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Listing preauthorized medical procedures ruled within N.Y. comp board's powers


The New York State Workers’ Compensation Board was within its regulatory powers when it created a list of preauthorized medical procedures, and it properly places the burden of proving medical necessity on an injured worker’s treating physician, New York’s highest court ruled.

Maureen Kigin worked as a hearing reporter for the board in 1996 when she injured her neck and back in a work-related automobile accident, court records show. She was classified as permanently partially disabled in 2006.

Ms. Kigin received authorization for acupuncture, which was prescribed by her treating physician in November 2009, from the state Special Fund for Reopened Cases, according to records.

In March 2011, Ms. Kigin was re-evaluated by her physician, who recommended additional acupuncture treatment — three acupuncture treatments to her cervical and lumbar spine each month for six months, records show.

However, records show that authorization for the treatment was denied under the medical treatment guidelines program, which, as of December 2010, has dictated the treatment of injuries and illnesses involving the neck, back, shoulder and knee.

Ms. Kigin’s physician said the treatments would increase her flexibility and circulation, decrease her headaches and muscle tightness, and allow her to “maintain function and activities of daily living,” according to records.

The Special Fund for Reopened Cases had another physician conduct a medical examination of Ms. Kigin, records show. The physician determined that additional acupuncture treatments were not medically necessary, noting that her “subjective complaints of pain” were not supported by objective findings, according to records.

The fund then denied the variance requests, and a workers comp law judge determined that Ms. Kigin’s treating physician failed to prove that additional acupuncture treatments were medically necessary, records show.

The workers compensation board affirmed the judge’s determination on administrative appeal, leading Ms. Kigin to appeal the board’s decision.

According to records, she argued that the board “lacked the authority to promulgate the regulations and incorporated guidelines,” and that the variance procedure “improperly shifts the burden of proof to claimant’s physician to prove the medical necessity of a proposed treatment.”

The appellate division ruled that the board “acted within its legislatively conferred authority when it devised a list of preapproved medical care deemed in advance to be medically necessary for specified conditions.”

In a 4-3 decision Thursday, New York’s highest court affirmed, ruling that the board’s guidelines are lawful.

“There is no dispute that the Board was statutorily authorized … to issue a list of pre-authorized procedures,” the ruling states.

The dissenting justices, however, argued that the workers compensation board exceeded its authority in establishing “a variance scheme that predetermines that all treatment not included on the preauthorized list of services is presumptively not medically necessary.”

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