Select Full Board and Panel Decisions

Case # 79905338
Matter of Livingston County
2011 NY Wrk. Comp. 79905338

By: Board Members Ferrara, Libous, Williams

Ruling:

The claimant requests review of the Workers' Compensation Law Judge (WCLJ) Reserved Decision filed May 20, 2011. The self-insured employer (SIE) has filed a rebuttal.

ISSUES

The issues presented for administrative review are:

1. Whether the Chair has statutory authority to promulgate 12 NYCRR 324 and the Medical Treatment Guidelines contained therein; and whether Part 324 and the Medical Treatment Guidelines comport with Workers' Compensation Law § 13.
2. Whether prior authorization under Workers' Compensation Law § 13-a(5) is required for chiropractic treatment.
3. Whether the Board Panel has the authority to direct the issuance of an Order of the Chair authorizing treatment.
4. Whether the SIE properly denied the variance request without an independent medical examination or record review.
5. Whether the MG-2 variance request for chiropractic manipulation and traction once a month for 12 months was properly denied and chiropractic treatment for three months was properly granted by the SIE.

FACTS

The underlying facts of this claim are not in dispute. By a WCLJ decision filed August 3, 2004, the claimant was classified with a permanent total disability for a back injury that occurred on March 23, 1999. The claimant underwent surgery on January 14, 2002, including fusion, laminectomy, and discectomy at levels L4-5 and L5-S1.

The claimant has routinely treated with Steven Barone, D.C. following the 1999 injury to present with a gap in treatment from October 2009 to August 2010. From September 14, 2010 to January 7, 2011, the claimant treated with Dr. Barone once a month, and again on March 4, 2011 and April 1, 1011. The C-4.2 reports submitted from December 3, 2010 to April 1, 2011, contain the same diagnoses, similar modalities of treatment, and the chiropractor's opinion that the claimant is 100% disabled. The C-4.2 report for treatment on January 7, 2011, indicated that the claimant has reduced range of motions at all planes and positive orthopedic tests for pain; the specific findings of which are documented in the attached clinical notes.

On January 21, 2011, Dr. Barone sought approval from the employer for a variance from the Medical Treatment Guidelines (MTG) on form MG-2 and requested "[m]anipulation of lumbar spine – 3 areas. Once per month for 12 months" and manual traction. Dr. Barone stated that manipulation was medically necessary due to the claimant's continued, "periodic, flare-ups of low back pain, usually with a gradual and insidious onset. Spinal manipulation reduces her pain, and restores and maintains positional tolerances as well as range of motion." He indicated that, because of her past history, he "suspects the claimant will continue to have exacerbations to her low back." As supporting medical evidence he referred to and attached a January 18, 2011 narrative medical report. He also stated that manual traction was medically necessary because it "increases joint mobilization and decreases muscle spasms around the joints."

In the January 18, 2011 narrative medical report for treatment on January 7, 2011, Dr. Barone reported that the claimant presented with sharp, shooting, and numbing pain in the low back bilaterally and, on physical examination, had limited range of motions with pain and positive orthopedic tests for pain. He diagnosed the claimant with lumbar disc displacement and lumbago (low back pain), noted her prognosis was good, and assessed that she is progressing as expected and continued improvement is expected despite permanent residuals being a possibility. He reported that the claimant is in a supportive phase of care, spinal manipulation was performed for the purpose of decreasing pain, increasing range of motion, and achieving maximum medical improvement, and such care should continue every four weeks. He commented the claimant "is able to perform most ADL's with 1-2 Chiropractic visits per month."

On January 24, 2011, a registered nurse on behalf of the SIE granted Dr. Barone's variance request for manipulation on a limited basis of "3 months with a review of the medical information in 3 months to determine further approval" and denied the request for manual traction on the bases that the requesting provider did not provide objective documentation to meet the burden of proof and the MTG do not recommend traction for acute, sub-acute, or chronic pain.

On February 4, 2011, the claimant requested review of the SIE's denial of the variance request.

Dr. Barone was deposed on March 2, 2011. The Board Panel finds that the WCLJ's detailed summary accurately sets forth the substance of the chiropractor's testimony and is incorporated by reference herein.

An expedited hearing originally scheduled for March 29, 2011, was cancelled at the request of the claimant's attorney and later re-scheduled by the Board for April 15, 2011. At the conclusion of the hearing held on April 15, 2011, the WCLJ directed the parties to submit memoranda of law by May 2, 2011.

In the claimant's memorandum of law, her attorney raised issues regarding the duration of manipulation (12 months requested and 3 months granted by the SIE) and whether the Medical Treatment Guidelines are enforceable, and requested that an Order of the Chair be issued authorizing the proposed treatment.

By WCLJ Reserved Decision filed May 20, 2011, the WCLJ summarized Dr. Barone's deposition testimony and found that, while he testified that the claimant has functional gains from manipulation and traction, Dr. Barone did not document any such gains nor did he provide any evidence to support his statement that the claimant's ability to function decreases when treatment stops. The WCLJ determined that, despite the findings on physical exam documented in the January 7, 2011 report, there was "no other recent exam to use as a comparison to demonstrate the alleged functional improvement from one exam to the next, nor a showing of how the claimant's functional capacity declined after a break in treatment." The WCLJ concluded that the record lacked evidence of objective functional gains that can be measured as required under Section A.3 of the MTG. Further, the WCLJ discounted the article offered at hearing by the claimant's attorney in that it was a survey of how many physiotherapists in the United Kingdom use traction and not a scientific study on the effectiveness of traction as a modality of treatment. Based on the totality of the evidence, the WCLJ found that Dr. Barone did not show how traction in this case is indicated contrary to the MTG stating it was not recommended and denied the request for traction, but did not address the other issues raised by the claimant's attorney in his memorandum of law or the issue of the duration of chiropractic manipulation which was to be approved.

LEGAL ANALYSIS

In an application for review filed June 17, 2011, the claimant asserts that the Board should "cease and desist" from applying certain provisions of 12 NYCRR 324 because those provisions violate the statutory mandates of Workers' Compensation Law §§ 13(a) and 13-a(5). The claimant requests that the Board declare the provisions of the MTG unenforceable as being in conflict with the express provisions of the law and that the treatment authorization be granted pursuant to the mandate of WCL § 13(a). The claimant also asserts that the SIE's denial based on the chiropractor not meeting the requisite burden of proof is faulty as the chiropractor had met the burden of proof through his deposition testimony and, pursuant to 12 NYCRR 324.3(d)(6), an Order of the Chair approving the request for authorization must be issued on the basis that the SIE failed to timely send the denial of the variance request based on an independent medical examination (IME) or record review.

By rebuttal filed July 17, 2011, the SIE asserts that the decision of the WCLJ is based on an accurate interpretation of the MTG and the procedures in this case and that the WCLJ properly concluded that the chiropractor failed to meet his burden of proof to justify why non-recommended treatment should be authorized. The SIE further asserts that 12 NYCRR 324 and the MTG are lawfully promulgated rules of the Board and do not contradict or violate any part of WCL §§13 and 13-a(5). Lastly, the SIE posits that the MG-2 denial was proper and comports with the rules set forth by regulation.

The Workers' Compensation Board (Board) is the governmental entity charged with the administration of the Workers' Compensation Law and attendant regulations and has all of the powers and duties set forth in WCL § 142. The Board's mission is to equitably and fairly administer the provisions of the WCL, including workers' compensation benefits, disability benefits, volunteer firefighters' benefits, volunteer ambulance workers' benefits, and volunteer civil defense workers' benefits on behalf of New York's injured or ill workers and their employers. WCL § 141 authorizes the Chair to enforce all provisions of the chapter and to make administrative regulations and orders providing in part for the receipt, indexing, and examining of all notices, claims and reports. The powers granted to the Board by WCL § 142(1) include the power to hear and determine all claims for compensation or benefits and the power to require medical service for claimants as provided under the chapter.

WCL § 117(1) authorizes the Chair to "make reasonable regulations consistent with the provisions of this chapter" and the Board to "adopt reasonable rules consistent with and supplemental to the provisions of this chapter," as long as they are rational and not arbitrary or capricious (Matter of Belmonte v Snashall, 2 NY3d 560, 567 [2004]). The Appellate Division recently upheld 12 NYCRR 300.38 (f), a regulation enacted as part of the 2007 workers' compensation reform which requires the filing of a Pre-Hearing conference statement in controverted cases, and subjects a carrier to a waiver of defenses if it fails to timely file such statement in advance of a pre-hearing conference. In Matter of Smith v Albany County Sheriff's Department, 82 AD3d 1334 (2011), the Third Department approved the Board's waiver of defenses provision, and rejected the employer's argument that this regulation was an improper expansion of the statute. In doing so, the Third Department stated:

In Smith v Albany County Sheriff's Department, supra, the Third Department went on to describe the waiver of defenses provision as a "logical supplementation" to the statute, and noted that "it promotes the overall statutory framework of providing injured employees a 'swift and sure source of benefits' (Crosby v State of N.Y., Workers' Compensation Bd., 57 NY2d 305, 313, 442 N.E.2d 1191, 456 N.Y.S.2d 680 [1982])." Likewise, the Board Panel finds that the Medical Treatment Guidelines are well within the general regulatory authority delegated to the Chair by the Workers' Compensation Law, and promote the overall statutory framework of WCL § 13. The MTG regulations provide injured employees, as well as their health care providers, with a swift and sure determination of the scope of the reasonable and necessary medical treatment to which injured employees are entitled under the statute.

WCL § 13(a) requires the employer to provide for the medical treatment and care for injured and ill workers for such period as the nature of the injury or the process of recovery may require and establishes the employer's liability for payment of such treatment. There must, however, be a causal relationship between the need for medical services and the compensable injury. The mere fact that a physician, chiropractor, or other provider has provided services to an injured or ill worker is not, of itself, sufficient to require the employer or its carrier to pay the bill rendered for the service. Payment need not be made for tests and treatment that are unnecessary, duplicative, or inappropriate for the injury and accordingly of no benefit to the injured or ill worker. Such services may be determined to be of no value by the Board (see Matter of Spinex Lab v Patton, 213 AD2d 884 [1995], lv to app den 86 NY2d 702 [1995]). Although claimant is correct that she is entitled to medical care as needed, WCL § 13 does not provide unlimited and unchecked medical care to injured workers. The MTG provide a logical supplementation to the statute by adopting an evidence based standard of care, crafted by medical professionals, to determine the nature and duration of appropriate medical care.

The MTG were introduced as an integral part of the 2007 workers' compensation reform (see Chapter 6 of the Laws of 2007). On March 13, 2007, the day he signed the Workers' Compensation Reform Bill into law, Governor Spitzer wrote a letter to the heads of the Department of Insurance, Department of Labor and the Workers' Compensation Board directing them to implement and supervise a Task Force to develop medical treatment guidelines to account for modern diagnostic and treatment techniques and evidence-based standards of medical treatment and care. Interestingly, in his letter, Governor Spitzer directed the Superintendent of Insurance to deliver a plan for developing medical treatment guidelines to the Board, "the body in whose discretion promulgation of regulations is vested." A working Task Force was created and the MTG were initially formulated by credentialed medical professionals appointed by business, labor, and the Insurance Department. With a focus on setting standards of medical treatment to restore functional ability so the claimant can return to work activities and the activities of daily living, the Task Force's goals were to improve the quality of medical care by setting a single standard of medical care for injured workers, ensuring best practices are utilized, speeding up the delivery of medical treatment to injured workers, reducing litigation and friction costs, and eliminating unnecessary and potentially harmful treatment. In reaching these goals, the Task Force and the Board looked to well-regarded treatises and other state workers' compensation systems where their guidelines have improved quality of care to injured workers and reduced medical costs by reducing ineffective or unnecessary medical care. On June 30, 2010, the Board published proposed regulations that incorporated by reference the guidelines recommended by the Governor's Task Force. On November 3, 2010, after modifying the regulations based on recommendations received during the comment period, the Chair adopted the MTG as the mandatory standard of care for treatment of workplace injuries related to the back, neck, shoulder, and knee. The MTG apply to all medical treatment rendered to injured workers in connection with the four designated body parts on or after December 1, 2010, regardless of their date of injury. As part of the reform, the Chair also implemented a new health provider fee schedule, which raises fees by 30% for evaluation and management services by medical and podiatry providers and restructured the chiropractic fee schedule to allow chiropractors to bill separately for individual treatment modalities.

The MTG are partly designed to reduce disputes between payers and medical providers over treatment issues, and to increase timely payments to medical providers. This goal is accomplished by the adoption of a pre-authorized procedures list for many commonly performed types of special medical services costing more than $1,000.00 (see 12 NYCRR 324.2 [d]), and by determining the medical necessity for treatment which varies from the MTG in advance of the performance of such treatment (see 12 NYCRR 324.3). Prior to the enactment of the MTG, a treating medical provider was generally required to await either authorization from the payer or from the Board in order to perform special medical services costing more than $1,000.00 (see WCL § 13-a [5]), and was denied payment for such services if prior authorization was not obtained, even if those special medical services were otherwise causally related and medically necessary (see e.g. Matter of Prescott v. Town of Lake Luzerne, 79 A.D.3d 1216 [2010]). As to treatment which was not a special medical service, a determination over the amount of the medical provider's bill, the medical necessity for such treatment, or the frequency of such treatment could be raised by a timely filed form C-8.1 (Notice of Treatment Issue[s]/Disputed Bill Issue[s]). A determination on whether the medical provider's bill was properly payable would not be made until after the treatment was provided, often through the appropriate arbitration panel for that medical provider's profession (see WCL §§ 13-g [arbitration of disputed hospital, physician, physical therapist and occupational therapist bills]; 13-k [arbitration of disputed podiatrist bills]; 13-l [arbitration of disputed chiropractor bills]; and 13-m [arbitration of disputed licensed psychologist's bills]. See Spinex Lab. v Patton, 213 AD2d 884 [1995]). Prior to the enactment of the MTG, in cases where the bill for medical treatment was disputed by the payer, a medical provider may not have known until well after they provided treatment whether their bills for treatment would be paid, and if so, to what extent.

Under the MTG, it is expected that the frequency of disputed bill issues will be greatly diminished, because where treatment is rendered that is covered by the MTG, either the specific treatment, as well as its expected scope and duration, will be covered by the MTG, or the medical provider will be able to obtain either the agreement of the payer or a variance from the Board before the treatment is rendered. Therefore, the Board Panel expects that the MTG, as explained in more detail hereafter, will provide both more prompt medical treatment to injured workers and a greater certainty to medical providers that they will be paid for the medical services they provide.

The MTG are also designed to streamline the delivery of medical care through pre-authorized diagnostic testing and medical treatment within the MTG if performed in accordance with the MTG and its general principles and, as mentioned above, such testing and treatment is not subject to prior authorization from the carrier or employer, regardless of cost. There remain specific limited procedures that continue to require pre-authorization as outlined in the MTG (see 12 NYCRR 324.2[d][2]). In addition, 12 NYCRR 324.2(f) provides that "[m]aximum medical improvement shall not preclude the provision of medically necessary care for claimants. Such care shall be medically necessary to maintain function at the maximum medical improvement level or to improve function following an exacerbation of the claimant's condition. Post-maximum medical improvement medical services shall conform to the relevant Medical Treatment Guidelines, except as provided in section 324.3 of this Part." The MTG also recognize that duration of treatment may be impacted by disease processes and severity, and clinical judgment may substantiate the need to accelerate or decelerate the time frames discussed in the MTG (General Principles: Section A.7). For example, the frequency and duration timeframes for manipulation under Section D.10.a of the Mid and Low Back Injury MTG state that extended durations of care beyond what is considered "maximum" treatment by manipulation may be necessary in appropriate cases such as re-injury, interrupted continuity of care, or exacerbation of symptoms, and in those cases involving comorbidities.

When the proposed treatment varies from one or more sections of the MTG, a medical provider must request a variance from the carrier, SIE, or the Special Funds once he or she has determined that the proposed treatment is both appropriate and medically necessary (12 NYCRR 324.3[a][1]). Treatment outside or in excess of the MTG will not be paid for unless the provider has obtained a variance from the carrier, SIE, or the Board. The medical provider bears the burden of showing that the varied treatment is appropriate and medically necessary (12 NYCRR 324.3[a][2]). The term "burden of proof" means that the treating medical provider has the duty to establish by sufficient evidence to the insurance carrier, SIE, the Special Funds or the Board that the variance should be approved. In addition, the treating medical provider must provide a basis for the opinion, a statement from the claimant that he or she agrees to the request, and an explanation as to why alternatives are not appropriate or sufficient (12 NYCRR 324.3[a][3][i]). For a claim involving frequency and duration of treatment, the variance request must also indicate the functional outcomes that, as of the date of the variance request, have continued to demonstrate objective improvement from that treatment and are reasonably expected to further improve with additional treatment (12 NYCRR 324.3[a][3][ii][b]). Objective measures of functional improvement are defined under General Principles Section A.3 of the MTG as positive patient responses that "primarily consist of functional gains which can be objectively measured and include, but are not limited to, positional tolerances, range of motion, strength, endurance, activities of daily living, cognition, psychological behavior, and efficiency/velocity measures which can be quantified. Subjective reports of pain and function should be considered and given relative weight when the pain has anatomic and physiologic correlation."

Here, the Board Panel finds that the MTG comport with the spirit and intent of and are not contrary to WCL § 13(a), which provides for medical care and treatment so long as the nature of the injury and the process of recovery may require. WCL § 13(a) does not require that the employer or its carrier provide medical treatment which is not medically necessary (see Matter of Casiano v CCIP/Union Settlement Home Care, 19 AD3d 719 [2005]), and is not intended to require the provision of ineffective or unnecessary treatment when there is no positive outcome which is reasonably expected to result from such treatment. It is and always has been appropriate to modify or discontinue such treatment, as recommended in the MTG Section A.4: "If a given treatment or modality is not producing positive results, the provider should either modify or discontinue the treatment regime,… should evaluate the efficacy of the treatment or modality[, and reconsider the] diagnosis [ ] in the event of poor response to a rational intervention." The Board Panel finds the MTG compliment WCL § 13(a) in that they provide for "medically necessary treatment" when tied to defined objective measures of improvement, define the time within which to produce an effect as well as recommended periods of frequency and duration of certain treatment, require pre-authorization for procedures excepted from the MTG, and allow for extended durations of care beyond the maximum recommended treatment in appropriate cases, including appropriate and medically necessary treatment through the variance process. As such, the Board Panel finds that the MTG provide a reasonable supplementation to WCL § 13 and promote the overall statutory framework of providing injured workers appropriate medical care (see Smith v Albany County Sheriff's Department, 82 AD3d 1334 [2011]).

Thus, the Board Panel finds that the Chair has statutory authority under WCL §§ 13, 141 and 117(1) to regulate medical treatment such that Part 324 and the MTG contained therein were lawfully promulgated, and both Part 324 and the MTG are consistent with and a rational extension of WCL §13(a) in providing appropriate and medically necessary treatment as authorized under the MTG or through the variance process.

Workers' Compensation Law § 13-a(5) provides in relevant part that:

The treatment proposed by the claimant's chiropractor in this case does not fall within any of the treatment or testing categories listed in the statute and, therefore, the prior authorization requirement of WCL §13-a(5) is not germane to this case. Furthermore, the aggregate of the proposed treatment; i.e. one chiropractic treatment per month for twelve months for spinal manipulation and manual traction, according to the chiropractic fee schedule, will cost less than $1,000.00 and would not therefore require prior approval under WCL § 13-a(5) even if the scope of that treatment was consider to be a special medical service covered by the statute (see Matter of Century Contr West Ins, 2010 NY Wrk. Comp. 3158). Thus, the Board Panel finds that the proposed chiropractic treatment is not covered under WCL § 13-a(5) and, as prior authorization for such treatment is not required, the employer would have no reason under that statutory provision to obtain a contrary second medical opinion prior to such treatment being performed.

The requirement in WCL § 13-a(5) that prior authorization must be requested prior to performing special services costing more than $1,000, is separate and distinct from the requirement to obtain a variance pursuant to 12 NYCRR 324.3 in order to deviate from the MTG. The argument that an IME or record review is required in order to deny a variance request demonstrates confusion about these two separate requirements. Prior authorization for special services costing more than $1,000 is a statutory requirement. WCL § 13-a(5) makes clear 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." On the other hand, the requirement to obtain a variance in order to deviate from the MTG is a regulatory requirement. 12 NYCRR 324.3(b)(2)(e) clearly authorizes a denial of a request for a variance on the basis of an opinion from the insurance carrier or Special Fund's medical professional, if an IME or review of records is not conducted. A carrier's medical professional includes "a physician, registered physician assistant, registered professional nurse, or nurse practitioner licensed by New York State, or the appropriate state when the professional practices, who is employed by an insurance carrier …, or has been directly retained by the insurance carrier … or is employed by a URAC accredited company retained by the insurance carrier … through a contract to review claims and advise the insurance carrier …" (12 NYCRR 324.1[c]). Thus a variance request may be denied based upon the opinion of a registered nurse employed by the carrier. While the two requirements may have some similarities, they are separate and distinct with individually specific rules. Moreover, 12 NYCRR 324.3(b)(2)(i)(c) permits a carrier to deny a variance request on the basis that the Treating Medical Provider did not meet the burden of proof that a variance is appropriate and medically necessary. Such denial must be articulated on the MG-2 form but need not be signed by a medical professional.

The claimant asserts that a second conflicting opinion in the form of an IME or record review by a medical provider is required in this instance and, since the carrier did not provide one, the denial is untimely and should be regarded as unreasonably withheld such that an Order of the Chair should be issued authorizing the treatment. Initially, the Board Panel does not have the authority to issue an Order of the Chair stating the request is approved as it is an administrative function within the exclusive province of the Chair pursuant to WCL § 141, which is not appealable under WCL § 23. The Chair's authority to issue an Order has been made applicable to the variance process under 12 NYCRR 324.3(c)(6). Thus, the Board Panel has no authority to direct the Chair to issue an Order of the Chair in connection with this case, as the issuance of an Order of the Chair is a purely administrative determination pursuant to WCL §141 and 12 NYCRR 324.3(c)(6), and it is beyond the scope of the Board Panel's authority, under WCL § 23.

As noted previously, prior to providing a specific treatment for the mid and low back, neck, knee, and shoulder that varies from the MTG, a treating provider must request approval on Board form MG-2 by answering all questions completely (12 NYCRR 324.3[a][3]). The claimant and the provider have the burden of proof that the treatment requested is appropriate and medically necessary for the claimant (12 NYCRR 324.3[a][3][i][a]; 324.3[d][4]). This means that the claimant and provider have the duty to establish by sufficient evidence that the variance should be approved. For a claim involving frequency and duration of treatment, the provider must describe any signs or symptoms that have failed to improve in accordance with treatment provided by the Guidelines 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 shall result in a denial of the variance request.

The Board Panel notes that the variance process set forth in 12 NYCRR 324.3 allows the SIE to review the variance request without an IME or record review by its medical expert if the treatment has already been provided (12 NYCRR 324.3[b][2][i][b]), or the denial of the variance is based on the treating medical provider not meeting the burden of proof that a variance is appropriate for the claimant and medically necessary (12 NYCRR 324.3[b][2][i][c]). Here, the Board Panel finds that, on behalf of the SIE, a registered nurse, defined as a medical professional under 12 NYCRR 324.1(c), denied the variance request for manual traction on the bases that the requesting chiropractor did not provide objective documentation to meet his burden of proof and the MTG do not recommend traction for acute, sub-acute, or chronic pain. Thus, the Board Panel finds that the SIE's denial was proper under 12 NYCRR 324.3(b)(2)(i))c) and neither an IME nor record review was required.

Section D.10.a.i of the Mid and Low Back Injury MTG sets the frequency and duration time frames for manipulation, with a maximum duration of three months, and states this modality of treatment is recommended for acute and sub-acute back pain when tied to objective measures of improvement. However, chronic treatment (manipulation several times a month for years) and prophylactic treatment are not recommended (see Sections D.10.a.ii and iii). Section D.10.n provides that "[t]raction is not recommended for treatment of acute, sub-acute, chronic back pain or radicular pain syndromes."

The Board Panel reiterates that the requesting provider must complete the MG-2 with specificity and meet the burden of proof to show the proposed treatment is appropriate and medically necessary (see 12 NYCRR 324.3[a][1]). Here, it appears that the chiropractor is requesting treatment to maintain or restore functional abilities and to address future exacerbations. The Board Panel finds that Dr. Barone's variance request states in generalized terms only that the claimant has "periodic, flare-ups of low back pain, usually with a gradual and insidious onset. Spinal manipulation reduces her pain, and restores and maintains positional tolerances as well as range of motion;" he "suspects the claimant will continue to have exacerbations to her low back;" and manual traction was medically necessary because it "increases joint mobilization and decreases muscle spasms around the joints." As to maintaining functional ability, the Board Panel reviewed the chiropractor's C-4.2 submissions, his one set of clinical notes, and his January 18, 2011 narrative medical report and found no medical evidence of objective measures of functional improvement; only that the claimant's condition was the same or had worsened, she was in supportive phase of treatment, and there was improvement, which was not specifically documented. Thus, the Board Panel finds that generalized statements not supported by documented objective measures of functional improvement are insufficient to support a variance request to restore and maintain the claimant's functional abilities beyond the maximum duration of three months for manipulation or for non-recommended traction. The Board Panel further finds that the SIE acted appropriately in granting chiropractic manipulation for three months in accordance with the MTG with a re-evaluation to occur as to future treatment and in denying the variance request for manual traction because the chiropractor did not meet the requisite burden of proof.

Dr. Barone also testified that the variance request was to restore the claimant's activities of daily living that are impacted when treatment ceases and reported that he suspected, based on the claimant's past history, that "possible exacerbations" in the future were likely. First, the Board Panel notes that a variance is not required for the initial treatment of an exacerbation when the care provided is consistent with the MTG (i.e. within acute or subacute durational limits). Treatment for an exacerbation that is not consistent with the MTG requires a variance when, as in this case, the proposed treatment exceeds the durational limits of three months. When an exacerbation occurs, the requesting medical provider must fully document the exacerbation, including when and how it occurred, the objective changes from baseline function, the expected type and frequency of treatments anticipated to return claimant to baseline function, and the claimant's response to treatment through documented measures of objective functional improvement. The Board Panel finds that, when a variance for chiropractic treatment for exacerbations that will occur in the future is not based on actual documentation, there is no medical justification to support such future treatment. Here, the medical records do not contain any medical evidence to support the chiropractor's opinion other than mention in the C-4.2 report and narrative medical report for treatment on January 7, 2011, that the claimant presented with reduced ranges of motion at all planes and a sharp, shooting and numbing pain in the low back bilaterally. However, Dr. Barone did not document the onset of these symptoms or how the claimant was relieved of the symptoms through objective measures of functional improvement and there is no other documented recent examination to use as a comparison to show that the claimant's condition declined after a break in treatment nor a documented past history of exacerbations to demonstrate that an exacerbation occurred and future exacerbations are likely to occur. Absent such proof, the Board Panel does not credit Dr. Barone's medical opinion that the claimant's condition deteriorated due to a break in treatment or caused an exacerbation or that possible or suspected exacerbations to the claimant's low back will continue in the future. Thus, the Board Panel finds that the chiropractor failed to meet the requisite burden of proof to support the variance request for treatment of exacerbations. The Board Panel further finds that the SIE properly granted chiropractic manipulation for three months in accordance with the MTG with a re-evaluation to occur as to future treatment and properly denied the variance request for manual traction because the chiropractor did not meet the requisite burden of proof.

Therefore, the Board Panel finds, upon review of the record and based upon a preponderance of the evidence, that:

1. The Chair has statutory authority under WCL §§ 13, 141 and 117(1) to regulate medical treatment such that 12 NYCRR 324 and the MTG contained therein were lawfully promulgated, and both Part 324 and the MTG are consistent with and rational extensions of WCL §13(a) in providing appropriate and medically necessary treatment as authorized under the MTG or through the variance process.
2. The proposed chiropractic treatment is not a covered special service or procedure under WCL § 13-a(5) such that prior authorization for such treatment is not required and the SIE would have no reason under that statutory provision to obtain a contrary second medical opinion prior to such treatment being performed.
3. The Board Panel has no authority to direct the Chair to issue an Order of the Chair in this case, as the issuance of an Order of the Chair is a purely administrative determination within the exclusive province of the Chair pursuant to WCL § 141 as made applicable by 12 NYCRR 324.3(c)(6), and is beyond the scope of the Board Panel's authority, under WCL § 23. Thus, the claimant's request that the Board Panel direct an Order of the Chair be issued approving the variance request is denied.
4. The SIE's denial of the variance request, based on the chiropractor's failure to meet the requisite burden of proof to support the variance request, was proper and neither an IME nor record review was required under 12 NYCRR 324.3(b)(2)(i)(c).
5. The WCLJ properly denied the variance request for manual traction, as the chiropractor did not meet his burden of proof to support the variance request. The WCLJ decision is modified to find that the variance request is granted to the limited extent of authorizing further chiropractic manipulation on a once per month basis for a period of 3 months, with a re-evaluation to be performed by the chiropractor after that 3 month period to determine if further chiropractic manipulation thereafter is warranted, and is otherwise denied.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed May 20, 2011 is MODIFIED, to provide that the variance request is granted to the limited extent of authorizing further chiropractic manipulation on a once per month basis for a period of 3 months, with a re-evaluation to be performed by the chiropractor after that 3 month period to determine if further chiropractic manipulation is warranted, and is otherwise denied. No further action is planned by the Board at this time.

All concur.