Forte v. Muccini

181 A.D.3d 1135

121 N.Y.S.3d 395

In the Matter of the Claim of Chris FORTE, Appellant,

v.Ernest MUCCINI et al., Respondents.

Workers' Compensation Board, Respondent.

529286

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 20, 2020

Decided and Entered: March 16, 2020

John F. Clennan, Ronkonkoma, for appellant.

Fischer Brothers, New York City (Martin Krutzel of counsel), for respondents.

Before: Clark, J.P., Mulvey, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Claimant injured his back while performing manual labor at an automotive body repair shop and filed a claim for workers' compensation benefits. His claim was established for an occupational disease of the back with a date of disablement of June 1, 2003 and he was found to have a permanent partial disability. Claimant sought medical treatment for his condition and underwent back surgery in 2005, at which time he was prescribed narcotic medications for pain. For many years thereafter, he continued to seek medical treatment for chronic pain, was prescribed various types of opioid medications and was diagnosed with opioid dependence in 2015. Following further proceedings in claimant's workers' compensation case, a Workers' Compensation Law Judge (hereinafter WCLJ) amended the claim to include consequential arachnoiditis, a pain disorder caused by inflammation of the membranes that surround and protect the nerves of the spinal cord, for which there is no medical treatment. During these proceedings, the employer's workers' compensation carrier requested the WCLJ to direct that claimant be weaned from opioid medications based upon the medical opinion of an independent medical examiner (hereinafter IME), who conducted a pharmacological chart review of claimant's medications and determined that weaning was appropriate based upon the Workers' Compensation Board's Non–Acute Pain Medical Treatment Guidelines (see 12 NYCRR 324.2 [a][6]. The WCLJ issued a decision denying this request and directed the carrier to continue to cover the cost of claimant's medications. The employer and the carrier sought review of this part of the WCLJ's decision by the Workers' Compensation Board. The Board modified the WCLJ's decision and directed that claimant be weaned from his narcotic medications in accordance with the weaning program devised by the IME. Claimant appeals.

Initially, this Court has recognized that "[t]he Board has the authority to promulgate medical treatment guidelines defining the nature and scope of necessary treatment" for various types of medical conditions ( Matter of Gasparro v. Hospice of Dutchess County , 166 A.D.3d 1271, 1272, 86 N.Y.S.3d 670 [2018] [internal quotation marks and citation omitted]; see Matter of Kigin v. State of N.Y. Workers' Compensation Bd. , 24 N.Y.3d 459, 463, 999 N.Y.S.2d 800, 24 N.E.3d 1064 [2014] ; Matter of Czechowski v. MCS Remedial Servs. , 175 A.D.3d 1759, 1760–1761, 109 N.Y.S.3d 487 [2019] ). The guidelines relevant here are those governing the treatment of non-acute pain. They define non-acute pain as "a biopsychosocial process that is recognized as occurring at which time the patient reports enduring pain that persists beyond the anticipated time of recovery and results in concurrent functional limitations" (State of New York Workers' Compensation Board Non–Acute Pain Medical Treatment Guidelines, at 8 [Sept.2014] ). The guidelines take a multidisciplinary approach to pain management, taking into account "[t]herapeutic components such as pharmacologic, interventional, psychological and physical ... performed in an integrated manner" that is "focused on the goal of functional restoration rather than merely the elimination of pain" (State of New York Workers' Compensation Board Non–Acute Pain Medical Treatment Guidelines, at 13 [Sept.2014] ). For patients who have used opioids for a long period of time prior to the enactment of the guidelines, "the goal is to transition to the standards of care identified [in the guidelines] and avoid abrupt discontinuation of opioids" (State of New York Workers' Compensation Board Non–Acute Pain Medical Treatment Guidelines, at 44 [Sept.2014] ). In accordance therewith, the guidelines authorize and set forth a protocol for opioid weaning (see State of New York Workers' Compensation Board Non–Acute Pain Medical Treatment Guidelines, at 66–67 [Sept.2014] ). They also set forth the standards that should be followed when administering opioids, limiting the total daily dose in general to 100 mg of the morphine equivalent dose (hereinafter MED) (see State of New York Workers' Compensation Board Non–Acute Pain Medical Treatment Guidelines, at 62 [Sept.2014] ).

Claimant contends that the Board erroneously relied upon the opinion of the IME in directing that he be weaned from his opiate...