Appellate Court Decides Challenge to Medical Treatment Guidelines

In a decision entered July 18, 2013 an appellate panel was asked to rule on whether the Medical Treatment Guidelines, one of the key workers’ compensation reforms enacted in 2007, was a valid exercise of the Workers’ Compensation Board’s power. The appeal challenged the ability of the Board to issue and enact the Guidelines. The claimant also argued that the Guidelines themselves were contrary to the “statutory intent” of the Workers’ Compensation law and should be struck down as unlawful.

The ruling is significant in that it resolves the first major challenge to the treatment guidelines.

Facts of the Case.

Claimant Maureen Kigin claims injuries to her head, neck, and back following a 1996 work-related motor vehicle accident. In 2006, liability for her claim was transferred to the Special Fund for Reopened Cases (§25-a). In 2011 the Special Fund denied a variance request for ongoing acupuncture following an IME which found “a lack of objective findings to support the claimant’s subjective complaints and that further acupuncture treatments were not medically necessary.”

Following the denial of variance for more acupuncture, the claimant sought review and both the treating physician and the IME doctor testified. The Law Judge denied the requested variance, determining that the treating physician who requested the variance had not demonstrated the medical necessity of the requested treatments.

On appeal to the Board Panel, the Law Judge was affirmed. The claimant appealed to the Appellate Division of the Supreme Court.

Claimant’s Arguments.

The claimant made two main arguments against the application of the Medical Treatment Guidelines to her case:

  1. First, that the Board lacked the legal authority to enact Guidelines at all; and
  2. that the effect of the Guidelines was contrary to the “intent and spirit” of the Workers’ Compensation Law because (among other things) it served to improperly shift the burden of proof to doctors who must show a case-by-case basis for requested procedures.

Ruling of the Appellate Division.

The Appeals court quickly disptached with the claimant’s argument that the Workers’ Compensation Board lacked the authority to devise the Medical Treatment Guidelines. The Panel ruled that the Board has broad powers to administer and enforce the Workers’ Compensation Law and issuing Medical Treatment Guidelines is within that power.

The Panel ruled that the Medical Treatment Guidelines are in keeping with the spirit and intent of the Workers’ Compensation Law. The Appellate Panel found that by devising a list of preauthorized procedures the Board was predetermiing medical necessity for medical care consistent with best medical practicies which is consistent with the mission of the Board. The Panel affirmed the reliance on the Guidelines to deny the variance request for the unecessary acupuncture treatments in the underlying case.

This decision is important because it resolves the first major challenge to the Medical Treatment Guidelines, but the fight is not yet over. Claimant’s attorney commented to the New York Law Journal that he intends to appeal further, to the Court of Appeals (New York’s highest court).

Case: Maureen Kigin v. State of New York Workers’ Compensation Board, Opinion 515721, entered July 18, 2013 (App. Div. 2013). For more on this and other related topics in New York workers’ compensation, join my mailing list:

Greg Lois is the managing partner of LOIS LLC and dedicates his practice to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016-2019 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or