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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 181
In the Matter of Maureen Kigin,
            Appellant,
        v.
State of New York Workers'
Compensation Board et al.,
            Respondents.




          Robert E. Grey, for appellant.
          Paul Groenwegen, for respondent State of New York
Workers' Compensation Board.
          Jill B. Singer, for respondent Special Funds
Conservation Committee.




PIGOTT, J.:
          The primary issue presented on this appeal is whether
the Workers' Compensation Board (the Board) exceeded its
statutory authority when it promulgated portions of the "Medical
Treatment Guidelines" (see 12 NYCRR 324.2 [a]-[f]).   We hold that
it did not and therefore affirm the Appellate Division.

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                                I.
          In 2007, as part of its comprehensive reform of the
Workers' Compensation Law, the Legislature amended Workers'
Compensation Law § 13-a (5) in two ways: (1) it raised from $500
to $1,000 the maximum cost of specialist treatments for which the
employer is automatically liable without prior authorization, and
(2) it directed that the Board issue and maintain a list of
pre-authorized procedures that a claimant can obtain at the
employer's expense even if the cost exceeds $1,000, without the
need for the employer's prior approval.    The purpose of both of
these provisions was to "remove impediments to prompt diagnostic
and treatment measures and to better reflect current medical
service costs.   The provision permitting the creation of a
pre-authorized list allows the Board appropriate regulatory
flexibility to add or remove procedures depending on best
practices, increases and decreases in cost, or opportunities
presented by managed care approaches" (Governor's Program Bill
Memorandum, Bill Jacket, L 2007, ch 6).
          A task force of credentialed medical professionals was
assembled to develop and recommend a set of guidelines for the
pre-authorized medical procedures.1    In 2010, the Board published
proposed regulations, which incorporated by reference the


     1
        The guidelines were limited to the treatment of injuries
to the low back, cervical spine, knee, and shoulder because those
injuries account for a disproportionately large amount of the
cost of workers' compensation medical care.

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guidelines recommended by the task force.   Following the comment
period, the Board adopted the "Medical Treatment Guidelines,"
which were subsequently incorporated by reference in the
regulations (see 12 NYCRR 324.2 [a]).
           The Guidelines include the list of pre-authorized
medical procedures and set forth limitations on the scope and
duration of each procedure.   They also set forth a variance
procedure, under which medical treatment providers can, on behalf
of a claimant, request authorization for medical care not
included in the Guidelines or in excess of the scope and/or
duration that is pre-authorized (see 12 NYCRR § 324.3 [a] [1]).
The medical treatment provider requesting a variance must
demonstrate that the requested treatment is appropriate for the
claimant and medically necessary (see id. §§ 324.3 [a] [2]; 324.3
[a] [2] [i] [a]).
                                  II.
           In December 1996, claimant Maureen Kigin, a Hearing
Reporter for the Workers' Compensation Board (the Board), injured
her neck and back in a work-related automobile accident.      In June
1997, the Board accepted her claim for wage replacement benefits
and ongoing medical treatment.    In 2006, Kigin's case was
reopened and transferred to the Special Fund for Reopened Cases
(hereafter "the carrier") pursuant to Workers' Compensation Law §
25-a.   On December 14, 2006, she was classified as permanently
partially disabled.


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          Claimant alleges that she suffers chronic neck and back
pain as a result of her injuries.   Her treating physician, Dr.
Andrea Coladner, prescribed acupuncture.   On November 9, 2009,
she received authorization from the carrier for acupuncture three
times a week for six weeks.2
          In March 2011, Dr. Coladner re-evaluated claimant and
recommended that she receive additional acupuncture treatment,
namely, three acupuncture treatments to her cervical and lumbar
spine each month for six months.    The doctor again requested
authorization from the carrier, this time under the newly-created
Medical Treatment Guidelines established by the Board that had
become effective on December 1, 2010.   Specifically, she
requested two variances, one for claimant's cervical spine and
another for her lumbar spine.   These variances were required
because the Guidelines for the treatment of neck injuries
provided that the optimum duration of acupuncture treatments is
one month and the maximum duration is 10 treatments.3   Dr.
Coladner opined that the treatments would increase flexibility,
increase circulation, decrease headaches, decrease muscle



     2
        Although Dr. Coladner sought prior authorization for the
acupuncture treatment under Workers' Compensation Law § 13-a (5),
at that time no such prior authorization was required under that
section because the treatments did not involve "specialist
consultation" or "special services" within the meaning of that
section and would not have cost more than $1,000.
     3
        See New York State Workers' Comp Bd, Neck Injury Medical
Treatment Guidelines at 21 (2d ed 2013).

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tightness, and allow claimant to maintain function and activities
of daily living.
             In response to the variance requests, the carrier
obtained an independent medical examination of claimant,
conducted by Dr. Peter Chiu, a physician board-certified in
physical medicine and rehabilitation and certified in
acupuncture.    Based on his examination, as well as his review of
claimant's medical records, Dr. Chiu determined that further
acupuncture treatments were not medically necessary.    Dr. Chiu
noted that claimant's subjective complaints of pain were not
supported by objective findings, that she did not suffer from any
disability, and that she could resume normal activity of daily
living and her occupation without restriction.
             Based on Dr. Chiu's findings, the carrier denied the
variance requests.    Claimant thereafter sought review of the
denial.
             Dr. Coladner and Dr. Chiu testified as to whether the
variances should be granted to allow the additional acupuncture
treatment.    Dr. Coladner testified that claimant had tried
several different treatments and that acupuncture was the
treatment modality that helped her maintain her functional level.
Dr. Coladner averred that claimant reported a reduction in pain
following the acupuncture treatments, although no improvement in
her range of motion.    Further, Dr. Coladner asserted that
additional acupuncture treatments were recommended because,


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without it, claimant continued to report worsening pain and
therefore diminished function.
          Dr. Chiu testified that, in his opinion, the variance
was properly denied because the requirements set forth in the
Guidelines were not satisfied.    Specifically, Dr. Chiu testified
that Dr. Coladner's medical records did not include claimant's
response to treatment or any improvement in her range of motion.
          A Workers' Compensation Law Judge determined that
claimant's medical provider failed to show that the additional
acupuncture treatments were medically necessary.   In particular,
the Judge noted that, although Dr. Coladner testified that
claimant reported some pain reduction from the prior treatments,
there was no evidence in the record that these earlier treatments
resulted in the objective improvement of functional outcomes with
respect to claimant's neck, or that it was reasonable to expect
that further acupuncture would result in such improvement.
          On claimant's administrative appeal, the Workers'
Compensation Board panel affirmed the Workers' Compensation Law
Judge's determination.   The Board found that the variance
applications failed to meet the burden of proof that the
additional acupuncture treatment requested is medically necessary
within the meaning of the Guidelines.
                                 III.
          Claimant appealed the Board's decision, arguing, as
relevant here, that (1) the Board lacked the authority to


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promulgate the regulations and incorporated Guidelines, (2) the
variance procedure improperly shifts the burden of proof to
claimant's physician to prove the medical necessity of a proposed
treatment, and (3) the Guidelines violate claimant's due process
right to a meaningful hearing.
          The Appellate Division, with one Justice dissenting,
affirmed (109 AD3d 299 [3d Dept 2013]).   The court rejected
claimant's argument that the Board exceeded its statutory
authority in promulgating the regulations, holding 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, and did so in a
manner consistent with Workers' Compensation Law § 13 (a) and the
overall statutory scheme" (id. at 307).   In support of its
conclusion, the court noted that "medical necessity and
appropriateness . . . have always been prerequisites to an
employer's obligation" to pay and "the Legislature purposefully
conferred the authority on the Board to predetermine medical
necessity for medical care, and its scope and duration,
consistent with best medical practices" (id. at 306).
          The court also rejected claimant's argument that the
variance procedure improperly shifts the burden to the claimant's
treating physician to prove medical necessity, in conflict with
Workers' Compensation Law § 21 (5) (see id. at 307-308).
Finally, the court found unavailing claimant's argument that the


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Guidelines deprived her of due process, noting that the
regulations provide an opportunity to be heard, "an expedited
process for determining the medical necessity" of the requested
care, and a review process (id. at 310).
          The dissenting Justice agreed with the majority's
conclusion that the "Board has authority to promulgate reasonable
rules and regulations consistent with the Workers' Compensation
Law," but disagreed with its "overreaching conclusion that
medical treatments falling outside the Guidelines are
predetermined and presumed not to be medically necessary" (id. at
312-313 [McCarthy, J., dissenting]).    The dissent would have
found that the variance procedure conflicts with the statutory
scheme and specifically with section 21 (5) (see id. at 313-314).
The dissent reasoned that the variance procedure "undermine[s]
the remedial purpose of the Workers' Compensation Law and [is]
contrary to the legislative purpose behind authorizing the Board
to promulgate [the] Guidelines" (id. at 315).
          This Court granted claimant leave to appeal.
                                 IV.
          Claimant first contends that the Board exceeded its
statutory authority to "preauthorize" medical treatment under
Workers' Compensation Law § 13-a (5) by using the Guidelines to
"pre-deny" medical treatment.   The Board responds that the
Guidelines are a valid exercise of its broad regulatory authority
because the regulations are rationally related to the underlying


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policies of the Workers' Compensation Law.
            The Board is authorized to "adopt reasonable rules
consistent with and supplemental to the [Workers' Compensation
Law]" (Workers' Compensation Law § 117 [1]).    Courts will uphold
regulations that have "a rational basis and [are] not
unreasonable, arbitrary, capricious or contrary to the statute
under which [they were] promulgated" (see generally Kuppersmith v
Dowling, 93 NY2d 90 [1999]).
            We hold that the Board acted properly and lawfully when
it promulgated the Guidelines, as they reasonably supplement
Workers' Compensation Law § 13 and promote the overall statutory
framework of the Workers' Compensation Law, which is to provide
appropriate medical care to injured workers.    There is no dispute
that the Board was statutorily authorized under section 13-a (5)
to issue a list of pre-authorized procedures.   That determination
necessarily meant that the Board consider what is not best
practice and what may not be medically necessary.    Contrary to
claimant's contention, the procedures that are not on the list
are not "pre-denied," given the possibility of obtaining a
variance.   In other words, treatments that are not in accord with
the Guidelines may nevertheless be approved for particular
claimants pursuant to the variance procedure.
            The establishment of the variance procedure was within
the Board's broad regulatory powers (Workers' Compensation Law §§
13, 141, and 117 [1]).   The Board explained that the prior lack


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of standards in assessing the medical necessity of treatment had
resulted in "disputes over treatments, delayed care and increased
frictional costs" (Notice of Proposed Rulemaking, New York State
Register, June 30, 2010, at 33-38).    Disputes over the medical
necessity or the frequency/duration of medical care were often
made after the care was provided, on a case-by-case basis, when
the employer disputed the bill.    It was reasonable for the Board
to promulgate uniform guidelines for defining the nature and
scope of treatment considered medically necessary.   By adopting
the pre-authorized list and variance procedure for determining
the necessity of care, the Board provides a measure of avoiding
delay and uncertainty that previously resulted from disputes over
the medical necessity of treatment.
                                  V.
          Claimant next claims that the Guidelines remove the
burden of proof from the employer and the carrier and shift it to
the injured worker and the treating physician.   This, claimant
argues, is directly contrary to the Workers' Compensation Law.
          Under the regulations, the burden of proof to establish
that a variance is appropriate and medically necessary rests on
the treating medical provider (12 NYCRR 324.3 [a] [2]). Whether a
treating medical provider has met this burden is a threshold
determination that must be made whenever a carrier properly and
timely articulates an objection to a variance request.
          Contrary to claimant's contention, nothing in the


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Workers' Compensation Law has ever precluded the Board from
requiring proof of medical necessity from claimant's health care
provider.   Indeed, the claimant generally has the burden in the
first instance of proving facts sufficient to support his or her
claim for compensation (see Matter of Malacarne v City of Yonkers
Parking Auth., 41 NY2d 189, 193 [1976] [claimant has the burden
of showing that injuries were sustained in the course of
employment]).    Moreover, in his argument, claimant relies on the
provision of Worker's Compensation Law § 13-a (5) that an
employer's or carrier's refusal to authorize "special services"
costing more than $1,000 must be based on a "conflicting second
opinion" by a board-authorized physician.   That requirement
presupposes that the claimant has submitted the first opinion,
from his or her treating physician.
            We also disagree with claimant's contention that
section 21 (5) of the Workers' Compensation Law establishes that
the burden rests on the employer or carrier.   That provision
creates a presumption, "[i]n any proceeding for the enforcement
of a claim for compensation," that "the contents of medical and
surgical reports introduced in evidence by claimants for
compensation shall constitute prima facie evidence of fact as to
the matter contained therein" (Workers' Compensation Law § 21
[5]).   It is the carrier that then bears the burden of proffering
"substantial evidence" to contradict the content of those medical
reports (id.).


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          We agree with the Appellate Division majority that
claimants can continue to rely on the presumption, while also
satisfying the variance procedure's requirement that they
establish the medical necessity of the requested treatment.
While the presumption establishes the facts contained in the
medical report, the claimant must first establish the medical
necessity for the treatment.
                                VI.
          Finally, claimant argues that the Guidelines deny
injured workers due process by predetermining their need for
medical treatment.   She contends that the Guidelines do not
provide an opportunity to be heard in a meaningful time and
manner.
          Generally, procedural due process principles require an
opportunity for a meaningful hearing prior to the deprivation of
a significant property interest (see Hodel v Virginia Surface
Mining & Reclamation Assn., 452 US 264, 303 [1981]).   "The
fundamental requirement of due process is the opportunity to be
heard at a meaningful time and in a meaningful manner" (Matthews
v Eldridge, 424 US 319, 333 [1976] [internal quotation marks
omitted]; see Curiale v Ardra Ins. Co., 88 NY2d 268, 274 [1996]).
          The Guidelines provide claimants with a meaningful
opportunity to be heard on the denial of any variance request.
The variance procedure expressly provides a process for
requesting review of the denial of a variance request, under


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which the treating medical provider may elect review by a medical
arbitrator or through an expedited hearing process (see 12 NYCRR
324.3 [d]).   Indeed, in this case, a hearing was held at which a
Workers' Compensation Law Judge considered testimony by both
claimant's own care provider and the independent expert engaged
by the carrier.   Claimant was represented by counsel, who cross-
examined the carrier's expert.    The Workers' Compensation Law
Judge's decision was reviewed by the Board, which considered
legal arguments by claimant's attorney, and the Board's decision
was subject to judicial review.
          Accordingly, the order of the Appellate Division should
be affirmed, with costs.




                              - 13 -
Matter of Kigin v New York State Workers' Compensation Board
No. 181




RIVERA, J. (dissenting):
            I agree that the Workers' Compensation Board acted
within the scope of its statutory authority under the Workers'
Compensation Law in adopting regulations incorporating a list of
pre-authorized medical procedures, and a system for implementing
consideration of treatment recommendations not included on the
list.   However, the Board exceeded its authority when it
promulgated regulations imposing a pre-approval requirement that
forecloses reimbursement for medical services that vary from the
list and the Board's Medical Treatment Guidelines ("Guidelines")
in all cases where the services are rendered in advance of
approval.   Also, to the extent the Board's regulations establish
a variance scheme that predetermines that all treatment not
included on the pre-authorized list of services is presumptively
not medically necessary, it imposed a burden on Kigin and other
claimants inconsistent with the statute's language and underlying
purpose.    Therefore, I would reverse the Appellate Division.
            The Workers' Compensation Law "is framed on broad
principles for the protection of [workers]" (Waters v William J.
Taylor Co., 218 NY 248, 251 [1916]; accord Illaqua v
Barr-Llewellyn Buick Co., Inc., 81 AD2d 708, 708 [3d Dept 1981],


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                               - 2 -                         No. 181

citing In re Heitz, 218 NY 148, 154 [1916], and Lorer v Gotham
Concrete & Cement Finish Corp., 8 AD2d 221, 224 [3d Dept 1959]),
and thus "should be construed liberally in favor of the employee"
(Wolfe v Sibley, Lindsay & Curr Co., 36 NY2d 505, 508 [1975]).
It is beyond dispute that the Board has broad regulatory power to
administer and carry out the mandates of the Workers'
Compensation Law (see e.g. Workers' Compensation Law ("WCL") §§
117 [1]; 141).   To that end, the Board is authorized to "adopt
reasonable rules consistent with and supplemental to" the
statutory scheme (id. § 117 [1]).   However, the Board's powers
are not limitless, and we review its "administrative regulations
to determine whether they are rational and to ensure that they
are not arbitrary and capricious" or contrary to the statute
under which they are promulgated (Belmonte v Snashall, 2 NY3d
560, 567 [2004]; see Kuppersmith v Dowling, 93 NY2d 90, 96
[1999]).
           The Workers' Compensation Law states that employers
"shall be liable for the payment of" and "shall promptly provide
for an injured employee," medical treatment "for such period as
the nature of the injury or the process of recovery may require"
(Workers’ Compensation Law ("WCL") § 13 [a]).   Prior to the
Board's regulatory adoption of the Guidelines in 2010, where an
employer or provider disputed a request for treatment
reimbursement, the parties resolved the dispute pursuant to an
individualized determination of whether the request is


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compensable after treatment was rendered to the claimant (see
Kigin v State Workers' Compensation Bd., 109 AD3d 299, 306 [3d
Dept 2013], citing WCL §§ 13-g, 13-k, 13-l, 13-m, and Matter of
Spinex Labs. Inc. (Patton), 213 AD2d 884, 885 [3d Dept 1995], and
Employer: Livingston County, 2011 WL 5618432, at *5; see also 110
N.Y. Jur. 2d Workers' Compensation § 565 [after treatment is
rendered, employer must pay or give written notice of the reasons
for nonpayment]).   Only in certain cases where the claimant
sought treatment in the form of "specialist consultations,
surgical operations, physiotherapeutic or occupational therapy
procedures, x-ray examinations or special diagnostic laboratory
tests costing more than [$500]" was the provider required to
obtain preauthorization for the treatment from the employer or
Board in order to obtain reimbursement (WCL § 13-a [5]).    A
denial of preauthorization under this section must be based on "a
conflicting second opinion rendered by a physician authorized by
the board" (id.).
          As part of the legislative efforts to streamline
compensation for workers' injuries and increase benefits for
injured workers while reducing costs, in 2007, the Legislature
amended Section 13-a (5) by raising the threshold cost of
services requiring pre-authorization to $1,000 and directing the
Board to "issue and maintain a list of pre-authorized procedures"
(WCL § 13-a [5]; L 2007, ch 6, § 28).   Pursuant to this
legislative mandate and at the direction of the executive branch,


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the Board promulgated regulations that incorporated the
Guidelines developed by various medical experts, and which served
as a basis for the list of pre-authorized procedures.   The Board
then promulgated regulations that implemented a regulatory scheme
whereby reimbursement for medical services would be subject to
the Guidelines.   All of this was well within the Board's power
and in furtherance of the statute.
           The Board went awry when it promulgated regulations
that imposed a variance scheme that requires pre-approval for
reimbursement requests related to treatment that varies from the
Guidelines.   Section 324.3 of the Board's regulations states that
a variance for medical care that varies from the Guidelines "must
be requested and granted . . . before [that care is]. . .
provided to the claimant" (12 NYCRR 324.3 [a] [1]).   Nothing in
the language of the statute limits compensation to care approved
in advance of treatment unless the pre-authorization requirement
of section 13-a (5) applies, and there is no claim that it does
here.   Thus, the regulation's preapproval requirement lacks a
necessary textual grounding to the extent that it extends the
limited pre-authorization requirement of section 13-a (5) to care
beyond that specifically enumerated in that section of the
statute.   Indeed, it is undisputed that prior to implementation
of the regulations, disputes over reimbursement for medical
services other than those in section 13-a (5) were usually
resolved after the services had been provided.


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          In this regard, the Board's regulations also undermine
the purpose of the 2007 amendment "to remove impediments to
prompt diagnostic and treatment measures" (see Governor's Program
Bill Memorandum, Bill Jacket, L 2007, ch 6, at 5).   The
regulation instead serves to hinder timely medical service
delivery by denying payment to providers who fail to secure
preapproval.   Under the regulation, "a request for a variance
will not be considered if the medical care has already been
provided" (12 NYCRR 324.3 [a] [1]).    As a result, the preapproval
requirement incentivizes providers to delay treatment based on
financial concerns.   Realistically, providers will defer medical
care until they are certain of reimbursement, which under the
regulations means until a variance is granted.   How long this may
take is uncertain, and dependent upon the deliberateness of the
administrative process.   Such delay carries with it the potential
for significant adverse health consequences due to a break in
medical services.   In contrast, the statute expressly provides
ensured compensation for medically necessary services, making no
mention of whether treatment was rendered prior to approval.      The
Board's regulation would permit denial of reimbursement even for
medically necessary treatment simply because the medical services
were provided prior to preapproval.    As a consequence, the
regulation is inconsistent with the mandate of section 13 (a).
          The Board is also subject to challenge for interpreting
its regulations so as to deny Kigin's request for reimbursement


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on the ground that her treatment varied from the Guidelines.
This interpretation contravenes the statutory and regulatory
scheme for individual assessment of compensable injuries, and was
not mandated by the 2007 amendments.
             Although I agree with the majority that the claimant
had the burden to establish that the treatment was compensable
under the statute (see majority op. at 10-11), under the Board's
interpretation of the regulations the claimant is subject to an
adverse presumption that the requested services are not medically
necessary simply because they are not included on the pre-
authorized list and vary from the Guidelines.
             The Board argues, and the majority concludes, that the
Legislature's directive to create a list of pre-authorized
procedures, also means that the Board has the authority to
predetermine that all excluded services are not medically
necessary.    I disagree.   The more logical and reasonable
interpretation of the statutory language, and one which furthers
the 2007 amendments' purpose to increase benefits to workers, is
that the Legislature authorized the Board to pre-determine
procedures over which there was general medical consensus,
leaving claims regarding other medical services to the
preexisting dispute resolution process.    That process is better
suited to determinations focused on the individual's condition
and needs.    Whereas the rulemaking process is more appropriate to
pronouncements of generalized treatment protocols, without


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consideration of specific individualized health concerns (see
State Administrative Procedure Act § 102 [2] [a] [defining a
"rule" as "the whole or part of each agency statement, regulation
or code of general applicability that implements or applies law .
. ."] [emphasis added]; see also Alca Indus., Inc. v Delaney, 92
NY2d 775, 778 [1999] [discussing distinction between rulemaking
and "ad hoc decision making based on individual facts and
circumstances"]).
             The statutory language does not support the Board's
position that the variance process established by the regulations
is consistent with the pre-existing statutory scheme.    The source
of the Board's authority for the Guidelines, section 13-a (5),
merely states that the Board "shall issue and maintain a list of
preauthorized procedures."    It does not state that excluded
procedures are to be treated as presumptively not medically
necessary.    Since the Guidelines were adopted pursuant to the
exercise of the Board's rulemaking power, the Board's
interpretation of the statute would permit the regulations to
supplant the individualized assessment of medical necessity by
establishing a presumption against certain services.    We would
expect that such a dramatic departure from the prior statutorily
established case-by-case approach would be authorized by clear,
unambiguous language.
             Moreover, the Board's interpretation favors the
legislative goal to reduce costs to the detriment of the


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                               - 8 -                         No. 181
legislative goal to increase benefits to workers.   Under the
Board's approach, the claimant faces a previously unknown burden
to rebut a presumption against payment for certain medical
services, and must endure the physical and mental affects of
delays in service pending the outcome of the variance request.
This appears to be in service of cost reduction for its own sake.
For it increases the challenges faced by claimants rather than
"remov[ing] impediments to prompt diagnostic and treatment
measures" (Governor's Program Bill Memorandum, at 5).   Whereas,
both goals are achievable by the adoption of a pre-authorized
list which expedites treatment delivery without automatically
labeling certain medical care medically unnecessary, thus
increasing benefits for workers, and at the same time reducing
the number of claims and parties subjected to the dispute and
variance process, thus containing costs.
           The statutory presumption in favor of claimants
applicable to proceedings to enforce claims for compensation,
found in section 21 (5), illustrates the Legislative commitment
to reducing the burdens faced by claimants in securing benefits,
and further supports the conclusion that the Board's
interpretation is contrary to the statute and the legislative
intent.   Section 21 (5) states that in any proceeding to enforce
a claim for compensation "it shall be presumed in the absence of
substantial evidence to the contrary . . . [t]hat the contents of
medical and surgical reports introduced in evidence by claimants


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for compensation shall constitute prima facie evidence of fact as
to the matter contained therein."   No such presumption applies to
the carrier/employer's medical evidence.
          The presumption clearly indicates the Legislature's
intention to ease the claimant's burden of establishing a right
to reimbursement for treatment. The Board's interpretation
undermines that intent because it requires the claimant to
establish by facts and opinion that the treatment is medically
necessary, without benefit of the fact presumption, and it
eliminates the carrier/employer's burden to rebut the presumption
with substantial evidence to the contrary.
          Here, the Board determined that Kigin's medical
provider failed to establish that the request for compensation
for additional acupuncture treatments was medically necessary.
That determination, however, was based on the independent medical
examination and report of Dr. Chiu, who concluded that the
treatments were not medically necessary because Kigin was not
disabled and the treatments failed to comply with the Guidelines.
This was error, as the Board had previously classified Kigin as
permanently partially disabled, and Dr. Chiu should have
evaluated the services not as against generalized Guidelines of
pre-authorized treatment, but based on the medical care's impact
on Kigin's conditions and needs.
          I dissent.




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*   *   *   *   *   *   *   *     *      *   *   *   *   *   *    *   *
Order affirmed, with costs. Opinion by Judge Pigott. Judges
Read, Smith and Abdus-Salaam concur. Judge Rivera dissents in an
opinion in which Chief Judge Lippman and Judge Graffeo concur.

Decided November 20, 2014




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