Lucinda Marschel v. Bird & Cronin, Inc., No. WC15-5794 (August 7, 2015)
This case arises out of a claim for injuries following three subsequent auto accidents in 2010, 2011 and 2012. After each accident the employee was recommended for chiropractic care and reported improvement. After each accident the employee attended recommended chiropractic appointments for up to twelve weeks following the initial accident. At the expiration of the twelve week period following the initial visit, she was recommended for further chiropractic treatment, which she attended. The additional visits following the expiration of the initial twelve week period were denied by the employer and insurer.
The employer and insurer then sent the employee to an IME. The IME doctor opined that her current conditions were not related to any of the three auto accidents, and that the injuries related to the auto accidents were temporary sprain and strain injuries and would have resolved within 6 weeks after the incident. He further opined that any treatment rendered after the 6 week period would have been related to the employee’s pre-existent conditions, and he recommended no further treatment or work restrictions.
The employee then had two expert opinions written which stated that all of her treatment and referrals were related to the auto accidents and were reasonable and necessary treatment.
In January 2015 the Compensation Judge Order awarded all unpaid medical treatment rendered by Accu Chiropractic and Wellness and Noran Neurological Clinic to be paid. He specifically found that chiropractic treatment was payable for twelve weeks beyond the initial twelve weeks for each auto accident and found that the chiropractic treatment was payable beyond those visits for allowable departures pursuant to Minn. Rules 5221.6050. subp. 8. a., and subp. 8. e. The employer and insurer then appealed alleging that the Compensation Judge erred in relying upon the expert opinions of the employee verses the expert opinion of their doctor and departing from the initial treatment parameters.
In affirming the Compensation Judge’s ruling, the WCCA held that a Compensation Judge’s choice of expert is affirmed so long as the accepted opinions have adequate foundation. Smith v. Quebecor, 63 W.C.D 566 (W.C.C.A. 2003). The WCCA disagreed with the insurer that the employee’s treating physician’s opinions did not take into account any pre-existing conditions.
As it related to the departure from treatment parameters, the WCCA found that the Compensation Judge’s award of treatment was made pursuant to the Minn. Rules 5221.6200, .6205, and .6210. Those rules provide for 12 weeks of passive treatment after the modality has been initiated and for 12 additional visits thereafter over the course of 12 months upon the satisfaction of critera of Subpart 3.b. of Minn. Rule 5221.6200. The requirements are that 1) the treatment progressively improves or maintains the functional status that was gain in the initial 12 weeks of treatment; 2) the treatment is not regularly scheduled; 3) the treatment records contain a plan to encourage independence and decrease reliance on health care providers; 4) management of the condition includes active treatment modalities; 5) the additional visits do not delay surgical and chronic pain evaluations; 6) the employee does not have chronic pain syndrome.
They further stated that the parameters provide for treatment beyond those additional visits under circumstances in which departures are appropriate pursuant to the provisions and Minn. Rule 5221.6050, subp. 8. The WCCA also pointed to Jacka v. Coca-Cola Bottle in which the MN Supreme Court determined that the treatment parameters are to be used as flexible guidelines and a Compensation Judge could depart from the treatment parameters in those rare circumstances in which a departure is necessary to obtain proper treatment.
Lastly, the employer and insurer argued that it was improper for the Compensation Judge to depart from the treatment parameters because the treating providers failed to notify the insurer of the initiation of additional treatment beyond the parameters. In Olson v. Allina Health Sys., 59 W.C.D. 37, 46 (W.C.C.A. 1999)b the WCCA stated that the notice requirement in this provision are not a mere technicality and cannot be ignored even if the treatment meets the requirements for departure. However, the Court noted that while a record indicated the employer and insurer made a general reference to this notice requirement, they did not specifically mention or argue the notice requirement in the initial hearing. As such, they were not able to address this issue as a first occurrence in this claim.