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Case # G0167813
Matter of Brentwood School District
2013 NY Wrk Comp G0167813

BOARD PANEL DECISION

By: Board Members Dudley, Lobban and Libous

Ruling:

The self-insured employer requests review of the Workers' Compensation Law Judge (WCLJ) decision, filed November 15, 2011. The claimant filed a rebuttal.

ISSUES

The issues presented for administrative review are:

  1. whether the self-insured employer filed a timely C-4 AUTH-D; and
  2. whether the self-insured employer filed a timely written request for rescission of an Order of the Chair.

FACTS

The case is established for an injury to the claimant's back and right shoulder that occurred on November 7, 2009.

In a C-4 AUTH, dated September 16, 2011, the claimant's attending physician, Dr. DeMoura, requested authorization for lumbar fusion surgery.

In an EC-325, Order of the Chair, dated October 19, 2011, the request for treatment by Dr. DeMoura on September 16, 2011, for authorization of lumbar fusion surgery was deemed authorized and the self-insured employer was liable for payment for these services.

On October 19, 2011, the self-insured employer returned the C-4 AUTH-D and denied the request for lumbar fusion surgery based upon an IME report dated October 13, 2011, that surgery was not consistent with the Medical Treatment Guidelines and not causally related to accidents. This document was received by the Board by fax on October 19, 2011.

In a C-8.1A, dated October 19, 2011, the self-insured employer denied authorization for the lumbar fusion requested by Dr. DeMoura.

At the hearing held on November 9, 2011, the self-insured employer's attorney asserted that the C-4 AUTH dated September 16, 2011, was never sent to the self-insured employer and the Order of Chair must be rescinded. The Workers' Compensation Law Judge indicated that she had no jurisdiction concerning the prior Order of the Chair and the issue is moot as it was addressed by the EC-325 filed October 19, 2011.

By decision filed November 15, 2011, the WCLJ found that the self-insured employer denied a variance request for a C-4 AUTH by Dr. DeMoura, dated October 19, 2011, and found that the request is now moot because the issue was addressed by the EC-325 filed October 19, 2011.

LEGAL ANALYSIS

The self-insured employer asserts that the claimant's doctor's request for lumbar fusion surgery should be denied. The self-insured employer further asserts that it did not receive the September 16, 2011, request for surgery by Dr. DeMoura and was not allowed the opportunity to respond. The self-insured employer also asserts that the EC-325 authorized surgery while this issue was clearly being litigated. The self-insured employer further asserts that it has been highly prejudiced by the Workers' Compensation Law Judge's decision not to address this issue of the claimant's need for spinal fusion surgery. In the alternative, the self-insured employer requested that the case be returned to the trial calendar to determine the issue based upon the evidence and testimony in the record.

In rebuttal, the claimant asserts that a previous C-4 AUTH was denied because it was incomplete and after a duly completed C-4 AUTH was submitted lumbar surgery was authorized by Order of the Chair. The claimant further asserts that the Workers' Compensation Law specifically provides that Orders of the Chair are final and non-reviewable and the self-insured employer's appeal is attempting to circumvent the legal and regulatory procedure codified by the legislature and the Board. The claimant asserts that the decision should be upheld in its entirety.

By regulation, 12 NYCRR 325-1.4(a)(1), the physician requesting special services must set forth the medical necessity of the special services and can do so by telephone, later confirming by letter (12 NYCRR 325-1.4[a][3]). In response to a request for authorization, the carrier then has 30 days within which to have the claimant examined by its consultant (12 NYCRR 325-1.4[a][5]). Written notice of the carrier's denial of a request for authorization must be based on a conflicting second opinion (id).

12 NYCRR 325-1.4(a)(6) provides that the carrier "shall respond to the authorization request orally and in writing by one of the prescribed methods" . . . "The written response shall be on a copy of the form prescribed by the Chair completed by the attending physician seeking authorization and shall clearly state whether the authorization has been granted or denied."

12 NYCRR 324.3(d)(6) provides:

"If the insurance carrier or Special Fund fails to respond to the variance request, fails to timely send the denial of the variance request in accordance with subdivision (b) of this section, or, except if the basis for the denial is one of the reasons set forth in subdivision (b) (2)(i)(b) or (c) of this section, fails to attach the written report to, or identify the report in the electronic case folder on, the Chair prescribed form as required by subdivision (b)(3)(iv), the variance is deemed approved on the ground that such approval was unreasonably withheld and the Chair will issue an order stating that the request is approved. Such order of the Chair is not appealable under [WCL § 23]."

An Order of the Chair is neither an "award" nor a "decision" of the referee (see WCL 23; see also 12 NYCRR 300.13) and is outside the scope of the Board Panel's review (see Matter of United Parcel Service, 2010 NY Wrk Comp 30303791. See also Matter of Livingston County, 2011 NY Wrk Comp 79905338). The Board's regulations specifically provide that an Order of the Chair authorizing a variance for medical treatment is not appealable under WCL § 23 (see 12 NYCRR 324.3[d][6]).

If an Order of the Chair is defective or was improperly issued, the remedy is to make a written request to the Board for a rescission of the Order of the Chair, with notice to the other parties in interest, which will be addressed administratively by the Board. If it is administratively determined that the Order of the Chair should be rescinded, the Board will do so through a form EC-325.1, Rescission of the Order of the Chair. The Board Panel has no authority to direct that the Order of the Chair be rescinded.

A review of the record reveals that in a C-4 AUTH, dated September 16, 2011, the claimant's attending physician, Dr. DeMoura, requested authorization for lumbar fusion surgery, and that the self-insured employer did not file a C-4 AUTH-D until October 19, 2011. The Board Panel finds that the self-insured employer did not timely file a response to the C-4 AUTH request for surgery and therefore by regulation the surgical request is deemed authorized.

A review of the record also reveals that in an EC-325, Order of the Chair, dated October 19, 2011, the request for treatment by Dr. DeMoura on September 16, 2011, for authorization of lumbar fusion surgery was deemed authorized and the self-insured employer was liable for payment for these services. If an Order of the Chair is defective or was improperly issued, the remedy is to make a written request to the Board for a rescission of the Order of the Chair, with notice to the other parties in interest, which will be addressed administratively by the Board. The Board's regulations specifically provide that an Order of the Chair authorizing a variance for medical treatment is not appealable under WCL § 23 (see 12 NYCRR 324.3[d][6]). The Board Panel notes that the self-insured employer failed to file a timely written request to rescind the Order of the Chair and the Board Panel has no authority to direct that the Order of the Chair be rescinded.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed November 15, 2011, is AFFIRMED. No further action is planned at this time.

All concur.