In the Matter of the Medical Services Dispute of BONNIE BOOM, Claimant 3 J’S EXXON PRODUCTS, INC., Employer SAIF CORPORATION, Insurer

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PROPOSED AND FINAL CONTESTED CASE HEARING ORDER Contested Case No: H96-299 Claim No: 4307978F Date of Injury: 06/06/78 WCD File No: A09-7676

On January 29, 1997, Hearings Judge Carol A. Parks conducted a telephone hearing. The claimant, who was the petitioner, was not represented but appeared on her own behalf. The respondents were the employer, 3 J’s Exxon Products Inc., and its insurer, SAIF Corporation, who were represented by their attorney, David Fowler. The Workers’ Compensation Division (WCD) was represented by D. Kevin Carlson. The record closed at the conclusion of the hearing.

The record of this proceeding, consisting of a tape recording of the hearing, all evidence received, and all hearing papers filed, has been considered. The findings of fact set out below are based on the entire record.

1.	Whether the palliative care statute is constitutional for workers who signed stipulations prior to 1990, the effective date of the law.
2.	Whether the director has jurisdiction to determine if the workers’ compensation law violates the Americans with Disabilities Act (ADA).
3.	Whether the palliative care statute violates the ADA.
4.	Whether the Medical Review Unit’s (MRU) order of December 2, 1996 properly determined that SAIF was not required to pay for claimant’s physical therapy because the treatment was not curative and the statutory requirements for palliative care were not satisfied.

SAIF’s Master Exhibit List marked as 1 - 24 was submitted. SAIF objected to Exhibit 23, which was initially submitted by the claimant. SAIF’s objection was based on the fact that Exhibit 23 was a single page of a multi-page medical report. I sustained the objection because it was an incomplete document, so Exhibit 23 was not admitted. Exhibits 1 - 22 and 24 were admitted without objection. In addition, WCD’s exhibits 12a, 16a, 22a - 22f and 25 were admitted into the record without objection.

Claimant sustained a compensable ankle injury on June 6, 1978. (Ex. 1). SAIF accepted the claim on July 28, 1978. (Ex. 2).

Through a March 15, 1985 Stipulation, SAIF agreed to do the following: 1) process a bill from James Vancho, D.C., as a claim for aggravation; and 2) pay Dr. Vancho’s bills on a diagnostic basis. (Ex. 6-2). Through a subsequent February 14, 1986 Stipulation, the claimant was awarded some unscheduled permanent partial disability. (Ex. 9-3).

On January 22, 1991 and September 17, 1992, SAIF disapproved palliative care. (Ex. 12 & 13). Claimant did not request administrative reviews of the disapprovals.

On December 4, 1995, claimant sought treatment from Janet Kelly, M.D., her attending physician At that time, the claimant was suffering from increased inversion of her right foot. (Ex. 12a). The increased inversion was causing the claimant to fall down. (Id.). The claimant declined medications because past medications had caused her to feel dopey. (Id.). On May 31, 1995, Dr. Kelly requested palliative care in the form of chiropractic treatment. (Ex. 15). On July 3, 1995, SAIF disapproved the treatment. (Ex. 16). Claimant did not request an administrative review of SAIF’s disapproval.

In a December 12, 1995 letter, Dr. Kelly indicated the claimant needed physical therapy or chiropractic care to maintain her function. (Ex. 17). Dr. Kelly stated that the treatment was not strictly palliative care. (Id.). She further stated that the claimant continued to suffer from set backs, which included a weakening of her right foot and balance problems. (Id.).

At SAIF’s request on January 30, 1996, Robert McKillop, M.D., reviewed the medical records. Dr. McKillop believed active, not passive, modalities would be helpful to the claimant. (Ex. 20-2).

On February 5, 1996, SAIF disapproved claimant’s request for palliative care. (Ex. 21). Subsequently, on February 12, 1996, SAIF again indicated the claimant was not eligible for palliative care. (Ex. 22).

On May 1, 1996, claimant requested an administrative review of the palliative care disapproval. (Ex. 22a). During the review process, MRU requested additional information from Dr. Kelly. Subsequently on July 9, 1996, Dr. Kelly submitted a new palliative care request for physical therapy.
(Ex. 22c). Dr. Kelly indicated on the palliative request form that the claimant had right foot drop with increasing inversion. (Id.). At the time of the request, the claimant was not working. The claimant has not worked since the filing of the request for palliative care.

MRU’s order of December 2, 1996 found no evidence that the requested treatment was curative. (Ex. 22e-2). MRU disapproved the treatment because it was not curative and the requirements for palliative care were not satisfied. (Id).

This is a complex case where multiple legal issues were raised. The legal issues are discussed separately below.

Constitutionally of ORS 656.245(1)(c)

Claimant contends that ORS 656.245(1)(c), the statutory provision for palliative care, is unconstitutional. The basis for claimant’s argument is that the statute interferes with her contractual rights arising from stipulated agreements that she signed prior to the 1990 revision of the workers’ compensation law. When the claimant sustained her injury and subsequently in 1985 and 1986, when she signed the stipulations, ORS 656.245(1) provided for full medical treatment and did not distinguish between curative and palliative care.

Article I, Section 10 of the Oregon constitution, which contains the provision against impairing the obligation of contracts, “was not intended to give anyone a vested right in the law either statutory or common; nor was it intended to render the law static.” Noonan v. City of Portland, 161 Or 213 (1938). Claimant argues that the revision of the medical services statute deprives her of her right to receive palliative care, therefore, impairing rights arising from stipulations she signed in 1985 and 1986. Nevertheless, a review of the stipulations demonstrate that the benefits claimant negotiated for included processing of an aggravation claim, payment of some medical bills on a diagnostic basis and additional permanent partial disability. (Exs. 6 & 9). The documents are devoid of evidence demonstrating that the claimant specifically negotiated to receive future palliative medical treatment. (Id.). Since the change in the workers’ compensation laws did not negatively impact benefits arising from the settlement documents, the palliative care law was not an unconstitutional infringement on claimant’s constitutional right to contract.

ADA Application

Claimant contends that ORS 656.245(1)(c), the statutory provision for palliative care, violates the ADA. The insurer contends that pursuant to Way v. Fred Meyer, Inc., 126 Or App 343 (1994), the director does not have jurisdiction to address this issue.

In Way, supra, claimant argued that the major contributing cause standard on an occupational disease claim violated the ADA. The Court of Appeals did not address the substance of claimant’s ADA challenge because her workers’ compensation claim was filed in 1991, which was prior to the effective date of the ADA. Since the ADA did not specifically apply to claims arising prior to the effective date of the act, the act was not applicable to the case. This case is distinguishable from Way, supra. Here, although the claimant filed her claim in 1978, she is alleging a current violation resulting from the 1995 and 1996 disapprovals of palliative treatment. Therefore, Way, supra, does not decide this issue.

The Workers’ Compensation Board (board) previously held that it does not have jurisdiction to address the ADA issue because the U.S. Department of Justice, Department of Labor and EEOC or its designated state human rights agencies are given the enforcement power. Gary W. Benson, 48 Van Natta 1161 (1996). I agree with the board that those agencies are charged with enforcing the ADA. Nevertheless, the director has the authority to analyze the workers’ compensation statute to determine whether the statute or its rules violate the ADA.

In this case, the workers’ compensation laws provide benefits to injured workers. Providing a different level of benefits to injured workers is not automatically discriminatory. Recently, a worker charged that the disparity between the rate of temporary total disability and temporary partial disability violated the ADA. Kay Guenter, Final Determination, U.S. Department of Labor, DCR Complaint No. 94-OR-010 (August 13, 1996). The U.S. Department of Labor found that pursuant to the ADA, “disabled persons are not entitled to equal access to all benefits within their class, but only to reasonable access to benefits with no prejudicial treatment.” It held that the formulas for calculating benefits was based on legitimate factors and did not screen out individuals or classes of individuals with disabilities.

Here, palliative care is generally not a benefit provided to workers’ under the workers compensation laws. Nevertheless, under certain circumstances a worker may be entitled to receive palliative care. One of the circumstances that triggers reimbursement for palliative care is when the treatment enables a worker to continue the workers’ employment. This provision is consistent with the purposes of the workers’ compensation statute, which include restoring the injured worker physically and economically to a self-sufficient status in an expeditious manner and to the greatest extent practicable. ORS 656.012(2)(c). By allowing workers, who are currently employed, to receive palliative care which is necessary for that worker to remain employed, the law is enabling disabled workers to remain economically self-sufficient. As in Kay Guenther, supra, this is a legitimate factor that does not screen out individuals with disabilities. Therefore, I find that the palliative care statute does not violate the ADA.

Physical Therapy

This is a medical services dispute pursuant to ORS 656.245, so the standard of review is de novo. OAR 436-001-0225(1); Preston Jones, 1 WCSR 472 (1996). Claimant, as the petitioner, has the burden of proving, by a preponderance of the evidence,¹ that SAIF is liable for the cost of the prescribed physical therapy. ORS 183.450(2); Salem Decorating v. National Council on Comp. Ins., 116 Or App 166, 170 (1992), rev den 315 Or 643 (1993). Proof by a preponderance of the evidence means the fact finder must believe that the facts asserted are more probably true than false. Riley Hill General Contractor v. Tandy Corp., 303 Or 390 (1987).

The statutory provision controlling treatment after a worker is medically stationary is ORS 656.245(1)(c), which states in relevant part:

“(c) Notwithstanding any other provision of this chapter, medical services after the worker’s condition is medically stationary are not compensable except for the following:
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(J) With the approval of the insurer or self-insured employer, palliative care that the worker’s attending physician *** prescribes and that is necessary to enable the worker to continue current employment***.
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(L) Curative care provided to a worker to stabilize a temporary and acute waxing and waning of symptoms of the worker’s condition.”

Generally, the treatment provided after a workers’ condition has been declared medically stationary is not reimbursable except as outlined in ORS 656.245(1)(c). There are two exceptions that could apply to this case: 1) the treatment was palliative care aimed at enabling the claimant to continue working; or 2) the treatment was curative to stabilize a temporary worsening. Nevertheless, the record is devoid of evidence that the claimant was working or that the treatment would allow the claimant to resume work activities.

Based on the record, the physical therapy ordered by Dr. Kelly will not be reimbursable unless it constituted curative treatment to stabilize a temporary worsening. SAIF argued there was no evidence that the treatment was curative. Contrary to SAIF’s contention, there is some evidence in the record that the physical therapy might constitute curative treatment. Dr. Kelly, in her December 12, 1995 report, hinted that the treatment was necessary because claimant suffered from multiple set backs. (Ex. 17). In addition, the July 9, 1996 Palliative Care Request form indicated the claimant’s foot drop had increased inversion. (Ex. 22c).

During the administrative review process, MRU did not connect the references in Dr. Kelly’s records to the possibility that the treatment could constitute curative care. Thus, MRU did not determine whether Dr. Kelly believed the physical therapy was curative treatment for a temporary worsening. Although the review standard on this matter is de novo, I believe MRU, the medical experts, are best qualified to clarify with Dr. Kelly her opinion regarding the issue of whether the treatment satisfies the requirement of ORS 656.245(1)(L). Therefore, I am remanding this case to MRU.

Proceedings on Remand

I am retaining jurisdiction to issue a proposed and final order as soon as practicable. On remand, MRU is directed to clarify (with further investigation if necessary) Dr. Kelly’s opinion regarding whether the ordered treatment constituted curative treatment for a temporary worsening.

If any party disagrees with MRU’s findings and conclusions on remand, that party is directed to notify me² of such disagreement within the time normally provided for requesting a contested case hearing from an MRU order. Upon my receipt of such notice, such further proceedings as appear necessary to me will be scheduled. At the conclusion of such proceedings, I will issue a proposed and final order, which will permit the parties to appeal any other rulings.

IT IS HEREBY ORDERED that this matter is remanded to the MRU for further proceedings as described herein. I retain jurisdiction to issue a proposed and final order as soon as practicable.

DATED this day of February, 1997.

Kerry Barnett, Director
Department of Consumer
and Business Services

By:__________________________________
     Carol A. Parks, Hearings Judge
     Workers’ Compensation Division