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Claimant sustained injuries arising out of and in the course of her employment


Brooklyn Claimant sustained injuries arising out of and in the course of her employment on two occasions. First was in December 1988, when claimant injured her neck, back, shoulders, knee and left elbow, and the second was in September 1989, after claimant had been released to return to full-duty work, when claimant injured her fingers. Since her first injuries, claimant has been treated by a doctor, doctor-one, who is a board-certified orthopedic surgeon. Doctor-one diagnosed claimant as suffering from cervical and lumbar spondylosis or arthritis.

According to doctor-one, claimant had suffered from a pre-existing arthritic condition which was exacerbated by her work related injury; that, because of claimant’s arthritis, she was not going to get better, that is, she would continue to experience good periods and bad periods, as she had for some time; that there was little that he could offer claimant in the way of new treatment. Doctor-one prescribed physical therapy which had included traction, heat, ultrasound and electrical stimulation for some time, for temporary relief of claimant’s symptoms; and recommended that claimant continue to receive physical therapy as needed. However, according to the claimant, the physical therapy prescribed by doctor-one provided only temporary relief from her symptoms. Thus, she wanted to be treated by doctor-two, a chiropractor, by reason of the fact that her husband had been treated successfully by the said doctor, and she felt that doctor-two could achieve similar results with her. Claimant then filed a claim seeking authorization for a chiropractic treatment to be conducted by doctor-two.

Consequently, doctor-two was called to testify. According to doctor-two who is a chiropractic physician, claimant is suffering from cervical neuralgia, cervical myofascitis, a strain or sprain of the thoracic spine, a lumbar strain or sprain, sacroiliac disorder and temporal mandibular joint pain-dysfunction syndrome. Based upon his diagnosis, doctor-two concluded that claimant was a candidate for chiropractic therapy which basically consists of adjustments or manipulations to correct the osseous disrelationships of her entire spine and sacroiliac joints; that he would use traction in the low back, exercises and some electrical stimulation. Doctor-two opined that chiropractic treatment would be beneficial to the claimant because the key thing is to get the vertebrae that are out of place, or the subluxated, back into their proper respective position and functioning again, and he saw nothing about claimant’s condition to suggest that it would be inappropriate to treat her in such a way.

Now, over the objection that he was unqualified to render such opinions, doctor-one states that he tried to read a lot of chiropractic literature; that he was familiar with the general nature of treatment modalities that a Westchester chiropractor offers; and that he had had training in some forms of manipulation; that, within a reasonable degree of medical probability, while manipulation in the proper hands in the proper situation is beneficial, in claimant’s case manipulation might be harmful; that arthritic joints which would be placed through a motion that they would not normally be placed through in some respects would be like going through the trauma or the initial auto accident that the patient describes; that it could increase the symptoms; and that the treatments other than manipulation which were normally used in the practice of chiropractic were not different from those already available to claimant through physical therapy.

Thereafter, the judge of compensation claims concluded that doctor-two should not be authorized because based upon doctor-one’s testimony, manipulation would be inappropriate, given claimant’s condition; that, other than manipulation, claimant was already receiving essentially the same treatment that doctor-two recommended; and that claimant’s request was motivated by unrealistic expectations, because she believed that chiropractic treatment would result in a cure. The judge issued a worker’s compensation order denying the claimant’s request for authorization. Thus, claimant now seeks for a review of the order.

Here, claimant argues that the conclusions of the judge of compensation claims is not supported by competent substantial evidence because doctor-one, as an orthopedic surgeon, was not qualified to render opinions on the subject of the appropriateness of chiropractic treatment, thus, doctor-two’s testimony that chiropractic treatment was appropriate was not controverted. The court finds this bereft of merit.

Under the law, an employer is required to furnish to the employee such medically necessary remedial treatment, care, and attendance by a health care provider and for such period as the nature of the injury or the process of recovery may require. The terms “medically necessary” is defined as any service or supply used to identify or treat an illness or any personal injury which is appropriate to the patient’s diagnosis, consistent with the location of service and with the level of care provided; and the service should be widely accepted by the practicing peer group, should be based on scientific criteria, and should be determined to be reasonably safe. While it may well be true that, in a majority of cases, only a similar health care provider will possess the qualifications necessary to permit him or her to testify regarding whether a requested care or treatment is medically necessary, this is not the case herein. Under the Evidence Code, the determination of a witness’s qualifications to express an expert opinion is within the discretion of the trial judge, whose decision will not be reversed absent a clear showing of error. The court does not see why a different standard should be applied in workers’ compensation cases.

It is unquestionable that doctor-one, as an orthopedic surgeon, possesses the qualifications necessary to permit him to offer opinions regarding the effect of arthritis upon a person’s joints in general, and spine in particular. And, there can only be a little question regarding doctor-one’s qualifications to offer opinions as to the likely effect of unusual or abnormal movement of the spine upon one suffering from arthritis. Such opinions are clearly based upon his knowledge acquired as an orthopedic surgeon. The only real question presented is whether doctor-one possesses enough knowledge about chiropractic manipulation to be able to render an opinion as to the effect of such movement upon the spine of someone like claimant, who is suffering from arthritis. It must be noted that doctor-one tried to read a lot of chiropractic literature; that he was familiar with the general nature of treatment modalities that a chiropractor offers; and that he had had training in some forms of manipulation. The court believes that such testimony was sufficient to permit the judge of compensation claims to conclude that doctor-one knew enough about chiropractic manipulation to opine whether, from a medical standpoint, such movement of the spine would be likely to help or to harm claimant. In fact, the court fails to see any meaningful distinction between such testimony and testimony that, within a reasonable degree of medical probability, a particular type of unusual or abnormal movement, such as might occur during a fall or an auto accident, would be likely to cause a spinal injury, or a cervical or lumbar sprain or strain. Clearly, an orthopedic surgeon would be permitted to offer the latter opinions.

In sum, it is without a doubt that the record contains competent substantial evidence to sustain the finding of the judge of compensation claims that chiropractic manipulation would be inappropriate given the claimant’s arthritic condition. The court finds that the evidence is indeed sufficient to support the decision of the judge of compensation claims to deny the request to authorize doctor-two by reason of the fact that the requested chiropractic treatment was not medically necessary. Thus, the order appealed from must be affirmed.

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