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Case # 09837041
Matter of Entertainment Partners
2013 NY Wrk Comp 9837041

BOARD PANEL DECISION

By: Board Members Dudley, Foster and Finnegan

Ruling:

The carrier requests review of the Workers' Compensation Law Judge (WCLJ) decision, filed April 19, 2012. The claimant filed a rebuttal.

ISSUE

The issue presented for administrative review is whether the C-8.1B objections to further chiropractic treatment in Florida should be found in favor of the medical provider.

FACTS

The case is established for an injury to the claimant's back and left arm that occurred on August 27, 1997. The case was amended to include a neck injury by decision filed July 11, 2000. The claimant was classified with a permanent partial disability by decision filed December 3, 2003.

In a series of C-4.2 reports, covering the period August 4, 2011, to April 3, 2012, the claimant's attending physician, Dr. Shapiro, diagnosed the claimant with cervicalgia and muscle spasm.

In an IME-4, dated May 31, 2011, with an attached medical narrative report dated May 24, 2011, the carrier's consultant, Dr. Sultan, opined that the claimant had a moderate partial disability.

In a C-4.2 report, dated September 9, 2011, the claimant's attending chiropractor in New York, Dr. Emmett, diagnosed the claimant with cervical disc syndrome, cervical brachial radicular syndrome and cervical and thoracic region segmental dysfunction.

Dr. Sultan testified on March 13, 2012, that on examination the claimant had a moderate partial disability. Dr. Sultan stated that as the accident was fourteen years ago the claimant had reached maximum medical improvement. Dr. Sultan stated that the claimant does not require any formal therapy or chiropractic therapy.

Dr. Shapiro testified on March 19, 2012, that the claimant has neck pain and discogenic cervical syndrome. Dr. Shapiro stated that the claimant is a surgical candidate but that doesn't mean you don't try conservative measures. Dr. Shapiro recommended cervical epidural steroid injections. Dr. Shapiro indicated that he always recommends conservative treatments such as massage and chiropractic care.

In a C-8.1B, dated October 20, 2011, the carrier objected to a bill dated July 11, 2011, for treatment on April 8, 2011, in the amount of $345 as no further treatment was necessary per IME. Attached are copies of the medical reports of the claimant's attending chiropractor in Florida, Dr. Rait, and the related health insurance claim forms for treatment on April 8, 2011.

In a C-8.1B, dated October 20, 2011, the carrier objected to a bill dated July 11, 2011, for treatment on October 3, 2011, in the amount of $295 as no further treatment was necessary per IME. Attached are copies of the medical reports of the claimant's attending chiropractor in Florida, Dr. Rait, and the related health insurance claim forms for treatment on October 3, 2011.

In a C-8.1B, dated November 9, 2011, the carrier objected to a bill dated July 11, 2011, for treatment on October 21, 2011, in the amount of $295 as no further treatment was necessary per IME. Attached are copies of the provider treatment notes of the claimant's attending chiropractor in Florida, Dr. Rait, and the related health insurance claim forms for treatment on October 21, 2011.

In a C-8.1B, dated January 6, 2012, the carrier objected to a bill dated December 28, 2011, for treatment on December 7, 2011, in the amount of $340 as treatment provided was not based upon a correct application of the Medical Treatment Guidelines and was provided without a variance. Attached are copies of the provider treatment notes of the claimant's attending chiropractor in Florida, Dr. Rait, and the related health insurance claim forms for treatment on December 7, 2011.

In a C-8.1B, dated January 6, 2012, the carrier objected to a bill dated November 22, 2011, for treatment on November 16, 2011, in the amount of $295 as no further treatment was necessary per IME. Attached are copies of the provider treatment notes of the claimant's attending chiropractor in Florida, Dr. Rait, and the related health insurance claim forms for treatment on November 16, 2011.

In a C-8.1B, dated January 6, 2012, the carrier objected to a bill dated November 2, 2011, for treatment on November 2, 2011, in the amount of $295 as there was no further need for medical treatment per IME. Attached are copies of the provider treatment notes of the claimant's attending chiropractor in Florida, Dr. Rait, and the related health insurance claim forms for treatment on November 2, 2011.

In a C-8.1B, dated January 6, 2012, the carrier objected to a bill dated October 28, 2011, for treatment on October 28, 2011, in the amount of $295 as there was no further need for medical treatment per IME. Attached are copies of the provider treatment notes of the claimant's attending chiropractor in Florida, Dr. Rait, and the related health insurance claim forms for treatment on October 28, 2011.

In a C-8.1B, dated January 6, 2012, the carrier objected to a bill dated November 30, 2011, for treatment on November 30, 2011, in the amount of $304 as there was no further need for medical treatment per IME. Attached are copies of the provider treatment notes of the claimant's attending chiropractor in Florida, Dr. Rait, and the related health insurance claim forms for treatment on November 30, 2011.

In a C-8.1B, dated January 18, 2012, the carrier objected to a bill dated January 4, 2012, for treatment on January 4, 2012, in the amount of $340 as there was no further need for medical treatment per IME. Attached are copies of the provider treatment notes of the claimant's attending chiropractor in Florida, Dr. Rait, and the related health insurance claim forms for treatment on January 4, 2012.

In a C-8.1B, dated February 23, 2012, the carrier objected to a bill dated September 9, 2011, for treatment from May 20, 2011, to September 7, 2011, in the amount of $632.42 as there was no further need for medical treatment per IME. Attached are copies of C-4.2 reports of the claimant's attending in N.Y. chiropractor, Dr. Emmett, dated July 18, 2011, and September 9, 2011, covering treatment from June 17, 2011, to September 7, 2011.

In a C-8.1B, dated March 6, 2012, the carrier objected to a bill dated February 23, 2012, for treatment from January 18, 2012, to February 15, 2012, in the amount of $1,165 as there was no further need for medical treatment per IME. Attached are copies of the provider treatment notes of the claimant's attending chiropractor in Florida, Dr. Rait, and the related health insurance claim forms for treatment from January 18, 2012, to February 15, 2012.

At the hearing held on March 22, 2012, the claimant indicated that he returns from Florida every 90 days for treatment by Dr. Shapiro. The Workers' Compensation Law Judge indicated that he would review the medical depositions and issue a decision.

By decision filed April 19, 2012, the WCLJ found that the three cervical epidural steroid injections under fluoroscopic imaging was medically necessary and found the C-8.1B objections dated October 20, 2011, November 9, 2011, January 6, 2012, January 18, 2012, February 23, 2012, and March 6, 2012, in favor of the medical provider.

LEGAL ANALYSIS

The carrier asserts that it is obvious that the chiropractic treatment was excessive and is doing nothing to improve the claimant's condition and there is no documentation supporting an exacerbation or treatment plan. The carrier further asserts that the Workers' Compensation Law Judge did not address the carrier's further C-8.1B objections dated March 16, 2012, March 22, 2012, March 29, 2012, and three additional objections filed on May 1, 2012. The carrier also asserts that all the C-8.1B objections should be resolved in favor of the carrier as chiropractic treatment is doing absolutely nothing to improve the claimant's condition.

In rebuttal, the claimant asserts that the claimant resides in Florida and receives treatment there and the Medical Treatment Guidelines do not apply in this case. The claimant further asserts that the decision should be affirmed.

"[T]he Board has the right, 'in the case of a person who is injured in the state but who subsequently moves out of the state and finds it necessary to obtain medical service in the state of his residence', to make an award for the reasonable value of the services rendered (Matter of Ranellucci v New York Cent. R.R. Co, 282 App Div 789 [1953], affd 306 NY 896 [1954]). As noted in Ranellucci, this right arises not from Workers' Compensation Law § 13(b), which on its face applies only to claimants injured outside of New York, but from Workers' Compensation Law § 13(a), which requires the employer to provide 'necessary medical treatment' (id., at [790]). Just as the requirement sought to be imposed in Ranellucci, that all providers be licensed in accord with the Workers' Compensation Law, would have indirectly prohibited a claimant from obtaining care outside the State, so too could the imposition of a fee schedule which bears no relation to the fees customarily charged for medical care in another state effectively render such care unavailable to a New York claimant" (Matter of Conn v Kotasek Corp., 198 AD2d 600 [1993]).

"Generally, a workers' compensation claimant who is injured in New York is entitled to treatment by a physician of his or her choice so long as the physician is licensed to practice in New York and has been authorized by the Board to provide care and treatment to claimants (see Workers' Compensation Law § 13 [b]; 13-a [1]; 13-b)" (Matter of Bowman v J & J Log & Lumber Corp., 305 AD2d 888 [2003]). However, in Matter of Bowman the Court confirmed that when New York residents seek treatment from nearby physicians who are located across state lines, it is reasonable for the Board, being "vested with the duty to establish reasonable fees for treatment by out-of-state physicians," to set fees for such treatment according to New York State's workers' compensation fee schedule (id.).

Once a claimant moves out of state the claimant may seek medical treatment in his new location and advise the out-of-state physicians that they can request payment at the prevailing fees in their area and not necessarily receive only the fees under the New York Workers' Compensation Board's fee schedule (see Matter of Liberty Eagle Plumbing and Heating, 2010 NY Wrk Comp G0024849). In keeping with more recent and expressive precedent, the Board Panel finds that it is more important to advance the broad ameliorative purposes of the Workers' Compensation Law and to not interfere with a non-resident claimant's ability to obtain treatment out-of-state (see e.g., Matter of Home Depot, 2012 NY Wrk Comp 30303792, Matter of United Parcel Service, 2013 NY Wrk Comp 08446351, and Matter of Harrison Division, 2013 NY Wrk Comp 89216935).

The Medical Treatment Guidelines and the various Guidelines processes do not apply if the claimant both resides out of state and received medical treatment out of state. The Guidelines do not change the fact that out of state medical providers treating claimants who reside out of state are reimbursed at medical fees customary to the area where the medical services are provided. In addition, the Guidelines do not change the fact that out of state medical providers cannot request administrative awards or arbitration (See generally, MTG Frequently Asked Questions).

The Workers' Compensation Law Judge, as the trier of fact, resolves conflicting medical opinions and is free to reject or accept any part based on its credibility (Matter of DiFabio v Albany County Department of Social Services, 162 AD2d 775 [1990]). Further, the law judge is not constrained to credit or reject evidence in its entirety; he or she may pick and choose, adopting some portions and rejecting others, as long as the conclusion is supported by evidence on the record (Matter of Westfall v Linesville Construction Co., 55 AD2d 758 [1976], citing Matter of Buttery v International Paper Co., 47 AD2d 687 [1975]; Matter of Guidera v Abelove's Laundry, 33 AD2d 1070 [1970]).

A review of the record reveals that the case is established for injuries to the claimant's neck, back and left arm and the claimant currently resides and receives treatment in Florida. The Board Panel finds that the Medical Treatment Guidelines do not apply in this case as the claimant resides and treats in Florida. The Workers' Compensation Law Judge reviewed the medical evidence and testimony and resolved the issue of further chiropractic treatment in favor of the claimant's medical providers. The Board Panel finds that there is sufficient credible medical evidence in the reports of Dr. Shapiro and Dr. Rait to support further causally related chiropractic treatment and the C-8.1B objections dated October 20, 2011, November 9, 2011, January 6, 2012, January 18, 2012, February 23, 2012, and March 6, 2012, are resolved in favor of the medical providers.

The carrier may file an RFA-2 Request for Further Action to request resolution of any further C-8.1B objections not addressed by the WCLJ.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed April 19, 2012, is AFFIRMED. No further action is planned at this time.

All concur.