Letters to the Editor
Workers' Comp Board at Fault

To the Editor:

The Dec. 22 article which reported the city Law Department's unlawful refusal to pay for symptomatic medical treatment omitted a few key details regarding my case.

In 2000, the State Legislature passed a remedial Workers' Compensation Law which mandated that medical disputes before the board would thereafter be referred to neutral, board-certified physicians who would conduct Independent Medical Examinations (IMEs) and would then directly report their medical findings to the Workers' Compensation Board for further action.

Chapter 473 of the Laws of 2000 was supposed to put an end to the abusive practice of company doctors performing medical examinations on injured workers and then unilaterally "pulling the plug" on their Workers' Compensation benefits. Under IME regulations adopted by the WCB in 2001, injured workers must be referred for neutral IME examinations for medical opinions which would include degree of disability, treatment options, and the ability of an injured employee to perform his or her duties.

Turning to my Workers' Compensation situation, in 1986, while operating my Paramedic unit on the FDR Drive, I was struck by a fire engine which had been rear-ended by a drunk driver. As a result of a severe lower back injury which I sustained in this collision, my treating orthopedic physician recommended that I seek ongoing chiropractic treatment of my back injury. With brief exceptions, I have been adjusted on a twice-a-week basis since 1986.

I was re-injured at work in 2002. In connection with this re-injury, I was evaluated by chiropractic doctors under the new IME Law in 2003 and 2004. Both of these chiropractic doctors prepared and filed IME reports with the WCB which recommended that I continue to receive bi-weekly chiropractic treatments for my back injuries.

Until 2005, the Law Department, as the municipal Workers' Compensation carrier for hundreds of thousands of NYC workers, paid for my bi-weekly chiropractic treatments under various WCB stipulations which found me to be "permanently partially disabled" and which authorized symptomatic treatment of my back injury. However, in 2005 the city wrote my treating chiropractor and advanced the bogus claim that "symptomatic treatment" only meant treatment on a twice-a-month basis. The city denied my chiropractor's appeal of this unlawful decision without notifying the Workers' Compensation Board that a medical treatment dispute existed as the carrier is required to do under WCB regulations. As a result, my treating chiropractor is now owed over $4,500 in un-reimbursed chiropractic treatments.

When I protested in Federal court that the city's refusal to pay my treating chiropractor constituted harassment in connection with my First Amendment "whistleblower" lawsuit, a city official went so far as to prepare a sworn affidavit for the court which falsely claimed that the definition of symptomatic treatment was a "term of art" which everyone knew to mean twice a month in frequency. The truth is that the city has violated my due process rights by failing to report this treatment dispute to the WCB in accordance with applicable WCB regulations.

An investigation of my Workers' Compensation case shows that as far as the WCB is concerned, my Workers' Compensation case is marked as "closed" because the city never notified the WCB that it contested the frequency of my chiropractic treatments. Since there is unanimous IME medical opinion which supports my twice-weekly chiropractic treatments, the city does not have the right to arbitrate the frequency of my chiropractic treatment, and the WCB would have ordered the city to continue to pay my chiropractor at that twice-weekly rate. As a result of the city's deliberate end-run around the applicable WCB regulations, my on-going chiropractic treatment has been placed in jeopardy.

Like Mr. Dahl, I filed a complaint with the WCB concerning the city's violations of my Workers' Compensation rights. The WCB shrugged off my complaint with the feeble excuse that the board lacked the power to enforce the Workers' Compensation Law and Regulations against the City of New York. However, instead of the WCB making excuses for a city that often treats its injured workers as malingerers, the WCB should audit the Law Department's Workers' Compensation practices and then vigorously enforce the Workers' Compensation Law and regulations in a class-action lawsuit on behalf of injured city workers. Only then could injured city workers hope to enjoy the benefits allegedly granted them under the state Workers' Compensation Law.

RICHARD J. McALLAN, Senior NYC EMS Paramedic (Ret.)