Board Panel Decision
By Board Members Ferrara, Libous, and Paprocki
The carrier requests administrative review of an Order of the Chair filed February 16, 2010.
The issue presented is whether administrative review under Workers' Compensation Law (WCL) § 23 extends to an Order of the Chair issued pursuant to WCL § 13-a(5) and 12 NYCRR 325-1.4(a)(7).
On March 25, 2003, claimant injured his left knee in a motor vehicle accident. He was awarded a 15% schedule loss of use of the left leg in a decision filed March 1, 2005. Four years later, by Board form C-4 Auth (Attending Doctor's Request for Authorization and Carrier's Response) filed on December 28, 2009, Dr. Cushner, the claimant's treating physician, requested authorization for left knee arthroscopy surgery. The accompanying MRI report showed a "complex tear of the posterior horn and body segment of the medial meniscus with both horizontal and radial components."
The carrier denied the authorization request on a C-8.1(Notice of Treatment Issue(s)/Disputed Bill Issue(s)) filed on December 31, 2009. Thirty-six days after the C-8.1 denial and thirty-nine days after the authorization request, the carrier submitted a report by its consultant, Dr. Luchetti, on February 5, 2010. The report gave no opinion on either the need for need for arthroscopic surgery or whether it was causally related to the compensable injury to the claimant's left leg. Dr. Luchetti noted that he did not have an opportunity to review the MRI disc itself or claimant's prior surgical report as it was not provided to him.
The left knee arthroscopy surgery was subsequently deemed authorized by an Order of the Chair filed on February 16, 2010.
By application for review received on March 18, 2010, the carrier requests review of the Order of the Chair in the interest of justice. It contends that the order was issued prematurely and in error as the carrier's consultant needed more information in order to render an opinion on causal relationship.
- Authorization of Special Services and Order of the Chair
WCL § 13-a(5) provides:
(5) No claim for ... surgical operations... costing more than one thousand dollars shall be valid and enforceable, as against such employer, unless such special services shall have been authorized by the employer or by the board, or unless such authorization has been unreasonably withheld, or withheld for a period of more than thirty calendar days from receipt of a request for authorization, or unless such special services are required in an emergency, provided, however, that the basis for a denial of such authorization by the employer must be based on a conflicting second opinion rendered by a physician authorized by the board. (emphasis added).
As to authorizations which have been "withheld for a period of more than thirty calendar days," 12 NYCRR 325-1.4(a)(7) provides:
If such authorization or denial is not forthcoming within 30 calendar days ... such request shall be deemed authorized and the employer or carrier shall be liable for payment for such special services. The Chair may issue an order stating that such request is deemed authorized or requiring the employer or carrier to provide written authorization, if such documentation is required by the claimant to secure necessary medical treatment. (emphasis added)
While the regulation provides that the Chair has discretion whether or not to issue an Order, the passage of time without an approval or denial with a conflicting medical opinion is all that is required for such special service to be authorized as a matter of law.
Based upon the statute and regulation, the carrier has thirty days from receipt of the authorization request to either grant the authorization or to deny the authorization. Any denial must be accompanied by a conflicting second opinion rendered by a physician authorized by the board.
Where the carrier issues a "written notice of denial" (12 NYCRR 325-1.4(a)(6)), the carrier is also required to timely file its denial of further treatment on Board Form C-8.1 Part A within five days of such denial (12 NYCRR 300.23 [d]). The C-8.1 Part A filing must be "based on a conflicting second opinion rendered by a physician authorized by the Board." [WCL § 13-a(5); 12 NYCRR 325-1.4[a])]. The foregoing requirements apply whether the right to compensation is controverted or not (see 12 NYCRR 325 1.4(b)(1)).
- Jurisdiction of the Board
WCL § 23 provides that
Any party may within thirty days after notice of the filing of an award or decision of a referee, file with the board an application in writing for a modification or rescission or review of such award or decision ... (emphasis added)
A party may also request review of "an administrative redetermination review decision by the chair" issued pursuant to WCL §§ 52(5), 131, or 141-a, which involve employer compliance with rules regarding coverage and the keeping of proper records.
However, there is no authority offered in WCL § 23 for the Board to review Orders of the Chair issued pursuant to WCL § 13-a(5) and 12 NYCRR 325-1.4(7). An Order of the Chair deeming a special medical procedure authorized is neither an award or decision of a referee, nor is it a redetermination review decision by the Chair.
Based upon the above, the Board panel finds that the Application for Board Review (Form RB-89) of the Order of the Chair filed February 16, 2010 is DENIED as its jurisdiction does not extend to an Order of the Chair. The Order of the Chair filed February 16, 2010 therefore remains in full effect.