Select Full Board and Panel Decisions

Case # G0033782
Matter of Flatbed Express
2018 NY Wrk Comp G0033782

By: Board Members Lobban, Higgins, Stasko

By its own motion, pursuant to its continuing jurisdiction under Workers' Compensation Law § 123, the Board Panel finds that its Memorandum of Board Panel Decision filed March 28, 2018, must be amended to correct findings made in the second section of the LEGAL ANALYSIS section resulting in an incorrect finding that the carrier's variance denial was defective. The correct findings are that the carrier's variance denial is sufficient, that evaluation of the requisite burden of proof is thus warranted, and that the variance request should be denied. The amended portion of the decision is in italics.

The carrier requests review of the Workers' Compensation Law Judge (WCLJ) decision filed on September 27, 2017. The Board file does not contain a timely rebuttal from the pro se claimant.

ISSUE

The issue presented for administrative review is whether the treating medical provider met the burden of proof necessary to support the July 25, 2017, Request for Approval of Variance (MG-2) for treatment of chronic pain with medical marijuana.

FACTS

This case is established for injury to the claimant's right shoulder, sustained at work on November 3, 2008. The average weekly wage is set at $499.01. Permanency has been established, and the claimant was found to have a 52.5% schedule loss of use of the right arm, following stipulation by the parties, in a decision filed on December 20, 2011.

The claimant reported significant, persistent pain and lost mobility. Treating surgeon, Dr. Kevin Ouweleen, reviewed a January 5, 2009, MRI and determined that the claimant had a SLAP (superior labral tear from anterior to posterior) lesion.

On April 17, 2009, Dr. Ouweleen performed arthroscopic SLAP repair surgery, with debridement of the biceps.

However, the claimant subsequently presented with biceps tenderness with flexion and abduction, and reported a catching and popping sensation, on November 2, 2009. The claimant reported continued use of Naprosyn, but that Ultram did not "seem to help him." The claimant requested that Dr. Ouweleen prescribe Lortab. Dr. Ouweleen recommended steroid injection and biceps strengthening exercise.

A November 24, 2009, MRI revealed post-surgical change in the superior glenoid labrum, and indicated a small tear within the posterior labrum.

Dr. Ouweleen accordingly requested authorization to perform "a second look arthroscopy, with possible adhesions or failure of repair." With review of the MRI, Dr. Ouweleen opined "the labral separation that was previously seen appears to have been corrected with surgery" but Dr. Ouweleen suspected that "there is some biceps fraying."

On August 16, 2010, Dr. Ouweleen performed arthroscopic debridement of the rotator cuff tendon and biceps tendon tears.

Dr. Ouweleen and the carrier's consultant both subsequently opined that the claimant had a right arm SLU, given lost mobility, tenderness, and pain, following surgeries. The December 20, 2011, WCLJ decision was based upon compromise between the two opinions. Subsequent treatment consisted of home exercise and medication, including Celebrex and Lortab.

The claimant received a degree in the field of information technology in 2012, but continued to report persistent right shoulder pain. The claimant reported that he took Lortab "on average less than one per day [and was] using it for sleep mostly."

On June 2, 2014, the claimant presented with increased right shoulder pain. Dr. Ouweleen opined that an MRI revealed "fraying of the superior labrum, especially anteriorly near the biceps attachment [and] the biceps tendon itself." The claimant had good range of motion and strength, but signs of impingement. Dr. Ouweleen requested authorization to perform further arthroscopic surgery, specifically subpectoral biceps tenodesis.

During a March 23, 2015, examination by Dr. Ouweleen, the claimant expressed reluctance to undergo further surgery and reported that he continued to work. The claimant had "very good" range of right shoulder motion and strength, with positive impingement signs. Dr. Ouweleen diagnosed the claimant as having "dislocation of the biceps tendon."

Dr. William Wind first examined the claimant on July 22, 2015, at which time the claimant was still working. The claimant had pain which had continued since the second right shoulder surgery, but "he had another injury to his right shoulder where he likely tore his proximal biceps tendon" two months prior. Dr. Wind observed that the claimant had crepitation of the right shoulder, without atrophy or deformity.

A July 28, 2015, MRI revealed partial thickness tears of the supraspinatus and infraspinatus tendons, and that the long head of the biceps tendon appeared to be torn and displaced.

On October 30, 2015, Dr. Wind performed arthroscopic rotator cuff repair surgery, with subacromial decompression, acromioplasty, and open subpectoral biceps tenodesis. Dr. Wind prescribed continued physical therapy, and medication. Specifically, Dr. Wind prescribed Celebrex three times daily and Lortab for nighttime pain. The claimant had flexion to 115 degrees, abduction to 105 degrees and limited internal and external rotation.

The claimant continued a course of physical therapy, and returned to work on December 14, 2015.

Following a January 22, 2016, independent medical examination (IME), Dr. Gerald Coniglio opined that the claimant has a 55% SLU of the right arm, given lost motion and strength. Dr. Coniglio observed that apprehension test produced was "extremely painful" and produced "a painful click." The claimant reported that his pain was routinely 3 on a pain scale to 10, although it was 8 out of ten at its worst. Notwithstanding his SLU opinion, Dr. Coniglio opined that "another alternative diagnosis should be considered," given the failure of three surgeries to address the claimant's continuing pain and symptoms, and that Bankart lesion repair surgery is warranted, with consideration to the Board's Medical Treatment Guidelines (MTG). Specifically, Dr. Coniglio based his opinion upon the claimant's presentation with anterior glenohumeral instability, pain in the front of the right shoulder, and as abduction and external rotation produced a feeling that the claimant's shoulder may come out.

Following continued treatment, and physical therapy, Dr. Wind opined that the claimant's right shoulder mobility and strength improved. Dr. Wind continued to prescribe medication to the claimant, Celebrex, Hydrocodone, and Acetaminophen. On October 26, 2016, Dr. Wind opined that the claimant has a 40% right arm SLU, specifically "15% for biceps surgery, 15% for rotator cuff repair and 10% for some restricted range of motion." The claimant had flexion and abduction to 160 degrees, external rotation "at 0 degrees to 70 degrees [and] internal rotation at 0 degrees...to the sacrum." The claimant reported that he had "not had any recent treatment." The claimant reported an occasional popping sensation in his right shoulder, but that he worked in a modified duty position.

In a decision filed on February 28, 2017, the WCLJ found that "there is no evidence at this time of an increase" in right arm SLU, noting the prior SLU was 52.5%.

Dr. Wind opined that there was "no further surgery" that his office could offer the claimant, at a March 24, 2017, examination. The claimant also deferred treatment with steroid injection. The claimant reported that he had difficulties with daily activities, due to pain which radiates deep into the right shoulder joint, and he continued with "mostly desk type work."

Dr. Alexander Selioutski examined the claimant on June 1, 2017, for pain which is significant, notwithstanding the use of nonsteroid anti-inflammatory drugs (NSAID). The claimant reported pain which was sharp and excruciating, with stiffness and weakness. The claimant reported that the pain radiated into the fingers. The claimant reported that he "cannot take opiates because they interfere with his work." Noting that the claimant also has a work-related left knee condition, which has also required surgical intervention (WCB # 89121609), Dr. Selioutski prescribed treatment with the use of marijuana.

By MG-2 filed on July 25, 2017, Dr. Selioutski requested a variance from the MTG for continued treatment with medical marijuana, as the claimant's "pain is not controlled on NSAIDs and opioids interfere with [his] job." Dr. Selioutski previously had prescribed marijuana on April 28, 2017, and he observed that the claimant's "overall pain control is better." In an attached narrative report from a July 6, 2017, examination, the claimant reported that the pain was "moderate in severity" with activity, and which occurred constantly.

The carrier denied authorization on grounds that the treatment was not consistent with the Board's regulations, specifically 12 NYCRR 324.3, and the Non-Acute Pain Medical Treatment Guidelines (NAPMTG).

At a hearing held on September 13, 2017, to address the carrier's variance denial, the claimant appeared on his own behalf. In support of the MG-2, the claimant testified that he previously tried Medrol, and injections to address the pain, without relief. The claimant also testified that the medication helps him to "sleep at night and continue to be productive with gainful employment." The claimant takes the medicine at night. In order to obtain the marijuana, the claimant "had to apply for a card," and has requested the prescription through New York State since May 13, 2017. The carrier's representative argued that the MG-2 request should be denied as the use of medical marijuana is an "experimental or investigational" treatment, which is "not approved for any purpose, application or indication by the FDA is not permitted under the guidelines." Further, the carrier's representative argued that the variance should be denied pursuant to 12 NYCRR 324.3, with regard to treatment previously rendered as a variance was not requested in advance of the treatment. Lastly, the carrier's representative argued that the treatment is not causally related to the established right shoulder injury, but is related to the claimant's left knee and ankle conditions.

The WCLJ found that the claimant's treating medical provider met the requisite burden of proof for treatment with medical marijuana for the claimant's right shoulder condition under the MTG, and approved the MG-2 request, in a decision filed September 27, 2017. The WCLJ further found that the carrier is not responsible for payment of bills for medical marijuana prescribed prior to the variance request, pursuant to 12 NYCRR 324.3, given Dr. Selioutski's prescription of the medication before he submitted an MG-2.

LEGAL ANALYSIS

The carrier asserts that the variance request for the marijuana prescription should be denied because the treatment is not consistent with the MTG, because Dr. Selioutski "did not provide objective documentation to meet his burden of proof," and makes only "generalized statements" about the functional improvement which the claimant has made using medical marijuana, such as "doing well." The carrier further asserts that the treatment is not warranted as treatment with medical marijuana "is not recommended" under the NAPMTG. The carrier additionally asserts that the record does not support Dr. Selioutski's MG-2, as it fails to provide several facts, including the original treating medical provider who prescribed the treatment on April 28, 2017, whether the claimant lost time from his job due to the shoulder injury due to other medical conditions, and the effect of medical marijuana on the claimant's ability to perform his work and to sleep, as compared to other medicines.

In Matter of WDF Inc, 2018 NY Wrk Comp G1403803, the Board Panel found that Title V-A of the Public Health Law ("Medical Use of Marijuana") is valid law, noting that,

However, while the compulsion of payment for medical marijuana is permissible under the Public Health Law and WCL, the WCL also requires compliance with the Medical Treatment Guidelines (MTGs) (Matter of WDF Inc, 2018 NY Wrk Comp G1403803).

MTGs for the mid and low back, neck, knee, and shoulder were adopted by the Chair of the Workers' Compensation Board on November 3, 2010, when subchapter C of Title 12 NYCRR was amended to add new Part 324. The MTGs apply to all treatment provided to their respective body parts on or after December 1, 2010, regardless of the accident date or the date of disablement (12 NYCRR 324.2[a]). The MTGs were amended in 2013 and 2014 to add treatment for carpal tunnel syndrome and non-acute pain. Except for occasions when a variance request to depart from the MTGs has been approved by the self-insured employer/insurance carrier or authorized by the Board, treating providers must treat all existing and new work-related injuries, illnesses, or occupational diseases involving those body parts in accordance with the MTGs.

Pursuant to 12 NYCRR 324.3(a)(1), "[w]hen a Treating Medical Provider determines that medical care that varies from the [MTGs] ... is appropriate for the claimant and medically necessary, he or she shall request a variance from the insurance carrier or Special Fund by submitting the request in the format prescribed by the Chair for such purpose. A variance must be requested and granted by the carrier, Special Fund, the Board or order of the Chair before medical care that varies from the [MTGs] is provided to the claimant and a request for a variance will not be considered if the medical care has already been provided." The burden of proof to establish that a variance is appropriate for the claimant and medically necessary rests on the treating medical provider requesting the variance (see 12 NYCRR 324.3[a][2]).

The New York State Legislature has approved marijuana for specific medical uses, as set forth in Title V-A of the Public Health Law, and the New York State Department of Health has delineated a process by which patients can legally obtain medical marijuana and medical providers can prescribe it. Accordingly, the Board Panel finds that medical marijuana may be prescribed to treat conditions or sites of injury covered by the MTGs where the treating medical provider has obtained a variance to establish that the medical marijuana is medically necessary and treatment pursuant to the MTGs is not appropriate or sufficient.

Here, Dr. Selioutski properly requested to treat the claimant's chronic pain which is causally related to the established right shoulder, following three surgical interventions and an extensive course of conservative care, as a basis under the Public Health Law (Matter of WDF, 2018 NY Wrk Comp G1403803; 10 NYCRR 1004.2(a)[8][xi]). The Board Panel takes notice that Dr. Selioutski is accredited by the New York State Department of Health to prescribe medical marijuana (www.health.ny.gov/regulations/medical_marijuana/practitioner/public_list.htm).

The burden of proof to establish that a variance is appropriate and medically necessary rests on the treating medical provider (12 NYCRR 324.3[a][2]; Matter of Kigin v State of N.Y. Workers' Compensation Bd., 24 NY3d 459 [2014]). Whether a treating medical provider has met this burden is a threshold determination that must be made whenever a carrier properly and timely articulates an objection to a variance request. 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 may result in a denial of the variance request (Kigin, 24 NY3d 459 [2014]).

If the carrier fails to file a timely objection to a variance request, or if it merely checks the "denied" box on a form MG-2 or MG-2.1 without articulating a specific objection, all objections to the variance request are waived. In that circumstance, the Board will not reach the issue of the provider's initial burden of proof, and the variance request will be deemed to have been approved by the carrier.

The regulation on variances specifically provides that when a carrier denies a request for failure to meet the burden of proof, the carrier must also assert any other bases for denial, or such bases will be deemed waived (12 NYCRR 324.3[b][2][d]). However, no regulation provides that denial of a variance on grounds other than burden of proof results in a waiver of the burden-of-proof objection, if not specifically raised. Thus, it becomes incumbent upon the Board to make a threshold determination on burden of proof whenever the carrier properly and timely articulates any objection to a variance request (see Matter of Syracuse Utilities, 2011 NY Wrk Comp 69806027).

Here, the carrier did not merely check the "denied" box on the MG-2 form, but articulated its objections to the variance request. The objections articulated by the carrier were that medical marijuana is experimental and inappropriate under the NAPMTG § A.20, discussed above, and Dr. Selioutski violated 12 NYCRR 324.3[a][1] in that he did not request a variance from the MTG by submitting the form in the format prescribed by the Chair for such purpose before the treatment has been rendered. The carrier timely and sufficiently articulated its objections to the variance request. Therefore, it is incumbent upon the Board to additionally evaluate whether the treating medical provider has satisfied the requisite burden of proof under the MTG, as set forth in Matter of Syracuse Utilities, 2011 NY Wrk Comp 69806027.

The Board Panel further finds that Dr. Selioutski has provided insufficient objective evidence to support approval of the variance request for treatment of the claimant's chronic pain with the use of marijuana, under the MTG and the DOH criteria set forth in 10 NYCRR 1004.2(a)(8)(xi). As an initial matter, Dr. Selioutski failed to establish that the claimant suffered from chronic pain per DOH's regulations. Dr. Selioutski did not sufficiently show that the claimant experiences "severe debilitating pain that ... degrades health and functional capability," per DOH regulations, particularly given that during a January 22, 2016, IME, the claimant reported that his pain was routinely 3 on a pain scale to 10, and the claimant continued to work modified (mostly desk) duties at his job. Dr. Selioutski also proffered no evidence that the claimant had contraindications, had experienced intolerable side effects (beyond generally stating that opiates interfere with the claimant's work), or that one or more previously tried therapeutic options had failed (see 10 NYCRR 1004.2[a][8][xi]). Notably, the claimant deferred treatment with steroid injection with Dr. Wind prior to treating with Dr. Selioutski.

The provider's burden of proof under the MTG is likewise unsatisfied. Specifically, while Dr. Selioutski stated appropriate goals of the avoidance of the use of opiate medication, better sleep, and general pain reduction, generally, the Board Panel finds that Dr. Selioutski has not provided sufficient objective evidence that the claimant has experienced functional improvement, to warrant variance from the MTG (NAPMTG A.3). Notably absent from Dr. Selioutski's records are results of visual analog scale (VAS) or range of motion measurements, and specific improvement activities of daily living with its use. Dr. Selioutski has not provided evidence of drug testing, despite his conclusion that the claimant's past medical history of alcohol abuse and his assessment that the claimant is a "high" opiate risk.

Therefore, the Board Panel finds, upon review of the record and based upon the preponderance of the evidence, Dr. Selioutski's July 25, 2017, request for variance is denied, as the treating medical provider has not met the requisite burden of proof under the MTG and the DOH criteria set forth in 10 NYCRR 1004.2(a)(8)(xi).

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on September 27, 2017, is MODIFIED to reflect that Dr. Selioutski's July 25, 2017, request for variance is denied, as the treating medical provider has not met the requisite burden of proof under the MTG and the DOH criteria set forth in 10 NYCRR 1004.2(a)(8)(xi). No further Board action is planned at this time.

All concur.