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In re Workers' Compensation Claim of Birch

Supreme Court of Wyoming

February 27, 2014

IN THE MATTER OF THE WORKER'S COMPENSATION CLAIM OF: DON BIRCH, Appellant (Petitioner),
v.
STATE OF WYOMING ex rel. WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent)

Page 902

Appeal from the District Court of Sweetwater County. The Honorable Nena James, Judge.

Representing Appellant: F. Gaston Gosar of F. Gaston Gosar, P.C., Pinedale, Wyoming.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Samantha Caselli, Assistant Attorney General.

Before KITE*, C.J., and HILL*, VOIGT*,[*] BURKE, and DAVIS, JJ.

Page 903

OPINION

DAVIS, Justice.

[¶1] Appellant Don Birch sought reimbursement for travel expenses related to chiropractic treatment he received at the Utah Spine and Disc Clinic in Murray, Utah from the Wyoming Division of Workers' Compensation (Division). Mr. Birch lived in Daniel, Wyoming. The Division denied his request for reimbursement because traditional types of chiropractic care, manipulation and traction could have been obtained at a location in

Page 904

Wyoming closer to his home, and because cold laser therapy was considered experimental and was therefore not a covered treatment for which the Division would pay travel expenses. We affirm.

ISSUES

[¶2] We will attempt to clarify the three issues Mr. Birch presents by restating them as follows:

1. Are the hearing examiner's findings sufficient to support his determinations (a) that travel expenses relating to cold laser therapy should not be reimbursed because that therapy is experimental and not compensable, and (b) that no travel expenses relating to any of the treatment received in Utah should be reimbursed because comparable conventional chiropractic treatment could have been obtained in Wyoming closer to Mr. Birch's home?
2. Does substantial evidence support those findings?
3. As a matter of law, should the hearing examiner have awarded travel expenses relating to manual chiropractic manipulation and mechanical traction as if those services were provided in Rock Springs rather than Utah?

FACTS

[¶3] The uncontested background of Mr. Birch's case is succinctly set out in the hearing examiner's " Findings of Fact, Conclusions of Law, and Order" :

Birch was originally injured in 1975 while working for FMC. Birch's injuries resulted in the amputation of his right leg, below the knee.[1] The Division opened a case and over the ensuing years paid a number of benefits. In the 1990s, B[i]rch began experiencing low back pain which was determined [to] have resulted from the altered gait from years of wearing a prosthetic leg. In 2009, Birch sought preapproval for a spinal fusion of his lumbar spine; initially the Division denied the preauthorization but later withdrew its protest. Ultimately, Birch elected not to proceed with the spinal fusion and began to research alternative treatment options. Birch's research led him to the Utah Spine and Disc Clinic (Utah Spine and Disc) in Murray, Utah where he sought chiropractic treatment, including cold laser therapy. Birch sought reimbursement for travel to and from Utah Spine and Disc and on March 11, 2011, the Division issued a Final Determination denying reimbursement for travel because there are medical providers closer to Birch's home and because the Division considers cold laser therapy to be non-covered experimental or investigational treatment.[2]

Mr. Birch also received more common forms of chiropractic treatment, including adjustment and traction, in Utah.

[¶4] Mr. Birch testified at the ensuing telephonic administrative hearing, and he submitted over two hundred pages of documents, including the deposition of Dr. Brett Luddington, the chiropractor who supervised his treatment at the Utah clinic. Among other documents which will be addressed in more detail below were promotional materials generated by the treatment provider and the manufacturer of the device used on Birch, both of which not surprisingly extolled the treatment benefits of Class IV cold lasers. He also submitted articles that addressed chiropractors' increased use of therapeutic cold lasers and reports of studies on their efficacy.

[¶5] Birch attempted to establish the following in the OAH hearing: 1) that therapeutic lasers produce beneficial effects by directing light in the infrared range through the body to targeted tissues, thereby stimulating light sensitive cellular chemicals to initiate a series of salutary chemical reactions;

Page 905

2) that Class IV therapeutic lasers like that used to treat him in Utah are superior to Class III therapeutic lasers because the higher energy output of the former allows deeper penetration and less scattering of the laser beam, and shortens treatment times; 3) that studies have shown a variety of benefits from therapeutic laser treatment; and 4) that the Class IV laser with which Birch was treated was approved by the United States Food and Drug Administration (FDA).

[¶6] Dr. Luddington's deposition testimony concerning laser therapy generally parroted his employer's and the manufacturer's promotional material, with few references to the details of the scientific studies he claimed found it to be effective. The manufacturer's claims and Dr. Luddington's testimony were at odds with other exhibits that Birch submitted, however. For example, both asserted that therapeutic lasers reduce pain by using the light itself to induce a series of chemical reactions in the cells of targeted tissues, not by generating heat in the tissue with the laser. On the other hand, Birch's Exhibit 10 characterized that theory as hypothetical and in need of further experimental studies to demonstrate its efficacy. [3] Furthermore, Exhibit 14, a letter from the FDA to the manufacturer of the laser used on Birch, approved marketing of the device as the substantial equivalent of an infrared heat lamp.[4]

[¶7] The remaining scientific articles submitted by Birch also did little to advance his cause. Exhibit 7, for instance, noted that the medical research community remains skeptical and unable to reach firm conclusions about the " mechanism of action and effectiveness" of therapeutic lasers due to insufficient data or conflicting findings. It then recounted the authors' statistical analysis of sixteen clinical studies involving a total of 820 patients who were treated with Class III lasers and placebo " lasers" for non-specific neck pain of unknown etiology. In some cases, that treatment was supplemented by exercise therapy and analgesic drugs. The study concluded there was only moderate statistical evidence for the short and medium term effectiveness of laser treatment for neck pain, and conceded that the mechanism by which a laser may reduce pain remains unknown.

[¶8] Exhibit 8 summarized a small study in which twenty-one patients with lower back pain were treated with chiropractic manipulation and exercise therapy, and twenty-four patients with similar complaints received Class IV laser therapy in addition to manipulation and exercise. The second group self-reported greater pain reduction than the first, but no placebo laser control was used in the study, and it did not attempt to isolate the effect of laser therapy when used with other treatment ...


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