In a case where the employer filed a petition challenging a utilization review determination, the board strongly suggested that by doing so, the employer waived its right to challenge that treatment on causation grounds.

The claimant sustained injuries to his cervical and lumbar spine resulting from a work accident on May 19, 2008, when he was rear ended by a bus during the course of his employment. The injury was accepted as compensable, and the claimant received compensation benefits, including medical expenses and total disability payments. The litigation concerned a petition filed by the employer that was an appeal from a certification of chiropractic treatment for the time period from October 21, 2009, through May 19, 2010. The employer contended that the chiropractic treatment was outside of the health care practice guidelines, not necessary and reasonable, and no longer causally related to the work injury. At the hearing held before the board, both parties presented medical evidence, and the claimant also testified. The employer's medical expert testified that he disagreed with the utilization review determination and pointed out that the reviewer had failed to recognize that the claimant had been receiving chiropractic treatment as far back as 2004 and received that treatment on a fairly regular basis as recently as one week prior to the work injury. The claimant's medical expert, on the other hand, testified that the claimant's symptoms were different and more intense after the work accident, and he expressed the opinion that the treatment was necessary, reasonable and related to the accepted injury. The board indicated that the employer, as the party that filed the petition, had the burden of proof and must demonstrate by a preponderance of the evidence that the chiropractic treatment in question was not reasonable and necessary. The board held that the employer did not meet that burden of proof since they accepted the testimony of the claimant and his expert as being more credible. The board did discuss the fact that the employer's expert had contended that the treatment was no longer causally related to the work injury when they pointed out that the claimant had been receiving chiropractic care as recently as one week before the incident and had been receiving that treatment from as far back as 2004. The board questioned whether the employer had waived its right to challenge the compensability of the treatment on causation grounds by invoking the utilization review process. The board focused on the statute dealing with utilization review, which is to be used only where the work injury has been acknowledged as compensable, and suggested that the more appropriate procedure would be for the employer to first challenge causation at the board level and then later, if necessary, seek a utilization review as to the necessity and reasonableness of the treatment. The decision by the board found that the chiropractic treatment in question was compensable, and the employer was directed to pay the bills in accordance with the Practice Guidelines.

Case Law Alert - 4th Qtr 2011