tw. | Workers’ pratt | Compensation Board KATHY HocHUL CLARISSA M. RODRIGUEZ STEVEN M. SCOTTI Governer Chat Executive Director April 15, 2025 Via FedEx Standard Overnight Vadim Lerman, D.O. Total Ortho & Sports Medicine 5500 Merrick Road 2510 Westchester Avenue, Suite 100 Massapequa, New York 11758 Bronx, New York 10461 Total Ortho & Sports Medicine Total Ortho & Sports Medicine 5500 Merrick Road 115 Eileen Way Massapequa, New York 11758 Syosset, New York 11791 Total Ortho & Sports Medicine 1789 Sheepshead Bay Road Brooklyn, New York 11235 Re: Application for Authorization Renewal WCB Authorization No: 256328-6W Dear Dr. Lerman: ‘The Workers’ Compensation Board’s (Board) Medical Director's Office (MDO) has recently received your application for renewal of your authorization to treat injured workers (claimants). Upon review of your history since your last application, outlined briefly below in the Executive Summary of this letter, and in greater detail below in the Detailed Summary of this letter, the Board declines to grant your application for renewal of your authorization. EXECUTIVE SUMMAR' In your most recent Application for Authorization dated January 31, 2025, you affirmed that you ‘would abide by the provisions of the Workers’ Compensation Law (WCL) and the Rules and Regulations (Regulations) adopted thereunder, including the Medical Treatment Guidelines (MTG). Upon review ofa series of claim files by the MDO and the Board’s Office of General Counsel (OGC), the noted treatment of injured workers in the claims set forth below, both individually and in the aggregate, does not comport with applicable MTGs and constitutes a violation of your pledge to comply with the provisions of the WCL, Regulations and MTGs, and constitutes sufficient grounds to deny your authorization to treat injured workers. Indeed, taken in aggregate, these claims appear to indicate a consistent series of noncompliant behaviors that deviate from the expected standard of care and administrative standards of professional behavior. [Now York State Workers’ Compensation Board 828 State Stree, Schenactady, NY 12305 | (877) 632-4996 | wcbiny-g0¥Lerman Page | 2 Broadly speaking, your conduct frequently, and in many instances repeatedly’ 1. exposes claimants to risks of injury and complications from invasive procedures; and at the same time; 2. lacks adequate and/or credible documentation, frequently failing to meet generally acceptable standards of medical record-keeping; and 3. lacks medical justification or clinical indications for these procedures, calling into question the clinical judgment utilized in this medical decision-making; and 4, demonstrates the submission of prior authorization requests (PAR) to perform procedures outside of those generally provided for within the MTGs (variance PARs) without the requisite supporting medical justification; and 5. exhibit billing irregularities in your billing practices for such procedures. DETAILED SUMMARY: As explained more fully below, the Board investigated your treatment in the below noted workers” compensation claims and found the following deficiencies:" 332581 ‘On your first documented visit of February 6, 2023, you were consulted for a second opinion.” You found the claimant to be a 33-year-old male with complaints of neck pain radiating into the right shoulder and right hand with paresthesia, and lower back pain. You documented the cervical MRI results, indicating a paramedian herniation at the C5-6 level, straightening of the upper cervical lordosis, and prominent disc bulges at C4-5 and C5-6. You also documented that clectrodiagnostic studies (EDX), were indicative of right sided carpal tunnel syndrome, bilateral C6 radiculopathies and onset of right motor ulnar nerve neuropathy at the elbow. You also noted that the claimant is currently in physical therapy 3-4 times a week and has received three cervical epidural steroid injections (ESIs) with temporary relief. You do not include the spinal levels where the cervical ESIs were performed, nor do you include the date of the injections, the percentage of relief or the duration of the temporary relief. Based n this information, you recommended an invasive surgical procedure, specifically, an Anterior Cervical Discectomy and Fusion (ACDF) at the C5-6 level. "The majority ofthese eases were brought tothe Board's attention by a system slakeholder in the context of Roosevelt Road Re, L4d, etal, v. Surgicare of Westside, LLLC, etal; Case No. [:24-cv-01549-NG-LB and its progeny (collectively “RICO Matters") The instant determination details ou the treatment improprieties inthe below set forth five workers’ compensation claims and, for the sake of “brevity”, does not set forth substantially similar findings related to your treatment in other eases. 2 While this second opinion emanated from a different practice, itis notable that this same claimant was seen by your colleague Dr. Kumar on December 6, 2022, when your practice partner also recommended the same surgery ‘which was denied by the payer on the claim. [New York State Workers! Contpensaton Boars 328 State Street, Schenectady, NY 12308 | (877) 652-4996 | webay.govLerman Page | 3 On February 6, 2023, you submitted a Confirmation PAR for the ACDF procedure which was denied by the payer on the claim. The PAR was denied at Level | by payer on the claim for administrative reasons and was not eligible for escalation to MDO review. Had this been escalated to MDO for review, it would have been denied for the following reasons: © From a clinical standpoint, the documentation did not clearly identify the etiology of the pain generator, ie., the EDX indicated the existence of three different potential causes. ‘The MRI does not confirm pressure on one or more nerve roots, or the spinal cord; and spinal instability is not documented * Additionally, the claimant was still undergoing conservative care, and cervical ESI were documented to have provided temporary relief, although you did not submit any records of these injections. © Ofparticular concern is that you determined a surgical procedure was required at the first initial consult and requested the procedure without a full evaluation of the efficacy of conservative treatments and without fully exploring the etiology of the claimant's symptoms in the face of varying clinical dat Deviations from the MTGs include: «Neck Injury MTGs §§E.1.b and E.2.b.i: the MRI does not confirm pressure on one or more nerve roots or the spinal cord; Surgical Indications of radiculopathy from disc herniation or spondylosis, spinal instability not documented. © Neck Injury MTGs §E: All operative interventions should be based on a positive correlation with clinical findings, the natural history of the disease, the clinical course, and diagnostic tests. A comprehensive assimilation of these factors should have led to a specific diagnosis with positive identification of the pathologic condition(s). On June 7, 2023, you again submitted a Confirmation PAR for the ACDF procedure.? In support of the request, you attached an office visit note dated June 7, 2023, the same MRI report attached to the previous request, and the electrodiagnostic study (EDX) report that was referenced in the previous PAR submission. Of note, this request now includes two spinal levels (C5-6 and C6-7) and the previous PAR was for only C5-6 as noted in your “PLAN” section of the attached supported documentation from June 7, 2023. This request was again denied by the payer on the claim at Level 2 review and was not escalated for MDO review. This is considered a major surgery, which should not be requested or undertaken lightly, and if you believed that the surgery ‘was medically necessary, it begs the question why you did not escalate the PAR for MDO review. However, had it been reviewed, it would have similarly been denied by MDO for the exactly the same reasons as the prior PAR and would have constituted the same set of MTG and Regulatory violations as set forth above. > the payer on the claim disputed the amount of your bill associated with the underlying office visit of June 7, 2023, 4s inappropriate under the Medical Fee Schedule (MES) and you did not request arbitration onthe dispute. Ths is, tantamount an admission that your bill was inflated and contiary tothe MPS New York State Workers’ Compensation Boars 428 State Stret, Schenectady, NY 12305 | (877) 632-4996 | web ny.govLerman Page | 4 Overall, you submitted multiple requests for a surgical procedure prematurely and in the absence of sufficient documentation to support the requests. An invasive surgical intervention was pursued by the claimant, presumably in reliance on your recommendation, and was completed by another surgeon on August 9, 2023. Notably, you submitted requests for surgical procedures for providers other than yourself and a review of the case file shows that a C5-6 ACDF procedure with cages, anterior instrumentation and bone grafting and a C6 corpectomy was performed by a “different” provider on August 9, 2023.4 The PAR was never approved. This denies the claimant the inherent safeguards afforded by the PAR review process, and exposes the claimant (with arguably inadequate prior knowledge or consent) to the risks of a highly-invasive surgical procedure. 33222645 On your first documented visit of April 6, 2022, you found the claimant to be a 43-year-old male with complaints of neck pain radiating into bilateral shoulders, bilateral arms, bilateral hands associated with paresthesia. You documented his pain as an 8/10; that the claimant had treatment with physical therapy 2-3 days a week with temporary relief; and had three cervical ESIs with temporary relief. You did not the mention dates of the prior treatment. You documented the cervical MRI results indicating a midline herniation at the C5-6 level, left paramedian protrusion/herniation at the C4-5 level; midline herniation at the C6-7 level; midline protrusion at the C7-T1 level; straightening of the cervical lordosis; and prominent dise bulges at 4-5 through C6-7 levels. You further documented that EDXs were suggestive of peripheral entrapment of the bilateral median nerves at or about the wrist, consistent with Carpal Tunnel Syndrome bilaterally; and that the study revealed evidence of left-sided C5-6 radiculopathy. You recommended an invasive surgical procedure, specifically, an ACDF at the C5-6 level.° * Of particular concern is that you determined a surgical procedure was required at the initial consult and requested the procedure without a full evaluation of the efficacy of conservative treatments and without fully exploring the etiology of the claimant's symptoms in the face of varying clinical data suggesting cither competing versus compounding diagnoses, i.e, cervical radiculopathy versus bilateral Carpal Tunnel Syndrome, versus both. + Putting aside any deviation from the Board’s MTG and fiom a purely clinical perspective, this is concerning as it evidences an element of pre-determined treatment focused on select surgical procedures, to the exclusion of other diagnoses and treatments. same location as the one listed on “The location addresses listed on the other “other” provider's website isthe exs file for you. # Ics important to note that the PLAN section of this visit note contains identical language to the report dated June 7, 2003, in G3325814, This illustrates an apparent lack of individualized clinical examinations, assessments and case-specifie decision-making, and a predetermination toward surgical procedures for your claimants. © The payer onthe claim disputed the amount of your bill as inappropriate under the MFS and you did not request axbitration onthe dispute, This i tantamount an admission that your bill was inflted and contrary tothe MF, New York State Workers’ Compensation Board £228 State Street, Schenectady, NY 12305 | (877)632-4995 | web.ny.govLerman Page | 5 On April 7, 2022, you submitted a Varianee PAR for the ACDF procedure which was rejected as it was not sent to the payer on the claim. Had the merits of the PAR been escalated for MDO- review, it would have been denied for the following reasons: + From a clinical standpoint, the documentation did not clearly identify the etiology of the pain generator. This represents a deviation from the Neck MTG §Neck — E.2.b.i. as you failed to document the dates of the ESIs or the spinal levels where the injections were performed, even though they did not provide meaningful relief and you failed to document the efficacy of the conservative care, i.e., the physical therapy he ‘was still undergoing, * This represents a deviation from the MT'Gs Neck Injury §E: All operative interventions should be based on a positive correlation with clinical findings, the natural history of the ase, the clinical course, and diagnostic tests. A comprehensive assimilation of these factors should have led to a specific diagnosis with positive identification of the pathologie condition(s). + Further, putting aside any deviation from the Board’s MTG and from a purely clinical perspective, this is concerning as it evidences an element of pre-determined treatment focused on select surgical procedures. On August 10, 2023, you submitted a Special Services PAR for a posterior lumbar fusion and decompression at LS-S1. In support of this request, you attached an office visit note dated August 9, 2023, and an MRI study of the Lumbar spine dated July 25, 2022. Your office visit note documented that the claimant was still attending physical therapy 3 times per week, so conservative treatment does not appear to have been exhausted. Additionally, the MRI report does not indicate the presence of stenosis, nerve root or cord impingement. The request was denied by the payer on the claim at Level 2 and was not escalated for MDO review. This is considered a major surgery, which should not be requested or undertaken lightly, and if you believed that the surgery was medically necessary, it begs the question why you did not escalate the PAR for MDO review. Had this been escalated to MDO for review, it would have been denied for the following reasons: ‘© The attached office visit note demonstrates that conservative treatment attempts were still in progress with no evaluation of whether the therapy was producing a positive effect. Additionally, you state that that two EST’s have shown no improvement, however, you do not include the date of the injections or the spinal levels at which they were performed. + The MRI and EDX findings do not corelate to your physical exam findings. Notably, the EDX study notes evidence of left radiculopathy only and the MRI did not show nerve root or cord compression. As such, the etiology of the pain generator is not clearly defined. © This represents a deviation from the MTGs Mid and Low Back Injury §E.4: Lumbar fusion is not recommended for spinal stenosis without spondylolisthesis, instability, or surgical instability and facetectomy of greater than 50% of the facets and there is no demonstration of a lack of responsiveness or unsatisfactory response(s) to adequate conservative treatment over a minimum of six-to-eight week period that may or may not include ESI. «Putting aside any deviation from the Board’s MTG and from a purely clinical perspective, this is concerning as it evidences an element of preletermined treatment focused on select surgical procedures. [New York State Workers’ Compensation Boord 228 State Svect, Schenectady, NY 12305 | (877) 632-4996 | web ny.govLerman Page | 6 On October 9, 2023, you again submitted a Special Services PAR for a Lumbar fusion procedure at L5-S1. Again, the request was denied by the payer on the claim at Level 2 and was not escalated for MDO review. This is considered a major surgery that should not be requested or undertaken lightly, and if you believed that the procedure was medically necessary, it begs the question why you did not escalate the PAR for MDO review. Had this been jated to MDO- for review, it would have been denied for the following reasons: * The documentation attached to this PAR did not indicate any material changes in the claimant's clinical or functional status; still demonstrated that conservative treatment attempts were still in progress with no evaluation of whether the therapy was producing a positive effeet. Additionally, you state that that two ESI’s have shown no improvement, however, you do not include the date of the injections or the spinal levels at which they were performed. + The MRI and EDX findings do not corelate to your physical exam findings. Notably, the EDX study notes evidence of left radiculopathy only and the MRI did not show nerve root or cord compression. As such, the etiology of the pain generator remains not clearly defined. Finally, conservative treatment does not appear to have been exhausted, + This represents a deviation from the MTGs Mid and Low Back Injury §E.4: Lumbar fusion is not recommended for spinal stenosis without spondylolisthesis, instability, or urgical instability and facetectomy of greater than 50% of the facets and there is no demonstration of a lack of responsiveness or unsatisfactory response(s) to adequate conservative treatment over a minimum of six-to-eight week period that may or may not include ESI * Putting aside any deviation from the Board’s MTG and from a purely clinical perspective, this is concerning as it evidences an element of pre-determined treatment focused on select surgical procedures ‘The claimant underwent an invasive surgical intervention, namely, an L5-S1 decompression and posterior fusion, presumably in reliance on your recommendation, by another surgeon on November 30, 2023. A medical report contained in the Board’s case file indicates that the procedure was performed on said date by Jeffrey Thompson, one of your practice partners. This again suggests an affiliation in which you have submitted a PAR for a surgical procedure on behalf of other providers in your practice, and they performed such procedure des the lack of PAR approval or resubmission by the surgeon who performed the procedure. ‘Moreover, the payer on the claim objected to payment for this procedure and on February 5, 2024, a decision was issued in favor of the payer on the claim on the basis that the treatment deviates from the MTGs and no variance was obtained.’ This denies the claimant the inherent safeguards afforded by the PAR review process and exposes the claimant (with arguably inadequate prior knowledge or consent) to the risks of a highly-invasive surgical procedure. 7 Interestingly, an RFA-1 was filed by the claimant's attorney on March 3, 2025, or roughly 18 months after the surgery was performed requesting adjudication of the propriety of the surgery. This Was obviously determined moot by asthe surgery had been performed. Now York State Workers! Compensation Board 328 State Street, Schenectney, NY 12305 | (87) 632-4995 | webay.covLerman Blood clots; Injury to blood vessels or nerves in and around the spine, and reduced or lost function of the muscles and tissues that are vascularized/innervated by said vessels/nerves; 6. Pain at the bone graft site; 7. Persistence or return of symptoms; 8. Nerve damage; 9. Extended recovery time; 10. Graft failure; II. Weakness, pain, numbness or paralysis in legs or feet 12. Chronic loss of range of motion at the operative disc level; or 13. Death. Page | 7 Risks for this procedure include but are not necessarily limited to: 1. Infection; 2. Poor wound healing: 3. Bleeding; 4 5, Overall, you submitted multiple requests for multiple surgical procedures prematurely and in the absence of sufficient documentation to support the requests. Additionally, you submitted requests for surgical procedures for providers other than yourself. These procedures were occasionally performed without prior authorization, and therefore inappropriately performed and billed, but more importantly, exposing the claimant to invasive, high-risk procedures, without full benefit of the claimant safety elements afforded by the prior authorization process. 63322246; On your first documented office visit on March 4, 2024, you documented the claimant had undergone a lumbar discectomy on January 3, 2024, that provided no relief and that the claimant had physical therapy 2 to 3 days per week and three lumbar ESI with minimal relief. You noted that the claimant had complaints of neck pain (4/10) radiating into bilateral shoulders with numbness and tingling of the upper extremities, and severe low back pain (8-9/10) that radiates into bilateral legs with numbness and tingling of the lower extremities.* However, you failed to mention dates of service or spinal levels involved with said prior treatments. As such, there is no indication that an attempt was made to evaluate the efficacy of prior treatment, © Putting aside any deviation from the Board’s MTG and from a purely clinical perspective, your notes indicated that prior lumbar ESIs have failed (“minimal relief”) but you did not document the injection dates, spinal levels or duration of the relief. © The MTGs frequently require an assessment of treatment efficacy. The failure to do so here therefore fails to meet the Board’s standard of care for injured workers. * The payer onthe claim disputed the amount of your bill as inappropriate under the MFS and you did not request arbitration onthe dispute, This is tantamount an admission that your bill was inflated and contrary tothe MFS. New York State Warkers’ Compensation Bare 328 State Steet, Schenectney, NY 12208 | (877) 632-4996 | webny.aovLerman. Page | 8 On March 4, 2024, you submitted a Special Services PAR for a posterior lumbar fusion at L5-S1 The request was denied by the payer on the claim at Level 2. The denial was escalated for MDO Review and was denied for the following reasons: * A lack of supporting medical documentation to establish a positive correl the clinical exam, course of treatment and testing to support the request for fusion surgery. While your office note dated March 4, 2024, indicated the existence of nerve compression, the MRI report dated November 17, 2023, did not indicate such, and no instability is noted * Additionally, the MRI submitted (from November 17, 2023) was performed prior to the previously failed surgical procedure to the lumbar spine on January 3, 2024, and therefore would not show post-surgical changes, or be relevant to a second or subsequent surgical request. © Of particular concern is that you determined a second surgery was required at the first initial consult and requested the procedure without any post-operative, updated imaging of the lumbar spine. Putting aside any deviation from the Board’s MTG and from a purely clinical perspective, this is concerning as it evidences an element of pre~ determined treatment focused on multiple surgeries, and a fundamental lack of clinical inquisitiveness that might inform your clinical decision-making to arrive at the best and most informed path forward for the claimant, ‘The claimant underwent an invasive surgical intervention, namely, a lumbar fusion, presumably in reliance on your recommendation, by another surgeon, on April 18, 2024. A medical report contained in the Board’s case file indicates that the procedure was performed on said date by Jefirey Thompson. This again suggests an affiliation in which you have submitted a PAR for a surgical procedure on behalf of other providers in your practice, and they performed such procedure despite the lack of PAR approval or resubmission by the surgeon who performed the procedure. Morcover, the procedure was performed at a different level of the lumbar spine than requested in your Special Services PAR dated March 4, 2024, further indicating a lack of clarity of the claimant's clinical picture when you made the request, and even more worrisome, when the surgery was performed In this case, you submitted a request for an invasive surgical procedure in the absence of sufficient documentation to support the request. Additionally, you submitted the request for the surgical procedure for providers other than yourself. In promoting and facilitating the performance of a procedure that requires prior authorization, with said prior authorization specifically denied by both the payer at Level 2 and the MDO, you specifically ignored and helped circumvent the inherent safeguards afforded by the PAR review process, and exposed the claimant (with arguably inadequate prior knowledge or consent) to the risks of a highly-invasive surgical procedure that was deemed to not be medically necessary or adequately justified. These risks include but are not necessarily limited to: 1. Infection; 2. Poor wound healing; 3. Bleeding; 4. Blood clots; Now York State Workets' Conipensation Board 328 State Street, Schenectady. NY 12305 | (877) 632-4996 | veb.ny.covLerman Page | 9 Injury to blood vessels or nerves in and around the spine, and reduced or lost function of the muscles and tissues that are vascularized/innervated by said vessels/nerves; 6. Pain at the bone graft site; 7. Persistence or return of symptoms; 8. Nerve damage; 9. Extended recovery time; 10. Graft failure; 11, Weakness, pain, numbness or paralysis in legs or feet; 12. Chronic loss of range of motion at the operative disc level; ot 13. Death. G3459555:° On your first documented office visit on March 1, 2023, your physician’s assistant (PA) indicated that the claimant complains of neck pain and “...]ower back pain that radiates to bilateral legs and no extremity pain”. This statement contradicts itself. The PA then indicates that the claimant rates their neck pain (6/10) and lower back pain (7/10), had received physical therapy 2-3 times per week and had been taking anti-inflammatories, but had no ESIs. Your PA documented that cervical and lumbar x-rays were performed during the visit and, “.. discussed at length conservative care options such as therapy, NSAIDs, home exercise, epidural steroid injections, and surgery. We discussed risks, indications, and altematives extensively”. The PA recommended continuing physical therapy, as well as MRIs of the cervical and lumbar spine and for the claimant to follow up in four weeks. By cosigning the exam notes, you are attesting that you supervised the PA, reviewed the exam, assessment and proposed course of treatment and agree. On April 3, 2023, claimant presented for MRI review and you noted that the MRI of the cervical ited C4-5, C5-6, C6-7 posterior disc bulges impressing on the ventral thecal sac and kyphosis with the apex at C4-5 with evidence of muscular spasm; and that the MRI of the lumbar spine indicated that there was a L5-S1 posterior herniation with focal extension to the epidural fat, You again reportedly discussed at length the care options, including surgery, and recommended continuing physical therapy and lumbar ESI by pain management. However, you failed to indicate at which spinal level, nor did you provide clinical exam findings and imaging 0 support the recommendation, On your next office visit on May 3, 2023, you noted that the claimant was status post one Iumbar ESI performed on April 25, 2023, which provided temporary relief for 3 days, and has another lumbar ESI appointment on May 9, 2023, “but is refusing to go.” You did not document an explanation of why the claimant was refusing to return for treatment that provided relief, albeit temporary. Additionally, you failed to document the spinal level(s) at which the lumbar ESI was performed. You noted that the claimant complained of neck pain of 6/10 that radiates to the bilateral shoulders; and lower back pain of 7/10 that radiates to bilateral legs, but then note, “no ® Notably, this claimant was only twenty-four years old when first seen by your office New York State Workers! Compensation Boat 28 State Street, Schenectady, NY 12305 | (877) 832-4996 | web.ny.dovLerman Page | 10 extremity pain” which contradicts the previous statement. You indicated that the claimant has had physical therapy 2-3 times a week but failed to document duration or dates of said treatment. In the clinical exam findings section, you noted “no instability” under lumbar spine. You referenced the April 3, 2023, lumbar spine MRI with an impression of “L5-S1 posterior disc herniation with focal extension to the epidural fat”. However, in your “comments” section, you noted “[t}he claimant has HNP LS-S1, annular tear, lumbar stenosis consistent with the symptoms, Surgery for the PSF L5S1 decompression has been recommended”. Significant is the fact that the MRI report does not support the statement that there is an annular tear or stenosis, as you noted. Moreover, the MRI report does not indicate nerve root compression, stenosis, spondylolisthesis, cord impingement or cord compression that would justify. the need for the recommended surgical procedure. Ata minimum this represents faulty and inaccurate medical record-keeping. © Alternatively, your ability to read and correctly interpret the MRI differed significantly from that of the radiologist. © Alternatively still, you knowingly submitted a false interpretation of an MRI in order to obtain approval for a highly invasive surgical procedure. © Your report indicates that you obtained surgical consent for the posterior lumbar fusion LS-S1 from the claimant based on findings that were not supported by the MRI in order to move forward with requesting the procedure. © The above-referenced “informed” consent is based on factually incorrect information that you presented to the claimant. The inaccuracy of these clinical findings in this section of ‘your report calls into question the adequacy of the consent you obtained from this ‘claimant for a highly invasive surgical procedure." ‘On May 4, 2023, you submitted a Special Services PAR for a posterior lumbar fusion at the LS- $1 level. The request was denied at Level 1 by the payer on the claim for administrative reasons and was not eligible for MDO review. Had this been escalated to MDO for review, it would have been denied for the following reasons: * Inadequate documentation of failed conservative care: There is no documentation of what spinal level(s) the lumbar ESI was performed at; no duration or dates provided for physical therapy. It is not clear that the claimant underwent a full course of conserve care and/or less invasive non-surgical options. + Further, performing this type of invasive surgery is clinically inappropriate because it is not clear that the etiology of the claimant’s symptoms (bilateral leg pain) emanated from the spine and would be alleviated by the surgery. Specifically, your office notes contain contradictory findings regarding extremity pain and the report on the referenced imaging does not comport with your stated imaging findings. You proposed a very invasive surgical procedure on a young claimant, without first considering less invasive procedures. « The above constitutes a deviation from Mid and Low Back Injury MTGs § E.4. ive °© Again, it bears repeating thatthe claimant was only twenty-four years old a the time you were suggesting an invasive surgical fusion New York State Workets! Compensation Board 228 State Steet, Screnectody, NY 12305 | (877) 832-4996 | web.ny-gavLerman Page | It * Likewise, putting aside any deviation from the Board’s MTG and from a purely clinical perspective, this is concerning as it evidences an element of pre-determined treatment focused on surgery. On June 7, 2023, you again submitted a Special Services PAR for a posterior lumbar fusion at the L5-S1 level. The office visit note attached to this request reflected no changes from the office visit note of May 3, 2023, attached to the previous PAR submission and the same MRI study was attached."! The PAR was denied at Level 1 by the payer on the claim for administrative reasons and was not eligible for escalation to MDO review. Had this been escalated to MDO for review, it would have been denied for exactly the same reasons as stated above and would have constituted the same set of MTG and Regulation deviations. + This also constitutes a deviation from 12 NYCRR § 324.3(7)(ii), which requires a PAR, following denial ofa request for substantially similar treatment, procedure or test, be submitted with additional documentation or justification beyond the prior PAR + Likewise, putting aside any deviation from the Board’s MTG and from a purely clinical perspective, this is concerning as it evidences an element of pre-determined treatment focused on surgery. On July 27, 2023, you again submitted a Special Services PAR for a posterior lumbar fusion at the L5-S1 level. The office visit note you attached to this request reflected no changes from the office visit note attached to the PAR dated June 7, 2023, which was denied. You attached the same MRI study and the same office visit note dated April 25, 2023. Essentially, you included nothing that would indicate a material change in the claimant's condition following the denial of the June 7, 2023, PAR. The Board specifically advises that providers should not resubmit identical or near identical PARs unless there has been a material change in the patent’s clinical or functional status warranting such reconsideration. Thus, you were acting in direct contradiction to Board guidance. The PAR was denied by the payer on the claim at Level 1 for administrative reasons and was not eligible for MDO review. Had this been escalated to MDO for review, it would have been denied for exactly the same reason as the prior PAR and would have constituted the same set of MTG and Regulatory violations as set forth immediately above. On January 17, 2024, you again submitted a Special Services PAR for a posterior lumbar decompression and fusion at the LS-SI level. The office visit note you attached to this request reflected no changes from the prior office visit note attached to the PAR submission dated July 27, 2023, which was denied. You attached the same MRI study, and no new supporting documentation, Essentially, you included nothing that would indicate a material change in the claimant’s condition following the denial of the July 27, 2023, PAR. The Board specifically advises that providers should not resubmit identical or near identical PARs unless there has been a material change in the patent’s clinical or functional status warranting such reconsideration. Thus you were once again acting in direct contradiction to Board guidance. The PAR was denied You did include an office visit note dated April 25, 2023, from another provider which documented lower back pain radiating to left leg with numbness and tingling in foovtoes; tendemess to palpation over lumbar facet joints (L3-S1); severe tendemess over sacroiliae joints; lumbar sensation normal to pin prick and light touch. The provider recommended an lumbar ESI (no levels identified) and then performed a LS-S1 lumbar ESI with epidurogram and Iumbar TPIs at the visit "Now York State Workers! Compensation Board 228 State Street, Schenectady, NY 12305 | (877) 632-4996 | web.y.govLerman Page | 12 at Level 2 by the payer on the claim on January 22, 2024, and was not escalated for review. This is considered a major surgery that should not be requested or undertaken lightly, and if you believed that the procedure was medically necessary, it begs the question why you did not escalate the PAR for review by the MDO. Had this been escalated to MDO for review, it would have been denied for exactly the same reason as the prior PAR and would have constituted the set of MTG and Regulatory violations as set forth immediately above. On Mareh 27, 2024, you again submitted a Special Services PAR for a posterior lumbar decompression and fusion at the L5-SI level. The office visit note attached to this request reflected no significant changes from the prior office visit note attached to the PAR submission dated January 17, 2024, which was denied, Essentially, you included nothing that would indicate a material change in the claimant’s condition following the denial of the prior PAR. The Board specifically advises that providers should not resubmit identical or near identical PARs unless there has been a material change in the patent’s clinical or functional status warranting such reconsideration. Thus, you were once again acting in direct contradiction to Board guidance. The PAR was denied at Level 2 by the payer on the claim and was not escalated for MDO review This is considered a major surgery that should not be requested or undertaken lightly, and if you believed that the procedure was medically necessary, it begs the question why you did not escalate the PAR for MDO review. Had this been escalated to MDO for review, it would have been denied for exactly the same reason as the prior PAR and would have constituted the same set of MTG and Regulatory violations as set forth immediately above. ‘On September 25, 2024, you submitted a special services PAR for a posterior L: decompression and lumbar fusion. This was granted by the payer on the claim at Level 2 review. Although this review was performed by the payer's physician, had this request been reviewed by the MDO, it is eminently likely that it would have been denied as there was insufficient documentation submitted to justify such an invasive procedure. Specifically, the March 3, 2023, MRI that was attached to the request was unremarkable at the level requested for the fusion (L5- SI posterior disc hemiation with focal extension to the epidural fat; no stenosis noted; no nerve root compression noted; no instability noted; no neurogenic claudication noted), The provider submitted documentation of a single lumbar ESI having been performed on April 25, 2023, with temporary relief noted. Additionally, there does not appear to be any substantial conservative care attempted (specifically physical therapy) or documentation of failed course of conservative eare. * The above constitutes a deviation from the Mid and Low Back Injury MTG §E.4. + Further, putting aside the approval of the PAR, performing this type of invasive surgery is clinically inappropriate because it is not clear that the claimant’s symptoms would have been alleviated by the surgery. It is not clear that the claimant underwent a full course of conservative care and/or less invasive non-surgical options. The report on the referenced imaging does not comport with your stated imaging findings. You proposed a very invasive surgical procedure on « relatively young claimant, without first considering less invasive procedures. * You obtained consent for this procedure from the claimant based on an incorrect representation of MRI findings. Specifically, you noted, that “a long discussion with the claimant about the risks and benefits of surgery of the cervical {sic} spine. This New York State Workers! Compensation Bours 28 State Sweet, Schenectady. NY 12305 | (877) 632-4996 | web.ny.govLerman Page | 13 discussion utilized models, and the imaging was reviewed with the claimant. We discussed the surgical approach in detail ...they seemed to understand the procedure and all questions were answered. The claimant has a HNP L5-S1, annular tear, lumbar stenosis consistent with the symptoms.” As the MRI findings in your report vastly differ from the MRI report in the case file, this is indicative of the claimant having provided consent that was less that truly “informed”. © Further, you needlessly exposed the claimant to the risks of a highly invasive procedure. As you yourself noted, the risks attendant such a surgery include but are not limited to: “... death, bleeding, infection, dural tear, dural leak, nerve damage, paralysis, hoarseness, vocal cord paralysis, dysphagia, esophageal injury, the need for repeat surgery failure to heal, to fuse and failure of hardware. In this claim, you engaged in a pattern of submitting and repeatedly resubmitting PARs for a lumbar fusion prematurely without indication or demonstrated medical necessity without documenting that a course of conservative care was considered and/or exhausted prior to recommending a surgical fusion, You also repeatedly resubmitted PARs for services that have already been denied, even when there has been no substantial interim change in the claimant's clinical or functional status to warrant such reconsideration; and did not escalate PARs that were denied at Level 2 review. Your failure to escalate PAR denials for MDO review and failure to provide adequate documentation to support the need for the procedure resulted in the prolonging of the PAR process and repeatedly denied the claimant the quality assurance and claimant safety controls that are intended in the PAR process and MDO review. If you deemed the surgical procedure medically necessary, failure to escalate to MDO review and/or provide adequate supporting documentation unduly prolonged claimant care to the detriment of the claimant. You have routinely recommended and submitted PARs for invasive/tisky procedures, without adequately evaluating and demonstrating that more conservative (and less risky) treatment modalities have been exhausted. Finally, you performed a lumbar fusion on the claimant on November 7, 2024, and saw the claimant on only one occasion following the pro (November 15, 2024). This would indicate that you failed to adequately follow the claimant to direct his post-operative care and monitor for any post-surgical complications. 63671623: On your first documented office visit on August 25, 2023, you noted the imant was experiencing radiating neck and low back pain associated with numbness and tingling into bilateral shoulders and bilateral legs. However, your notes contained contradictory information by also stating, “no extremity pain”. You documented that claimant had physica! therapy four times per week, but did not indicate dates or duration of treatment, and also noted that the claimant had no ESIs, was taking Tylenol, Ibuprofen and physical therapy with minimal relief You noted no instability under the cervical spine and lumbar spine examination and no MTG “red flags” were noted, You recommended to continue physical therapy, obtain MRIs of neck and back and follow up in 4 weeks. New York State Workers’ Compensation Board 228 State Stree, Schenectady, NY 12305 | (877) 632-4986 | webny.govLerman Page | 14 On September 22, 2023, you submitted a Variance PAR requesting MRIs of the Neck and Back. The PAR was denied by the payer on the claim at Level 1 for administrative reasons and thus was not eligible for MDO review. Had it been reviewed by MDO it would have denied for the following reasons © Deviation from the MTG Mid and Low Back Injury MTG § C.1.b.vi: Only nine days had passed since the date of incident and your office visit, the MTGs specifically do not recommend a lumbar MRI “for acute back pain or acute radicular pain syndromes in the first six weeks, in the absence of red flags” and yourreport did not document any such red flags. * Deviation from MTG Neck Injury MTG §B.4: there is no documentation of red flags or conservative treatment attempts lasting 4-6 weeks * Deviation from MTG Neck Injury §C.1.b: No documentation of suspected infection, masses metastatic disease or cord compression The MRI was performed despite the PAR denial. On October 4, 2023, claimant presented for MRI review and you noted that the MRI of the cervical spine indicated straightened cervical lordosis and no disc bulge, herniation or neural foraminal narrowing (findings, as you know, which can be explained by something as simple as spasm of the cervical musculature due to pain); and that the MRI of the lumbar spine indicated transitional vertebrae of the lumbosacral junction, straightened lordosis, and L2-L3, L3-L4, L4-L5, L5-SI diffuse disc herniation with hypertrophic facet change and ligamentum flavum hypertrophy with triangular shape thecal sac, central, bilateral recess and neural foraminal narrowing. You also note that the claimant had received 2 cervical ESI and 2 lumbar ESI that provided temporary relief. You again discussed at length the care options, including surgery, and recommended continuing physical therapy and additional lumbar ESI by pain management. However, you failed to indicate at which spinal level (On May 13, 2024, you indicate that claimant, “...presents today after second cervical ESI that provided minimal relief.” However, this is contradictory to your statement in the next paragraph indicating that the claimant had received, “...3 cervical and 2 lumbar epidural injections that provided temporary relief”. It is unclear which statement is accurate, as there are no dates reported as to when the ESIs were performed, or at which spinal levels they were provide: again discussed at length the care options, including surgery, and recommended continuing physical therapy and a new cervical MRI. You On July 17, 2024, you submitted a Special Services PAR for a posterior spinal fusion at L4-5. The office visit note you attached, dated July 10, 2024, to this request stated the claimant is status post third cervical ESI two weeks ago, which provided temporary relief (no spinal level(s) provided, no duration or percentage of relief provided, and no dates provided) and three lumbar ESI that provided temporary relief (no dates or spinal level(s) provitled and no duration or percentage of relief provided), Claimant is currently in physical therapy four times per week, with temporary relief (ito duration provided). You referenced an MRI report dated September 26, 2023, with an impression which states, “L4-L5 diffuse disc herniation with hypertrophic facet change and ligamentum flavum hypertrophy with triangular shape thecal sac, central, Now York State Werkete' Compensation Boars 426 State Sweet, Schenectady, NY 1205 | (877) 632-4986 | web.ny.govLerman Page | 15 bilateral lateral recess and neural foraminal narrowing”. There is no documentation of spondylolisthesis, nerve root compression or cord compression and no facet pathology is noted. The actual MRI attached specifically states “t]he visualized nerve roots reveal no evidence of structural abnormality. The residual neuroforamen are adequate”. Furthermore, your office visit note states “No instability” documented for the lumbar spine exam. You documented, “I have discussed with the patient regarding his condition Ruptured L4- LS disc with herniation and nerve compression and different options from doing nothing, to conservative treatment, to surgical intervention PSF L4-L5.” As such, the condition you cited to is not supported by the MRI as the report only indicates the presence of a herniated disc. ‘This represents either a blatant misreading of the MRI imaging on your part, a failure to correctly read and report the results of the formal MRI reading by the radiologist, or a misrepresentation of the actual MRI results in your discussions with the claimant and/or your communications with the payer, or some combination thereof, any one of which would be considered a wanton disregard and deviation from the standard of care. The PAR was denied at Level 2 by the payer on the claim and was not escalated for MDO review. This is considered a major surgery that should not be requested or undertaken lightly, and if you believed that the procedure was medically necessary, it begs the question why you did not escalate the PAR for MDO review. Had this been escalated to MDO for review, it would have been denied for the following reasons: © Deviation from Mid and Low Back Injury MTGs §E.4: Inadequate documentation of failed conservative care (There is no documentation of what spinal level(s) the lumbar ESI was performed at, and no dates of the procedures; no duration or dates provided for physical therapy); Signs and symptoms do not correlate to imaging and physical exam findings (the provider notes “no instability” under lumbar spine; no nerve root compression, no stenosis, no spondylolisthesis, no cord impingement or compression noted on MRI and provider’s statement that there is ruptured disc and nerve compression is not supported); and Etiology of the pain generator is not clearly defined (facet pathology on MRI, no spondylolisthesis or instability). + Likewise, putting aside any deviation from the Board’s MTG and from a purely clinical perspective, this is concerning as it evidences an element of pre-determined treatment focused on surgery. On August 6, 2024, you again submitted a Special Services PAR for a posterior spinal fusion at 4-5. The documentation you submitted in support contained no new information and was identical to the documentation attached to your PAR submission dated July 17, 2024. The Board specifically advises that providers should not resubmit identical or near identical PARs unless there has been a material change in the claimant’s clinical or functional status warranting such reconsideration. Thus, you were once again acting in direct contradiction to Board guidance. This was again denied by the payer on the claim at Level 2 and again not escalated for MDO review. This is considered a major surgery that should not be requested or undertaken lightly, and if you believed that the procedure was medically necessary, it begs the question why you did not escalate the PAR forMDO review. It is unclear as to whether this repeated habit of failing to escalate PARs to the MDO for review is an example of administrative sloppiness on the part ofyou and/or your office, or a desire to avoid scrutiny hy the Board of your clinical decision-making, Had this been escalated to MDO for review, it would have been denied for New York State Werkete’ Compensation Board 228 State Street, Schenectady, NY 12308 | (877) 632-4995 | websy.govLerman Page | 16 exactly the same reason as the prior PAR and would have constituted the same set MTG and Regulatory violations as set forth immediately above. © This also constitutes a deviation from 12 NYCRR § 324.3(7)(iii), which requires a PAR, following denial of a request for substantially similar treatment, procedure or test, be submitted with additional documentation or justification beyond the prior PAR ‘On December 5, 2024, you submitted a Confirmation PAR for a repeat lumbar MRI. The office visit notes you attached, dated July 10, 2024, and October 23, 2024, to this request did not reflect any material changes to the claimant’s condition. As such, the documentation you submitted did not justify the medical necessity of the repeat lumbar MRI study. This request was denied by the payer on the claim at Level 2 and was not escalated for MDO review. Again, it is unclear as to whether this repeated habit of failing to escalate PARs to the Board’s MDO for review is an example of administrative sloppiness on the part of you and/or your office, or a desire to avoid scrutiny by the Board of your clinical decision-making. Had this been escalated to MDO for review, it would have been denied for the following reasons © You should have submitted this as a Variance PAR because there is nothing in the attached supporting documentation to indicate @ repeat MRI is medically appropriate at this time ({., there is no documentation of a change in condition, any new or progressive neurological deficits or “red flags” that would warrant a repeat MRI; and there is no explanation of why a repeat MRI is considered medically necessary), (© This represents a deviation from the Mid and Low Back Injury MTGs §§C.1.b and A.13 © Using the incorrect PAR type significantly increases the likelihood of delays in approval of medical treatment for the injured worker in question and is thus is a deviation from the established clinical and administrative standards of care. © Additionally, the MRI was performed without authorization on December 11, 2024.2 Thus, you initiated and/or facilitated the performance of a diagnostic test, in contradiction to the MTGs, that lacked documentation of medical necessity and had been specifically denied by the payer. «There is no documentation that the previous study was inaccurate: “a subsequent diagnostic procedure including a repeat of the original (same) procedure can be performed, when the specialty physician (e.g. physiatrist, sports medicine physician or other appropriate specialist) radiologist or surgeon documents that the initial study was of inadequate quality to make a diagnosis”. This represents a deviation from the Mid and Low Back Injury MTGs §A.13. ‘On December 19, 2024, you again submitted a Special Services PAR requesting a posterior spinal fusion at L4-L5. ‘This was granted by the payer on the claim at Level 2. Although this review was performed by the payer’s physician, had this request been reviewed by the MDO, it is eminently likely it would have been denied for the same reasons previously outlined above for the previous surgical requests submitted on July 17, 2024, and August 6, 2024. Additionally, you 2 This is apparently based onthe subsequent PAR of December 19, 2024, for which the MRI report dated December 11, 2924, was used as medical substantiation. New York State Warkere' Compensation Boar 328 State Steet, Schenectady. NY 12305 | (877) 632-4996 | web.ny. govLerman Page | 17 attached 43 pages of documentation including an IME from January 17, 2024, that recommends one lumbar ESI and physical therapy 2 times a week for 6 weeks; and an [ME from June 3, 2024, that recommends physical therapy 2 times a week for 6 weeks, which have no apparent relevance to the requested surgical procedure. To the contrary, the recommendations from the IMEs for additional physical therapy suggest that surgical intervention was not clinically appropriate at this juncture. + The above constitutes a deviation from the Mid and Low Back Injury MTG §E.4 © Further, putting aside the approval of the PAR, performing this type of invasive surgery clinically inappropriate because it is not clear that the claimant’s symptoms would have been alleviated by the surgery. It is not clear that the claimant underwent a full course of conservative care and/or less invasive non-surgical options. The report on the referenced imaging does not comport with your stated imaging findings. You proposed a very ve surgical procedure on a relatively young claimant, without first considering less invasive procedures which would normally be considered as a less invasive option. + Further, you needlessly exposed the claimant to the risks of a highly invasive procedure As you yourself noted, the risks attendant such a surgery include but are not limited to: death, bleeding, infection, dural tear, dural leak, nerve damage, paralysis, the need for repeat surgery failure to heal, to fuse and failure of hardware.” Moreover, to the extent you performed a lumbar fusion on this claimant on February 6, 2025, a search of the Board’s case file fails to reveal the existence of any follow-up visits with the claimant. This would indicate that you failed to adequately follow the claimant to direct his post- operative care and monitor for any post-operative complications from a complex surgical procedure, From a purely clinical perspective, this is concerning because of the complexity of a spinal fusion. Claimants should be monitored for any non-union issues and started on a post- operative rehabilitation plan for recovery. Notably a DME PAR for a bone growth stimulator was requested by a different provider on March, 24, 2025. This indicates that significant post-operative complications exist, yet you appear to have not followed up with this claimant, so how is it that you would have any idea that such post-surgical complications exist, and that a bone growth stimulator is clinically indicated? The records therefore indicate either: a lack of clinical follow-up by you: or a lack of adequate (or adequately documented) supervision of your PA by you; or both. In this claim, you engaged in a pattern of submitting PARs for procedures or diagnostic services without adequate documentation to support the medical necessity of the requests. You requested to perform a lumbar fusion prematurely, without indication that a course of conservative care ‘was considered and/or exhausted. You also resubmitted PARS for services that were already denied, even when there had been no substantial interim change in the claimant’s clinical or functional status to warrant such reconsideration; and you did not escalate PARs that were denied, presumably either because of administrative sloppiness, or because you intended to avoid scrutiny of your clinical decision-making. Your failure to escalate PAR denials for MDO review and failure to provide adequate documentation to support the need for the procedures resulted in the prolonging of the PAR process, incomplete medical decision-making, and the denial of essential quality assurance and claimant safety precautions that are inherent in and intended by aw York State Workers’ Compensation Boa'é 428 State Street, Schenectady, NY 12305 | (877) 632-4996 | websny.oo¥Lerman Page | 18 the full PAR review process. If you deemed the surgical procedure medically necessary, failure to escalate to MDO review and/or provide adequate supporting documentation unduly prolonged claimant care and/or avoided full review of your clinical decision-making, both to the detriment of the claimant. You have routinely recommended and submitted PARs for invasive/risky procedures, without adequately evaluating and demonstrating that more conservative (and less risky) treatment modalities have been exhausted. Finally, it appears that you performed a lumbar fusion on the claimant on February 6, 2025, without any evidence of follow-up care. This would indicate that you failed to adequately follow the claimant to direct his post-operative care, or at a minimum that you failed to document appropriate supervision of your PA. As noted at the outset, in your most recent application for authorization you affirmed that you would abide by the provisions of the WCL and the Rules adopted thereunder, including the MIGs. ‘The noted treatment to injured workers set forth above, both individually and in the aggregate, does not comport with applicable MTGs and constitutes a violation of your pledge to comply with the provisions of the WCL, Regulations and MTGs. You also consistently fail to provide or maintain adequate medical documentation or record-keeping. You also consistently fail to provide clinical rationales for secking variance from the MTGs to justify the medical necessity of the variance that you are requesting. You also repeatedly submit PARs for services that have been denied without escalating them for MDO review. You repeatedly resubmit PARs for services that have already been denied, even when there has been no substantial interim change in the claimant’s clinical or functional status to warrant such reconsideration, You have performed invasivelrisky procedures, without adequately exhausting more conservative (and less risky) treatment modalities. You have repeatedly provided incomplete and/or inconsistent medical documentation. You have failed to follow published Board processes for the submi: of medical bills, and you have billed in excess of the Board’s MES, at times for services of questionable necessity. Many of these behaviors in and of themselves, and certainly the constellation of these behaviors taken in aggregate, particularly when there appeats to be a clear pattern of these behaviors being repeated, constitutes more than sufficient grounds to deny your authorization to treat injured workers. ion Moreover, this same conduct constitutes grounds for the denial of your authorization to render medical care to injured workers and/or perform independent medical examinations pursuant to WCL §§ 13-d(2)(a) and (4), Further, this conduct also amounts to professional misconduct pursuant to Education Law §§6530(3), (5), (21) and (35). Accordingly, the Board declines to ‘grant your application for renewal of your authorization. Finally, it is noted that the Supreme Court Appellate Division, Third Department, has upheld the Board’s authority to deny a provider's application for authorization after a reasonable investigation results in a finding of misconduet, as has occurred here Within (en business days after the receipt of this determination, you are directed to provide the Board with a list of all claimants under your care, together with a transition plan to move the care of these claimants to a Board authorized provider. This transition plan shall contain the claimant's name, address, employer, date of accident, Board case number, carrier and carrier case number, and the name of the physician who will be continuing the claimant's care, who Now York Stete Workers! Compensation Boars 328 State Stet, Scnenactacy, NY 12305 | (877) 632-4996 | web.ny-gavLerman Page | 19 should be a Board-authorized physician (or physicians) of suitable competence and training. You are further directed to send the transition plan to the Board's Medical Director's Office at 150 Broadway, Suite 195, Menands, NY 12204. You are further directed to perform no new workers” compensation related surgeries and accept no new workers’ compensation claimants. However, you are hereby afforded a thirty-day “grace period” during which you can facilitate the transfer of any of your existing workers’ compensation claimants to an appropriately-credentialed provider (as indicated above), and attend to any that remain in the immediate post-operative period, and requiring your clinical attention. Respectfully, mes A. Tacci, MD, JD, MPH Michael Papa, Esq. Medical Director Deputy Counsel ce: Medical Director's Office New York Stole Workers’ Compensation Board 328 State Sree, Schenectady, NY 12305 | (877) 632-4996 | websy.gov