ACOEM and Liens for Treatment - Sierra Pacific

Saturday, July 15, 2006 | 0

By Jake Jacobsmeyer

The Third Appellant District has issued a published opinion which addresses the question of whether the provisions of SB899 adopting the American College of Occupational and Environmental Medicine (ACOEM) Treatment Guidelines as the definition of medical treatment that shall apply to medical care issues which arise after the medical treatment guidelines were published.

In the case of Sierra Pacific v. WCAB (Chatham) the injured worker received approximately $11,000.00 in billed chiropractic care for an injury which occurred on September 22, 2003. Medical treatment was provided up to February 26, 2004 on a lien basis. The defendant contested the treatment and objected under Labor Code Section 4062. Applicant was evaluated by a chiropractic QME who concluded that all of the medical treatment was reasonable and necessary to cure or relieve the effects of the injury. After defendant settled the claim for workers' compensation benefits with applicant for a lump-sum Compromise and Release of $4,000.00, the issue of the lien claim was tried before the WCAB.

The lien trial occurred after SB899 had passed. On cross-examination the QME testified the ACOEM Guidelines had not been considered in assessing whether the treatment was reasonable or necessary to cure relief from the effects of this injury as the treatment guidelines had not been adopted prior to the date this treatment was rendered. The doctor conceded that there was no published studies which supported the level of treatment that applicant received and that a review the reasonableness and necessity for treatment would be different using the provisions of Labor Code Section 4600 after SB899 had passed.

A trial judge determined that the medical treatment guidelines did not apply and rejected the opinion of defendant's utilization review physician's opinion on the appropriateness of medical treatment and awarded the care. The WCAB denied defendant's appeal arguing that the ACOEM Guidelines should apply.

The Third Appellant District noted that SB899 included a provision making it immediately effective prospectively as to all claims regardless of the date of injury in Section 47 and that this specifically was intended to alter the usual application of statutory changes only to injuries on or after the effective date of the statute.

The court could find no reason why the provisions of Labor Code Section 4600 as amended, should not also apply to the medical treatment herein.

Amicus curie for respondent (medical provider), while acknowledging Kleemann v WCAB 127 Cal. App. 4274 and Rio Linda Union School District v. WCAB (Sheftner) 131 Cal. App. 4517 specifically allowed application of the new statutes under SB899 to apportionment, argued that medical treatment was different as the care was concluded prior to the effective date of the statute. Argument was presented that apportionment could be determined at any time, but once the medical treatment was provided, that there was no intent on the part of the legislature to apply the new sections "prospectively".

The court noted:

"...While this argument has appeal on a fairness basis, the distinction made between changes to apportionment and the changes to the standard for reasonableness does not stand up under further scrutiny. It is true that in determining whether medical treatment is appropriate, this determination must be made based on the standards in effect when the treatment was provided. But that is not the issue here. Rather, the issue is who pays for the treatment; only if it meets the legal standard of reasonable and necessary under workers' compensation law does the employer have to pay for the treatment. Changing the standard of reasonableness after the fact has the same effect as changing the rules of apportionment; treatment that the employer was obligated to pay for when it was provided is a way to determine not to be the employer's responsibility, so either the employer has to pay or the medical provider is out of luck." (emphasis added

The court noted that the ACOEM Guidelines were initially placed into law under the provisions of SB 228 and were rendered presumptively correct effective March 23, 2004. The court held in this case that the presumption of correctness does not apply to the disputed treatment as it was rendered prior to the effective date of SB 228 as well as the publication and adoption of the ACOEM Guidelines. However, because of the language in SB899 making the statute prospective in nature, the language in Labor Code Section 4600, which defines medical treatment did apply and must be used in this case. The court also observed use of the treatment guidelines would result in a reduction in the employer's liability for medical care:

"... Here, amended section 4600, subdivision (b) provided new guidelines for determining necessary and reasonable medical treatment. The effect of these new guidelines in this case was to reduce the amount of chiropractic treatment that would be deemed necessary and reasonable and which must be paid for by the employer. Thus, the change would affect the employee's rights and the employer's corresponding obligations. " (emphasis added)

The court therefore reversed the decision of the WCAB and remanded this matter back to the Board for consideration of the ACOEM Treatment Guidelines under Labor Code Section 4600.

This is a very significant case for a large number of claims with medical treatment liens where the care was provided prior to the publication and adoption of the ACOEM guidelines. Many treating physicians, relying on the PTP presumption of correctness and the defendant's virtual inability to challenge the treatment recommendations of the PTP, provided vast amounts of questionable medical care and then sat back to collect when defendant's did not have the legal tools to contest the treatment. The treatment guidelines provide specific commentary on care such as initial chiropractic care, Manipulation Under Anesthesia (MUA) and prolonged physical therapy that has substantially curbed many abuses after the passage of SB 228 and 899 but left open the issue for treatment prior to the effective date of SB 228 (1/1/04). This decision gives defendant's an additional tool to bring rationality into the litigation in such cases.

As noted, the presumption of correctness does not apply to care prior to the effective date of the presumption under Labor Code Section 4604.5, however the definition of medical treatment enacted into law as part of SB 899, was clearly intended to apply to existing cases through section 47 as well as the language in SB 899 itself. It remains to see what difference from a legal perspective might exist between the presumption of correctness in Labor Code Section 4064.5 and the application of ACOEM under Labor Code Section 4600 where medical treatment is defined as treatment consistent with the guidelines.

From a legal perspective, using ACOEM as the definition of medical care should actually result in a stronger application of the guidelines that a rebutable presumption in favor of the same guidelines. While it would certainly be welcome to see the Labor Code Section 4064.5 presumption be given the same kind of enforcement that was given the PTP presumption of correctness under the now repealed Labor Code Section 4062.9, that has not happened and at the trial level there are continuing efforts to evade the application of the ACOEM schedule even where it clearly applies. Perhaps this decision, requiring use of ACOEM under 4600 and the court's language indicating that the amount the employer is supposed to pay under the newly drafted provisions is to be less, will have an impact.

As always, payors should always remember that there are available issues to raise to excessive medical care in addition to the above case. We have both old tools (the limitation on the PTP providing physical therapy services in his/her own office as prohibited in Labor Code Section 139.31 which effectively wipes out a good portion of many excessive bills for chiropractic care where the required preauthorization was not obtained) along with newer tools (limitation on self-referral to surgical centers by the PTP under Labor Code Section 139.3 & 139.31; requirement under Zenith v WCAB for a surgical center to prove that it is properly licensed etc).

By attorney Richard "Jake" Jacobsmeyer. Jake is a partner in the firm Shaw, Jacobsmeyer, Crain & Claffey and can be reached at jakejacobsmeyer@shawlaw.org.

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