Alternative Medicine and Workers’ Comp Coverage: A Puzzle.

Episode Notes

Transcript

Announcer:

Workers Comp Matters, the podcast dedicated to the laws, the landmark cases, and the people that make up the diverse world of workers compensation. Here are your hosts, Judd and Alan Pierce.

Alan Pierce:

Hello again, Alan Pierce. We are here today to discuss an interesting topic. I hope something we have not discussed in this forum at all. It has to do with alternative medicine and coverage under the workers’ compensation laws for what we will learn about is complimentary alternative medicine. And our guest today is a young lady I had the privilege of meeting a few months ago in Chicago. Her name is Maya Rashid. Maya is a very recent graduate of Penn State Law with her jd. She is currently, as we are recording this studying for the Bar exam. She will be joining the law firm of Greenberg Tarig as an associate in the Philadelphia office at Penn State. She was article’s editor for the Arbitration law Review. In her second year, she clerked for a judge of the Center County Court of Common Pleas, and she currently assists entrepreneurs and small businesses across Pennsylvania, or at least was doing that with the Penn State Law’s Entrepreneur Assistance Clinic.

So having said all of that, Maya, I would like to welcome you to Workers Comp Matters, and I want to remind our listeners or mention that the reason I met Maya is that she submitted a paper to the College of Workers’ Compensation Lawyers Student Writing Competition, the John F. Burton Jr. Student writing Competition for 2023, 2024 in her paper, revitalizing Recovery, exploring Workers’ Compensation Coverage of Alternative Medicine was indeed the winning paper and hence the reason I met her in Chicago and we were able to present her and her school with a cash award for this winning submission. So Maya, welcome to this podcast. It’s a pleasure to have you today.

Maya Rashid:

Hi Alan. Thank you for having me. It’s great to catch up with you after meeting back in March.

Alan Pierce:

Exactly. I was interested in reading your paper as soon as I saw the title because we do battle all the time on behalf of our clients. And conversely, I guess insurance companies do battle also on claims for a variety of things under the workers’ comp system. But certainly medical treatment, approvals for treatment, identification of modalities of treatment has always been an issue. And we are constrained to some degree by case law and statutory provisions. So it’s tough enough for traditional medicine to be accessed fully and that can be the subject. And we have discussed that before, but alternative medicine is something that is growing in popularity. It’s been around for a long time. My first question to you is this, when you were first made aware of the student writing competition, how did this topic get selected and perhaps put another way, did you select this topic for the writing competition or were you already into this topic for more academic reasons?

Maya Rashid:

Yeah, I actually selected this topic. It was kind of a conjunction with, I had a class that was solely dedicated to workers’ compensation and the final for that class was we had to just write a paper and our professor had handed us the flyer for the competition. So I knew kind of the general outlines for it going into writing my paper for my class as well. So when I was going about picking a topic for the class, I was definitely thinking of something that resonated with me and that I would be interested in or had some sort of connection to my life. And at the time, my best friend was actually injured while working at a summer camp where she was one of the counselors and we were sitting in the kitchen just talking about her injury, how she was going through different treatments, and I was explaining to her the workers’ comp system from what I understood as a student, we were just going back and forth ideas. So my sister was also there and she’s a huge advocate of alternative medicine and she tends to follow all of those different routes before seeking out other care. So we just bummed that conversation with them and applying it to my friend’s case. We ended up coming up with this topic idea that I threw out to my teacher and he thought it was something worth pursuing.

Alan Pierce:

And it was indeed, your background with workers’ compensation was limited to the course you were taking. I have to compliment both you and your professor for that course because reading this paper, it could just as easily in my view, have been written by somebody who has had a great deal of experience in the workers’ compensation system, both looking at the particular issues that we face and looking at the various barriers or roadblocks that could be in the way of having this type of alternative medicine covered. And in fact, whether it even should be there are policy disputes and considerations as well. So you began your paper with a bit of a story of an aircraft mechanic. Why don’t we use that as to launch this conversation? Tell us a little bit about Mr. Romero.

Maya Rashid:

Absolutely. So Mr. Romero was, as you said, an aircraft mechanic. This was in Louisiana around 2007, and he was tasked with cleaning the wings of the airplanes with a specific solution. And just from that exposure started experiencing some symptoms such as nausea and vomiting and dizziness, headaches. And after seeing a doctor about it, he was later diagnosed with organic brain and some other conditions like diabetes. So he actually went on to see a neuro gastroenterologist who prescribed injections of immuno gamma globin and some other different treatments like lymphatic drainage and oxy ozone sauna therapy, as well as ear candling and some other alternative medicine treatments.

Alan Pierce:

So were the payments for those alternative mechanisms of treatment contested by the insurer, and what was the outcome?

Maya Rashid:

Yes, so the insurer contested all of the treatments as not being reasonable or necessary care for his diagnosis. And the court ended up agreeing with the insurer and the care was not covered.

Alan Pierce:

And there are a rationale, legal rationale in terms of how the statute is worded and how reasonable care has been defined. And we’re going to get into a little bit about more of the standards of scientific reliability that we as lawyers need to be aware of to get certain opinions of efficacy or treatment modalities recognized legally as admissible into evidence. So I did notice, and I don’t know exactly what these alternative treatments are or were, but they sound a little unusual to say the least. I see one of ’em is manual lymphatic drainage. I’m just kind of assuming that somehow by the laying on of hands manually to lymph nodes, you are somehow stimulating some drainage of something and that oxy ozone sauna therapy treatment, again, you may know more about this to me, it’s maybe some type of heat based breathing something. And certainly the type of medical treatment that I think if any of my clients presented to a traditional workers’ comp carrier would be looked upon a skeptically and probably adversely in terms of, especially depending on the cost. It also looks like more traditional treatment was prescribed some type of IV injections, immuno gamma globulin, as you mentioned, that to me looks and sounds like something a little more recognizable. So was that kind of a battlefront that some of these breathing things and sauna and ozone and manual drainage are these kind of unrecognized or obscure medical modalities?

Maya Rashid:

Yes, that was definitely the main issue was just how unknown or lack of research related to some of these modalities when asking people and physicians in the field their experience with it. It was just seemed not accepted in the medical field.

Alan Pierce:

So after you recounted Mr. Romero’s unhappy travail through the workers’ comp system insofar as not being able to access this type of treatment, you then quite well identified four basic issues here that a case like his raises. So why don’t we sort of very quickly go through those four, identify ’em and have you talk about one or two of ’em before we take our break. The first one you identified was just sort of the broadening of coverage to allow employees to seek alternative medical care on a public policy basis. Let’s flesh that out a bit from a public policy standpoint. What would be a rationale for amending statutes where necessary or amending procedures in dispute resolution to allow for employees to seek alternative medical care? Why is that a public interest?

Maya Rashid:

So the public interest in expanding this care is the underlying principle with workers’ compensation is that these employees are giving up their right to sue their employer for their injuries. So in exchange for that, they are getting this one realm or vehicle to get their medical services covered. And with that comes just this need to have more access to their care of their choice and how they would have originally pursued their medical care absent to this being falling under the realm of workers’ compensation.

Alan Pierce:

And you actually used a phrase there that I think we want to expand upon, and that is the choosing the care or the choice made by the injured worker. That is a hot button issue around the country. As I say in almost every podcast, notwithstanding anything that either I or my guests say on this show we have 50 individual jurisdictions and among the states we have federal workers’, comp jurisdictions and other forms. They’re all somewhat different, but there is a common thread among all of them, and that is the word reasonable. And also there are jurisdictions that limit employee choice and others where employees have a total choice of treatment. So depending on your jurisdiction, employees may or may not have choices. Let’s focus a little bit on the word reasonable because Massachusetts, for example, and you gave the Pennsylvania example of how your statute defines the obligation of an insurer to pay for medical care, they talk about reasonable medical care or reasonable healthcare, and the word reasonable appears quite a bit in the overall discussion of adequacy of benefits. In fact, you quoted the New York Appeals Court case in 1917 where workers’ comp was first heard by the US Supreme Court as being a constitutional legitimate system. And even the Supreme Court in the United, sorry, the US Supreme Court in 1917 struggled with the word reasonable. They actually said a workers’ compensation scheme should not be unreasonable, which is another way of probably they were unable to define what reasonable is. So how does the term reasonableness fit into the dispute here?

Maya Rashid:

Well, as you were saying, most of these statutes lay out that the care provided must be reasonable and there is variations on that. Some say nature of the reasonable in relation to the nature of the injury, stuff like that. But the medical services must be reasonable in relation to that injury. And this fits into the complimentary and alternative medicine realm where these medical treatments are often considered unreasonable because they are not provided by licensed physicians in some cases or they have lack of research. So a lot of statutes will actually exclude these medical treatments as being unreasonable since there, it’s not almost like medically or accepted in the medical community.

Alan Pierce:

And that does raise a couple of very interesting points. One is a lot of these statutes define who are the providers of these services and they will either say a physician or only a physician or other healthcare providers and somebody who might be running a sauna or somebody who might be giving massages may not be considered in a more limited sense healthcare providers. They may be providing other services that tangentially may affect health, but they may be statutorily bard. And you also mentioned the reliability, the scientific reliability, and that gets us into the evidentiary Bert standards of whether there’s published data on this. So we’re going to get into that a little bit more, but at this point we’re going to take a short break and then we’re going to pick up with some of the other considerations that as we approach the use of alternative medicine, we have to be aware of.

We’ll be right back with Maya Rashid to continue this interesting discussion. We’re back with Maya Rashid talking about alternative medicine and workers’ comp Maya. We were talking about public policy, we were talking about the definition of who can provide healthcare services and that they must be reasonable, necessary, and reliable scientifically. So Maya, your paper also discusses the intricacies of alternative medicine and its rise in popularity. Give us an idea, aside from what you just mentioned in terms of the therapy for the fellow who is exposed to toxins, what are the other types of alternative remedies that have been the subject of dispute and analysis by different workers’ comp courts?

Maya Rashid:

Yeah, so Ayurvedic medicine has often been seen as disputed by workers’ comp courts. Ayurvedic medicine is originated in India and is one of the oldest medicine traditions, but it focuses on the connections of the body and disease as an imbalance. So one court that had dealt with a injured worker trying to recover for specific alytic treatments that they had underwent denied coverage in that front because the practitioners were not licensed to provide or provide those services or were not supervised by someone that was licensed in the state to provide those services.

Alan Pierce:

In fact, let’s just for our audience a benefit, I believe what you’re referring to is Ayurvedic treatment. It’s A-Y-U-R-V-E-D-I-C-A Vedic, and it’s basically emanates from India. And I think you are referring to a Pennsylvania case for a young lady presumably of Indian origin by the name of Babu, her last name is Babu. She was looking to avail herself of perhaps more traditional holistic Indian Ayurvedic treatment. I’m not exactly sure what it was, but the providers were not healthcare practitioners licensed. And was that the reason that these benefits were denied and denied on appeal?

Maya Rashid:

Yes, you’ve got it right. She was injured, she was a nurse that was injured and she did seek these treatments. They denied it as not being licensed. And she tried to argue that she as a nurse could supervise her healthcare, but they rejected that argument as well.

Alan Pierce:

In fact, you had mentioned that while some of these treatments, especially to Westerners like us that really follow primarily traditional a, a medicine and sort of the holistic alternative medicines are out there, you don’t have to have a very long memory to recollect, or at least I don’t, when something as common as chiropractic care was considered alternative and unlicensed or non-traditional medical treatment along with massage therapy, there’s a variety of treatments that are now more mainstream than they used to be, but also fell into that untraditional category. It doesn’t mean that they don’t work and I suppose if they work and they effectuate a cure or a return to work, the insurer and the employee both benefit from that. But is it primarily a cost driven issue with insurers in resisting these treatments? Are they generally more costly than traditional treatments or is it just because they sound a little foreign to us?

Maya Rashid:

Actually, the argument there is always the argument raised that they need to control the costs of the treatments a patient’s receiving. But in actuality, when you look at the actual cost of alternative medicine, they tend to be cheaper remedies than conventional care because it’s used, a lot of these methods used different and less costly equipment and tend to focus on the full body health. So it’s not necessarily going to be expensive surgeries or anything like that. So cam treatments tend to be more economical on that front.

Alan Pierce:

And from my experience, this is so much the cost because a lot of these things could be herbal or plant-based. A lot of it could be kind of mind body type of things, relaxation techniques. We see this a lot in traditional prescription. Some of these prescriptions are very, especially pain control and our courts, our workers’ comp bodies, our legislatures have recognized that taking pain pills or pain patches or traditional opioid based medications carry with it, despite the fact that they are a approved and they are mainstream, there are much more safe and less downside effects of perhaps more or less traditional treatments. And we have seen, at least I’ve seen that insurers are more willing to pay for alternatives to opioid pills or patches. You also brought this in Massachusetts, we don’t deal with this a lot, but you deal with cultural communities or groups of communities such as Native Americans where they may have their own medical system, so to speak. Are there issues of jurisdictions that have a lot of Native American population being able to adequately treat themselves if they have the misfortune of being injured at work?

Maya Rashid:

Yeah, so this is definitely a issue that I really wanted to emphasize was how this group, as you mentioned, native Americans can be completely excluded under workers’ comp statutes by the wording that the treatment must be by someone that is licensed. Whereas in Native American communities, they might rely on different types of ceremony, native herbal remedies, allopathic medicines, and that is traditionally how they would pursue their medical care. I found a few statutes, which was Connecticut and Minnesota that actually addressed some sort of religious healing or spiritual healing in their statutes. But the very wording of those statutes tend to exclude Native American healers because they require someone that is licensed, whereas in the case of these healers, they would not be licensed.

Alan Pierce:

And you’ve identified two states, Minnesota and Connecticut. Tell us what makes them unique among the other 48.

Maya Rashid:

Yeah, so Connecticut includes treatment by prayer or spiritual means in their definition of medical services. But then they go on to a state that those that spiritual means must be by an established church. So that also limits how expansive that can be. And then their definition of a physician is someone that’s licensed and authorized to practice a healing art. But then the healing arts are defined to just be chiropractic medicine, podiatry, naturopathy. So it does include some alternative medicines, but it’s very specific to some that have become more mainstream and it’s not necessarily inclusive of all of the forms of alternative medicine. And then on the alternative, so that was Connecticut, the alternative Minnesota, which permits Christian science treatment. If the employer hasn’t opted out of it, that statute does prevent some sort of spiritual healing, but there is a requirement that that provider be licensed as well. So that one can be limited.

Alan Pierce:

Alright, we’re going to take another short break and then we’re going to follow up with some discussion about the cost control system and workers’ compensation and how that impacts on alternative medicine treatments such as fee schedules, treatment guidelines and things like that. So we’re going to take a short break for a word for a couple of our sponsors and we’ll be right back to conclude our conversation with Maya Rashid. Alright, Maya, we left off talking about other barriers that are in the way or that affect the delivery of healthcare services to injured workers. We have seen a growing reliance among all states on fee schedules in which in order to at least control medical costs or at least uniformly apply them across a broad spectrum of healthcare providers, there are schedules for different types of medical or healthcare related treatments. And there are also treatment guidelines, how long these treatments can be considered medically reasonable as opposed to being open-ended. And third, establishing coding because in order to get any medical bill paid or approved these days, it has to have some type of universal or at least a code that is recognizable in that jurisdiction. How does that pose a problem for non-traditional medicine that may not be named in any guideline as an effective means of treatment or may not have a code or may not have a fee schedule attached?

Maya Rashid:

Yeah, so I address these common inclusions that typically do not include alternative medicine on fee schedules, but I argued in the alternative that if the concern is controlling costs, that you could control costs for alternative medicine by also implementing their own fee schedule specific to the different types of alternative medicine and having guidelines. But in doing so to consider the specifics of that specific alternative medicine and what is acceptable under those premises instead of just the entire realm of alternative medicine. Because of all the different nuances of each type or each form of alternative medicine,

Alan Pierce:

You of course refer to it in your paper. And that is the, so-called Daubert or fry, FRYE, evidentiary standard for scientific reliability of any type of novel or non-traditional element of science that isn’t limited obviously to medicine. But as comp attorneys and insurers, we see Daubert challenges for eye challenges to the admissibility of opinion evidence based upon untested or non-peer reviewed scientific opinions such as whether or not aromatherapy is good for headaches or something like that. So how does the scientific reliability standard further increase the difficulty of getting alternative medicine treatments recognized?

Maya Rashid:

The scientific reliability standard often turns on to how much research has been done and what the outcome of that research is, as well as its acceptance in the medical community. And as we’ve mentioned here, the alternative medicine routes have often been underfunded with regards to research. So there’s just not as much out there about these remedies as compared to conventional medical care. So that would stand as a bar to having alternative medicine accepted as a reliable method. And the alternative, I argued that instead of looking at all of the medical research out there to focus in on specific research on alternative medicine, that has been done extensively in other countries that have more acceptance of these methods and really just focus on what their research shows instead of comparing it to the lack of how small in theory that research is compared to the entire expansive realm of medical research as well as giving more credit to physicians and practitioners in those realms of alternative medicine instead of turning to the opinions of conventional medical providers who may be resistant to accept these alternative forms

Alan Pierce:

Having been around the system for a long time. I’m going to speculate, and I think I’m probably correct, that using how other countries do things differently than we do is probably not going to resonate as well as we might want it to when it comes to our state legislatures or even our industrial boards. We certainly have a lot of national associations that deal with healthcare in general. We obviously have the American Medical Association Medical Association, we also have the National Institute of Health. Are there any federal agencies or medical societies that are currently in existence at the federal level, either the National Institute of Health or elsewhere that are studying alternative medicine and might provide data to overcome the Daubert reliability challenges?

Maya Rashid:

Yes. So there’s actually the National Center for Complimentary and Integrative Health, which falls under the National Institute of Health. And they often yearly submit reports on different alternative medicine. It’s popularity, it’s certain guides and online resources regarding its efficacy and that would definitely be able to assist with getting past Albert.

Alan Pierce:

So the National Center for Complimentary and Health, otherwise known as N-N-C-C-I-H, that was established by the National Institute of Health. So that’s a federally recognized sub program within NIH?

Maya Rashid:

Yes.

Alan Pierce:

And I think in your paper you indicated the history of N-C-C-I-H goes back to 1993 when it was originally called the Office of Alternative Medicine OAM, correct? Yes. So for our practitioners out there, if we wanted to try to get one of our clients who either wants to avail themselves of non-traditional treatment or has but is running into a roadblock, one of the first places we turn for backup would be whatever data we could get from N-C-C-I-H or the NIH on Alternative Medicine to give us some help there.

Maya Rashid:

Yeah, that would definitely be a great starting point. They do release new things every year and it seems that they show more movement towards acceptance in American society as well as helpful data on how effective certain treatments are.

Alan Pierce:

And of course, without drawing too many parallels, we have been going through a variation of this issue with trying to get payment or reimbursement for cannabis for treatment of either relaxation, for anxiety issues or for pain control. And of course there are a lot of barriers for that that has to do with the classification of cannabis as a Class one controlled substance and the fact that the federal government and its penalties for cannabis precludes billing and payment by insurers. So that’s an ongoing issue, but I see that as being parallel and somewhat complimentary to this issue. Cannabis is considered non-traditional and it also has the other burden of having some legal penalties attached to it, although less and less as we get into medical marijuana, get into recreational cannabis, I would predict at some point, especially if the federal government changes its classification or removes it as a controlled substance, we’ll see more of that. But I think we can still expect to see insurers denying cannabis. We are dealing with kind of hardnosed claims reps and trying to get a mindset for something that is, to be frank, not terribly traditional and sometimes a little bit out there to traditionalists like mindbody as important and as effective it could be the system of workers’ comp may be one of the last medical reimbursement systems to adopt non-traditional, just from my own observation. Any closing words, Maya? Anything you want to leave our audience with?

Maya Rashid:

I hope that this has been very informative and that it helps somewhere to kind of encourage more acceptance of alternative treatments.

Alan Pierce:

And I join you in that. If somebody wants a copy of your paper, may I give either a link where they could find it or give my audience my email address and if somebody wants it, I can shoot them a copy. Any problems there?

Maya Rashid:

Oh no, absolutely. Feel free to send it

Alan Pierce:

Around. Alright, anybody who wants a copy of Maya’s paper, and I think any of you who deal with claimants that are in the alternative medicine realm, you may want to read it and be guided by it. You can access it by contacting me [email protected]. That’s A-P-I-E-R-C [email protected]. Or you could go on the College of Workers’ Compensation Lawyers’ website, CW CL. And if you go on Google CWCL and write on the homepage, you’ll see a link to Maya’s paper and a PDF hyperlink, so you could download it yourself. So Maya, I want to thank you for being a guest first, I want to secondly thank you for a well researched and thought out paper. And third and most importantly, go get ’em on the Bar exam and give em hella Greenberg card.

Maya Rashid:

Oh, thank you so much.

Alan Pierce:

So to all of you who listen to Workers Comp Matters, thank you once again for doing so. We appreciate your listening. We appreciate being able to bring these shows to you and look forward to our next show. And until then, go out and make it a day that matters. Bye-Bye.