Why Treatment Guides Can't Work; Statutory Interpretation

Monday, December 6, 2004 | 0

What follows started off as an academic review of the statutes mandating treatment guidelines, but ended up as an editorial - for those used to the high quality of our educational material on these pages, I apologize. But this deviation from our standard editorial policy was driven by a desire to provoke some thought and argument on this topic, give injured workers and their advocates some hope and legal ammunition, and provide fair warning to the defense that I believe there are serious flaws (among the many) in SB 899 that may evaporate the presumed savings to employers and their carriers.

All of the talk about ACOEM and other treatment guidelines limiting the right of injured workers to receive adequate medical treatment may be moot, if the courts follow what I believe is a reasonable interpretation of Labor Code section 4604.5.

LC 4604.5 was first given life as a statute in 2003 when it was assigned statutory effect in Chapter 639. In its original incarnation, there were 7 subsections. 4604.5 was amended as a part of SB 899 and on 4/19/04 the section was reduced to 6 subsections, with some subtle, but significant changes.

Among the 2004 changes, subsection (c) had added to it "regardless of date of injury" in the middle of it, and a statement at the end that the presumption contained in the subsection affects the burden of proof, so that it now reads:

"(c) Three months after the publication date of the updated American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines, and continuing until the effective date of a medical treatment utilization schedule, pursuant to Section 5307.27, the recommended guidelines set forth in the American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines shall be presumptively correct on the issue of extent and scope of medical treatment, regardless of date of injury. The presumption is rebuttable and may be controverted by a preponderance of the evidence establishing that a variance from the guidelines is reasonably required to cure and relieve the employee from the effects of his or her injury, in accordance with Section 4600. The presumption created is one affecting the burden of proof." (Emphasis added.)

Old subsection (g) was renumbered subsection (e) in the new statute and had "and that are scientifically based" added to the end of it, so that it now reads:

(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. (Emphasis added.)

We have to assume that when the Legislature amends a statute, that it is intending to effect a change in the law and to remove any doubts. We also have to assume that where the words of a statute are clear and unambiguous, its plain language should be followed. Hofmeister v. WCAB (1984) 156 Cal.App.3d 848, 49 CCC 438, WCC 25441984 CA, 21 & 22.

The defense argument has thus far been that in order to rebut ACOEM, or its predecessor, there must be a presentation of alternative evidence based medical treatment guidelines that are scientifically based or there is no rebuttal, ergo, no alternative treatment authorized outside of ACOEM.

However, this interpretation ignores the plain language of 4604.5.

Subsection (c) requires ONLY a preponderance of evidence to show "that a variance from the guidelines is reasonably required to cure and relieve the employee from the effects of his or her injury, in accordance with Section 4600," to rebut ACOEM.

Many will argue that subsection (e) requires that the rebuttal evidence be some "other evidence based medical treatment guidelines generally recognized by the national medical community and that are scientifically based." However, there are three serious flaws with this theory:

1) All injuries are covered by subsection (c), but subsection (e) applies ONLY to injuries that are NOT COVERED by ACOEM. In other words, subsection (e) is virtually superfluous. There is nothing in subsection (e) that indicates that it is applicable to requests for treatment, where subsection (c) specifically states that it applies to "the issue of extent and scope of medical treatment."
2) Subsection (e) speaks about injuries that are not covered by ACOEM however ACOEM doesn't speak to injuries, but to body parts and appropriate treatment protocol. For instance, Chapter 8 is entitled "Neck and Upper Back Complaints" and opening paragraph to the chapter speaks about neck and upper back complaints - NOT injuries. Perhaps this is splitting hairs (after all, LC 3208 redundantly defines "Injury" as "any injury or disease..."), but
3) Finally, subsection (g) applies only to authorized treatment. The argument against treatment provided on a lien basis that is not covered by ACOEM or some other evidence based treatment guideline is inapplicable, because virtually by definition such treatment was not authorized, and thus subsection (e) does not apply.

Subsection (c) requires a low level of evidentiary proof to rebut treatment guidelines - the rebuttal is effective if it is a "preponderance of the evidence." There is also a wealth of case law that defines "reasonably required to cure and relieve," and that interpretation is notoriously liberal.

ACOEM is rebuttably presumed correct until the Administrative Director adopts alternative guidelines pursuant to 5307.27. I would argue that the Administrative Director can not fulfill the requirements of 5307.27 easily, and that it will take years for this to be accomplished because 5307.27 mandates that the AD's guidelines "shall address ... ALL treatment procedures and modalities commonly performed in workers' compensation cases."

In addition, the guidelines cannot be adopted without "public hearings" (emphasis added). The use of the plural "hearings" in 5307.27 can not be by accident, and a single hearing, as is to occur on 12/06/04 can not be said to have satisfied this statutory requirement. Clearly the Legislature intended to ensure that the standards adopted were carefully considered and do not unnecessarily impair an injured worker's right to reasonable treatment. Indeed, the RAND report on which the AD relies for adoption of treatment guidelines has found none to be generally acceptable, calling in to question the efficacy of the emergency rulemaking course of action that the AD is taking. Indeed, the regulations were filed with OAL on 12/02, BEFORE the scheduled public hearing of 12/06!

Do I think the AD will pass on to the Office of Administrative Law the proposed emergency regulations adopting a utilization review schedule under 5307.27? Yes. Do I think that those regulations are a) valid and b) enforceable? No and no. The AD has already surpassed the statutorily mandated adoption date of December 1, 2004 (LC 5307.27). The AD has not held "hearings," but only one hearing. The proposed guidelines, by virtual admission, don't incorporate "all treatment procedures and modalities" common to work comp injuries.

My guess is that the defense community is going to be sorely disappointed with the appellate decisions that are sure to define the real meaning of 4604.5, and that those who are denying treatment solely based on ACOEM now will face not only penalties but audit fines and reprimands as well. I have been wrong in the past, as surely most advocates of one position or another are, but as we have seen with all prior "reform" attempts, the Law of Unintended Consequences only needs a couple of adverse interpretive cases to make the interpretation The Law. I suspect the right sequence of appellate cases will subvert the proclaimed savings of the present administration, and that injured workers will regain at least some modicum of medical control, much to the consternation of claims departments through out the state.

Editorial by David DePaolo, Editor-in-Chief, WorkCompCentral.

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POSTSCRIPT

The following was posted in the WorkCompCentral Professional Forums by one of our readers:

David,
Just a quick initial thought upon reading your editorial.
I see references to LC 4600 but nothing discussing the fact that LC 4600 was amended as part of SB899. LC 4600(b) now reads that treatment which is "reasonably required to cure or relieve the injured worker from the effects of his or her injury means treatment that is based upon the guidelines" adopted by the AD or "prior to the adoption of those guidelines, the updated" ACOEM guidelines. With this provision solidly in place, I fail to understand how the WCAB can award any care that does not follow the legislative mandate. It has been my experience that Courts will certainly try and achieve not defeat the legislative intent and they will look at the entire legislative scheme including LC 4600(b) as amended effective 4/19/04.. To the extent you refer to LC 4604 and the words reasonable and necessary, does it not seem likely the amendment of 4604 refers to "reasonable and necessary" as now defined. Does this not also mean that any employee seeking an award of medical care bears the burden of proof on the issue and that the care sought from the WCAB must be in accord with LC 4600, i.e, in accord with the guidelines? I may well be one of those in the defense community sorely disappointed but I don't see how you can refer to "reasonable and necessary" as defined in LC 4600 without noting to your readers that LC 4600 has been amended in a very signficant way.

The following is my reply:

You bring up a very good point and I agree that I may have missed something in my analysis.

4600 (b) was amended to read:
(b) As used in this division and notwithstanding any other provision of law, medical treatment that is reasonably required to cure or relieve the injured worker from the effects of his or her injury means treatment that is based upon the guidelines adopted by the administrative director pursuant to Section 5307.27 or, prior to the adoption of those guidelines, the updated American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines.

However, there is one serious flaw, in my view, with 4600 as amended - I don't believe it is valid under the CA Constitution.

The CA Constitution, SEC. 4. , half way through the first paragraph requires the Legislature to make "full provision for such medical, surgical, hospital and other remedial treatment as is requisite to cure and relieve from the effects of such injury."

The reason I emphasize the language from the Constitution is because that is specifically the language used in LC 4600, obviously an acknowledgment of the rights granted by the Constitution.

Limiting such care to a specific set of Guidelines is not "full provision," because the Guidelines by their own admission are not complete (stated intention in the Guides themselves is for the acute phase, not chronic, for example; admission that there may be other treatment protocol that are valid and effective but for the lack of available scientific studies that the editors have found, etc.).

To further complicate the issue, 4600(d)(7) states: "If any court finds that any portion of this subdivision is invalid or in violation of any state or federal law, then this subdivision shall be inoperative." If I'm right, then we face REAL chaos, and a REAL crisis, much worse that the crisis that precipitated SB 899.

While I think you bring up a very valid point on rebuttal, I still think the mandate is fatally flawed and will not stand the test of appellate review.

I'm not taking sides, by the way, just pointing out what I see as one of the major problems with this hastily crafted "reform." I hope I am wrong, for the sake of the system and the entire state.



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