CONTINUING CHIROPRACTIC CARE
UNDER MINNESOTA WORKERS’ COMPENSATION
PERMANENT TREATMENT PARAMETERS

Continuing chiropractic care and treatment under Minnesota Workers’ Compensation law has become more complicated over the years. In 1991, in the case of Horst vs. Perkins Restaurant, 45 W.C.D. 9 (1991), the court held that chiropractic treatment that provided relief of symptoms was not in and of itself sufficient to support a determination that treatment was reasonable and necessary. The court set forth a multi-factor test to determine whether chiropractic care was reasonable and necessary to cure or relieve the affects of a work related injury. Those factors included:

1. The employee's opinion as to the relief obtained in terms of extent, frequency and duration of treatment;
2. The possibility of other conditions not discovered by the chiropractor causing the employee's problem
3. The setting of a weekly schedule with no reduction to an as needed status;
4. The period of relief from pain, in particular whether persistent pain returns;
5. The use of alternative medical providers in the event of continuing pain;
6. The employee's overall activities and the extent of the employee's ability to continue to work;
7. The recommendation of long term chiropractic care into the future which results in maintenance rather than injury treatment; and
8. The psychological dependency of the employee on chiropractic care.

Following that case came the 1993 decision in Fuller v. Nagel/Shiver’s Trading, slip. on. (W.C.C.A. April 14, 1993). In Fuller the court identified the following 8 additional factors of consideration in chiropractic claims

1. Evidence of a reasonable treatment plan;
2. Documentation of the details of treatment;
3. Degree in duration of relief resulting from the treatment;
4. Whether the frequency of treatment was warranted;
5. The relationship of the treatment to the goal of returning the employee to suitable employment;
6. Potential aggravation of underlying conditions by additional chiropractic treatment;
7. Duration of treatment; and
8. The psychological dependency of the employee on chiropractic care.

Following these 2 cases the Permanent Treatment Parameters rules were passed which altered the provisions of chiropractic treatment by imposing a “12 + 12” visit limitation for neck, upper back, low back, and upper extremity injuries. An employee is allowed up to 12 weeks of treatment, including adjustments and adjunctive therapies, with a maximum treatment frequency of 5 times per week for the first 1-2 weeks and decreasing treatment thereafter (Minnesota Rule 5221.6200 - 6300, subd. 3). An additional 12 visits over the next 12 months are allowable if all of the following 4 requirements are met:

1. The treatment must progressively improve or at least maintain the functional status gained during the initial 12 weeks of treatment;
2. The treatment cannot be regularly scheduled;
3. The provider's records must include a documented plan to "encourage the employee's independence and decreased reliance on health care providers"; and
4. The provider must use active treatment modalities, i.e. education, posture and work method training, worksite analysis and modification, and exercise

Nonetheless, it is important to remember the Permanent Treatment Parameters are just guidelines and there are increasing departures allowed from these treatment limitations. The initial rules that setup the Permanent Treatment Parameters were challenged in the case of Hirsch v. Bartley - Lindsey Co., 53 W.C.D. 144; 537 N.W.2d 480 (Minn. 1995). In that case the Minnesota Supreme Court invalidated the rules because of the strict duration limits on all forms of treatment. The Commissioner then revised the rules and issued the current Permanent Treatment Parameters in 1994, which went into effect in 1995.

Following the issuance of the current Permanent Treatment Parameters the court issued a decision in Jacka v. Coca-Cola Bottling Company, 580 N.W. 2d 27 (Minn. 1998). In this case the court noted the “12 + 12” rule for passive treatment and found that further treatment was allowable if approved by the insurer, Commissioner, or compensation judge based on evidence the treatment is effective in maintaining employability or, for Permanent Total Disability cases, functional status. The court also referenced the general departure rule (contained in 5221.6050, subp. 8), noting that it was rewritten to provide compensation judges with flexible standards to approve treatment as long as such may be medically necessary. Finally, the court noted that a judge may depart from the Permanent Treatment Parameter rules “in those rare cases in which departure is necessary to attain proper treatment.” Id. at 35-36. Ultimately, the court in Jacka, on remand, found that the departure from the “12 + 12” rule was warranted because the treatment “decreased the employee’s subjective complaints and improved his functional status.” Jacka v. Coca-Cola Bottling Co., slip on. (W.C.C.A. April 13, 1999).

In Boisjoli v. Lyndale Garden Center, slip op. (W.C.C.A. April 20, 1999) the Workers’ Compensation Court of Appeals affirmed a departure from the Permanent Treatment Parameters and permitted chiropractic treatment for a period of years after the expiration of the 12 week passive care limitation.

Departure from the Permanent Treatment Parameters was also granted in Asti v. Northwest Airlines, 59 W.C. 53; 588 N.W. 2d 737 (1999), in which departure was permitted because it was necessary to allow the employee to continue working in his current employment.

Another important issue that may arise is that of prior notification of an intent to depart from the Permanent Treatment Parameter guidelines, which is required under Minnesota Rule 5221.6050, subd. 8. In Olson v. Allina Health System, 59 W.C.D. 37 (1999), the court reversed an award for expenses exceeding what is allowed by the Permanent Treatment Parameters on the basis that the prior notification was not performed and its failure “was not a mere technicality that may be ignored if the treatment otherwise meets the requirements for a departure.” Id.

The Permanent Treatment Parameters are, therefore, to be utilized as a guide by the compensation judge in determining reasonableness and necessary medical treatment.

In order for an employee to continuing receiving chiropractic care beyond the Permanent Treatment Parameters it is important to have evidence that the treatment allows the employee to continue to be functional to work and that the insurance company was notified prior to treatment that the treatment was going to have to be given and would exceed the guidelines. It is also very helpful if the treatment notes and records reflect that the treatment plan was well defined and reasonable, that the frequency of the treatment was warranted, that there was relief from the treatment, and that the treatment was reasonable in light of the relief provided.
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