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Los Angeles Times v. WCAB (Herbinger) (2005) 70 CCC 504 [writ denied] [here]

In this opinion, WCJ Delaterre ruled against the insurer’s attempt to use the ACOEM guidelines (among other things) to deny requested medical care for a chronically injured worker. In relevant part, the WCJ opined:

“[The ACOEM Guidelines] related to acute medical treatment within the first few days to the first four to six weeks following the injury… [and] that Applicant sought treatment for chronic pain, not acute care, and that the ACOEM Guidelines were accordingly inapplicable.”

To no avail, the insurer appealed upward and was denied by both a panel of commissioners at the WCAB (request for reconsideration denied), and the Second District Court of Appeals (writ denied).

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In Los Angeles Times v. WCAB (Herbinger) (2005) 70 CCC 504 [writ denied] the WCJ stated that the ACOEM guidelines related to acute medical treatment within the first few days to the first four to six weeks following the injury, and since the Applicant sought treatment for chronic pain, not acute care, the ACOEM Guidelines were accordingly inapplicable.

"As to Defendant's contention that home health care of the type provided by Applicant's spouse was unwarranted and unreasonable since it was not specifically recommended by the ACOEM Guidelines, the WCJ stated that those guidelines related to acute medical treatment within the first few days to the first four to six weeks following the injury, that Applicant's injury had occurred 14 years prior to the hearing, that Applicant sought treatment for chronic pain, not acute care, and that the ACOEM Guidelines were accordingly inapplicable. The WCJ also stated that the ACOEM Guidelines encouraged physicians to work closely with patients to control chronic pain and that, because Applicant was unable to benefit from treatment via traditional pain medication, it was apparent that the ice and cold packs were the most effective remedy in relieving Applicant's episodes of periodic increased pain." DCA

"If the applicant's pain was responsive to a medication regime, the defendant would be obligated to provide the applicant with the appropriate medications. Unfortunately, this is not the situation. Thus, an alternative form of pain relief is required to relieve Mr. Herbinger from the effects of the injury. As stated above, the application of ice and cold packs seem to be the most effective remedy. For the reasons discussed previously, the Court finds that it is reasonable and necessary for the applicant's wife to assist him." WCJ

"Medical Treatment--WCAB held American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines did not apply to applicant's medical treatment because these guidelines were for acute medical treatment, four to six weeks after injury, applicant's injury occurred 9/27/90, and applicant needed medical treatment for chronic pain, years after his injury, not for acute conditions that occurred immediately following injury." Editors notes

Hamilton v. State Compensation Insurance Fund (2004) 32 CWCR 249 WCAB Panel Decision

(1) In Hamilton v. State Compensation Insurance Fund (2004) 32 CWCR 249 WCAB Panel Decision, Workers’ Compensation Administrative Law Judge (“WCJ”) Webber stated:

“…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.)

Commissioners O’Brien, Brass, and Murray concurred with WCJ Webber and adopted his decision and denied the insurers request for reconsideration.

UR BUSTING SPIEL:

UTILIZATION REVIEW AND PROCURED MEDICAL CARE:

It is my opinion that all medical care rendered to this patient, including manipulation, physiotherapy, exercise, functional restoration, medical visits for disbursement of prescription medication, and work conditioning was effective to cure and relief this patient from the effects of his industrial injury and was reasonably medically necessary.

Contained within my packet of medical records is one Utilization Review (“ UR”) Objection that denied the request for chiropractic manipulation, physiotherapy, and work conditioning (18 treatments), which was made in Dr. Luque’s PR-2 report dated 07-21-04 (received by the insurer on 08-11-04). The request was processed through UR on a ‘retrospective’ priority. On 09-08-04, UR doctor JoAnn Marsh completed the “retrospective” assessment and opined that none of the requested treatment be authorized now or in the future. She based her opinion on the ACOEM guidelines, Chapter 12, Table 12-8, which listed treatment recommendations for manipulation of patient with acute lower back pain. Ms. March listed no reason why she denied the recommended work conditioning: There was mention of whether or not this denial was communicated by Dr. Luque within “2 business days” as mandated by Labor Code section 4610 (g) (3) (A). In fact, on the letter from the insurer dated 09-09-04, the ‘date received’ stamp reads 09-17-04; if this is accurate, this UR report would appear to be invalid as it violated code 4610 (g) (3) (A).

Notwithstanding the 4610(g)(3)(A) issue, is the fact that the UR doctor improperly used the ACOEM guidelines for the assessment of a patient whose pain syndrome was chronic in nature (i.e., over 90 days in duration). More explicitly, Chapter 12, page 287, of the ACOEM guidelines states,

“Recommendations on assessing and treating adults with potentially work-related low back problems (i.e., activity limitations due to symptoms in the low back of less than three months duration) are presented in this clinical practice guideline…. this chapters master algorithm schematizes how primary care and occupational medicine practitioners generally can manage acute or subacute low back complaints.”

Noteworthy is the fact that two WCAB panel decisions have also opined that the ACOEM guidelines are not applicable for chronically injured workers:

(1) In Hamilton v. State Compensation Insurance Fund (2004) 32 CWCR 249 WCAB Panel Decision, Workers’ Compensation Administrative Law Judge (“WCJ”) Webber stated:

“…the ACOEM guidelines themselves, in the opinion of this WCJ, clearly provide for applicability only during thefirst 90 days following the industrial injury." (Bold added.)

Commissioners O’Brien, Brass, and Murray concurred with WCJ Webber and adopted his decision, hence, denying reconsideration.

(2) In Los Angeles Times v. WCAB (Herbinger) (2005) 70 CCC 504 [writ denied] the WCJ stated that the ACOEM guidelines related to acute medical treatment within the first few days to the first four to six weeks following the injury, and since the Applicant sought treatment for chronic pain, not acute care, the ACOEM Guidelines were accordingly inapplicable.

Therefore, ACOEM should not have been used against this chronic pain patient since said guidelines schematize how “acute or subacute low back complaints” are managed; not for the chronic complaints of chronic pain patients.

Since the ACOEM guidelines are silent on the issue of recommendations for chronic pain, Labor Code section 4604.5(e) mandates that “

Since ACOEM is silent regarding exacerbations of a chronic condition, we must look to Labor Code § 4604.5(e) for guidance; this code states:

For all injuries not covered by the American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines… 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." (Bold and underline added.)

Therefore, I shall use the Guidelines for Chiropractic Quality Assurance and Practice Parameters ("Mercy Guidelines") to support my care:

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. Furthermore, a recent WCAB panel decision (Casillas vs. The County of San Luis Obispo (2005) 33 CWCR 217 WCAB Panel decision) has used these same Mercy guidelines, “arguendo” to successfully rebut the presumption that ACOEM carries and award chiropractic care for exacerbations of chronic pain.

With regard to reasonable chiropractic treatment frequency for “exacerbations” of 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.”

Therefore, a maximum of 34 chiropractic treatments per exacerbation of chronic pain are allowable.

In this case, there have been numerous exacerbations of patient symptomatology reported on within Dr. Luque’s PR-2s. Furthermore, the patient has stated that he only uses Dr. Luque’s care for exacerbations of pain.

Therefore, based on all the foregoing reasons and rational, I have found Dr. Luque’s treatment to be reasonable and medically necessary to cure and relieve the patient from the effects and ongoing effects (exacerbations) of the industrial injury of 06-13-03.

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