CAROL HINRICHS, Employee, v. CHILI=S/HOST MARRIOTT SERVS., and GALLAGHER BASSETT SERVS., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 2, 2005

 

No. WC05-132

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS; RULES CONSTRUED - MINN. R. 5221.6200, SUBP. 3.  Treatment modalities addressed under subparts 3C and 3H of Minn. R. 5221.6200 are separate modalities entitled each to its own nonaggregated frequency limit.  Where it was not unreasonable for the judge to conclude that the employee=s deep tissue and trigger point therapy with a massage therapist was manual therapy governed by provisions of Minnesota Rule 5221.6200, subpart 3H, and not chiropractic adjustment governed by provision of subpart 3C of that rule, the compensation judge=s award of payment for the massage therapy concurrent with already paid chiropractic treatment was neither clearly erroneous nor unsupported by substantial evidence.

 

MEDICAL TREATMENT & EXPENSE - FEE SCHEDULE; RULES CONSTRUED - MINN. R. 5221.0700, SUBP. 3C.  It is not the job of a compensation judge or the WCCA to assign a service to  one of the provider group designations in Minn. R. 5221.0700, subp. 3C, based on equitable concerns of educational level or professional expertise, and, although the services at issue were not a perfect fit into any of the designations, there was no clear legal error in the compensation judge=s conclusion that the trigger point massage therapy at issue fit the physical medicine and rehabilitation services provider group designation at Minnesota Rule 5221.0700, subpart 3C(4), better than it fit the chiropractic services designation at subpart 3C(5) of that rule.

 

Affirmed.

 

Determined by: Pederson, J., Johnson, C.J., and Wilson, J.

Compensation Judge: Janice M. Culnane

 

Attorneys: David C. Wulff, Law Office of David C. Wulff, Roseville, MN, for the Respondent. Michael D. Aafedt, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge's conclusions that the treatment at issue was reasonable and necessary and compensable under the treatment parameters and that the provider at issue should be designated a member of the physical medicine and rehabilitation services provider group for purposes of billing under the Minnesota Rules.  We affirm.

 

BACKGROUND

 

On January 13, 2003, Carol Hinrichs sustained a work-related injury to her back in the course of her work as a waitress with Chili=s/Host Marriott Services.  Immediately subsequent to her injury, Ms. Hinrichs [the employee] commenced treatment with chiropractor Dr. Martin Furlong at MetroEast Chiropractic, and Chili=s/Host Marriott Services [the employer] and its workers= compensation insurer assumed liability for payment of benefits.  On January 24, 2003, the insurer received notice from massage therapist Leroy Hotchkiss of Vitality Therapeutic Massage, to whom the employee had been referred by Dr. Furlong, that Mr. Hotchkiss would be initiating treatment of the employee.  The notice was accompanied by a APhysician=s Prescription of Medical Necessity@ form, signed by Dr. Furlong, indicating that Dr. Furlong had prescribed twelve sessions of manual therapy techniques for the employee, two sessions a week for six weeks.  Subsequently, from January 24 through April 2, 2003, the employee ultimately received eighteen treatments from Mr. Hotchkiss, primarily reported as Adeep tissue and trigger point therapy,@ continuing to treat also with Dr. Furlong during that same period, about twenty-five more times.  The insurer ultimately paid for the treatment with Dr. Furlong but denied payment for the treatment with Mr. Hotchkiss.

 

On March 19, 2004, the employee filed a medical request, seeking payment for her treatments with Mr. Hotchkiss.  In a medical response filed April 7, 2004, the employer and insurer asserted that the treatment at issue was not reasonable and necessary, was duplicative and excessive, and was not in conformity with the Minnesota workers= compensation fee schedule.  In a letter to the employee=s attorney dated April 12, 2004, responding to that medical response, Mr. Hotchkiss stated as follows:

 

Trigger point therapy . . . is in no way a duplication of services provided by MetroEast Chiropractic.  Trigger point therapy involves compression on a hyperirritable spot, usually within a taut band of muscle or in the muscle=s fascia.  It is not a duplication of chiropractic services for it is not a manipulation of the vertebrae.

 

In addition, I would like to point out that treatment of [the employee] was necessary and not excessive.  I was working under a doctor=s prescription of medical necessity during her entire treatment.

 

The matter was addressed at an administrative conference August 6, 2004, and by a decision and order filed September 9, 2004, Compensation Judge Kathleen Behounek concluded that some but not all of the treatment at issue was compensable, and she ordered that partial reimbursement be made utilizing the fee schedule rate allowed for chiropractic treatment.  On September 15, 2004, the employee filed a request for formal hearing.

 

The matter came on for formal hearing before Compensation Judge Janice M. Culnane on December 7, 2004.  Issues at hearing included (1) whether $2,880.00 in treatment provided to the employee at Vitality Therapeutic Massage [VTM] from January 24 through April 2, 2003, had been reasonable and necessary to cure or relieve the employee=s work injury, (2) whether that treatment was compensable under the Minnesota treatment parameters, and, (3) if compensable, what would be the fee schedule and dollar amount of the services provided.  The employee did not testify at hearing, but the parties stipulated that, if she had, she would have testified that her condition improved as a result of her treatment with Dr. Furlong and Mr. Hotchkiss and that it had now resolved.  By findings and order filed January 28, 2005, the compensation judge concluded in part the following:  (1) that the treatment at issue was reasonable and necessary and causally related to the employee=s January 2003 work injury; (2) that the treatment at issue was provided for and allowed under Minnesota Rule 5221.6200, subpart 3H(2) and (3), of the Minnesota treatment parameters; and (3) that the provider group designation for the treatment at issue was physical medicine and rehabilitation services, as provided for at Minnesota Rule 5221.0700, subpart 3C(4), rather than chiropractic services, as provided for at Minnesota Rule 5221.0700, subpart 3C(5).  The employer and insurer appeal.^[1]

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat. ' 176.421, subd. 1 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Id.

 

DECISION

 

1.  Reasonable, Necessary, and Compensable under the Treatment Parameters

 

The compensation judge found the treatment at issue to be causally related to the employee=s January 2003 work injury, reasonable and necessary to cure or relieve that injury, and permissible under the Minnesota treatment parameters.  The employer and insurer contend that these conclusions are unsupported by substantial evidence.  Citing case law, the employer and insurer contend that the employee=s case lacks required evidence of a reasonable treatment plan, documentation of the details of the treatment, evidence of a positive degree and duration of relief as a result of the treatment, and evidence that the frequency of the treatment was warranted.  See Field-Seifert v. Goodhue County, slip op. (W.C.C.A. Mar. 5, 1990).  They argue that the treatment provided by Mr. Hotchkiss was excessive and duplicative, noting that some of his treatment between January 24 and April 2, 2003, was for massage therapy while some of it was for manual therapy, citing nine dates when such Atreatment was rendered both by the employee=s chiropractor and Mr. Hotchkiss.@  They argue further that, in addition to limiting the duration of such passive treatment modalities to twelve weeks,  Minnesota Rule 5221.6200, subparts 3C and 3H, of the treatment parameters, which address chiropractic care and manual therapy, respectively, both limit the frequency of such modalities to Aup to five times per week for the first one to two weeks decreasing in frequency thereafter.@  They suggest that the employee=s treatments with Mr. Hotchkiss should have been combined with those of Dr. Furlong in the judge=s assessment of their permissibility under the frequency provisions of Rule 5221.6200, subpart 3.  We are not persuaded.

 

Minnesota Rule 5221.6200, subpart 3, establishes treatment parameters for essentially nine different passive treatment modalities.  As the employer and insurer themselves have noted, subpart 3C of that rule, which pertains to A[a]djusment or manipulation of joints,@ expressly Aincludes chiropractic and osteopathic@ treatments.  Minn. R. 5221.6200, subp. 3C (italics and underscoring added).  Meanwhile, subpart 3H of that rule, which pertains to A[m]anual therapy,@ expressly Aincludes soft tissue and joint mobilization, therapeutic massage, and manual traction.@  Minn. R. 5221.6200, subp. 3H (italics and underscoring added).  Both subpart 3C and subpart 3H provide, at 3C(2) and 3H(2), respectively, for a maximum treatment frequency of Aup to five times per week for the first one to two weeks decreasing in frequency thereafter.@  Concluding that the employee=s treatment with Dr. Furlong at MetroEast Chiropractic fell under subdivision 3C of the rule and that the employee=s treatment with Mr. Hotchkiss at VTM fell under subdivision 3H of the rule, the compensation judge determined that each treatment regimen was entitled under the parameters to its own frequency quota, explaining in her memorandum as follows:

 

Nothing in the rules suggests [that Minn. R. 5221.6200, subp 3H(2)] must be added to Minn. Rule 5221.6200, subp. 3[C](2), to determine a maximum treatment frequency.  Each maximum treatment frequency is listed under the type of treatment.  No coordination or reduction in frequency for other treatments is provided.  There are areas of the rules where it is specifically drafted that two types of adjustments must be joined in determining the maximum frequency.  Specifically, Aadjustments or manipulations of joints include chiropractic and osteopathic adjustments or manipulations@ (Minn. Rule 5221.6200, Subp. 3C).  In this section of the Rules, the maximum treatment frequency would include chiropractic and osteopathic adjustments.  Although this does not specifically address the issue of chiropractic adjustments and manual therapy, it clearly demonstrates the two could have been joined, if the Rules wanted to clearly accumulate within those 3 categories (chiropractic, osteopathic, and massage) instead of just the  2 types of chiropractic and osteopathic adjustments.  The lack of indication, within subp. 3, that these modalities are combined, in conjunction with the separate paragraph distinctions each outlining the type of treatment and the maximum frequency demonstrates treatment in these portions of the Rules may be received on a cumulative basis.

 

Having so concluded, the judge went on in her memorandum to find also that A[a] review of the records introduced at the hearing clearly demonstrates the reasonableness and necessity for these treatments.@

 

In opposition to the reasoning of the compensation judge in construction of the treatment parameters, the employer and insurer argue only, except for reiteration of Judge Behounek=s conclusion,  as follows:

 

The argument of the employee that the passive treatment modalities set forth in Minn. R. 5221.6200, subp. 3C - H can be stacked to constitute a departure from the Treatment Parameters is without merit.  One of the purposes of the treatment parameters is to limit passive modality treatment; if such treatment was not limited, then an employee could stack various treatments to allow for up to twenty treatments.  This does not make sense.

 

We conclude that the compensation judge has well analyzed and properly construed the treatment parameters here at issue and that her construction of them does not constitute permission of a Adeparture@ from them in the first place.  In addition to the judge=s analysis, we would note also that, while it is true that paragraphs C through I of the subpart at issue are all consistent in limiting to twelve weeks the duration of treatment by all seven passive treatment modalities described therein, as is also introduced in paragraph A, and while paragraphs C and H happen to be consistent also in limiting the frequency of treatment by the modalities here at issue, three of the seven paragraphs are not consistent with regard to their limits on treatment frequency.  This further supports the judge=s conclusion that the paragraphs are to be read as establishing separate parameters for their respective treatment modalities.

 

To the extent that the employer and insurer may be suggesting that the employee=s treatment with Mr. Hotchkiss was not reasonable and necessary even aside from the parameters-based limitations that they have alleged, we can identify no definitive argument in the employer and insurer=s brief.  In support of her position, the employee offered the treatment records of both Dr. Furlong and Mr. Hotchkiss, together with the parties= stipulation that the employee would have testified to improvement and resolution of her symptoms in part due to Mr. Hotchkiss=s treatment.  She also offered Mr. Hotchkiss=s express statement of April 12, 2004, that his Atreatment of [the employee] was necessary and not excessive@ and was performed pursuant to Aa doctor=s prescription of medical necessity.@  The employer and insurer offered no contrary medical opinion or any evidence otherwise controverting the employee=s stipulated testimony, and in their brief on appeal they assert only the following general argument:

 

According to the codes on the bills provided by Mr. Hotchkiss, the treatment he provided between January 24, 2003 and April 2[], 2003 was for massage therapy, and the balance of the treatment was for manual therapy.  There are several overlapping treatment dates when treatment was rendered both by the employee=s chiropractor and Mr. Hotchkiss, namely January 24, January 29, January 31, February 5, February 7, February 12, February 14, February 19 and February 21, 2003.

 

Finding no substantial evidence to the contrary, we find in the record as submitted sufficiently substantial satisfaction of the cited Field-Seifert factors^[2] to support the judge=s conclusion as to the reasonableness and necessity of the treatment with Mr. Hotchkiss.  Concluding that the judge has properly construed the treatment parameters at issue and has reasonably construed the treatment at issue to have been reasonable and necessary, we affirm the judge=s award of reimbursement to the extent of those findings.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

2.  Provider Group Designation

 

The compensation judge also held that, for billing purposes, the employee=s treatment with Mr. Hotchkiss should be classified under the physical medicine and rehabilitation provider group designation at subpart 3C(4) of Minnesota Rule 5221.0700, rather than under the chiropractic provider group designation at subpart 3C(5) of that rule.  The employer and insurer contend that the judge erred also in this conclusion.  The judge=s classification of Mr. Hotchkiss=s treatment as physical medicine and rehabilitation rather than as chiropractic treatment evidently results in a higher fee rate for Mr. Hotchkiss than for Dr. Furlong, and the employer and insurer contend primarily that this is a Aludicrous@ result.  They argue that massage therapy is an Aunlicensed specialty,@ that A[a]nyone can be a massage therapist,@ and that AMr. Hotchkiss would be getting a significant break by getting [even] the chiropractic rate . . . because he lacks anything close to comparable education[al] experience.@  We are not persuaded that the judge=s decision was clearly erroneous.

 

Minnesota Rule 5221.0700, subpart 3C(5), which provides direction to billing codes for the A[c]hiropractic services@ provider group, refers to those billing codes as A[p]rocedure codes for services and supplies provided by a chiropractor or provided incident to a chiropractor=s services.@  Minn. R. 5221.0700, subp. 3C(5).  Subpart 3C(4) of that rule, which provides direction to billing codes for the A[p]hysical medicine and rehabilitation services@ provider group, refers to those billing codes as,

 

[p]rocedure codes for services and supplies provided by a physician, an osteopathic physician, a physical therapist, an occupational therapist, a physical therapist assistant under the direction and supervision of a physical therapist, or a certified occupational therapist, or provided incident to the services of a physician, an osteopathic physician, a physical therapist, or an occupational therapist.

 

Minn. R. 5221.0700, subp. 3C(4).  In assigning Mr. Hotchkiss=s treatments to the physical medicine and rehabilitation services provider group instead of to the chiropractic services group, the compensation judge reasoned in her memorandum as follows:

 

Although the employee was referred by the chiropractic doctor to Vitality Therapeutic Massage, these are separate entities and these were not chiropractic services, nor were they provided incident to chiropractic services.  Rather, this type of designation would be appropriate when the services were provided by the chiropractor or through the chiropractic office.  As a result, subd. 4 Physical Medicine and Rehabilitation Services, most closely applies to the services provided at Vitality Therapeutic massage.  The Physical Medicine and Rehabilitation Services portion of the rules is more broad and refers to services provided by a physician or a variety of other therapists and assistants . . . . .  In reviewing this portion of the rules in light of the services provided at Vitality Therapeutic Massage, it has been determined that the services provided most closely fit the group designation of Physical Medicine and Rehabilitation Services.

 

Whatever might be Mr. Hotchkiss=s standing as a professional health care provider, we have concluded that his services to the employee were reasonable and necessary, and we find no clear legal error in the compensation judge=s conclusion that those services fit the physical medicine and rehabilitation services provider group designation at Minnesota Rule 5221.0700, subpart 3C(4), better than they fit the chiropractic services designation at subpart 3C(5) of that rule.  The five provider group designations in subpart 3C of the rule appear to be generally organized by subject matter of the service provided, not by level of education, at least three of them including practitioners of an extremely broad range of professional education and expertise, from fully licensed medical doctors to mere technicians and assistants.  It is not the job of the compensation judge or of this court to assign a service to a particular provider group designation based on equitable concerns of educational level or professional expertise.  We do acknowledge that Mr. Hotchkiss=s services may not be a truly good fit into any of the arguably overdefined designations, and another judge could reasonably have concluded that his reasonable and necessary services did not fit into any of the designations defined in the rule, thus arguably entitling him to compensation at 85% of his normal billing rate or of the prevailing rate for services such as his, instead of compensation pursuant to the billing code according to provisions in the rule here at issue.  See Minn. Stat. ' 176.136, subd. 1b(b).^[3]  But the employee did not appeal from the judge=s decision to apply the rule, and the employer and insurer=s only argument on appeal on this issue was that the compensation judge should have assigned the services at issue to the chiropractic services provider group designation.

 

The compensation judge=s decision is affirmed in its entirety.