                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 26, 2015                     518683
________________________________

In the Matter of the Claim of
   DAVID MADIGAN,
                    Respondent,
      v

ARR ELS,
                     Respondent,
     and                                     MEMORANDUM AND ORDER

SPECIAL FUND FOR REOPENED
   CASES,
                    Appellant.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:    February 11, 2015

Before:    Peters, P.J., Garry, Rose and Lynch, JJ.

                              __________


      Steven M. Licht, Special Funds Conservation Committee,
Albany (Jill B. Singer of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, New York City
(Steven Segall of counsel), for Workers' Compensation Board,
respondent.

                              __________


Rose, J.

      Appeal from a decision of the Workers' Compensation Board,
filed September 4, 2013, which ruled that claimant's
prescriptions for pain medications should remain undisturbed.
                              -2-                518683

      In 1994, claimant suffered a low back injury during the
course of his employment as a machinist and was awarded workers'
compensation benefits. The workers' compensation carrier was
discharged in 2003, and liability transferred to the Special Fund
for Reopened Cases pursuant to Workers' Compensation Law § 25-a.
Claimant had a lumbar laminectomy and discectomy and, due to the
poor results of that surgery, he has been on pain medication,
including oxycontin, since at least 2007. After the Special
Fund's consultant, Ajendra Sohal, concluded that claimant's doses
of oxycontin had escalated without functional gains, the Special
Fund requested a hearing to address the necessity of claimant's
medication usage.

      In his February 2013 deposition testimony, Sohal
acknowledged that the Workers' Compensation Board had not yet
adopted Medical Treatment Guidelines for chronic pain (see
generally Matter of Kigin v State of N.Y. Workers' Compensation
Bd., 24 NY3d 459, 463 [2014]). A Workers' Compensation Law Judge
concluded that the prescribed drugs should be continued and the
Special Fund should be liable for their cost until either the
Board issued Medical Treatment Guidelines regarding long-term
narcotic use or claimant's treating physician recommended that he
should be weaned off the pain medication. The Board affirmed,
noting that its nonacute pain Medical Treatment Guidelines were
still only in draft form, and that continued authorization for
claimant's pain medication was consistent with the Board's
interim guidance. The Special Fund now appeals.1

      We affirm. The Special Fund's argument that the Board did
not follow the relevant Medical Treatment Guidelines lacks merit.
Although those guidelines have since been adopted (12 NYCRR 324.2
[a] [6]), they were not yet in existence at the time that the


    1
        We note that the Board subsequently amended its original
decision. Inasmuch as the original and amended decisions are not
materially different and there is no claim of prejudice, we will
treat this appeal as having been taken from the amended decision
(see Matter of Toledo v Administration for Children Servs., 112
AD3d 1209, 1210 n [2013]; cf. Matter of West v Titan Express,
Inc., 115 AD3d 1045, 1046 [2014]).
                              -3-                  518683

Board issued the decision and amended decision. Inasmuch as the
Board's decision to maintain the status quo until the guidelines
became effective was consistent with its interim guidance
regarding the appropriate medical care of those who are
prescribed narcotic medication, we cannot say that the
determination was irrational (see Matter of Kigin v State of N.Y.
Workers' Compensation Bd., 24 NY3d at 467-468).

     Peters, P.J., Garry and Lynch, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
