ACOEM Application to Pre-SB 899 Treatment Upheld

Saturday, October 21, 2006 | 0

By Jake Jacobsmeyer

The California Supreme Court denied the requests for hearing and/or for depublication of the Court of Appeal decision in Sierra Pacific v. WCAB (Chatham), 71 Cal. Comp. Cas 714, dealing with the application of the American College of Occupational and Environmental Medicine treatment guidelines to medical care provided prior to the adoption of Labor Code Section 4600(b) effective April 19, 2004.

In the appellate court decision, the court had reversed a determination of the WCAB holding the ACOEM medical treatment guidelines were not applicable to treatment provided before passage of Senate Bill 899. The court noted the language in Section 47 of SB 899 that any changes in the Labor Code were to be applied to all cases regardless of the date of injury compels application of the definition of medical treatment contained in Labor Code Section 4600(b). The application is effective for all medical treatment where there had not been a prior determination as to the reasonableness of treatment before the effective date of SB 899 (4/19/04).

This case involved a chiropractic lien claim in excess of $11,000. (The applicant's case settled for $4,000). The applicant selected a qualified medical evaluator who supported the lien in full. At cross examination, the QME was not able to provide any peer reviewed evidence to support the extent of treatment and also conceded that if the ACOEM guidelines were applied, the amount of treatment that would be deemed reasonable would have been less.

The defendant obtained an utilization review opinion, which in reliance on ACOEM, held that the treatment that was reasonable, based on the ACOEM guidelines, was much less than that provided by the treating physician.

The court made it clear in the decision that what was at issue here was whether the treatment meets the test of being "reasonably required to cure or relieve from the effects of the injury" not the presumption of correctness under Labor Code Section 4604.5 which was passed the prior year.

The court also noted that while the UR report obtained by the defendant might not have been admissible (the treatment was provided prior to adoption of Labor Code Section 4610), it was not the report that matters but the application of the guidelines. In the absence of any evidence to rebut the medical treatment guidelines that define treatment under Labor Code Section 4600(b), the guidelines must be followed. The guidelines apply to medical treatment as a matter of law and are not dependent on following the procedural process under Labor Code Section 4610.

The impact of this case should be greatest in cases where there is extensive treatment prior to April 19, 2004, that is unsupportable by evidence-based medicine. Other treatments that are specifically disapproved in ACOEM such as Spinal Manipulation Under Anesthesia would also be subject to review using the medical treatment guidelines and in the absence of evidence based medical support is potentially subject to being disallowed by the WCAB. However if a medical provider is able to produce medical support for the treatment provided, presumably the guidelines will not prohibit payment for such care.

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

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