[ CHIRO CARE JUSTIFIED | UR Busting | Failure To Notify | Treatment Plan | 99358 non-face to face | Notification Failure | PR-2 | MPN Busting | Manip support | Waddell's Testing | Request for more than 24 visits & knee support | DFR Spiel - chronic | PR-2 Closing Spiel | Support for Exacerbation of a Chronic Condition - all three guidelines | EBMR for Manipulation | PR-2 Spiel Chronic | OVERTHROW ACOEM'S PRESUMPTION [ MERCY for treatment frequency | APPORTIONMENT ]
PROCURED CHIROPRATIC CARE - ACUTE & SUBACUTE:
PROCURED MEDICAL TREATMENT:
All medical treatment, including all Chiropractic care, work conditioning, physical therapy, QFCE evaluations and medication dispensement, provided thus far to this patient, has been medically reasonable and necessary to cure and / or relief this patient from the effect of said industrial injury.
Subjectively, the patient stated that he has improved 50% with the care offered by Dr. Galla, thus far.
ACOEM, Chapter 6, page 115, states under the heading Preventing and Managing Chronic Pain, "mobilization, even in the face of some residual pain or stiffness, should be encouraged, and it should be increased as the healing process progresses."
Chiropractic mobilization, as described in Dr. Galla’s DFR of 01-05-06, is the very form of treatment that has been utilized in this case and has been subjectively helpful in curing and relieving this patient from the effects of the industrial related pain syndrome.
With respect to treatment frequency, ACOEM is completely silent. Therefore, as directed by Labor Code section 4604.5 (e), -FN #1 I shall use “other evidence based medical treatment guidelines generally recognized by the national medical community and that are scientifically based," i.e., the Guidelines for Chiropractic Quality Assurance and Practice Parameters ("Mercy Guidelines").
The Mercy Guidelines are both nationally recognized and based upon scientific medical evidence. In fact, Chapter 8 alone was developed using 67 peer-review quality investigations, text book citations and/or other state treatment guidelines.
With regard to reasonable chiropractic treatment frequency for acute injuries, page 125; Chapter 8, subsection "E" allows the following treatment frequency for an "acute episode":
(1) "three to five treatments per week" during the first "10-14 days,"
(2) “up to three treatments per week” for “six to eight weeks.”
Thus a maximum of 34 chiropractic treatments are allowable per the Mercy Guidelines for acute episodes of pain, and this patient’s injury (a fall of a 20+ foot roof) is about as acute as you could possible get.
Noteworthy and relevant is the fact that a recent WCAB panel decision (Casillas vs. The County of San Luis Obispo (2005) 33 CWCR 217 WCAB Panel decision) used the Mercy Guidelines to support chiropractic treatment for acute exacerbations of spine pain. In pertinent part, the commissioners stated,
"we find in this case that the presumption [of ACOEM] would be rebutted by the reasoned opinion of the examining QME, the Mercy Guidelines, and the applicants experience in obtaining pain relief from acute exacerbations of her symptoms through the use of chiropractic care.”
I believe this decision has established the Mercy Guidelines as substantial evidence for determining a reasonable chiropractic frequency for patients who have suffered an acute injury or an acute exacerbation of a chronic injury.
MPN PATIENT STATUS:
I questioned the patient as to whether or not he had been inducted into a medical provider network ("MPN”). He had no idea what I was talking about. He stated that he had never been given any written “notification,” in Spanish or English, of the existence of or his induction into an employer MPN either prior to or subsequent to the industrial accident. Therefore, it would appear (based on the patient’s seemingly creditable interview) that the employer has failed to comply with Title 8 CCR section 9767.11 (a), which states in relevant part:
“An employer or insurer that offers a Medical Provider Network Plan under this article shall notify each covered employee in writing about the use of the Medical Provider Network 30 days prior to the implementation of an approved MPN, at the time of hire, or when an existing employee transfers into the MPN, whichever is appropriate to ensure that the employee has received the initial notification. The notification shall also be sent to a covered employee at the time of injury. The notification(s) shall be written in English and Spanish.”
A WCAB panel of commissioners has recently unanimously opined that violation of section 9767.11 may result in a loss of the employer’s right to control an injured workers medical care with an MPN. More explicitly, the commissioners stated:
"Additionally we [the WCAB commissioners] note that AD rule 9767.12 provides for required notices to be given prior to an injury, specifically written notice of a medical provider network under Labor Code section 4616.3 prior to the implementation of an approved MPN, at the time of hire, or when an existing employee transfers into the MPN. While specific consequences for a failure to provide required notice are not described in AD Rule 9767.12, when coupled with the aforementioned Labor Code section [section 3550(e)], the consequences herein may be justified."
Therefore, based upon the medical records in my possession, it is my opinion that the patient has procured proper medical treatment "outside of" any employer MPN.
-FN#1- Labor Code Section 4604.5 (e): “ For all injuries not covered by the American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines or official utilization schedule after adoption pursuant to Section 5307.27, authorized treatment shall be in accordance with other evidence based medical treatment guidelines generally recognized by the national medical community and that are scientifically based.”
HERBINGER & MERY - FOR EXACERBATION OF CHRONIC PAIN
(1) Chiropractic Care for Exacerbations of Chronic Pain:
Since the presumed correct ACOEM guidelines are not applicable for patient suffering pain over 90 days duration [like this patient], as determined in the recent Writ Denied WCAB opinion of Herbinger (2005) 70 CCC 504, I am required by Labor Code section 4604.5 (e), to support my proposed chiropractic treatment plan with “other evidence based medical treatment guidelines generally recognized by the national medical community and that are scientifically based." [LC 4604.5 (e)].
Therefore, I shall use the Guidelines for Chiropractic Quality Assurance and Practice Parameters ("Mercy Guidelines") as such support:
The Mercy Conference Guidelines are both nationally recognized and based upon scientific medical evidence. In fact, Chapter 8 alone was developed using 67 peer-review quality investigations, text book citations and/or other state treatment guidelines. With regard to reasonable chiropractic treatment frequency for acute injuries, page 125; chapter 8, subsection "E" of said Mercy Conference Guideline, entitled “Acute Episode,” allows for the following:
(1) "three to five treatments per week" during the first "10-14 days,"
(2) “up to three treatments per week” for “six to eight weeks.”
Thus a maximum of 34 chiropractic treatments are allowed, per Mercy, for acute pain conditions.
Furthermore, noteworthy is the fact that a recent WCAB panel decision (Casillas vs. The County of San Luis Obispo (2005) 33 CWCR 217 WCAB Panel decision) used the Mercy Guidelines to support chiropractic treatment for acute exacerbations of spine pain. In pertinent part, the commissioners stated, "we find in this case that the presumption [of ACOEM] would be rebutted by the reasoned opinion of the examining QME, the Mercy Guidelines, and the applicants experience in obtaining pain relief from acute exacerbations of her symptoms through the use of chiropractic care.”
Therefore, my request for 3 chiropractic visits secondary to this patient’s recent exacerbation of chronic pain is more than reasonable.
********************************************************************************************************************
Unfortunately, the ACOEM Guidelines fail to addressed treatment interventions for chronic pain patients; this contention has been affirmed a recent WCAB panel decision and two Writ Denied Court of Appeals decisions. Therefore per instruction from Labor Code §4604.5(e), I shall offer “other medical based treatment guidelines” and “scientific medical evidence” in my rebuttal.
(A.) The Colorado Medical Treatment Guidelines: (“CMTG”)
The evidence based CMTG support my recommendations for continued manipulative care for exacerbations of a chronic condition. More explicitly, CMTG, Chronic Pain, Section F, Subsection (14)(d)(pg. 80) states:
“Manipulation should be considered when there is evidence of suspicion of scoliosis, apparent leg length inequality, pelvic imbalance, facet restriction, sacroiliac dysfunction, myofascial dysfunction, gait disturbances, or postural dysfunction…. Indications for manipulation include joint pain, decreased joint motion and joint adhesions.”
Since signs of “facet restriction,” myofascial dysfunction,” and decreased joint motion” were clearly evident upon examination, this chronic pain patient is clearly a candidate for manipulation.
With regard exacerbation of chronic pain, Section F, subsection (14)(d)(pg.81) states:
“Extended durations of care beyond what is considered “maximum” may be necessary in cases of re-injury, interrupted continuity of care, exacerbation of symptoms, and in those patients with comorbidities.” (Bold added.)
Therefore, chiropractic care for “exacerbation of symptoms” is covered and should be allowed. [ACOEM is completely silent with regard to exacerbations of symptoms.]
Section F, subsection (14)(d)(pg.81) also gives the forthcoming recommended treatment frequency for such exacerbations of chronic pain:
“Frequency: 1 to 2 times per week for the first 2 weeks as indicated by the severity of the condition. Treatment may continue at 1 treatment per week for the next 6 weeks.”
Therefore, continued chiropractic care for exacerbation of the patient’s chronic pain is fully supported by “other evidence based medical treatment guidelines.”
(B.) The Guidelines for Chiropractic Quality Assurance & Practice Parameter: (“Mercy Guidelines”)
As an alternative to the Colorado Medial Treatment Guidelines, the Mercy Guidelines also support the future chiropractic care that I have recommended.
The Mercy Guidelines are both nationally recognized and based upon scientific medical evidence. In fact, Chapter 8 alone was developed using 67 peer-review quality investigations, text book citations and/or other state treatment guidelines. With regard to reasonable chiropractic treatment frequency for acute exacerbations of chronic pain, page 125; chapter 8, subsection "E" give the following recommended treatment frequency:
(1) "Three to five treatments per week" during the first "10-14 days,"
(2) “Up to three treatments per week” for “six to eight weeks.”
Thus a maximum of up to 34 treatments are allowed for acute conditions or acute exacerbations of a chronic condition.
Furthermore, noteworthy is the fact that a recent WCAB panel decision used the Mercy Guidelines to support chiropractic treatment for exacerbations of a chronic condition. In pertinent part, the commissioners stated:
"we find in this case that the presumption [of ACOEM] would be rebutted by the reasoned opinion of the examining QME, the Mercy Guidelines, and the applicants experience in obtaining pain relief from acute exacerbations of her symptoms through the use of chiropractic care.”
(C.) Scientific Medical Evidence:
As directed by Labor Code section 4604.5 (a), I would like to present a randomized controlled trial with long term follow-up that demonstrates the efficacy of chiropractic care for patients suffering chronic pain.
In 2003, Giles and Muller published the results of their randomized controlled trial with long-term follow-up in the prestigious peer review journal “Spine.” This investigation randomized a group of 109 chronic spine pain patients (all of whom had been suffering back or neck pain for an average of 6.4 years) into one of three treatment groups: a manipulation groups a medication group (Celebrex or Vioxx), or an acupuncture group. After a 9 week course of treatment, the authors concluded that the manipulation group experienced a much more favorable clinical outcome when compared to either of the other groups. The authors concluded,
“Overall, patients who have chronic mechanical spinal pain syndromes and received spinal manipulation gained significant broad-based beneficial short-term and long-term outcomes.”
More explicitly, 27.3% of the manipulation patients became asymptomatic (had no more pain), versus only 9.4% of the acupuncture patients and 5% of the medication patients. Even more impressive was the increase in functional ability, as indicated in the Oswestry scores: The manipulation group obtained a 50% improvement, versus only a 5% improvement for the acupuncture group and a 4% improvement in the medication group. Finally, the subjective pain scores also strongly favored the manipulation group: The manipulation group obtained a 50% drop in their VAS scores (self pain intensity rating); versus only a 15% drop in the acupuncture group and 0% drop in the medication group.
In 2005, these same investigators followed the same cohort (group of patients) for another 12 months to see if the benefits of the chiropractic continued to hold. The results indicated that the patients who underwent chiropractic care continued to have less pain and high function then either of the other groups of patients (i.e., the medication group and the acupuncture group). These findings led the authors to conclude:
“In patients with chronic spinal pain syndromes, spinal manipulation, if not contraindicated, may be the only treatment modality of the assessed regimens (acupuncture & prescription medication) that provides broad and significant long-term benefit.” (Emphasis added.)
Conclusion : with regard to future chiropractic care I have recommended for this patient, I believe I have sufficiently supported my recommendations with “other medical based treatment guidelines” and “scientific medical evidence” as mandated by Labor Code section 4604.5 and have effectively established a variance from ACOEM.
Hamilton vs. SCIF (2004) 32 CWCR 249 WCAB panel decision.
Los Angeles Times vs. WCAB (Herbinger) (2005) 7 WCAB Rptr. 10,109; 70 CCC 504
Regents of the University of California, Lawrence Livermore National Laboratory, PSI v. WCAB (Macari) (2005) 70 CCC 1733 Writ Denied
Labor Code section 4604.5(e): “authorized treatment shall be in accordance with other evidence based medical treatment guidelines generally recognized by the national medical community and that are scientifically based.”
Casillas vs. The County of San Luis Obispo (2005) 33 CWCR 217 WCAB Panel decision
Labor Code section 4604.5 (a): “…The presumption is rebuttable and may be controverted by a preponderance of the scientific medical evidence establishing that a variance from the guidelines is reasonably required to cure or relieve the injured worker from the effects of his or her injury. The presumption created is one affecting the burden of proof.”
Giles LGF, Muller R. - Spine 2003;28(14):1490-1503
Muller R, Giles LG. - J Manipulative Physiol Ther. 2005 Jan;28(1):3-11.
********************************************************************************************************************
IT'S FIVE DAYS, NOT 14:
In my last PR-2 report, I requested 2 additional chiropractic visits to quell the effects of the patient’s past exacerbation of pain. These requests were denied by the insurer secondary to utilization review. This request for authorization was Fax-Served upon the SCIF claims administrator on 03-31-06, and therefore was deemed “received” on 03-31-06. More explicitly, Title 8 CCR section 9792.9(a)(1) states:
“For purposes of this section, the written request for authorization shall be deemed to have been received by the claims administrator by facsimile on the date the request was received if the receiving facsimile electronically date stamps the transmission. If there is no electronically stamped date recorded, then the date the request was transmitted.”
Subsequent to my request for 2 chiropractic visits, the claims administrator has failed to authorized, request additional information, order additional medical testing or evaluation, or request an expert reviewer opinion within the mandated 5 working days.
Title 8 CCR section 9792.9 (b)(1) mandates that the claims administrator must react to the primary treating physician’s (“PTP”) request for authorization “ within 5 working days.” More explicitly, CCR sections 9792.9 (b) and (b)(1) state: “Utilization review process shall meet the following timeframe requirements: (1) Prospective or concurrent decisions shall be made in a timely fashion that is appropriate for the nature of the injured worker's condition, not to exceed five (5) working days from the date of receipt of the written request for authorization.
If appropriate information was include in the PTP’s request for authorization [which is was in this case], and the claims administrator can not made a decision on her own regarding authorization [in this case, the 2 chiropractic treatments], then, per CCR section 9792.9 (g)(2), she “ shall immediately notify the requesting physician, the injured worker, and if the injured worker is represented by counsel, the injured worker's attorney in writing, that the claims administrator cannot make a decision within the required timeframe,” which is “5 working days for complete prospective requests for authorization per CCR section 9792.9 (b)(1).
In this case, the claims administrator has clearly blown the mandatory time dead-lines and procedure for requesting “specialized consultation and review of medical information by an expert reviewer,” as defined in CCR section 9792.9 (g)(1) and failed to notify the injured worker, the applicant attorney, and the PTP (me); therefore, the subsequent utilization review opinion dated 04-10-06, and received on 04-12-06, is illegal and non-valid.
**************************************************************************************************************
I understand, according to the patient, there is some sort of dispute over my proposed medical care that occurred secondary to my DFR of 03-08-06.
I would remind the insurer of its duty to communicate the objection to the “requesting physician.” More explicitly, Cal. Code Reg. Title 8 § 9792.9 subdivision (b)(4) states in relevant part:
“Decisions to modify, delay or deny a physician's request for… shall be communicated to the requesting physician initially by telephone or facsimile. The communication by telephone shall be followed by written notice to the requesting physician, the injured worker, and if the injured worker is represented by counsel, the injured worker's attorney within 24 hours of the decision for concurrent review and within two business days of the decision for prospective review.”
To date, I have received no notification of any kind and request that you comply with the forgoing Regulation in order to avoid prejudice.
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
| As justified above, I need to get the patient to Dr. Tran for a Physiatry assessment and opinion on whether or not epidural steroid injections may lessen this patient’s chronic pain and disability; I want to implement our Home Exercise/Restoration program that entails one hour of face-to-face time, and the purchase of a Footed Italian Gym ball (which carries it’s own liability policy); and I would like 6 more visits of PT from Evergreen PT Center, for the patient has responded nicely to the first 6 visits. I shall continue to evaluate the patient one time per month in order to execute my duties as this patient’s primary treating physician. If needed, manipulation and/or mobilization with Physiotherapy shall be rendered on these visits to functionally restore chronic inter-segmental spinal dysfunction with motion loss (which is a known source of chronic pain). Manipulative treatment for chronic pain is supported by the Colorado Medical Treatment Guidelines per “Section F(14)(d) Manipulation” [ available at the Colorado DWC’s website - here: [ http://www.coworkforce.com/dwc/Medical%20Topics/MedicalTrtmt.asp ] Evidence based peer review Randomized Controlled Trials also support manipulation for the treatment of chronic back pain; here are three such trails: #1) Aure OF, Nilsen JH, Vasseljen O. - Spine 2003 28(6):525-31; discussion 531-2 - #2) Triano JJ, McGregor M, Hondras MA, Brennan PC. - Spine. 1995 Apr 15;20(8):948-55. - #3) Giles LGF, Muller R. - Spine 2003;28(14):1490-1503. ACOEM is non-applicable for the chronic pain patient per for recent WCAB panel decisions Hamilton v. SCIF 32 CWCR 249 and Los Angeles Times v. WCAB (Herbinger) 70 CCC 504. |
EXTRA NON-FACE-T0-FACE TIME NEEDED:
NOTE: 45 minutes of non face-to-face time was spent in the preparation of this report as I reviewed past medical reports (review of records), UR/Insurance letters, labor code, ACOEM, and/or other evidence based medical investigations and treatment guidelines; This non-face-to-face time is billable per Title 8 CCR §9789.11 and the OMFS Book. Therefore, I shall be billed three 99358 CPT code for this preparation. Furthermore, this non-face-to-face time / preparation is mandatory by Title 8 CCR Section 9785(d) and the recent WCAB ruling Smith vs. Churn Creek Construction Company and State Compensation Insurance Fund (June 2004) 69 CCC 1012 (Board Panel Decision). More explicitly, the commissioners ruled that the PTP was "required to explain why his original recommendation for epidural blocks was reasonably required to cure and relieve from the effects of the injury in this employee. (Lab. Code, § 4604.5[Deering's].)" NOTE: This patient has a Serious Chronically Condition, as defined by Labor Code Section 4616.2(d)(3)(B). NOTE: Please forward all Medical Records per 10608(a). |
| NOTE: it is our position that the employer has violated Labor Code §4616.2(c) Labor Code §3551 and Labor Code §3550: LC 4616.2(c) : The insurer or employer shall provide to all employees entering the workers' compensation system notice of its written continuity of care policy and information regarding the process for an employee to request a review under the policy and shall provide, upon request, a copy of the written policy to an employee. LC 3550(a): " Every employer subject to the compensation provisions of this division shall post (the Employee Notice) and keep (it) posted in a conspicuous location frequented by employees, and where the notice may be easily read by employees during the hours of the workday, a notice that states the name of the current compensation insurance carrier of the employer, or when such is the fact, that the employer is self-insured, and who is responsible for claims adjustment." LC 3550(d): "The notice shall be easily understandable. It shall be posted in both English and Spanish where there are Spanish-speaking employees. The notice shall include the following information: LC 3551(a): "Every employer... shall give every new employee, either at the time the employee is hired or by the end of the first pay period, written notice of the information contained in Section 3550. " LC 3551(b): "The notice required by this section shall be easily understandable and available in both English and Spanish. In addition to the information contained in Section 3550 the content of the notice required by this section shall include: Please provide us evidence that the employer did indeed comply with the above notification policy including evidence of the "written continuity of care policy." Otherwise, it is our contention that the employer has lost medical control and lost the right to keep this patient within any MPN. |
FINAL COMMENTS: PR-2 - THE CHRONIC PATIENT
Support of Chiropractic care for Chronic pain syndromes: Unfortunately, this patient has slipped into the enigmatic world of chronic pain, for his pain syndrome has now been active for well over 90 days. Accordingly, ACOEM is no longer applicable per - amongst other decisions - the famous/infamous Hamilton vs. SCIF 32 CWCR 249 WCAB panel decision: In Hamilton vs. SCIF (Oct 2004) 32 CWCR 249 board panel decision, WCJ Alvin R. Webber ruled that the ACOEM guidelines were only applicable “during the first 90 days following the industrial injury” and therefore were erroneously used to deny requested medical treatment. Here’s the exact verbiage from WCJ Webber: "…the ACOEM guidelines themselves, in the opinion of this WCJ, clearly provide for applicability only during the first 90 days following the industrial injury." (Bold added.) The Webber decision was appealed by the insurer to the WCAB; however, a three commissioner panel sided with WCJ Webber and ordered SCIF to pay for the recommended treatment even though the treatment (a gym membership) was not supported by ACOEM. Therefore, since the ACOEM's do not apply to this chronically injured worker, per Labor Code §4604.5(e) - which gives us direction on how to proceed with ACOEM is not applicable - I shall use the Colorado Medical Treatment Guidelines as support for my continued care of this chronic pain patient. The said guidelines may be viewed here: [http://www.coworkforce.com/DWC/RuleXVIIRestore/Rule_XVII_Exhibit_F.asp ] More explicitly, the section entitled “Medical Treatment Guidelines: Chronic Pain Disorder." Rule XVII, Exhibit F 2003; 2th edition: Exhibit F(14)(d), page 80-81 states the following: "Manipulation should be considered when there is evidence of suspicion of scoliosis, apparent leg length inequality, pelvic imbalance, facet restriction, sacroiliac dysfunction, myofascial dysfunction, gait disturbances, or postural dysfunction." Exhibit F(14)(d)(80) “Care beyond 8 weeks may be indicated for certain chronic pain patients in whom manipulation is helpful in improving function, decreasing pain and improving quality of life.” Exhibit F(14)(d)(81) "Extended durations of care beyond what is considered “maximum” may be necessary in cases of re-injury, interrupted continuity of care, exacerbation of symptoms, and in those patients with comorbidities. Exhibit F(14)(d)(4)(81) With regard to treatment frequency, the following recommendations were given for flare-ups of chronic pain: "Frequency: 1 to 2 times per week for the first 2 weeks as indicated by the severity of the condition. Treatment may continue at 1 treatment per week for the next 6 weeks." Exhibit F(14)(d)(2)(81) Furthermore, Randomized controlled of peer review quality that support chiropractic manipulation for the treatment of chronic pain may also be used to establish rebut the ACOEM guidelines. I shall now offer these investigations to help establish a variance from ACOEM exists for this patient: 1) Aure OF, Nilsen JH, Vasseljen O. - Spine 2003 28(6):525-31; discussion 531-532. 2) Triano JJ, McGregor M, Hondras MA, Brennan PC. - Spine. 1995 Apr 15;20(8):948-55. 3) Giles LGF, Muller R. - Spine 2003;28(14):1490-1503 4) Muller R, Giles LG. - J Manipulative Physiol Ther. 2005 Jan;28(1):3-11. 5) Hoiriis KT, et al. - J Manipulative Physiol Ther. 2004;27(6):388-98. 6) Koes BW, Bouter LM. - BMJ. 1992 Mar 7;304(6827):601-5 . 7) Niemisto L, et al. - Spine. 2003 Oct 1;28(19):2185-91. NOTE: 30 minutes of non face-to-face time was spent in the preparation of this report as I reviewed past medical reports (review of records), UR/Insurance letters, labor code, ACOEM, and/or other evidence based medical investigations and treatment guidelines. Supportive documentation and research is mandated per Escobedo v. CNA Insurance (2005) 70 CCC 604 [WCAB en banc] and Smith vs. Churn Creek Construction Company and State Compensation Insurance Fund (June 2004) 69 CCC 1012 (Board Panel Decision). Record review and research shall be billed as a two 99385s which is allowable per Title 8 CCR §9789.11 and the OMFS Book. NOTE: Please forward all Medical Records per 10608(a). |
NOTE: We believe the insurer is in violation of Title 8 CCR §9765.12(a)(1) [effective 09-15-05], among other codes already mentioned in previous reports, that states the following: “(a) An employer or insurer that offers a Medical Provider Network Plan under this article shall notify each covered employee in writing about the use of the Medical Provider Network 30 days prior to the implementation of an approved MPN, at the time of hire, or when an existing employee transfers into the MPN, whichever is appropriate to ensure that the employee has received the initial notification.The notification shall also be sent to a covered employee at the time of injury. The notification(s) shall be written in English and Spanish. The initial written notification shall include the following information: FURTHERMORE: This patient, in my medical opinion, has a “serious chronic condition” [as defined by Labor Code §4616.2(d)(3)(B)] and should be allowed to finish his medical treatment with Gillard Chiropractic as allowed by the same labor Code. I object to the insurers attempts to force this patient into an MPN at this time. |
SUPPORT OF RECOMMENDED MEDICAL TREATMENT: Since the ACOEM Guidelines were given the ‘presumption of correctness’ on 03-22-04 [LC §4604.5(c)] and since the insurer’s Utilization Review (“UR”) department MUST apply these guidelines, or other evidence based medical treatment guidelines that are scientifically based [LC §4604.5(e)] to all requests for medical treatment [LC §4610(f)(2)], I am FORCED to support my medical treatment recommendations by citing ACOEM, other evidence based medical treatment guidelines and/or, if a variance from the guidelines is sought [LC §4604.5(c)], citing other “scientific medical evidence.” [LC §4604.5(a)] The forthcoming shall be considered my attempt to support the medical treatment that I have recommended for this patient, which is my right under Title 8 CCR §10606(n): 1) MANIPULATION: Unfortunately, the ACOEM Guidelines fail to addressed treatment interventions for chronic pain patients as noted in two recent WCAB panel decisions: Hamilton vs. SCIF 32 CWCR 249 WCAB panel decision (Oct 2004) and Los Angeles Times vs. WCAB (Herbinger) 7 WCAB Rptr. 10,109; 70 CCC 504 ( April 2005). Therefore per instruction from Labor Code §4604.5(e), which states “authorized treatment shall be in accordance with other evidence based medical treatment guidelines generally recognized by the national medical community and that are scientifically based,” I shall utilized the ‘ Colorado Medical Treatment Guidelines’ “Chronic Pain Disorder” Section to support my recommendation for further manipulative care. More explicitly, Section F, Subsection (14)(d)(pg. 80) states the following: “Manipulation should be considered when there is evidence of suspicion of scoliosis, apparent leg length inequality, pelvic imbalance, facet restriction, sacroiliac dysfunction, myofascial dysfunction, gait disturbances, or postural dysfunction. Indications for manipulation include joint pain, decreased joint motion and joint adhesions.” Since signs of “facet restriction,” myofascial dysfunction,” and decreased joint motion” was clearly evident on examination, this chronic pain patient is clearly a candidate for manipulation. With regard to specific treatment frequency for chronic pain patients, Section F, subsection (14)(d)(pg.81) states the following: “Extended durations of care beyond what is considered “maximum” may be necessary in cases of re-injury, interrupted continuity of care, exacerbation of symptoms, and in those patients with comorbidities. Such care should be re-evaluated and documented on a monthly basis.” Section F, subsection (14)(d)(pg.81) also gives the forthcoming recommended treatment frequency for flare-ups of chronic pain: “Frequency: 1 to 2 times per week for the first 2 weeks as indicated by the severity of the condition. Treatment may continue at 1 treatment per week for the next 6 weeks.” Therefore, this chronic pain patient may have access to manipulative care ONLY for “exacerbation of symptoms.” The frequency of such care should not exceed 10 treatments per documented exacerbation. As an alternative to the Colorado Medial Treatment Guidelines, the “ Guidelines for Chiropractic Quality Assurance and Practice Parameters’ [ Haldeman S, et al. “ Guidelines for Chiropractic Quality Assurance and Practice Parameters”. Jones and Bartlett – Sudbury, Massachusetts; 2005 ], herein the Mercy Guidelines, may also support the chiropractic care that I have recommended. The Mercy Guidelines are extremely “evidence based” and were created based upon numerous scientific investigations and guidelines. In fact Chapter 12 alone, which I shall use to support my recommended manipulative care - contains over 65 footnoted investigations and guidelines! Furthermore, the Mercy Guidelines have recently been utilized as a defense in a WCAB panel decision that over-turned an ACOEM-based WCJ’s denial of a future chiropractic treatment award where manipulation was the predominant treatment intervention. [ Casillas vs. The County of San Luis Obispo (08-12-2005) GRO 24818; Opinion and Order Granting Reconsideration and Decision after Reconsideration] More explicitly, Chapter 8, Section Vl, Subsection E (page 125) of the Mercy Guidelines, unlike the ACOEM Guidelines, specifically addresses what type of medical treatment frequency is reasonably medically necessary to properly address “exacerbation of a chronic condition.” More explicitly, Mercy states that following an acute exacerbation of a chronic condition, “3 to 5 treatments per week” should bring about “significant improvement” of the exacerbation within “10 to 14 days.” For the next six to eight weeks, if necessary, a treatment frequency of “up to 3 treatments per week” should be sufficient to return the patient to pre-exacerbation level and free the patient from the need of professionally administered spinal manipulation and its associated therapies care. Furthermore, Evidence-based Randomized-Controlled Trails, which are of peer-review quality [Spine], easily support manipulation as an intervention for the treatment of chronic pain patient: here are some examples: 1) Aure OF, Nilsen JH, Vasseljen O. - Spine 2003 28(6):525-31; discussion 531-2 2) Triano JJ, McGregor M, Hondras MA, Brennan PC. - Spine. 1995 Apr 15;20(8):948-55. 3) Giles LGF, Muller R. - Spine 2003;28(14):1490-1503 4) Muller R, Giles LG. - J Manipulative Physiol Ther. 2005 Jan;28(1):3-11. 5) Hoiriis KT, et al. - J Manipulative Physiol Ther. 2004;27(6):388-98. 6) Koes BW, Bouter LM. - BMJ. 1992 Mar 7;304(6827):601-5 . 7) Niemisto L, et al. - Spine. 2003 Oct 1;28(19):2185-91. I won’t go into each investigation; however, will comment on the Muller & Giles investigation of 2003: In 2003, Muller and Giles published the results of their randomized controlled trial with long-term follow-up. This investigation randomized a group of 109 chronic spine pain patients, who had been suffering back or neck pain for an average of 6.4 years, into on of three treatment groups: a manipulation groups, a medication group (Celebrex or Vioxx), or an acupuncture group. After a nine week course of care, the authors concluded that the manipulation group experienced a much more favorable clinical outcome when compared to either the medication group or the acupuncture group. The authors concluded, “Overall, patients who have chronic mechanical spinal pain syndromes and received spinal manipulation gained significant broad-based beneficial short-term and long-term outcomes.” More explicitly, 27.3% of the manipulation patients became asymptomatic (had no pain); versus only 9.4% of the acupuncture patients and 5% of the medication patients. Even more impressive was the increase in functional ability, as indicated in the Oswestry scores: The manipulation group obtained a 50% improvement; versus only a 5% improvement for the acupuncture group and a 4% improvement in the medication group. Finally, the subjective pain scores also strongly favored the manipulation group: The manipulation group obtained a 50% drop in their VAS scores (self pain intensity rating); versus only a 15% drop in the acupuncture group and 0% drop in the medication group. In 2005, his same cohort was followed for another 12 months; the outcome numbers did not chance, which led the authors to the conclusion the following: “In patients with chronic spinal pain syndromes, spinal manipulation, if not contraindicated, may be the only treatment modality of the assessed regimens (acupuncture & prescription medication) that provides broad and significant long-term benefit .” 2) TENS: In a randomized double-blind placebo-controlled trial, TENS has been demonstrated to be just as effective for relieving acute pain as prescription medication. More explicitly, in 1987 Ordog randomized 100 patients who were suffering acute pain into either a TENS group, a placebo group, or a prescription medication group (Tylenol with Codeine). The results confirmed that TENS was just as efficacious for treating acute pain as prescription Tylenol with Codeine. The senior author concluded by opining the following: “TENS was approximately as effective as acetaminophen (300-600 mg) with codeine (30-60 mg) but had no side effects. Transcutaneous electrical nerve stimulators have been shown to be effective in the management of acute traumatic pain and may be indicated for patients who cannot be given medications.” ( Ordog GJ. 'Transcutaneous electrical nerve stimulation versus oral analgesic: a randomized double-blind controlled study in acute traumatic pain.' Am J Emerg Med. 1987; 5(1):6-10 ) Yes, the Employer/Insurer Has the Power: Please note that the Chiropractic/Physical Therapy/Occupational Therapy cap is NOT a hard cap, as so many UR doctors would like to believe: LC 4604.5(d)(2) states the following: “This subdivision [LC 4604.5(d)(1)] shall not apply when an employer authorizes, in writing, additional visits to a health care practitioner for physical medicine services.” Therefore, the employer or the insurance company has the final say as to what the patient will receive in terms of future medical care, not the legislature. Furthermore, it is my belief that the legislators may not have intended to limit both chiropractic Evaluation / Management visits and Physical Medicine Visits (treatments) which effectively makes the chiropractor not a true primary treating physician (PTP) but only a temporary one whose existence revolves around 24 “office visits”. If you look at the verbiage of LC 4604.5(d)(2) closely, you will notice that they speak of “physical medicine services” but not “office visits”; however, in 4604.5(d)(1) they speak of “office visits” and do not mention “physical medicine services”. One of the aforementioned paragraphs is in error. It is my contention that 4604.5(d)(1) should have said “physical medicine services” and NOT “office visits”; if this ‘over-site’ did indeed occur, it would mean that doctor of chiropractic could remain the patient primary treating physician and manage the patients case, without treating, by reporting on the patients condition; assessing disability/work limitations; assessing the patients home exercise program, ordering either physical therapy or occupational therapy visits, if needed; or ordering medical testing. LC 4600(a) clearly gives an injured worker the right to choose a chiropractor as a PTP by stating “Medical, surgical, chiropractic, acupuncture, and hospital treatment… that is reasonably required to cure or relieve the injured worker from the effects of his or her injury shall be provided by the employer. CONCLUSION FOR MEDICAL CARE SUPPORT: In conclusion, I am hopeful that the insurance company will realize that the future care program I have recommended is safer, more efficacious, and most cost effective than traditional medical care would be and authorized [per Labor Code §4604.5(d)(2)] additional chiropractic care; hence, allowing this patient to continue with a form of medical care that is provided for under the Californian constitution and Labor Code 4601. If this patient’s chronic segmental dysfunction is not monitored and occasionally addressed, it may well result in progressive degenerative disc disease and degenerative joint disease that may worsen this patient disability and chronic pain syndrome. In conclusion I believe I have satisfied my reporting requirements under Labor Code §4604.5(c), Labor Code §4604.5(a), and Title 8 CCR §10606(n). |
|
I have reached the 24 visit “soft-cap” on chiropractic care and hereby request three addition office visits (1 time per month) for the purposes of evaluation and management only. This should be enough time for the patient to reach a level of maximum medical improvement and allow me to dictate my final permanent disability report, which is my final duty at this patient’s primary treatment physician. Please forward all medical reports and records (per Title 8 CCR §10608(a)) and confirm that Dr. Aptekar has been allowed. (The patient is a very poor historian.) If Dr. Aptekar has not been allowed, then please allow the patient to be seen by Dr. Nicholas Colyvas, MD orthopedic surgeon; Dr. Colyvas is on SCIF’s MPN. COMMENTS: I do not believe three additional office visits for Evaluation and Management purposes only is an unreasonable request and shall allow me to continue to serve as this patient’s PTP. Remember two things, Mr. Chan: (1) you can make this decision on your own and do NOT have to send it thought the UR department. In Sandhagen vs. Cox & Cox Construction II (2005) 70 CCC 208, WCAB En Banc, the commissioners stated the following: “…we will not insert into section 4610 language that the Legislature has not included, i.e., a requirement that utilization review must be used in every case. Pursuant to section 4610, a defendant [the insurer] has discretion to undertake or not undertake utilization review with respect to any particular proposed medical treatment." (Bold added.) Therefore, you may make this decision on your own. (2) Labor Code §4604.5(d) allows the claims administrator to surpass the 24 visit cap if he/she so chooses. Here’s the exact verbiage from this section: “(1) Notwithstanding the medical treatment utilization schedule or the guidelines set forth in the American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines, for injuries occurring on and after January 1, 2004, an employee shall be entitled to no more than 24 chiropractic, 24 occupational therapy, and 24 physical therapy visits per industrial injury. (2) This subdivision shall not apply when an employer authorizes, in writing, additional visits to a health care practitioner for physical medicine services.” With respect to past Chiropractic treatment justification, the ACOEM guidelines do not apply. In fact, Chapter 13 states the following: “Recommendations on assessing and treating adults with potentially work-related knee problems are presented in this clinical practice guideline…. This chapter is master algorithm schematizes primary care and occupational medicine practitioners generally can manage patients with acute and subacute knee complaints .” [Occupational Medicine Practice Guidelines - second edition’ ACOEM 2004; OEM Press: Beverly Farms, Massachusetts: page 329 - Chapter 13] Furthermore, two recent WCAB panel decisions have also concluded that ACOEM does not apply to a chronic injury. (See Hamilton Vs. SCIF 32 CWCR 249 WCAB panel decision (Oct 2004)] and [Los Angeles Times v. WCAB (Herbinger) 7 WCAB Rptr. 10,109; 70 CCC 504 ( April 2005) Therefore, since ACOEM does not cover treatment for Chronic Knee conditions, Labor Code § 4604.5(c) applies and states the following: “For all injuries not covered by the American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines or official utilization schedule after adoption pursuant to Section 5307.27, authorized treatment shall be in accordance with other evidence based medical treatment guidelines generally recognized by the national medical community and that are scientifically base.” I shall use the Colorado Medical treatment guidelines for Chronic Pain disorder (Rule XVII, Exhibit F; 2003), which states the following under Section F, subsection14(d): “The purpose of manipulation in the treatment of chronic pain is to assess the structure and function of the patient and to identify areas of musculoskeletal dysfunction that may be causing, or contributing to, the patient’s symptoms…. Indications for manipulation include joint pain, decreased joint motion and joint adhesions…. Care beyond 8 weeks may be indicated for certain chronic pain patients in whom manipulation is helpful in improving function, decreasing pain and improving quality of life.” The patient, who had care beyond 8 weeks, clearly had decreased knee joint motion and pain, which made/makes him a candidate for manipulation. Our manipulative care subjectively decreased pain and improved the quality of life for this patent. |
SUPPORT OF RECOMMENDED TREATMENT: (a) The ACOEM Guidelines - fifth edition: although ACOEM does not specifically address treatment recommendations for the chronic pain patient, it does recommend treatment guidelines for acute pain. Since this patient is currently suffering from acute pain secondary to an exacerbation at work, I believe these guidelines may be useful in supporting my recommendation for three chiropractic visits. More explicitly, table 12-8 on page 308; chapter 12 of the ACOEM guidelines, which is entitled "Summary of Recommendations for Evaluating and Managing Low Back Complaints," recommends manipulation of the low back during the first month of symptoms without radiculopathy. ACOEM is silent on the actual frequency of such manipulative care. (b) Guidelines for Chiropractic Quality Assurance and Practice Parameters (herein The Mercy Conference Guidelines: unlike the ACOEM guidelines, the Mercy conference guidelines address treatment frequency for an "exacerbation of a chronic condition." More explicitly, page 125; chapter 8, subsection "E" allows for "three to five treatments per week" during the first "10-14 days" following an "exacerbation of a chronic condition." In order for the patient to return to "pre-episode status," the guidelines allow for "up to three treatments per week" for "six to eight weeks." This 34 treatment maximum is far more than I am requesting at this time. (c) The Colorado Medical treatment guidelines for Chronic Pain disorder (Rule XVII, Exhibit F; 2003): Section 14, subsection d of these Guidelines states the following: “The purpose of manipulation in the treatment of chronic pain is to assess the structure and function of the patient and to identify areas of musculoskeletal dysfunction that may be causing, or contributing to, the patient’s symptoms…. Indications for manipulation include joint pain, decreased joint motion and joint adhesions…. Care beyond 8 weeks may be indicated for certain chronic pain patients in whom manipulation is helpful in improving function, decreasing pain and improving quality of life.” As noted above under my examination section, this patient clearly has signs of decreased joint motion and joint pain, which makes him a candidate for manipulation of his chronic pain under these guidelines. Furthermore, manipulation has historically helped the patient in decreasing pain in improving the quality of his life. With respect to treatment frequency, these guidelines limit chronic pain exacerbation treatment to a maximum duration of "eight weeks," during which a treatment frequency of "1 to 2 times per week for the first 2 weeks” and “1 treatment per week for the next 6 weeks” was given. Again, my request for 6 chiropractic treatments is well below this 10 treatment limit. Note: These Guidelines may be viewed on-line for free here: http://www.coworkforce.com/dwc/RuleXVIIRestore/Rule_XVII_Exhibit_F.asp Or [here] for the full spiel. |
LABOR CODE SECTION 4663:
Per instructions from the WCAB in Escobedo, fn-1 and in accordance with the newly created Labor Code section 4663, I have identified the forthcoming “other factors” as relevant and worthy of discussion in this case: (1) pre-existing degenerative disc disease, (2) pre-existing spondylosis, and (3) pre-existing lumbar synovial cysts at L1/2.
After thorough and diligent review of the medical literature, I have found no substantial medical evidence that would associate any of the aforementioned pre-existing pathologies with patient vulnerability for the development of chronic pain and permanent impairment.
Therefore, it is my opinion based on reasonable medical probability and the severely traumatic incident of injury that 100% of the above described permanent impairment is attached to the industrial injury of 12-20-05, and 0% is attached to said pre-existing degenerative disc disease, spondylosis, and synovial cysts.
LABOR CODE SECTION 4664:
There is no evidence that this patient has previously been awarded a permanent disability award. Hence, it would appear that this section of the Code is non-applicable in this case.
SUPPORT OF APPORTIONMENT OPINION:
In attempts to create a report that constitutes “substantial medical evidence,” I shall support my opinion on apportionment by presenting evidence based, peer-review medical investigations, which is my right and duty per Title 8 CCR §10606(n) and the recent WCAB en banc decision of Escobedo vs. CNA (2005) 70 CCC 604, which states, in relevant part, "...a medical report is not substantial evidence unless it sets forth the reasoning behind the physician’s opinion, not merely his or her conclusions."
FN-1 Marlene Escobedo vs. Marshalls; and CNA Insurance (2005) 70 CCC 604 WCAB En Banc
[ Home ]
© Copyright 2002 – 2006 by Dr. Douglas M. Gillard DC - All rights reserved