BOARD No. 066270-89Commonwealth of Massachusetts Department of Industrial Accidents
Filed: November 17, 2000


(Judges Levine, Carroll, and Maze-Rothstein)


James Murray, Esq., for the employee.

Cynthia Canavan, Esq., for the insurer.


The insurer appeals from a decision in which an administrative judge awarded § 30 benefits for past and future chiropractic treatment. The insurer argues that the chiropractic treatments were neither causally related to the employee’s industrial injury nor reasonable and necessary for her care. For the reasons stated below, we affirm both the award of § 30 benefits for past chiropractic treatment, and the award of ongoing treatment specified at the rate of twice per week.

Sara Jean Alpert, who had worked as a receptionist for the employer since 1984, suffered an industrial injury when she fell and injured her left knee, low back and head on September 19, 1989. She received § 34 temporary total incapacity benefits from September 20, 1989 through January 6, 1994, at which time the parties entered into a lump sum settlement agreement with liability accepted. (Dec. 2, 4.) Since her industrial accident, Ms. Alpert has had two surgeries to her left knee, but she has had no surgery to her back. (Dec. 4.) She has also had a number of other subsequent accidents resulting in injuries to her right knee, neck and right shoulder. (Dec. 4-5.) As a result, she has had treatment, including surgery, to her right knee, right shoulder, right ankle, right foot and right wrist, as well as chiropractic treatment for cervical complaints. All of these injuries and their corresponding treatments are unrelated to her industrial injuries. (Dec. 5.) The employee also suffers from a number of other non work-related conditions, including diabetes, thyroid disease, asthma, hypertension, elevated cholesterol, and morbid obesity. (Dec. 4.)

From May 31, 1996, to June 1, 1997, Ms. Alpert received chiropractic treatment, approximately twice a week, from Dr. Walsemann, whose office is in New Hampshire. Subsequently, the employee received chiropractic treatment from Dr. Linda Slack, whose office is closer to the employee’s home. Initially, Dr. Slack treated the employee twice a week, but, at the time of hearing, was treating her only once every two weeks since Medicare, which was paying the chiropractic bills, would not authorize more frequent visits. (Dec. 6.)

The employee filed a claim for ongoing chiropractic services beginning in January 1996. Her claim was denied at conference. At hearing, the parties stipulated to the September 1989 industrial injury and that the employee injured her left knee, low back, and head at the time of the industrial accident; they also stipulated that her right knee condition was unrelated to that incident. (Dec. 2.) Ms. Alpert amended her claim at hearing to request payment of Dr. Walsemann’s unpaid bills, as well as future chiropractic treatments at the rate of two per week.[1] (Dec. 3.) The insurer denied that either Dr. Walsemann’s services or the requested future treatments were causally related to the employee’s industrial injury or reasonable and necessary for her care. (Dec. 2.)

Prior to the hearing, Dr. Michael Rogers, a chiropractor, conducted an impartial examination and record review. (Dec. 3.) He diagnosed a chronic lumbar sprain/strain with degenerative disc disease, chronic myofascial pain disorder, and chronic pain syndrome. Dr. Rogers opined that, although the employee’s condition was complicated by unrelated factors, it was “at least partially related to her industrial injury.” (Dec. 7; Impartial report, 3.) The judge adopted this opinion. (Dec. 7.) The judge reported and discussed Dr. Rogers’ opinion regarding the chiropractic care as follows:

He stated that “little substantial relief’ had resulted from chiropractic treatment. Although Dr. Rogers recognized that some limited success had been achieved by chiropractic treatment, he characterized her relief as “fleeting and transient at best”. He did not specifically rule in or out the appropriateness of past or ongoing chiropractic care. Instead, he suggested that “a different modality of treatment could be attempted.” (Emphasis added). And, more specifically that “a pain center may be appropriate”. (Emphasis added). He suggested a team approach for the management of Ms. Alpert’s condition. Dr. Rogers seems to be suggesting that since Ms. Alpert has received no permanent, but only temporary, relief from her pain as a result of chiropractic treatment, that another medical approach may be appropriate. While the future may prove this recommendation to be in Ms. Alpert’s best interest, it does not negate the fact that she received some substantial relief from pain when chiropractic treatments were available to her more than once per week.

(Dec. 7.)

Thus, the judge found that Ms. Alpert was able to go to the movies and grocery shop when receiving twice weekly chiropractic treatments; however, with less frequent treatments, she was more functionally impaired and unable to get out of bed most of the day. (Dec. 6.) The judge specifically credited Ms. Alpert’s testimony that she had less pain and was able to function better when receiving two treatments per week. (Dec. 7.)

The judge found that the lumbar spine treatments provided by Dr. Walsemann were reasonable and necessary. (Dec. 7-8.) The judge painstakingly went through Dr. Walsemann’s bills, and, with the assistance of the testimony of the office manager for Walsemann Chiropractic, determined what portion of each claimed treatment was for the lumbar spine,[2] and ordered the insurer to pay that amount. (Dec. 8-10, 11). The judge further found that future chiropractic care at the rate of two treatments per week was reasonable and necessary and causally related to her September 19, 1989 injury, (Dec. 8, 11), and ordered the insurer to pay for that prospective care. (Dec. 11.)

The insurer appeals, alleging first that neither Ms. Alpert’s testimony nor the opinion of the impartial examiner support a finding that her past treatment with Dr. Walsemann was reasonable and necessary and causally related to her industrial injury. We affirm the judge’s decision that the treatment to the lumbar spine provided by Dr. Walsemann was causally related to the industrial injury, since Dr. Rogers opined that there was at least a partial causal connection between Ms. Alpert’s condition at the time of the examination and her industrial injury.[3] Dr. Walsemann treated the employee for multiple conditions in the same visit, but the administrative judge ordered payment for only that portion of the bill attributable to the lumbar area. There is no error in this method of determining the amount of payment owed by the insurer.

In addition, we affirm the judge’s finding that the lumbar spine treatment provided by Dr. Walsemann was reasonable and necessary. (Dec. 7-8.) Dr. Rogers opined that chiropractic treatment provided Ms. Alpert with “fleeting and transient” relief, and was “slightly helpful in ameliorating some of her symptoms.” (Impartial report, 4.) Moreover, the judge found that the employee could function better and was in less pain when chiropractic treatments were available to her more than once per week. (Dec. 6.)

Palliative treatment such as that provided to Ms. Alpert may be compensable. Lewin v. Danvers Butchery, Inc., 13 Mass. Workers’ Comp. Rep. 18, 20 (1999); Marticio v. Fishery Prods. Int’l., 11 Mass. Workers’ Comp. Rep. 648, 650 (1997); Meuse’s Case, 262 Mass. 95, 98 (1928). “[T]reatment does not have to achieve a “therapeutic goal’ or restore lost function.” Lewin, supra at 20, citing Meuse’s Case, supra, and Levenson’ s Case, 346 Mass. 508, 511 (1963). Where the employee testifies, and the judge finds, that the chiropractic treatment provided temporary relief from the symptoms, such pain relief can be found to be a compensable medical benefit. Lewin, supra at 20. The medical evidence, as well as the employee’s testimony, warrants the judge’s finding that her past chiropractic treatment was reasonable and necessary.

Likewise, there is no merit to the insurer’s second argument that the administrative judge erred when he ordered the insurer to pay for future chiropractic treatments at the rate of two per week. The employee’s claim was for chiropractic treatment at the rate of two treatments per week. (Dec. 3.) The judge found that that frequency of treatment brought the employee relief, (Dec. 6, 7-8), and he ordered the insurer to pay for future chiropractic treatment at the rate of two per week. (Dec. 11.)

The insurer argues that the judge’s order is speculative and cites DeFilippo v. University of Mass./Amherst, 11 Mass. Workers’ Comp. Rep. 383 (1997), and Marticio v. Fishery Prods., Int’l., 11 Mass. Workers’ Comp. Rep. 648 (1997), in support. In DeFilippo, the administrative judge ordered that the self-insurer pay for not more than 104 chiropractic treatments per year. In Marticio, the judge ordered that chiropractic treatment be “limited to no more than five visits per month and 40 visits in the next 365 days.” Marticio, supra at 649. The reviewing board held the orders in both cases to be erroneous. Both decisions relied on Pagnani v. Demoulas/Marketbaskets, 9 Mass. Workers’ Comp. Rep. 4, 5 (1995), which states that such orders are “too far reaching, because [they] fail to take into consideration the possibility of a change in the employee’s medical picture down the road. Medical conditions are rarely static, and present . . . need for treatment does not presuppose there will be [the same] future necessity for treatment.”

The present order does not suffer from the infirmities appearing in the orders in DeFilippo and Marticio. Here, the employee claimed this level of treatment, and the judge found that level reasonable. The order here does not purport to order chiropractic treatments a year into the future. Rather, the order is similar to an ongoing order of § 34 or § 35 weekly incapacity benefits; the order sets no time limit, and it may be revisited by either party should there be a “change in the employee’s medical picture down the road.” Pagnani, supra. There is no error in the judge’s order.

For the reasons stated, the decision is affirmed. Pursuant to § 13 (A)(6), the insurer is ordered to pay employee’s counsel a fee of $1,243.16.

So ordered.

________________________ Frederick E. Levine Administrative Law Judge
________________________ Susan Maze-Rothstein Administrative Law Judge
________________________ Martine Carroll Administrative Law Judge

[1] At hearing, the employee did not seek payment of Dr. Slack’s bills, which had been paid by Medicare. (Dec. 3.)
[2] Apparently, there were no claimed treatments for the left knee. (Dec. 8-9.)
[3] The insurer argues that because Ms. Alpert had many intervening incidents between 1989 and 1996, suffers from several non-industrial conditions, and has undergone at least twenty surgical procedures, treatment of her lumbar spine may have been incidental to treatment for her numerous non-industrial conditions. (Insurer brief 4-5.) However, the judge found that none of her subsequent injuries and other conditions related to her low back or left leg, (Dec. 5), which were the accepted areas of injury; and the treatment for which he ordered payment was only for the lumbar area. Since the “as is standard of causation applies to this 1989 injury, the injury and corresponding treatment is compensable if the industrial injury contributes even slightly to such disability and treatment. L. Locke, Workmen’s Compensation § 222 (2d ed. 1981); see also Resca v. Massachusetts Gen. Hosp., 11 Mass. Workers’ Comp. Rep. 505, 507 (1997).