Macari

Regents of the University of California, Lawrence Livermore National Laboratory, PSI v. WCAB (Macari) (2005) 70 CCC 1733 Writ Denied (here)

The patient has suffered an exacerbation of his chronic pain. Only chapter 6 of the presumed correct ACOEM guidelines addresses the issue of chronic pain as the ACOEM Spinal Chapters have been found non-applicable for such chronic pain conditions by three WCAB panel decisions. (10, 11, 12)

In relevant part, ACOEM, Chapter 6, page 110-111 states, “Each physician should… prescribe… active mobilization of injured areas.” Page 111 also describes “ways to manage pain and dysfunction,” and includes both “Medication” and “Physical Modalities” in that list. Therefore, my proposed 3 chiropractic treatments that include both “mobilization of injured areas” and “physical modalities” are supported.

I would also like to present the recent Writ Denied, WCAB Panel decision of Macari, (13) as support for the allowance of Chiropractic care for chronic pain patients as a means of decreasing pain and increasing function:

In Macari, a Californian WCJ allowed thirty (30) Chiropractic visits per year for treatment of an injured worker’s chronic back pain in order to maintain function and keep pain under control. She used ACOEM Chapter 6, the Mercy Guidelines, and the Glenerin (Canadian) Guidelines as the foundation for this decision. Insurer objections to this decision were denied by the Workers’ Compensation Appeals Board (“WCAB”), and the First District Court of Appeals (Writ Denied).

More explicitly, on 02-20-04, an injured worker was granted an award for future medical care from the WCAB. Subsequent to the award additional chiropractic care was procured, which effectively diminished his chronic back pain and increased his function with respect to work and the activities of daily living. Despite the award, the insurer’s UR department (two separate UR doctors’ opinions) denied such care on the basis of Chapter 12 of the ACOEM Guidelines. At trail, the WCJ ordered the insurer to pay for and continue paying for the chiropractic care at a frequency of no more than 30 visits per year. The WCJ based her decision (which was upheld by the Appeals Board and the District Court of Appeals) on (1) the patient’s credible testimony that his function deteriorated and his need for medication increased without the chiropractic care, (2) Chapter 6 of the ACOEM guidelines, (3) the Mercy Guidelines, and (4) the Glenerin (Canadian) Guidelines. Upon reconsideration, the WCAB agreed that said evidence effectively rebutted the ACOEM Guidelines in accordance with labor Code § 4604.5 and upheld the WCJ’s decision. The matter was further appealed to the First District Court of Appeals; however, the appeal was rejected (Writ Denied).

More explicitly, the WCJ stated, in relevant part:

“Dr. Loero [PTP], and the panel QME in this case, Dr. Aubin, both point out that Chapter 12 deals with acute injury and that the only chapter in the ACOEM Guidelines that deals with chronic pain is Chapter 6. Both Dr. Aubin and Dr. Loero point to Chapter 6 for authority that ongoing treatment to increase function in chronic pain patients is appropriate. I have reviewed Chapter 6, and I agree that that is what Chapter 6 says.” (Bold added.)

Therefore, I believe the three chiropractic visits that I have requested secondary to the exacerbation of this chronic pain patient’s pain are justified and should be authorized.

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

Los Angeles Times v. WCAB (2005) (Herbinger) 70 CCC 504 Writ Denied

Regents of the University of California, Lawrence Livermore National Laboratory, PSI v. WCAB (Macari) (2005) 70 CCC 1733 Writ Denied

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In a recent case similar to my patient’s current predicament, a WCJ allowed thirty (30) Chiropractic visits per year for treatment of an injured worker’s chronic back pain; this decision was upheld by the Workers’ Compensation Appeals Board (“WCAB”), and the First District Court of Appeals (Writ Denied).

More explicitly, the WCJ stated, in relevant part:

“Dr. Loero [PTP], and the panel QME in this case, Dr. Aubin, both point out that Chapter 12 deals with acute injury and that the only chapter in the ACOEM Guidelines that deals with chronic pain is Chapter 6. Both Dr. Aubin and Dr. Loero point to Chapter 6 for authority that ongoing treatment to increase function in chronic pain patients is appropriate. I have reviewed Chapter 6, and I agree that that is what Chapter 6 says.” (Bold added.)

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Chiropractic Care for Exacerbations of Chronic Pain:

This patient needs access to chiropractic care for exacerbations of chronic pain; said care has historically been proven beneficial for this patient’s chronic pain syndrome with respect to controlling such exacerbations, reducing pain, and increasing patient function.

In support of such a treatment plan, only Chapter 6 of the ACOEM Guidelines is applicable, as the ACOEM spinal chapters (Chapter 8 [neck] and Chapter 12 [low back]) are only for use in patients who are in acute or subacute pain. The assertion that the ACOEM spinal Chapters are not applicable for patients suffering pain over 90 days duration (i.e., chronic pain) has also been opined in three separate WCAB panel decisions: Hamilton (2004) 32 CWCR 249; Herbinger (2005) 70 CCC 504 Writ Denied; and Macari (2005) 70 CCC 1733 Writ Denied.

In the very recent Writ Denied WCAB Panel decision of Macari, the WCJ (Judge Valerie S. Chapla) agreed that only Chapter 6 of ACOEM is relevant to assess patients who suffer chronic pain and ordered the allowance of 30 chiropractic visits per year in order to keep the injured worker's pain under control, and keep him functioning at the highest possible level. This decision was appealed to both the Workers Compensation Appeals Board and the First District Court of Appeals. Both courts agreed with the opinion of the WCJ Chapla and rejected the insurer’s appeal arguments.

In further support, ACOEM, Chapter 6, pages 110-111, in relevant part, states:

“In cases of delayed recovery associated with chronic pain, the physician should… prescribe rapid but careful resumption of function [and] active mobilization of injured areas.” (Emphasis added.)

“Active mobilization” of the patient’s dysfunctional spinal articulation via Chiropractic Cox flexion/distraction technique is the exact treatment that this patient has been receiving at our clinic. Furthermore, ACOEM, Chapter 6, page 115 states, in relevant part, “Mobilization, even in the face of some residual pain or stiffness, should be encouraged.” Again, Chiropractic “Mobilization” has been the main intervention of this patient’s treatment from day one.

Therefore, my current chiropractic treatment, which is only for exacerbation of the patient’s chronic pain, is reasonable and in compliance with Chapter 6 of the ACOEM guidelines and the recent Writ Denied decision of Macari. (1)

Foot Notes: (1) Regents of the University of California, Lawrence Livermore National Laboratory, PSI v. WCAB (Macari) (2005) 70 CCC 1733 Writ Denied