Tunnel Vision - Another Illness Plaguing the New York Workers' Compensation Board
Having been previously diagnosed with “lameduckedness”, the New York Workers’ Compensation Board [WCB] appears to have incurred a new malady --- tunnel vision !
Among others, the promise and public policy underlying development and implementation of New York’s New Medical Treatment Guidelines [MTG] were:
-
Medical Care and treatment required as a result of a work-related injury, should be focused on restoring functional ability required to meet the patient’s daily and work activities and return to work, while striving to restore the patient’s health to its pre-injury status in so far as is feasible.
Those same General Principles declare that, under the MTG's, workers’ compensation claimants are patients, acknowledging their rights as equal to those of all insurance subscribers in need of medical care and treatment.
The Guidelines, which contain quality standards for medical care of injured workers, should encourage accelerated delivery of quality medical services to injured workers and reduce disputes and costs. [ See Transmittal letter from Superintendent of Insurance, 12/07/07]
- “Putting medical treatment guidelines in place will mean injured workers get faster and more effective medical care at a lower cost to employers,”Dinallo said. “These guidelines will standardize treatments so injured workers get quality and appropriate care for their condition. Without guidelines, disputes and inappropriate treatments can lead to higher cost but not better care. [Department of Insurance, Press Release, 12/07/07]
However, just three years later, the promise and public policy did not anticipate the kind of “tunnel vision” that the WCB would apply upon writing regulations, interpreting, and implementing the Medical Treatment Guidelines under its Subject Numbers [a/k/a “fiats” ]. Check this out directly from the WCB web site:
- If a Workers' Compensation Law Judge had previously rendered a decision authorizing ongoing or symptomatic treatment, would the treatment have to follow the Medical Treatment Guidelines?
- Yes. The Medical Treatment Guidelines will apply to cases with orders for ongoing or symptomatic treatment. If such treatment is not consistent with the Medical Treatment Guidelines, the Carrier may object. If treatment exceeds the amount recommended under the Guidelines, the treating medical provider must show that there is a need for continuing treatment through the variance process.
Ugh!! What may have been a clear interpretation by the WCB to apply the Medical Treatment Guideliness to all claims, regardless of injury date, has mushroomed into wholesale conflict and confusion. Despite strong objections from the state AFL-CIO and Medical Society of the State of NY [MSSNY], the WCB’s implementation of the guidelines has resulted in almost a universal chorus of complaint.
Across the state, attorneys are reporting dozens of calls from claimants and medical providers on a daily basis seeking assistance in negotiating medical issues through the WCB’s torturous “variance” process. Worse, due to retroactive application of the MTGs, claimants and physicians are experiencing interruption of existing medical treatment plans previously authorized by a judge or carrier or pursuant to statute. A recent communication from the an insurance carrier advised:
- This injury is now over two years old and [patient] continues to receive…treatment. Based on the NYS Medical Treatment Guidelines no further treatment is approved. We trust you understand our position. Thank you.
Thank you, indeed! “Trust”??! A workers’ compensation patient requiring medical care to continue working (and was previously promised such medical care by a Judge as part of the "deal" closing his case) must now be cleared through the “variance” process to maintain his/her capacity to work. Trust??!
The objective and goal to reduce disputes and speed deliver of medical treatment is replaced by the continuing necessity to obtain approvals for treatment previously authorized. Bureaucratic absurdity in it's finest hour!
Many are urging legal action against the WCB to rectify its “tunnel vision.” Such may be the antidote or “variance” required to cure the malady and restore the promise and public policy that was supposed to guide the MTG's.
The existing statutory provision WCL §13 states:
- The employer shall be liable for the payment of the expenses of medical, dental, surgical, optometric or other attendance or treatment...necessitated by the injury of an employee for such period as the nature of the injury or the process of recovery may require..."
The statute seems pretty clear to us. ( Also see Matter of Stajanov [AD3d, filed April 1, 2010] where the Court found the WCB could not trump it's interpretation of statutory construction with a subsequent regulation).
We can perhaps understand applying the new guidelines prospectively to all injuries on or after 12/01/2010. But to apply them to injured workers who have made life decisions based upon the Board's own prior promises of medical care in cases that can be 20 years old or more and were part of a legally negotiated arms length bargain - well, that's just cruel and unfair.
Shame on the New York Workers' Compensation Board for this fiasco!
