Week Ending April 3, 2021

 Here are some recent Board Panel Decisions, grouped by subject:

(1)  M&T Reimbursement

This claim was established for the back and consequential PTSD arising out of a 1988 accident.  The carrier had since been placed into liquidation, and claimant was classified with a permanent total disability.

A wheelchair had been deemed medically necessary.  The carrier was directed to pay for claimant's new wheelchair when the old one wore out.

For proof of payment, claimant produced a letter signed by the wheelchair venue, and noted that since the checking account had been closed, he had no access to his canceled checks.  There was also a "receipt" that increased the price of the wheelchair through handwritten notes, without any documentation as to who paid.

The carrier appealed, claiming the documentation was insufficient.  The Board held that there must be proof that claimant actually paid for the durable medical equipment.  Since the documentation submitted dd not confirm actual payment, the direction to reimburse claimant $46,012.20 was rescinded and held in abeyance.

Seymour Klein, Trustee, 2021 WL 1227371 (0884 7705 March 30, 2021).

(2)  Treatment Authorization

This claim was established to the right hand, right elbow, and left shoulder due to a 2004 accident.

Dr. Corso filed a C-4AUTH requesting authorization for a platelet-rich plasma (PRP) injection to the right elbow, citing improvement from a prior PRP injection in the past.  The self-insured employer (SIE) denied it because claimant was at MMI and there was no proof as to the injections' efficacy.  Without depositions proceeding, the Law Judge authorized the injection and the SIE appealed.

Noting that the elbows are not (yet) governed by the MTG's, the Board Panel addressed the medical necessity of the treatment.  Since Dr Corso admitted that the pain returned after the earlier PRP injection, he had not carried his burden of proof.  The request was denied.

County of Nassau, 2021 WL 1227372 (2040 7942 March 30, 2021).

(3)  Reclassification

This claim was established to the back and bilateral knees from a 2006 accident.  In 2017, claimant was classified with 25% LWEC and Severity Ranking B.  Claimant had failed to produce a C-4.3, and waived her right to cross-examine the IME physician.  Claimant's appeal from that decision was denied as defective.

In 2019 and 2020, an MRI report and treatment records demonstrated a worsening of the condition.  Subsequently, the treating physician filed a C-4.3 fining Severity Ranking J to the back and 20% SLU to each knee.

Reviewing an RFA-1LC as a request to reopen the matter, the Board Panel found insufficient evidence for reclassification.  They noted that claimant's complaints of numbness and tingling already existed in 2017, when claimant was classified, and accordingly the condition did not change.  Also claimant did not undergo any new surgeries.

Risk Management, 2021 WL 1227373 (2060 2741 March 30, 2021).

(4)  Opioid Weaning

Claim established for the left calf, left knee, back and neck, sustained in an accident in 2006.  In 2013, claimant was classified with a permanent partial disability.

In February of 2020, the Law Judge directed a six-month weaning program under the supervision of a treating physician.  

Six months later, it was reported that claimant's morphine was reduced, but claimant began to express concerns regarding functionality and activities of daily living.  Claimant began treating with a new pain management specialist, who began prescribing Percocet and OxyContin, as well as other medications.

A DF-L1 was granted for hydrocodone, but the carrier advised that refill requests would require supporting documentation.

Claimant's counsel requested approval of allegedly denied prescriptions for even more medications.  The carrier advised claimant's counsel that there were no pending requests for medication.

The original treatment physician examined claimant once again and stated that he had reached the maximum level of reductions of medications.

Accordingly, at the hearing, claimant's counsel argued that claimant was "weaned down as far as he can go," and requested that no further reductions be made.  The carrier pointed out that the prior decision directed weaning, and that an RFA-1LC was not the proper vehicle to address medication, as it was to only proceed through the Drug Formulary Portal.

The Law Judge decided to pause the weaning process for three months while claimant sought alternative treatment modalities, and the carrier continued to be liable for the medications in the interim.

On appeal, the carrier referenced the approval of Drug Formulary requests, and stated that there was no basis for a pause in the weaning process.  In rebuttal, claimant's counsel argued because of claimant's rapid decline in functionality, the pause was appropriate.

The Panel found that there was no compliance with the earlier weaning directive.  Since one physician found that there was a need for alternate medications, and another recommended that weaning be stopped altogether, there was no basis for the pause.  Moreover, the RFA-1LC did not raise an issue regarding opioid medications  Since only non-opioid medications were addressed, the carrier was denied its right to schedule a new IME, and the Law Judge had to render a decision on an incomplete record.

The Panel also held that claimant's counsel's representations that the RFA-1LC was filed as a "last resort" due to possible withdrawal were incorrect.  Claimant's opioids were approved, neither treating physician suggested that claimant was in any immediate peril due to withdrawal, and the physician who stated that there were no further reductions to be had did not demonstrate a "potentially life-threatening situation," especially where no MG-2 was filed.  The Panel issued a stern warning to claimant's counsel regarding the balance of zealous representation with the obligation to accurately present the facts.

The direction for a three-month pause was therefore reversed.

New Penn Motor Express, 2021 WL 1227374 (8070 3766 March 30, 2021).

The next case involved an accident established to the lower back in 1999.  The claimant was classified with a permanent partial disability in 2001 and the indemnity portion was resolved per Section 32 in 2013.  Section 15(8) liability was found against the Special Funds Conservation Committee (SFCC).

In 2016, there was direction to wean claimant off of morphine.

In 2020, SFCC obtained a new IME records review stating that claimant should be further weaned off of the morphine, as well as Oxycodone, and filed an RFA-2OP to address it.

In a further records review, it was stated that the morphine sulfate should tapered and the Roxicodone should be replaced by its generic equivalent.

Per direction, claimant's counsel produced an up-to-date report regarding medication, and found that claimant was at the low risk of opioid abuse using the opioid risk assessment tool.

At the next hearing, claimant's counsel argued that the current regimen was not consistent with the Guidelines, the non-opioid medications had been unsuccessful, and the prescription was at the lowest effective dose that permitted claimant to continue working.  SFCC argued that the medication had not been adjusted since 2017, and that a weaning trial would be reasonable.

The Law Judge denied the RFA-2OP per the treating physician's findings.

On appeal, SFCC argued that the treating physician did not substantiate the ongoing usage of opioid medications, and that the prior reduction of morphine sulfate was successful.  In rebuttal, claimant's counsel argued that he had already undergone tapering, is at low risk for abuse, had no success with non-opioid medications, and continues to work full time with his current regimen, which is claimed to be under what was recommended by the Guidelines.

The Panel noted that the medical evidence revealed the failed trial was actually with Lortab and Percocet, which are analgesic opioid oxycodone combinations, and not non-opioids.  However, since the current opioid limit permits claimant to work full-time, and is well below that which is required by the Guidelines, continued opioid use was warranted.

Accordingly, the decision was affirmed.

Empire State News, 2021 WL 1227375 (8990 9680 March 30, 2021)

The takeaway from both matters is that when weaning or discontinuance of opioids is sought, there must be a demonstration that the opioids being sought are in excess of the Non-Acute Pain Medical Treatment Guidelines, or are simply no longer needed, in addition to having a higher risk of harm or addiction.

(5)  Surgical Authorization

This claim was established for the right knee due to a 2009 accident.  20% SLU to that knee was found in 2012.

Right knee surgery was performed in 2010.

There was also a subsequent 2018 accident involving the right knee which was not yet established.

In 2018, a variance request was filed for a diagnostic nerve block.  In a narrative visible in both files, the treating physician found that there were osteoarthritic changes to both knees, and claimant's BMI was 39.62.

In May of 2020, a C-4AUTH was filed in the instant file requesting a right total knee replacement.  A subsequent treatment note showed that claimant's BMI was 41.19 as of August of 2020.

The SIE arranged for an IME records review, in which the IME physician found that claimant had osteoarthritis related to her age, genetics, and weight, all of which were unrelated.  Moreover, the BMI put her at significant risk.  He concluded that the request for surgery was not unreasonable, but it was unrelated.

Accordingly, the C-4AUTH was denied by the SIE and depositions proceeded.  The requesting physician testified that he examined claimant on two occasions, but noted that claimant had exhausted conservative treatment and that he found no unrelated cause for the surgery.  As to the BMI, he stated that he could work with claimant to reduce it to "40 and under," which he felt was ideal.

At the following hearing, the surgery was authorized.

On appeal, the SIE argued that the surgery was unrelated, particularly where the left knee had the same symptoms without an accident.  

The Panel found that the treating physician's testimony that 40 BMI was ideal contradicted the Guidelines for the knee, which sets a BMI limit at 35.

For this reason, the decision was reversed and the C-4AUTH was denied.

While all MTG's will be subject to revision in the near future, the BMI remains a deciding factor in authorizing total knee replacement.

Syracuse University, 2021 WL 1227376 (G026 1226 March 30, 2021).

(5)  Section 114-a

Claim established for left shoulder and neck from 2012 accident.

At three IME's, claimant filled out questionnaires denying prior or subsequent accidents.  However, an ISO found accidents in 2011 and 2017.

In a decision filed March 23, 2020, Section 114-a was raised and claimant was given 10 days to produce HIPAA's for the prior medical records and and the No-Fault file.  Claimant failed to do so, and in a decision filed June 2, 2020, was given a final opportunity to produce the HIPAA's for the medical records within 20 days and for the No-Fault file within 25 days.  The HIPAA's for the medical records were timely filed, but an insufficient portion of the No-Fault file itself was untimely produced by claimant's counsel.

At the hearing of December 7, 2020, the carrier requested a suspension of payments due to claimant's failure to substantially comply.  The Law Judge denied this request, since Section 114-a was being raised, and given the recent IME finding SLU, found that claimant had 15% SLU to the left shoulder.

In the Notice of Decision filed December 10, 2020, claimant was found to have Severity Ranking B to the neck and 30% SLU to the left shoulder, and the matter was continued for testimony on Section 114-a.

The carrier appealed, arguing that there was a sufficient offer or proof warranting suspension under Section 114-a, given the proof already submitted of claimant's mis-statement of fact as to prior and subsequent accidents.

On appeal, the carrier also included, per affirmation records, of the third-party action from 2011, which were allegedly not available to submit to the Law Judge due to claimant's dilatory tactics.  

Since the carrier had actually subpoenaed those records in question in March of 2020, and did not obtain them directly from claimant's counsel, the Board elected not to review them, as they could have been presented before the Law Judge.

However, given the incomplete and untimely records from the No-Fault carrier, the Board Panel found that suspension of payments was indeed warranted, and since the proof that was submitted confirmed claimant's statements to be untruthful.

Also, the SLU finding was corrected to indicate 15%, rather than 30%.

As a post-script, while this appeal was pending, claimant was found to have violated Section 114-a.

We would recommend that adjusters review ISO's every six months, if not more frequently, to obtain information regarding prior and/or subsequent accidents.  It would be a more aggressive approach to demand the HIPAA authorizations as soon as a prior or subsequent accident is referenced, but if, as here, a claimant misrepresents their history on more than one occasion, there may be significant grounds to raise Section 114-a.

Bronx-Lebanon Medical Center, 2021 WL 1227377 (G058 6693 March 30, 2021).

(6)  Net Third-Party Recovery

Claim established for neck, back, and both knees in 2014.  Claimant was classified with 80% LWEC in 2019, entitling claimant to $184.24 for 425 weeks.

On June 15, 2020, the carrier consented to a third-party settlement in the gross amount of $75,000.00.  $25,000.00 of this amount was paid to third-party counsel as attorney's fees, disbursements were calculated at $3,240.64, and net proceeds were $46,759.36.  The carrier waived its lien, but reserved its rights to a credit in the amount of the net third-party recovery.

According to the Closing Statement, the net proceeds to claimant were actually $33,862.16, since a Medicare lien in the amount of $10,661.01 was paid, and expenses were reimbursed in the amount of $5,477.83.

At the hearing of November 23, 2020, the carrier explained that they consented based on the anticipated net settlement of $46,759.36.  However, the Law Judge found the net settlement to be $33,862.16 per the Closing Statement.

On appeal, the carrier argued that a lien, other than a workers' compensation lien, is part of the net recovery because it is not an "expense of litigation."  The Board Panel held that the Consent Letter failed to state whether the amount of disbursements was not disclosed or understated.  Also, the appeal never stated that any of the disbursements were inappropriate or invalid for workers compensation purposes.  

However, finding given the amount of disbursements, the Panel found that the net recovery amount was $44,522.17.

When drafting a Consent Letter, we recommend deferring to the Closing Statement for the amount of Fees and Disbursements for purposes of calculating the Burns percentage.

Urban Express, 2021 WL 1227378 (G113 6913 March 30, 2021).