This case is anchored in a severe base-of-skull and multi-level hemorrhagic spinal cord, permanent total work-related injury, suffered on March 10, 1977. The trauma resulted in irreversible central, sympathetic, parasympathetic, and peripheral nervous system damage, creating an exceptionally complex clinical profile.
For nearly fifty years, Petitioner has battled severe autonomic dysfunction, characterized by life-threatening autonomic dysreflexia, volatile heart rate fluctuations ranging from 32 to 180 beats per minute, and profound hypoxia. The Appellant required and was provided with vital pain, spasm, and neurological medications prescribed by her treating neurologist to maintain physiological stability and sustain life.
The carrier, Chubb Group of Insurance Companies, implemented a formal accommodation agreement in 1987 that bypassed coding rules to provide an out-of-network neurologist and implemented an exemption to the Medical Treatment Guidelines stipulating the nature of her diagnoses in 2014.
For decades, the insurance carrier recognized the extraordinary severity of Petitioner’s condition and explicitly negotiated individualized medical protocols outside standard billing parameters:
On August 8, 1991, Chubb explicitly offered a quid pro quo package: permanent total disability classification and ongoing physical therapy three times per week without requiring bedside physical examinations, which was formally adopted into a final Board award.
On January 5, 2001, Chubb issued an absolute, unconditional written waiver and lifetime guarantee, explicitly stating: “Ms. Wagner is entitled to PT three times per week on a continuing basis for life. There is no need to request authorization.”
On January 27, 2005, the carrier further solidified this specialized property right, authorizing extended two-hour treatment blocks at a specific contractual rate of $135.00 per visit, explicitly documenting their awareness that “she loses consciousness during the treatment” due to the severity of her autonomic injury.
On March 2, 2006, the Workers’ Compensation Board issued a Memorandum of Board Panel Decision (WCB Case #2770 9381) formally adjudicating Petitioner’s permanent, severe autonomic dysfunction. The Board explicitly documented Petitioner’s symptoms—including “loss of consciousness, rapid heartbeat and irregular heartbeat, intractable pain and severe restriction of her breathing”—and authorized a full-time nurse. Crucially, the Board Panel explicitly admitted in writing that it “lacks jurisdiction to address claims under the Americans with Disabilities Act,” proving that administrative preservation of federal constitutional and civil rights claims before the Board is entirely futile.
On February 2, 2018, Respondent carrier issued a formal written confirmation (Claim No. 76306262/000010) explicitly ratifying and executing its long-standing specialized reimbursement agreement with Petitioner (Exhibit K). The carrier issued a direct out-of-pocket payment to Petitioner totaling $5,670.39 for customized neurological care and adaptive equipment maintenance. Crucially, the carrier documented that it contacted the Workers’ Compensation Board to voluntarily cancel a scheduled statutory hearing, formally advising the state that all billing issues were permanently “resolved” and instructing Petitioner to “continue to submit your future receipts and medical notes as you have been doing.” This record establishes a binding, adjudicated pattern of conduct that independently solidifies Petitioner’s vested property right and legitimate expectation of continuous lifetime medical care.
On June 8, 2021, Petitioner issued a formal legal notice to Respondent’s Claims Supervisor, explicitly invoking the statutory “Body Parts Not Covered by the Guidelines” clause of the New York Medical Treatment Guidelines (Exhibit L). This notice established that Petitioner’s catastrophic diagnosis—Spinal Cord Injury with Severe Autonomic Dysfunction—is legally excluded from uniform, codified guidelines because it impacts systemic, life-threatening autonomic responses. The record demonstrates that despite being presented with this explicit statutory mechanism allowing for the legal continuation of Petitioner’s 37-year-old specialized standard of care, Respondent intentionally bypassed the exception to execute a total, unauthorized deprivation of life-sustaining medical treatment.
On July 15, 2022, Respondent carrier, through Claims Representative Susan Clark, issued a formal written determination (Claim No. 76306262/000010) explicitly admitting that the carrier had actively exercised its corporate discretion to maintain an ongoing, specialized medical protocol for Petitioner outside standard statutory billing networks (Exhibit M). Specifically, the carrier confessed: “Chubb can, and did at their discretion, allow you to treat with a physician, Dr. Mazurek, who did not otherwise participate in Workers’ Compensation in New York. This was an accommodation extended to you… and was honored by Chubb…” The carrier further admitted that this specialized arrangement “was not disallowed by law.” The record establishes that the lower courts committed a profound constitutional error by treating this 33-year adjudicated performance as a mere voluntary “accommodation” rather than a vested, implied-in-fact property right protected from retroactive statutory destruction by the Fifth Amendment, trapping Petitioner in a jurisdictional void that directly violates Procedural and Substantive Due Process.
On July 18, 2022, Petitioner sent a formal, written demand to Chubb’s Executive Leadership—including the Chief Executive Officer and General Counsel—protesting the sudden, life-threatening cutoff of her neurological care and medications following a corporate transition. This demand documented a formal admission by Chubb management confirming that the carrier had intentionally exercised its discretion to maintain a specialized, non-Workers’ Compensation medical protocol for Petitioner for thirty-seven (37) consecutive years due to the unique, un-codifiable nature of her permanent spinal cord and autonomic dysfunction injury. The record establishes that Respondent utilized newly enacted administrative guidelines as a pretextual corporate shield to unilaterally breach this long-standing vested agreement, explicitly forcing Petitioner to choose between total medical deprivation or a low-value liability settlement.
On December 21, 2022, Petitioner filed a comprehensive, formal application directly with Clarissa M. Rodriguez, Chair of the New York State Workers’ Compensation Board. This application provided exhaustive notice of Petitioner’s complex, adjudicated, and un-codifiable central nervous system trauma—including Spinal Cord Injury with Severe Autonomic Dysfunction, Cervical Myelopathy, Trigeminal Neuralgia, and Ischemic Optic Neuropathy. Petitioner explicitly requested a formal Medical Exemption from the uniform Medical Treatment Guidelines (MTG) based on her 37-year adjudicated contract, documenting that multiple state executive offices and legislative representatives had directed her to the Board Chair as her sole administrative remedy. The record establishes that despite this direct petition to the agency’s highest authority, the state refused to grant a venue for relief or clarify her lifetime contractual rights, trapping Petitioner in a jurisdictional void that directly violates Procedural and Substantive Due Process.
The formal application submitted to WCB Chair Clarissa M. Rodriguez on December 21, 2022 (Exhibit O), explicitly detailed a systemic, life-threatening denial of due process resulting from the mechanical enforcement of the Board’s medication formulary. Petitioner put the state on direct notice that the automated medication portal arbitrarily overrode 37 years of a stabilized, effective treatment protocol, willfully ignoring detailed neurological documentation. Petitioner documented that the rigid rules created a total physical impossibility: non-pain-specialists were barred from providing prescriptions for more than seven days, while authorized pain management physicians uniformly refused to accept an atypical, catastrophic spinal cord case. The record establishes that by enforcing uniform administrative portals that completely block a severely disabled, pro se litigant from obtaining life-sustaining medications—while actively ignoring notice of an impending medical crisis—the state operationalized an oppressive system of arbitrary deprivation that violates Substantive and Procedural Due Process.
The absolute medical necessity of Petitioner’s specialized, non-coded protocol is established by the uncontroverted neurological evaluations of Dr. Alan A. Mazurek. Dr. Mazurek formally documented that Petitioner’s permanent total disability is the result of trauma to the spinal cord across all levels (cervical, thoracic, and lumbar), which permanently destabilized her autonomic nervous system. The clinical record establishes that Petitioner experiences severe autonomic dysreflexia, profound hypoxia, and positional loss of consciousness, requiring an individualized, lifelong medical protocol—including continuous 24-hour oxygen, multiple medications including morphine, and specialized physical therapy blocks—formally adjudicated and ordered by the Workers’ Compensation Board. The record demonstrates that Respondent’s sudden enforcement of localized Medical Treatment Guidelines to cut off this systemic central nervous system protocol inflicts an immediate, life-threatening physical impossibility upon Petitioner.
The record contains explicit, documented notice from Petitioner’s long-standing neurologist, Dr. Alan Mazurek, outlining a highly specialized, life-critical medication protocol. This protocol includes the targeted pairing of specific medications (including Dilaudid, Baclofen, Erythromycin, and Allegra) explicitly designed as a vital alternative to cortisone due to Petitioner’s documented history of multiple melanoma. Dr. Mazurek’s directives explicitly establish that these medications are required to suppress life-threatening autonomic reactions, neurogenic rashes, vascular inflammation, and severe restrictions on breathing and swallowing. The record establishes that Respondent carrier possessed full, formal notice of this specialized medical protocol and intentionally chose to withdraw authorization monthly, creating an immediate, life-threatening physical crisis.
In late 2022, immediately following Petitioner’s formal invocation of her contractual and statutory rights, the Workers’ Compensation Board abruptly amended its rules to completely eliminate the “Body Parts Not Covered by the Guidelines” clause. This targeted, retroactive regulatory change stripped away the exact statutory protection that had previously shielded Petitioner’s un-codifiable, systemic autonomic dysfunction from mechanical billing restrictions. The record establishes that this sudden administrative deletion operated as a retroactive state impairment of a vested property right, leaving Petitioner entirely defenseless against the carrier’s immediate, total withdrawal of life-sustaining neurology care and medications.
The systemic importance and novel constitutional impact of Petitioner’s case are conclusively demonstrated by a documented pattern of reactive executive, legislative, and administrative actions. Immediately following Petitioner’s filing of an appellate brief exposing the constitutional failures of the variance portal for un-codifiable autonomic injuries, the Board substantively altered its administrative variance rules in direct response to Petitioner’s arguments. Furthermore, while Petitioner’s Motion for Reargument and Clarification was held in abeyance by the Appellate Division for nearly three months, the Executive and Legislative branches enacted a sweeping, prospective statutory change providing for Universal Medical Authorization to directly address the systemic vulnerabilities exposed by Petitioner’s litigation. Because these reactive regulatory shifts occurred while Petitioner was subjected to ongoing, life-threatening medical deprivations, this case represents a classic constitutional injury that is capable of repetition yet evading judicial review, demanding intervention by this Court.
Following a corporate acquisition by Ace Insurance, Respondent Ace/Chubb embarked on a systematic campaign of denial and administrative harassment, cutting off Petitioner’s treating non-coded neurologist and denying vital pain and spasm medications monthly.
The carrier and the Board are attempting to force this multi-level, multi-systemic neurological injury into the generic 2022 Medical Treatment Guidelines (MTGs) that are completely silent on brainstem trauma, cranial sequelae, and autonomic failure. By subjecting a patient with severe autonomic hyperactivity to localized “body part” rules, the carrier has instituted monthly medication delays lasting three to four weeks. This ongoing deprivation has triggered severe autonomic storms, life-threatening hypoxia, syncope, escalating paralysis, and heart rate fluctuations ranging from 32 to 180 BPM.
The carrier utilized verbal-only, time-limited threats of total case closure to pressure an unrepresented claimant into a restricted Medicare Set-Aside (MSA) agreement. Because this offer contained a “reversionary interest” clause returning all remaining funds to the carrier upon the claimant’s death, it created an unconscionable financial incentive for the carrier to maintain the ongoing medical deprivation.
The Appellant repeatedly challenged these life-threatening denials: formally requested hearings, submitted extensive medical evidence from her treating specialists, and raised her conditions’ severe medical conflicts with the MTGs via formal hearing request letters, oral testimony, and administrative appeals.
At every stage of the administrative proceedings, the triers of fact refused to evaluate, read, or consider the merits of Appellant’s medical evidence or the life-threatening necessity of her treatments. They explicitly admitted on the administrative record that they failed to review or consider Appellant’s material medical evidence before issuing decisions that stripped her of life-sustaining healthcare. In its formal administrative appeal decision, the Board panel explicitly stated on the record that it failed to review the Claimant’s underlying medical evidence. While this matter was actively pending before the Appellate Court, Workers’ Compensation scheduled a hearing to relitigate all 49-year-old foundational issues, like causal relationship and degree of injury. She filed an objection and a Motion, and it was canceled.
On appeal, the Appellate Division, Third Department, affirmed, and reversed Judge Khan’s medical authorization to match the Medical Treatment Guidelines, holding that Petitioner’s arguments were “not properly presented to the Board in the first instance,” and on June 22, 2026, denied the Appellant’s Motion for Reargument and Clarification. Following the denial of Appellant’s motion for reargument and clarification by the Third Department on June 22, 2026, Appellant now brings this Motion for Leave to Appeal to the New York Court of Appeals to remedy profound statutory and constitutional errors.
The recent New York State legislative amendment, Universal Authorization, serves as an absolute legislative admission of inherent systemic flaws. While its structural rollout is deferred to 2028, its passage establishes as a matter of law that the current MTG framework is toxic and inapplicable to injuries of this severity. Forcing a survivor into a lethal procedural loop during this interim window constitutes an arbitrary, capricious abuse of administrative discretion.
Petitioner explicitly preserved the record regarding the systemic, life-threatening nature of her condition and its total exclusion from the regulatory grid through direct, uncontradicted hearing testimony (Exhibit Q, Minutes of Hearing 6-21-23, pp. 2-4, 6-11, 14-17, 27-31; Hearing 7-18-2023, p. 31). Specifically, Petitioner testified extensively on the record regarding the catastrophic reality of her permanent autonomic dysfunction and the physical breakdown of her health caused directly by the carrier’s sudden cutoff of her specialized medical protocol (Exhibit Q, Minutes of Hearing 6-21-23, p. 28, 30; Hearing 7-18-2023, p. 17, 20). Because Petitioner formally and exhaustively developed this oral record as an unrepresented claimant, the Appellate Division erred as a matter of law by ruling that these issues were not properly presented to the Board in the first instance.