Kenneth Grom vs. Shasta Wood
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1 WORKERS' COMPENSATION APPEALS BOARD 2 STATE OF CALIFORNIA 3 4 5 Case No. RDG 0091839 KENNETH GROM, 6 Applicant, 7 vs. 8 SHASTA WOOD PRODUCTS; and STATE COMPENSATION INSURANCE FUND, 9 10 OPINION AND DECISION AFTER RECONSIDERATION Defendants. 11 12 On November 12, 2004, we granted reconsideration in this matter to provide an 13 opportunity to further study the legal and factual issues raised by the petition for reconsideration. 14 Having completed our review, we now issue our Decision After Reconsideration. 15 Defendant, Shasta Wood Products, by and through its insurer, State Compensation 16 Insurance Fund (SCIF), seeks reconsideration of the Findings, Award and Order, issued August 17 26, 2004, in which a workers' compensation administrative law judge (WCJ), awarded applicant 18 “such further medical treatment as is needed to cure and/or relieve from the effects of the 19 industrial injury” (emphasis added), specifically allowing applicant a testosterone cream treatment 20 recommended by his treating physician. 21 Defendant contends that the WCJ erred in awarding applicant further medical treatment in 22 the form of testosterone cream treatment for his July 27, 1999 admitted injury to his back. 23 Defendant argues (1) that, in order to be entitled to this treatment, applicant must establish that the 24 treatment is necessary to cure and relieve him from the effects of his industrial injury, (2) that the 25 treatment is not permitted under the guidelines of the American College of Occupational and 26 Environmental Medicine (ACOEM), which guidelines are presumed correct on the issue of the 27 extent and scope of medical treatment, (3) that applicant has not met his burden to rebut the 1 presumption and establish that a variance from the guidelines is reasonably required to cure and 2 relieve him from the effects of his industrial injury, and (4) that the recommended treatment is not 3 supported by any evidence-based medical treatment guidelines which establishes its efficacy, but 4 rather is based upon speculation that it may be effective. 5 Applicant filed an answer to defendant’s petition for reconsideration, and the WCJ filed a 6 Report and Recommendation on Petition for Reconsideration (Report), recommending that the 7 petition be denied. 8 Following our review of the record, we hold that applicant is entitled to such medical 9 treatment as is reasonably required to “relieve” from the effects of his industrial injury, even if 10 such treatment will not “cure” that injury, and that the WCJ properly awarded the treatment at 11 issue. Accordingly, we will affirm the WCJ’s determination. 12 STATEMENT OF FACTS 13 Applicant, Kenneth Grom, sustained an injury to his back on July 27, 1999 arising out of 14 and in the course of his employment by Shasta Wood Products. His primary medical care has been 15 provided by Michael Hanley, D.C., in conjunction with Leonard Soloniuk, M.D., a specialist in 16 pain management. In a March 31, 2004 progress report, Dr. Hanley stated that applicant remained 17 “in quite severe pain. He states his pain overall is getting worse.” On examination, Dr. Hanley 18 noted that applicant’s cervical range of motion was “severely limited, and causes quite severe pain 19 into the right parascapular region with pain that radiates down to the elbow,” and into his fingers. 20 Applicant’s medications include Hydrocodone, Lidoderm, Marinol, Valium and Vicodin. 21 Dr. Hanley further noted that applicant had a low testosterone level and was paying for his 22 testosterone treatment himself, but that he could no longer afford it. 23 24 A dispute arose over Dr. Soloniuk’s recommendation that applicant receive testosterone cream therapy to counteract the decrease in his testosterone levels due to his opiate medications. 25 SCIF referred the request for this treatment for utilization review by Allen Krohn, M.D. On 26 January 5, 2004, Dr. Krohn denied the request, stating: 27 /// GROM, Kenneth 2 “As before, we have presented this state-wide and there is NOT general agreement with the contention that HRT [hormone replacement therapy] in males in these circumstances is appropriate. It has not been FDA approved for this purpose and the only medical literature that anyone can find is Dr. Daniell’s oft-quoted ‘study.’ We require evidence-based studies that are of sufficient quality before we can accept hypogonadism as an industrial injury. Anecdotal and personal reports do not constitute proof of causation.” 1 2 3 4 5 6 Dr. Soloniuk responded to the denial on January 6, 2004, noting that applicant’s treatment 7 for his industrial injury includes chronic opioid therapy, which Dr. Soloniuk stated “has been 8 associated with lowered sex hormone levels.” 9 Daniell, M.D., which concluded that “chronic opioid administration without testosterone 10 supplementation may contribute to perpetuation of chronic pain and to continued administration of 11 unnecessarily high dose of narcotics.” 12 reasonable and necessary to cure and relieve the results of this patient’s industrial injury.” He quoted a published article by Harry Dr. Soloniuk concluded that “testosterone therapy is 13 Applicant made an offer of proof at trial that the testosterone cream therapy had been 14 previously authorized and used by applicant; that as a result of the use of the cream, he has had 15 much more energy, better ability to function in his daily activities, including increased sexual 16 function with his wife; and that as a consequence of his chronic pain from his admitted injury, he 17 has been on long term opioid use and medications. 18 In support of the recommended therapy, applicant offered a series of reports of scientific 19 studies and abstracts of scientific studies which correlated the decrease in testosterone levels, i.e., 20 hypogonadism, with the daily use of opioids for treatment of chronic pain. (See App. Exhibit 1-K.) 21 On this evidence, the WCJ found the treatment was reasonable and necessary to cure 22 and/or relieve applicant from his industrial injury. The WCJ concluded that applicant’s medical 23 and scientific evidence constituted “evidence-based support” for Dr. Soloniuk’s recommendation, 24 and rebutted Dr. Krohn’s conclusion that the guidelines fail to support the treatment and there are 25 no other evidence based medical guidelines to support it. 26 /// 27 /// GROM, Kenneth 3 DISCUSSION 1 2 Defendant argues initially that the WCJ applied an incorrect standard to the determination 3 of whether the testosterone treatment was reasonably required to treat applicant’s injury. 4 Defendant contends that any recommended treatment must both cure and relieve applicant from 5 the effects of his industrial injury. Defendant cites Labor Code section 4604.5(c), which provides 6 that the ACOEM treatment guidelines are presumptively correct on the issue of medical treatment, 7 but may be rebutted by a preponderance of the evidence “establishing that a variance from the 8 guidelines is reasonably required to cure and relieve the employee from the effects of his or her 9 injury.” 10 Defendant argues that applicant has not established that the “testosterone cream will in any 11 way cure him from the effects of the alleged industrial injury, his chronic pain and/or opioid use.” 12 (Emphasis in original.) Defendant asserts that Dr. Hanley’s rationale for the treatment, that the 13 absence of the treatment may contribute to perpetuation of chronic pain, fails to meet the standard 14 to rebut the presumption in section 4604.5(c), since it is speculative and does not show that it will 15 cure and relieve the effects of the injury. 16 We are not persuaded that the “cure and relieve” language in section 4604.5(c) is 17 substantially different from other provisions in the Labor Code, such as section 4600, which 18 requires the provision of medical treatment that is reasonably required to “cure or relieve” from the 19 effects of an industrial injury (emphasis added). The phrases “cure or relieve” and “cure and 20 relieve” have been used interchangeably for decades. The California Constitution instructs the 21 Legislature to create a workers’ compensation system which includes “full provision of such 22 medical, surgical, hospital and other remedial treatment as is requisite to cure and relieve from the 23 effects of such injury.” (Cal. Const. Art. XIV, §4, emphasis added.) The California Supreme 24 Court interpreted “cure and relieve” to require the furnishing of medical treatment which is 25 intended solely to relieve an injured worker from the effects of an industrial injury. (U.S. Fidelity 26 & Guaranty Co. v. Dept. of Indus. Relations (Hardy) (1929) 207 Cal. 144, 150 [16 IAC 69].) The 27 Court stated, “the words ‘cure and relieve’ were intended to mean the same as ‘cure or relieve.’ In GROM, Kenneth 4 1 our opinion this is the only reasonable conclusion that can be reached when we consider the act as 2 a whole and its objects and purposes.” (Hardy, supra, 207 Cal. at p. 151; see also, Braewood 3 Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 169 [48 4 Cal.Comp.Cases 566].) 5 Section 4064.5, as amended April 19, 2004, now uses both phrases. Subsection (a), 6 pertaining to the use of medical treatment utilization guidelines as promulgated by the 7 Administrative Director of the Division of Workers’ Compensation, provides that the presumption 8 favoring the guidelines can be rebutted by evidence “establishing that a variance from the 9 guidelines is reasonably required to cure or relieve the injured worker from the effects of his or her 10 injury” (emphasis added). 11 ACOEM guidelines can be rebutted by evidence “establishing that a variance from the guidelines 12 is reasonably required to cure and relieve the employee from the effects of his or her injury, in 13 accordance with Section 4600” (emphasis added). As noted above, section 4600 requires the 14 provision of medical treatment to “cure or relieve” from the effects of the industrial injury 15 (emphasis added). However, subsection (c) provides that the presumption favoring the 16 Recognizing the dual language, the WCJ’s award specified that applicant was entitled to 17 such medical treatment as necessary to “cure and/or relieve” him from the effects of his industrial 18 injury. 19 treatment extends to treatment reasonably required to cure or relieve an injured worker from the 20 effects of an industrial injury. 21 Cal.App.3d 36 [49 Cal.Comp.Cases 454, 458 n.3], the court defined the scope of compensable 22 medical treatment in a case where the court allowed as medical treatment under section 4600 a 23 prescription for housekeeping services unrelated to nursing services, stating as follows: 24 25 26 27 This construction is consistent with prior interpretations, that an award of medical In Smyers v. Workers' Comp. Appeals Board (1984) 157 “This rule is also harmonious with the general description of the section 4600 right offered by the major treatise authors. According to Hanna, compensable medical treatment includes ‘all measures directed toward the cure or relief of the effects of the industrial injury . . . .’ (2 Hanna, Cal. Law of Employee Injuries & Work. Comp. (2d ed. 1983) § 16.01 [1], p. 16-3, emphasis added; see also GROM, Kenneth 5 id., § 16.05 [1][c], p. 16-40.1.) Herlick agrees. Employers are bound to furnish adequate medical care, and ‘[t]reatment is not adequate if . . . it does not include . . . all measures indicated to cure or relieve.’ (1 Herlick, Cal. Workers' Compensation Law Practice (3d ed. 1984) § 4.8, p. 83, emphasis added.) Here the housekeeping services were indicated by the physicians as a measure directed toward relief of the industrial condition. Both authors also state that palliative measures are compensable. (2 Hanna, Cal. Law of Employee Injuries & Workmen's Compensation, supra, § 16.01 [1], p. 16-3; 1 Herlick, supra, § 4.14, p. 86.) To palliate is ‘[to] mitigate; to reduce the severity of; to relieve slightly.’ (Stedman's Medical Dict. (4th unabr. law. ed. 1976) p. 1018.) The physicians' reports in this case (see fn. 2, ante) clearly reveal that the housekeeping services were prescribed as a palliative measure." (Emphasis in original.) 1 2 3 4 5 6 7 8 9 10 Medical treatment which is intended only to relieve, but not cure, the effects of an 11 industrial injury is appropriate under section 4600. (See Dept. of Corrections v. Workers' Comp. 12 Appeals Bd. (Rowan) (1997) 62 Cal.Comp.Cases 353 [writ denied]; Kellogg Co. v. Workers' 13 Comp. Appeals Bd. (Battle) (1996) 61 Cal.Comp.Cases 519 [writ denied].) This is true in cases of 14 chronic conditions where a cure is not possible, but where relief of symptoms is essential for 15 continued functioning, as well as in cases involving the loss of limbs or other body parts where 16 there is a need for relief of symptoms. 17 Thus, the phrase “cure or relieve” is identical to the phrase “cure and relieve,” such that 18 their use is interchangeable. We discern no intent to alter that interpretation by the different 19 formulations used in the different sections of the Labor Code. 20 As to all remaining arguments, based upon our review of the record, and for the reasons 21 stated in the WCJ's Report, which we adopt and incorporate, we will affirm the WCJ's 22 determination that the applicant has rebutted the presumption in section 4604.5(c), and is entitled 23 to the testosterone cream treatment recommended by Dr. Hanley and Dr. Soloniuk. 24 Accordingly, we shall affirm the Findings, Award and Order. 25 For the foregoing reasons, 26 /// 27 /// GROM, Kenneth 6 IT IS ORDERED, as the Decision After Reconsideration of the Workers’ Compensation 1 2 Appeals Board, that the Findings, Award and Order, issued August 26, 2004, is AFFIRMED. 3 WORKERS' COMPENSATION APPEALS BOARD 4 5 ___________________________________________ 6 7 I CONCUR, 8 9 __________________________________ 10 11 12 __________________________________ 13 14 15 DATED AND FILED IN SAN FRANCISCO, CALIFORNIA 16 12/8/04 17 18 19 SERVICE BY MAIL ON SAID DATE TO ALL PARTIES LISTED ON THE OFFICIAL ADDRESS RECORD, EXCEPT LIEN CLAIMANTS. 20 dd 21 22 23 24 25 26 27 GROM, Kenneth 7
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