the Board's regulation regarding the MTG and Subject Number 046-457. The Board Panel notes that, while SFCC could certainly have withdrawn its application after receiving the Board Panel decision in Matter of Green Belting Industries, 2012 NY Wrk Comp 80313217 which answered the legal issue presented, the Board Panel decision was not issues until after SFCC's present application for Board review was filed and thus the instant application was not filed frivolously.

Therefore, the Board Panel finds, upon review of the record and based upon a preponderance of the evidence, SFCC's application for Board review was not frivolous so as to require the Board impose a penalty pursuant to WCL 23.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on February 14, 2012, is AFFIRMED. No further action is planned at this time.

All concur.