Medical Treatment Guidelines (MTG)

New York Workers’ Compensation Board Announces New Hearing Process for Opioid Weaning Issues

FAQs Medical Treatment Guidelines (MTG) WCB Announcements

Recognizing that opioid addiction is a major public health crisis, the New York Workers’ Compensation Board yesterday announced a new hearing process to address opioid weaning issues. In 2014, the Board implemented the “Non-Acute Pain Medical Treatment Guidelines” (“MTG”) to address opioid usage in workers’ compensation claims.

As the “Non-Acute Pain Medical Treatment Guildeines” makes clear, long-term opioid use is only recommended in limited circumstances, and must involve constant clinical monitoring and re-evaluation. The guidelines also includes best practices for safely weaning injured workers from opioids and other narcotics.

Requesting a Hearing 

Under the new process, the insurance carrier or self-insured employer can now request a hearing to address whether the claimant should be weaned from opioids. In order to request the hearing, the Board requires an IME report or Records Review, “which indicates weaning goals and recommended weaning program or resource” be submitted with the RFA-2.

In response to the RFA-2 filed by the insurance carrier:

The claimant will have the opportunity to submit a medical report from his or her prescribing physician. The report must contain the provider’s review of the use of opioid medications, a list of the claimant’s current medications and a review of whether the opioid medication is in compliance with the Non-Acute Pain Medical Treatment Guidelines. The provider may comment on weaning resources identified in the IME and/or provide alternative resources. The medical report is due by the date of the hearing, which will be held approximately 45 days after the Board notifies the claimant of the insurer’s request for a hearing.

If the claimant or his legal representative wishes to cross-examine the IME, they may do so. However, the new procedures require the deposition transcript(s) to be in the Board file prior to the opioid weaning hearing. Should the treating physician submit medical evidence contrary to the IME, the insurance carrier may request cross-examination of the treating physician at the hearing.

The Hearing Process

Once all evidence (medical reports, deposition transcripts, weaning recommendations) is submitted and the parties are heard, the Law Judge will issue a ruling finding either:

  • Insufficient proof that there is a need for continuing long-term opioid use and the claimant must be weaned from the narcotic medication(s); or
  • Insufficient proof that there is a need for continuing long-term opioid use and the claimant must be weaned from the narcotic medication(s), and enrolled in an addiction treatment program; or
  • Claimant demonstrated the opioid use was effective in terms of improved function and reduction of pain, and that weaning will be unnecessary at this time.

When the WCLJ rules that the claimant must be weaned from the opioid medication, the insurer will be required to cover the cost of the claimant’s addiction treatment program or weaning protocol, as directed. If the claimant is to be weaned without addiction services, the insurer will remain liable for the claimant’s medications for the duration of the weaning process. If an addiction treatment program has been directed, then after 30 days, the insurer will only be liable for payment of narcotic prescriptions written by an addiction treatment program physician.

Basically, this new process ensures the issue of whether a claimant’s opioid medication treatment is within the Non-Acute Pain Medical Treatment Guidelines will be addressed in an expedited matter and sets forth the process for how these issues are to be litigated.

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Webinar: New York Medical Treatment Guidelines, Non-Acute Pain

Medical Treatment Guidelines (MTG) Practice Tips Webinar Presentations

Lois Law has monthly webinars on New York and New Jersey workers’ compensation law. Click here to register. Here is the post-webinar video from our most recent presentation, “New York Medical Treatment Guidelines: Non-acute Pain.” The complete archive of prior presentations is here.

Date Presented: August 15, 2016
Presenter(s): Declan Gourley, Esq., Jeremy Janis, Esq., and Greg Lois, Esq.

New York Medical Treatment Guidelines and Denying Variance Requests

Medical Treatment Guidelines (MTG) Practice Tips

Medical treatment of on the job injuries, illnesses, or occupational diseases involving a worker’s spine (lumbar, thoracic, or cervical), shoulder, knee, carpal tunnel syndrome, or non-acute pain must be consistent with the New York Medical Treatment Guidelines. See 12 N.Y.C.R.R. 324.2.

All treating medical providers (physician, podiatrist, or chiropractor) must treat all existing and new workers’ compensation injuries, illnesses, or occupational diseases, in accordance with the following:

If a medical provider wishes to perform medical treatment that deviates from the medical treatment guidelines they must request a variance from the insurance carrier/self-insured employer. The process for requesting and obtaining a variance is specified in 12 N.Y.C.R.R. 324.3. The burden of proof to establish that a variance is appropriate and medically necessary is on the medical provider requesting the variance.

Variance requests must be submitted prior to the treatment being rendered. If the treatment was performed prior to requesting a variance, the insurance carrier may deny the variance request on the basis that it was not requested before the medical care was provided.

If the carrier does not obtain an Independent Medical Examination (IME) or record review/peer review they must respond to the variance request within fifteen days. The insurance carrier may deny a variance request on the basis that the medical provider did not meet the burden of proof that a variance is appropriate for the claimant and medically necessary. The carrier may also deny a variance request if the treatment is substantially similar to a prior denial, or variance request not yet denied.  The carrier may deny the variance request for either of these reasons without obtaining their own medical opinion.

If the carrier intends to schedule an IME or utilize a record review/peer review, the carrier must notify both the medical provider and the Board within five business days that it will be obtaining an IME or Peer Review.  The carrier has thirty days from the date of receipt of the variance request to obtain the IME or Peer Review.  If the denial is not timely submitted, the treatment will most likely be deemed authorized by the Board either at a future hearing or by an Order of the Chair. It is recommended that when denying a variance request the carrier submit a supporting medical opinion.

If a carrier wishes to deny a variance request, it is imperative they meet the timelines required by the regulations or the variance is likely to be authorized by the Board or law judge.

Following receipt of the variance denial by the carrier, if the medical provider believes the requested treatment is still appropriate and medically necessary, they may request review of the denial of the variance. A request for review of the denial of the variance must be submitted within twenty-one business days of receipt of the insurance carrier’s denial. Failure to timely request a review of the denial by the medical provider will result in the variance request being denied by the Board. If the variance denial review is requested timely the Board will either schedule an expedited hearing to address the variance request or issue an Order of the Chair.

If you wish to have monthly NY workers’ compensation updates sent to your inbox, feel free to sign up for our monthly newsletter here. You can also find my contact information here.