New York Medical Treatment Guidelines and Denying Variance Requests

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.

Declan is an attorney licensed to practice law in New Jersey, New York and the U.S. District Court of New Jersey. Declan is a Partner at Lois LLC where he defends employers and carrier in New York workers’ compensation claims. He can be reached directly at dgourley@loisllc.com or 201-880-7213.