NY’s Medical Treatment Guidelines Apply to Out-of-State Providers Treating Nonresident Claimants

In a decision that could have significant repercussions for a number of claimants under the New York Workers’ Compensation Law, a state appellate court affirmed a decision of the Workers’ Compensation Board that the state’s Medical Treatment Guidelines (“guidelines”) apply to medical treatment rendered to a nonresident claimant by an out-of-state provider [Matter of Gasparro v. Hospice of Dutchess County, 2018 N.Y. App. Div. LEXIS 7783 (Nov. 15, 2018)]. Acknowledging that the Board had departed from its own prior decisions on the issue, the appellate court said the Board had clearly set forth the reasons for making the change in its policy. Moreover, the change of policy was rational.


Claimant, a home health aide, sustained work-related injuries to her lower back and buttocks in 1995, while employed in New York. Her claim for workers’ compensation benefits was established and she ultimately received a nonschedule permanent partial disability classification for her compensable injuries. In 2005, claimant moved to Nevada.

In 2016, the workers’ compensation carrier objected to payment of various medical charges from a pain management specialist in Nevada. In relevant part, the carrier contended it was not obligated to pay charges related to LidoPro ointment and Terocin patches. The WCLJ resolved the objections in favor of the medical provider, but the Board reversed.

The Board noted that in light of a recent decision from the Court of Appeals, Matter of Kigin v. State of N.Y. Workers’ Compensation Bd., 24 NY3d 459 (2014), it had reexamined the question of whether the guidelines apply to medical treatment received by claimant in another state. Departing from its prior decisions on this issue, the Board concluded that the guidelines do apply to medical treatment received by a claimant in another state. Applying the guidelines to the objections before it, the Board found that LidoPro and Terocin were not prescribed in accordance with the guidelines and, thus, resolved the objections in favor of the carrier. Claimant appealed.

Board May Change its Mind on a Legal Issue

Initially, the appellate court noted that the Board was entitled to alter a course previously set out in its decisions, provided it set forth its reasons for doing so. The court added that here, the Board’s decision to depart from its prior decisions and apply the guidelines to the out-of-state treatment received by claimant was rational.

Claimant Entitled to Out-of-State Treatment

The court said there was no question that claimant, who was injured in New York, was entitled to continue to receive medical treatment from qualified physicians in her new state and that the employer remained liable for the reasonable value of the necessary medical treatment from qualified physicians in her new state. Nevertheless, it was reasonable for the Board to require that such medical treatment be in compliance with the guidelines. This helped to ensure that claimants received appropriate and effective medical care and that medical best practices applied equally to the medical treatment received by in-state and out-of-state claimants.

Proposed Nevada Medical Treatment Deviated from Guidelines

As to whether the medical treatment received by claimant in Nevada deviated from the guidelines, the court said that it did. As reflected in the record, LidoPro is a prescription topical pain relief ointment that includes lidocaine and capsaicin as active ingredients. 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 was not recommended. The court added that, under the guidelines, concomitant use of multiple drugs in the same class was not recommended. Accordingly, the court found that the Board’s decision that claimant failed to establish that LidoPro and Terocin were medically necessary and that these treatments were not prescribed in accordance with the guidelines was supported by substantial evidence and it would not be disturbed.

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