Board of Industrial Insurance Appeals

State of Washington

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Significant Decisions

SEE CAUSAL RELATIONSHIP Chiropractor

Following the amendment of RCW 18.25.006, chiropractors are allowed to treat upper and lower extremities and can testify about causation of upper and lower extremity conditions as matters within the scope of chiropractic practice.  ….Tami Lynn, 09 16657 (2010)

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IN RE: TAMI D.LYNN	)	DOCKET NOS. 09 16657 & 09 16658
	)
CLAIM NOS. SC-91336 & SB-59811	)	DECISION AND ORDER
	)

APPEARANCES:

The employer, Starbucks Corp., filed an appeal with the Board of Industrial Insurance Appeals on June 29, 2009, from an order of the Department of Labor and Industries dated June 9, 2009. In this order, the Department allowed a claim for benefits under Claim No. SC-91136, and affirmed as correct the Department order dated May 12, 2009, under Claim No. SB-59811, in which it affirmed a Department order dated April 9, 2009, in which it denied reopening of the claim, finding the condition was the result of a new injury. The appeals were assigned Docket Nos. 09 16657 and 09 16658, one for each claim, SC-91336 and SB-59811, respectively. The Department order is AFFIRMED.

DECISION

As provided by RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision. The self-insured employer filed a timely Petition for Review of a Proposed Decision and Order issued on September 10, 2010, in which the industrial appeals judge affirmed the orders of the Department dated June 9, 2009. Contested issues in these appeals included aggravation, allowance and expert testimony. In this order we address only the issue of expert testimony. We have reviewed the remaining contested issues and agree with the determination of the industrial appeals judge.

The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed. The rulings are affirmed, with the exception of certain rulings[2] made with regard to the testimony of a chiropractor, Gregory W. Beasley, DC. Our industrial appeals judge excluded some of Dr. Beasley's testimony based on his belief that the opinions offered by Dr. Beasley fell outside of the scope of Dr. Beasley's practice. In support of his rulings, our industrial appeals judge cited to Dobbins v. Commonwealth Aluminum Corp., 54 Wn. App. 788 (1989) and In re Karen L. Lahmann, Dckt. No. 07 23217 (March 3, 2009), a decision we have not designated as significant.

Our industrial appeals judge's reliance on the Dobbins decision is incorrect because the statute governing chiropractors has changed. Prior to 1992, the scope of chiropractic practice was defined as,

For the purpose of chapters 18.25 and 18.26 RCW, the term "chiropractic" shall mean and include that practice of health care which deals with the detection of subluxations, which shall be defined as any alteration of the biomechanical and physiological dynamics of contiguous spinal structures which can cause neuronal disturbances, the chiropractic procedure preparatory to, and complementary to the correction thereof, by adjustment or manipulation of the articulations of the vertebral column and its immediate articulations for the restoration and maintenance of health; it includes the normal regimen and rehabilitation of the patient, physical examination to determine the necessity for chiropractic care, the use of x-ray and other analytical instruments generally used in the practice of chiropractic: Provided, That no chiropractor shall prescribe or dispense any medicine or drug nor practice obstetrics or surgery nor use x-rays for therapeutic purposes: Provided, however, That the term "chiropractic" as defined in *this act shall not prohibit a practitioner licensed under chapter 18.71 RCW from performing accepted medical procedures, except such procedures shall not include the adjustment by hand of any articulation of the spine: And provided further, That nothing herein shall be construed to prohibit the rendering of dietary advice.

At that time, chiropractors were limited to manipulation of the spine. In 1992 and 2002, the Legislature amended the statute to expand the chiropractic scope of practice. The statute currently reads,

(1) Chiropractic is the practice of health care that deals with the diagnosis or analysis and care or treatment of the vertebral subluxation complex and its effects, articular dysfunction, and musculoskeletal disorders, all for the restoration and maintenance of health and recognizing the recuperative powers of the body.

(2) Chiropractic treatment or care includes the use of procedures involving spinal adjustments and extremity manipulation. Chiropractic treatment also includes the use of heat, cold, water, exercise, massage, trigger point therapy, dietary advice and recommendation of nutritional supplementation, the normal regimen and rehabilitation of the patient, first aid, and counseling on hygiene, sanitation, and preventive measures. Chiropractic care also includes such physiological therapeutic procedures as traction and light, but does not include procedures involving the application of sound, diathermy, or electricity.[3]

(3) As part of a chiropractic differential diagnosis, a chiropractor shall perform a physical examination, which may include diagnostic x-rays, to determine the appropriateness of chiropractic care or the need for referral to other health care providers. The chiropractic quality assurance commission shall provide by rule for the type and use of diagnostic and analytical devices and procedures consistent with this chapter.

(4) Chiropractic care shall not include the prescription or dispensing of any medicine or drug, the practice of obstetrics or surgery, the use of x-rays or any other form of radiation for therapeutic purposes, colonic irrigation, or any form of venipuncture.

(5) Nothing in this chapter prohibits or restricts any other practitioner of a "health profession" defined in RCW 18.120.020(4) from performing any functions or procedures the practitioner is licensed or permitted to perform, and the term "chiropractic" as defined in this chapter shall not prohibit a practitioner licensed under chapter 18.71 RCW from performing medical procedures, except such procedures shall not include the adjustment by hand of any articulation of the spine.

Thus, chiropractors have been permitted to manipulate and treat extremity conditions since 2002. The intention of the Legislature to permit treatment of the extremities is confirmed by the definitions section of the statute.

(6) "Articular dysfunction" means an alteration of the biomechanical and physiological dynamics of a joint of the axial or appendicular skeleton.

(7) "Musculoskeletal disorders" means abnormalities of the muscles, bones, and connective tissue.

(8) "Chiropractic differential diagnosis" means a diagnosis to determine the existence of a vertebral subluxation complex, articular dysfunction, or musculoskeletal disorder, and the appropriateness of chiropractic care or the need for referral to other health care providers.

(9) "Chiropractic adjustment" means chiropractic care of a vertebral subluxation complex, articular dysfunction, or musculoskeletal disorder. Such care includes manual or mechanical adjustment of any vertebral articulation and contiguous articulations beyond the normal passive physiological range of motion.

(10) "Extremity manipulation" means a corrective thrust or maneuver applied to a joint of the appendicular skeleton.

RCW 18.25.006. The definitions, which include musculoskeletal disorders, articular dysfunction, and manipulation of the appendicular skeleton, clearly indicate that chiropractors are permitted to treat and manipulate disorders of the upper and lower extremities, including shoulders.

Although the Lahmann decision was issued after these amendments, we do not find it on point with regard to Dr. Beasley's ability to treat and testify about shoulder conditions. The decision in the Lahmann case involved the ability of a chiropractor to testify about a worker's permanent partial impairment. Under RCW 51.32.112, a chiropractor may testify about impairment if the rating ]4]was done at the request of the Department. The Lahmann case is silent as to a chiropractor's ability to testify about causation, the issue in these appeals. The statute explicitly states a chiropractor may testify to matters within the scope of his or her practice. As we have explained, treatment of the shoulder is within the scope of the chiropractor's practice and we know of no statute or regulation that would prevent a chiropractor from testifying about causation. In fact, the Court of Appeals in Loushin v. ITT Rayonier, 84 Wn. App. 13 (1996), found that a chiropractor should be permitted to testify about aggravation of an industrial injury, an issue that necessarily includes testimony about the cause of the aggravated or worsened condition. Therefore, we find that current case law specifically permits chiropractors to testify as to the issue of causation.

Based on this analysis, we find that the following objections, as stated in the transcript of the deposition testimony of Dr. Beasley, are overruled: page 7, line 5; page 9, line 9; and page 12, line 16. In addition, we note our industrial appeals judge erred when he wrote that Dr. Beasley should have limited his treatment to conditions of the spine.

Although we find it necessary to correct the evidentiary rulings made in the Proposed Decision and Order, we agree with the ultimate conclusions of our industrial appeals judge. We do not agree that Dr. Beasley's testimony should not be considered, but we simply do not find it persuasive. The question in this case is whether Ms. Lynn's condition for which she sought treatment in 2008 was caused by her work for the Everett School District or by her work duties while employed at Starbucks.

Ms. Lynn developed an upper extremity condition while working for the school district. She testified that she was bothered by lifting and dumping deep frying baskets. After she returned to work in 2003, she no longer performed that particular duty. Dr. Beasley did not seem to be aware that it had been several years since Ms. Lynn had worked with fry baskets. Ms. Lynn testified that her work as a barista at Starbucks required her to lift and pour gallon jugs of milk while preparing drinks, reach overhead, and perform janitorial duties. She testified that these activities made her shoulder pain worse.

Dr. Beasley recorded that Ms. Lynn's symptoms were worse when she slept on her right side or when she was doing a lot of overhead work at Starbucks. He felt that Ms. Lynn's condition was the natural progression of the injury she suffered while working for the school district and was not affected by her activities at home, activities of daily living, or her work at Starbucks. Nevertheless, he noted that Ms. Lynn's symptoms improved when she was not working at Starbucks, and that he notified the Department that her work at Starbucks would continue to aggravate the condition. [5]Dr.Beasley's testimony seems inconsistent to us. In addition, he offered an opinion that Ms. Lynn was not spending more time working for Starbucks than she was cleaning at home, even though she was working 20 hours a week. When asked why he held that opinion, he stated he knew her well, but then admitted he had never been to her home. Therefore, we do not find Dr. Beasley's opinion persuasive, even in combination with that of Dr. Kinahan, when weighed against the evidence presented by the school district. Therefore, we find the Department order allowing the claim for a condition related to work activities while employed with Starbucks should be affirmed.

FINDINGS OF FACT

1. On March 16, 2007, the claimant, Tami D. Lynn, filed an Application for Benefits with the Department of Labor and Industries, in which she alleged that on-going as of January 9, 2007, during the course of her employment with Everett School District No. 2, she had an industrial injury condition to her right arm and wrist which was assigned Claim No.SB-59811. On July 30, 2007, the Department issued an order in which it allowed the claim. On June17, 2008, the Department issued an order in which it closed the claim with time-loss compensation benefits as paid to October 24, 2007, and no award for any permanent partial disability.

On December 15, 2008, Tami D. Lynn filed an aggravation application with the Department and on April 9, 2009, the Department issued an order in which it denied a reopening of her claim, SB-59811. On April15, 2009, the claimant filed a protest to the denial order and on May 12, 2009, the Department issued an order in which it affirmed as correct the April 9, 2009 denial order. On May 26, 2009, the employer, Starbucks, filed a protest to the May 12, 2009 order. On June 1, 2009, the Department issued an order in which it resumed jurisdiction of the claim.

On May 5, 2009, Tami D. Lynn filed an Application for Benefits with the Department of Labor and Industries in which she alleged that on December 4, 2008, during the course of her employment with Starbucks, she sustained an industrial injury to her right wrist, which was assigned Claim No.SC91336. On June 9, 2009, the Department issued an order in which it allowed Claim No. SC-91336 as an occupational disease and affirmed as correct the Department order dated May 12, 2009, in which it affirmed the April 9, 2009 order in which it denied a reopening of Claim No. SB-59811 for aggravation of condition.

2. In mid-December 2006, Tami D. Lynn last worked for Everett School District No. 2.

3. Prior to her last day of work, Tami D. Lynn worked with some limited physical restrictions, mostly as a taco bar server, which was within her [6]capabilities. Her work activities did require repetitive use of her hands, wrists, and arms.

4. Prior to her last day of work for the Everett School District, Tami D. Lynn suffered from pain associated with her right wrist and arm that arose naturally and proximately from the distinctive conditions of her employment with the Everett School District No. 2 and constituted an occupational disease condition.

5. On June 17, 2008, claimant's medical condition, related to her allowed claim, No. SB-59811, had reached maximum medical improvement and was not in need of any further medical treatment. There were no objective findings to support any permanent impairment as a result of her allowed condition.

6. Commencing at some point in time prior to February 1, 2008, Tami D. Lynn started working for Starbucks Corporation as a barista. Her work activities required lifting cartoons of milk, reaching overhead, janitorial duties, and repetitive use of her hands, wrists, arms, and shoulders while preparing various coffee drinks and serving customers. These work activities were not the same as the ordinary incidents of daily living.

7. As of December 4, 2008, claimant suffered from right wrist, arm, and shoulder pain that arose naturally and proximately from the distinctive conditions of her employment with Starbucks Corporation and constituted an occupational disease condition under Claim No.SC91336.

8. The work activity while working for Starbucks Corporation was a supervening cause of claimant's right wrist, arm, and shoulder condition that aggravated a preexisting degenerative condition in her right ACshoulder joint and the conditions required proper and necessary medical treatment.

9. The claimant's industrially related conditions allowed under Claim No.SB59811 as an occupational disease did not objectively worsen between June 17, 2008, and June 9, 2009.

CONCLUSIONS OF LAW

1. The Board of Industrial Insurance Appeals has jurisdiction over the parties to and the subject matter of this appeal.

2. Tami D. Lynn developed an occupational disease condition, as defined by RCW 51.08.140 effective December 4, 2008, during the course of her employment with Starbucks Corporation under Claim No. SC-91336. Her condition aggravated a preexisting degenerative condition to her right AC shoulder joint that required medical treatment.

3. Between June 17, 2008, and June 9, 2009, Tami D. Lynn's conditions covered under her occupational disease Claim No. SB-59811 did not objectively worsen within the meaning of RCW 51.32.160. [7]

4. The Department order dated June 9, 2009, is correct and is affirmed.

DATED: November 15, 2010.

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