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N.Y. court affirms treatment guidelines apply to out-of-state provider

N.Y. court affirms treatment guidelines apply to out-of-state provider

A New York court has affirmed a ruling that the state’s Medical Treatment Guidelines apply to treatment rendered to a nonresident claimant by an out-of-state provider.

In 1995, a home health aide sustained work-related injuries to her lower back and buttocks while employed in New York, according to court documents published Thursday by the appellate division of the Supreme Court of New York, Third Department, in Albany, in Matter of Gasparro v. Hospice of Dutchess County. She received workers compensation benefits, with a nonschedule permanent partial disability classification for her compensable injuries.

In 2005, the injured worker moved to Nevada. In 2016, the employer's workers' compensation insurer objected to payment of, among others, July 2016 and September 2016 bills from Christopher Allen Fisher, a pain management specialist in Nevada, who dispensed topical pain relief products to the injured worker, specifically, LidoPro ointment and Terocin patches, according to court documents. Following a hearing on the insurer's objections, a workers compensation law judge resolved the insurer's objections in favor of the specialist, but directed that narrative reports be filed with the Workers' Compensation Board and the insurer in the future detailing the medical necessity for and causal relationship of the LidoPro ointment and Terocin patches dispensed to the injured worker.

But the board reversed the decision after having re-examined the question of whether the guidelines apply to medical treatment received by an injured worker in another state and, departing from its prior decisions on this issue, concluded that the guidelines do apply to medical treatment received in another state. In light of the reconsideration, the board found that LidoPro and Terocin were not prescribed in accordance with the guidelines and resolved the objections in favor of the insurer.

The appellate court affirmed the board’s decision after determining it was entitled to alter a course previously set out in its decisions provided it stated its reasons for doing so, which it did, according to the ruling.

“Moreover, we find that the board's decision to depart from its prior decisions and apply the guidelines to the out-of-state treatment received by claimant in this case was rational,” the appellate court stated.

There is no dispute that the worker, who was injured in New York but moved to Nevada, is entitled to continue to receive medical treatment from qualified physicians in her new state and that the employer remains liable for the reasonable value of necessary medical treatment from qualified physicians in her new state, according to the ruling.

“In our view, the plain language of the regulations governing the guidelines do not limit their applicability to such medical treatment provided to claimants in other states, and a ‘treating medical provider’ includes ‘any physician, podiatrist, chiropractor or psychologist that is providing treatment and care to an injured worker pursuant to the Workers' Compensation Law’ without regard to, or limitation of, geographic location,” the court stated. “By applying the guidelines to treatment received in another state, the same medical standards of care — developed to ensure that claimants receive appropriate and effective medical care as recommended by the medical community identifying best practices – will apply equally to medical treatment received by in-state and out-of-state claimants. Accordingly, in our view, the board reasonably applied the guidelines to the treatment received by claimant in Nevada.”

The appellate court also rejected the argument that the board erred in finding that the medical treatment received by the injured worker in Nevada deviated from the guidelines.

“The record reflects that LidoPro is a prescription topical pain relief ointment that includes lidocaine and capsaicin as active ingredients,” the court stated. “A Terocin patch, which also requires a prescription, similarly contains lidocaine as an active ingredient. The guidelines for mid- and low-back injuries provide that, while topical drug delivery may be an acceptable form of treatment in some patients, the optimal duration for the use of capsaicin is one to two weeks, and ‘long-term use of capsaicin is not recommended.’ As to topical lidocaine, the guidelines state that such treatment ‘is only indicated when there is a documentation of a diagnosis of neuropathic pain’ and is recommended for no more than four weeks ‘with the need for documentation of functional gains as criteria for additional use.’ Moreover, concomitant use of multiple drugs in the same class is not recommended.”

Since the pain management specialist prescribed concomitant treatments of LidoPro and Terocin in excess of the duration recommended by the guidelines without adequately documenting the necessity of these treatments, the appellate court declined to reverse the board’s finding that there was a failure to establish that LidoPro and Terocin were medically necessary and that these treatments were not prescribed in accordance with the guidelines.




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