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California Adds Acupuncture to Workers’ Comp Treatment Guidelines
By Tina Beychok, Associate Editor
New changes to the administrative guidelines for the state of California that govern appropriate treatment for workers’ compensation cases now include acupuncture as part of an acceptable medical regimen.
As of June 15, 2007, workers injured on the job can receive acupuncture treatment as part of their compensation. This means claims for acupuncture treatment for such patients can no longer be denied by insurance companies based solely on efficacy.
The California Division of Workers’ Compensation (DWC) “monitors the administration of workers’ compensation claims, and provides administrative and judicial services to assist in resolving disputes that arise in connection with claims for workers’ compensation benefits” (www.dir.ca.gov/dwc/dwc_home_page.htm). In order to do this, it uses the Medical Treatment Utilization Schedule to provide guidelines for treatments that will be covered under workers’ compensation. The American College of Occupational and Environmental Medicine’s Occupational Medicine Practice Guidelines (ACOEM Practice Guidelines) were used to provide an evidence-based reasoning for the various treatments. However, the ACOEM guidelines only make a brief mention of acupuncture for shoulder complaints.
The new acupuncture guidelines state, in part:
(B) Indications for acupuncture or acupuncture with electrical stimulation include the following presenting complaints in reference to the following ACOEM Practice Guidelines Chapter Headings:
(i) Neck and Upper Back Complaints
(ii) Elbow Complaints
(iii) Forearm, Wrist and Hand Complaints
(iv) Low Back Complaints
(v) Knee Complaints
(vi) Ankle and Foot Complaints
(vii) Pain, Suffering and the Restoration of Function
(C) Frequency and duration of acupuncture or acupuncture with electrical stimulation may be performed as follows:
(i) Time to produce functional improvement: 3 to 6 treatments.
(ii) Frequency: 1 to 3 times per week
(iii) Optimum duration: 1 to 2 months
(D) Acupuncture treatments may be extended if functional improvement is documented as defined in Section 9792.20(e).
(E) It is beyond the scope of the Acupuncture Medical Treatment Guidelines to state the precautions, limitations, contraindications or adverse events resulting from acupuncture or acupuncture with electrical stimulations. These decisions are left up to the acupuncturist.
Shoulder complaints would continue to be treated according to the existing ACOEM guidelines.
California Labor Code Section 4600 specifically mandates that employers must provide injured workers with appropriate treatment including acupuncture, if needed, according to ACOEM guidelines. The Labor Code states:
(a) Medical, surgical, chiropractic, acupuncture and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches and apparatuses, including orthotic and prosthetic devices and services, that is reasonably required to cure or relieve the injured worker from the effects of his or her injury shall be provided by the employer. In the case of his or her neglect or refusal reasonably to do so, the employer is liable for the reasonable expense incurred by or on behalf of the employee in providing treatment.
(b) As used in this division and notwithstanding any other provision of law, medical treatment that is reasonably required to cure or relieve the injured worker from the effects of his or her injury means treatment that is based upon the guidelines adopted by the administrative director pursuant to Section 5307.27 or, prior to the adoption of those guidelines, the updated American College of Occupational and Environmental Medicine’s Occupational Medicine Practice Guidelines.
Facts and Myths about Acupuncture and Workers’ Compensation
By Della Welch
Now that acupuncturists have been permanently recognized by the California Labor Code as physicians and the sunset provision has been removed, one wonders what is fact and what is myth about acupuncture and workers’ compensation.
Myth #1: Acupuncturists can treat injured workers forever, and their bills will be paid by the insurance carrier.
Fact: Under Labor Code 4600, the employer has a duty to provide treatment, including all medical, surgical, chiropractic, acupuncture … reasonably required (emphasis added) to “cure or relieve” from the effects of an industrial injury. If there is no injury, or if an injury or condition is not caused or aggravated by employment, there is no right to treatment under Labor Code 4600. If treatment is not reasonably required, payment may be denied.
Furthermore, “treatment is not adequate … if it does not include a correct diagnosis and all measures indicated to cure or relieve.” (Industrial Indem. Co. v. I.A.C. Estill , 188CA 2d 656, 10CR 566, 26 CCC 12).
Myth #2: Workers’ compensation insurance carriers will not question whether acupuncture treatment is excessive and will continue to pay treatment bills.
Fact: At some point, the workers’ comp carrier may question the goals of modalities that appear to continue forever. Certain conditions may raise “red flags” for the insurance company, especially conditions that the medical community is unclear as to the type of medical treatment needed.
The following are some questions you might be asked in deposition by an insurance carrier questioning treatment deemed to be excessive:
A. You can only speculate on a treatment plan under these circumstances, isn’t this correct? Has the treatment plan you are recommending been shown consistently to cure or relieve the symptoms of this disease?
B. What is the likelihood the employee will experience lasting relief from the treatment you are recommending? How do you know that?
C. Where is the research data that shows this treatment will cure or relieve the employee’s complaints?
D. Is it possible some of the treatment modalities listed in your report will not be effective? Will the modalities be harmful?
E. Some treatment recommendations are lifelong or indefinite. How can you determine the length of the treatment modality if you do not know whether it will be effective? You are not sure, isn’t that correct?
Myth #3: Acupuncturists in the state of California can perform QME disability evaluations and determine disability.
Fact: This is not correct. QME experts in California prepare medical-legal reports that help resolve disputed cases. Even those some acupuncturists are QMEs in California, state law does not permit them to perform disability evaluations in their capacity as QMEs. Further, acupuncturists can also perform evaluations in the role of treatment physicians, but they cannot determine disability or apportionment for compensation purposes.
In 1988, acupuncturists in California were temporarily granted “physician” status in the workers’ compensation system pursuant to Labor Code 3209.3(a). Nevertheless, the legislature added restrictive language in LC 3209.3(e) stating that “Nothing in this section shall be construed to authorize acupuncturists to determine disability.” Additionally, this law had a “sunset” provision that would remove acupuncturists in four years as physicians. In 1997, this sunset provision was finally removed and acupuncturists were permanently granted “physician” status, but they were not given the authority to determine disability.
Myth #4: Acupuncturists cannot associate with chiropractors or other physicians to obtain the disability and apportionment issues needed for a complete QME report.
Fact: Acupuncturists must associate with qualified medical doctors, chiropractors or other approved professionals who can address the issues of disability and apportionment. Logically, the costs for insurance carriers may increase if an acupuncturist performs a QME evaluation or functions as a primary treating physician, because when disability must be addressed, the acupuncturist must refer these issues out to a qualified physician or chiropractor to address disability issues. Thus, the bill to the carrier may increase to pay for the additional experts needed for a complete evaluation.
Myth #5: Employers and employees can ignore alternative medicine.
Fact: Atkinson explained that “Americans spend huge sums of money on complementary and alternative medicine … an estimated $27 to $33 billion in 1997” (Atkinson 1999, 24). Furthermore, Atkinson clarified that the “National Institutes of Health created the Office of Alternative Medicine in 1992 with $2 million in federal funds. Funding for 1998 topped $20 million. In 1999, NIH turned the office into the Center for Complementary and Alternative Medicine, with an allocation of $50 million” (Ibid).
Medical schools are joining the movement. Atkinson clarified that “last year, 75 of the nation’s 123 medical schools, including Columbia, Johns Hopkins and Stanford, offered courses in alternative medicine, compared with just 15 in 1993” (Ibid).
Myth #6: An employee cannot predesignate an acupuncturist a “primary treating physician.”
Fact: California law provides that an injured worker can predesignate a primary treating physician. If the employee does not so predesignate, the employer has control for the first 30 days from the date of the injury and may send the employee to an industrial clinic. Specifically, Labor Code 4600.3 states: “The employee may choose to be treated by a personal physician, personal chiropractor, or personal acupuncturist that he or she has designated prior to the injury …” (emphasis added). Thus, there is no doubt an acupuncturist can be a predesignated physician.
If the employee fails to predesignate a primary treating doctor, the injured worker can do so 30 days after the date of their injury. Therefore, there is an increasing need for acupuncturists to be familiar with the workers’ compensation system. A phone call to a local law library in California may be helpful to learn what books are available on workers’ compensation laws. Books by authors such as Herlick, Hanna, Sweezey and O’Brien are good starting points. Furthermore, Nolo Press has a book written by Christopher Ball, Esq. that simplifies workers’ compensation laws, is easy to understand, and is full of cartoons to make reading fun. This book is available at most local bookstores in California.
Myth #7: There will be no new developments in acupuncture and workers’ compensation in California.
Fact: Without a crystal ball, it is difficult to know what will occur. Perhaps with the appropriate legislative presentation, the disability evaluation restriction of LC 3209.3 as this applies to acupuncture will be removed. This may mean that additional training may be required of acupuncturists to prepare disability evaluations. Acupuncture has already improved its position in the California workers’ compensation system by placing its first member on the Industrial Medical Council.
- Atkinson W. The next big benefit boom: complementary and alternative medicine. Medical and Economics Company, Inc. Business and Health September 1, 1999;17(8):24.
What to expect on your First Visit – Diagnostic Methods
When a patient first walks into a treatment room, the acupuncturist will check four diagnostic methods to collect information on how to treat him/her with Chinese medicine: observation, olfaction, history taking and auscultation, and palpation. Keep in mind that the Chinese will look for different things, Qi and Blood. It is very important to have a good understanding of the patient before the acupuncturist proceeds with his/her healing methods.
In observation, the doctor looks at the general appearance of the patient, whether they look pale, lifeless, overweight, or vibrant and energetic. By looking at the coating of the tongue the doctor can determine how the patient is doing internally. Different colors and coats of the tongue mean different symptoms. For example if there are teeth marks along the edges of the patient’s tongue, that diagnosis is a digestive problem. The doctor also uses the sense of hearing to determine if the patient has any abnormal noises such as wheezing, hoarse voice, constant sneezing, or general discomfort.
Olfaction is just the observation of smell. If the patient is emitting bad odors, certainly there is something wrong. History taking and ausculation is a way to find out what the patient has gone through in his/her life in order to determine the cause of disease. Doctors will look at things like past treatments by other doctors, have they been working; do family member carry this disease; and personal questions like symptoms and duration of the present illness.
Palpation is using touch to identify symptoms and signs. The pulse reading is the most fascinating because of how your blood runs through the radial artery at the wrists the doctor is able to “discover the condition of the patient’s Qi and Blood, and the physiological and pathological condition of the internal organ systems” (Gao, Duo’s Chinese Medicine). In the diagnostic process the doctor attempts to find the cause of the illness, not the symptom, by observing the symptoms and treating it.
From there, the doctor will prescribe your personalized form of Acupuncture and/or Acupressure treatment, as well as, what herbs or products may assist in the body’s healing process. Duration of treatment may last from 45 minutes to 1.5 hours, depending on the treatments used. The number of visits also depends on the seriousness of illness, how long the patient has had it, and the healing abilities of the patient.
Complimentary re-evaluation and reassessment each time you come in.