No. 94-471

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

VIOLET SYNEK,

Claimant and Appellant,

STATE COMPENSATION MUTUAL

INSURANCE FUND,

Insurer and Respondent.

APPEAL FROM: The Workers' Compensation Court, State of Montana

The Honorable Mike McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Terry Spear, Attorney at Law, Billings, Montana

For Respondent:

Susan C. Witte, Legal Counsel, State Compensation

Insurance Fund, Helena, Montana

Filed:

Submitted on Briefs: March 9, 1995

Decided: July 25, 1995

/

Clerk
Justice Karla M. Gray delivered the Opinion of the Court.

Violet Synek (Synek) appeals from an order of the Workers'

Compensation Court affirming the decision of the Montana Department

of Labor and Industry (Department) which denied her claim for

payment for past and continuing chiropractic treatments, penalty

and attorney's fees. We affirm.

We restate the issues on appeal as follows:

1 . Did the Workers' Compensation Court err in affirming

the Department's determination that Synek's chiropractic

treatments were not compensable?

2 . Were Synek's procedural due process rights violated

by the Department's procedures?

In the course of Synek's employment with the Professional

Nursing Personnel Pool, she suffered two accidents in 1980. In

October 1980, she sustained cervical, lumbar and knee injuries. A

few months later, she injured her upper back, left shoulder, arm

and wrist. The State Compensation Insurance Fund (State Fund) is

Professional Nursing Personnel Pool's workers' compensation

insurer.

Synek sought treatment for her injuries from Dr. J.L. Cromwell

(Cromwell), a chiropractor. In 1984, Cromwell sold his practice to

Dr. Karlene Berish (Berish), who continued treating Synek. The

State Fund paid for Synek's chiropractic treatments.

In correspondence with the State Fund regarding Synek's

condition in 1987, Berish stated that she was treating Synek on a

"patient need basis . . . for relief of pain associated with flareups due to a very unstable lower back." She further indicated that

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Synek's condition "continues to deteriorate" and that she was

providing Synek with "palliative care . . . so that [Synekl may

function more comfortably on a day to day basis."

In November 1988, the State Fund informed Berish that it would

no longer pay for Synek's chiropractic treatments. The State

Fund's decision was based on the report of Dr. Phil Blom, who,

after reviewing Synek's file, opined that the treatments she was

receiving were not compensable.

Synek filed a petition with the Department for the cost of

unpaid treatments and for a determination with regard to the

compensability of future treatments. The Department's hearing

examiner denied Synek's claim, concluding that the State Fund was

not liable for payment of past or, in the absence of specific

authorization, future chiropractic treatments by Berish. Synek

sought judicial review of the Department's decision in the Workers'

Compensation Court and the court affirmed that decision. Synek

appeals.

1 . Did the Workers' Compensation Court err in affirming

the Department's determination that Synek's chiropractic

treatments were not compensable?

It is well-settled that "[wlorkers' compensation benefits are

determined by the statutes in effect as of the date of injury."

Buckman v. Mont. Deaconess Hospital (1986), 224 Mont. 318, 321, 730

P.2d 380, 382. Thus, the 1979 version of the Workers' Compensation

Act applies to Synek's claim arising from injuries sustained in

1980.

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Section 39-71-704, MCA (1979), provides, in pertinent part:

Payment of medical, hospital, azd related services.

III addition to the compensation provided by this chapter

and as an additional benefit separate and apart from

compensation, the following shall be furnished:

(1) After the happening of the injury, the employer or

insurer shall furnish, without limitation as to length of

time or dollar amount, reasonable services by a physician

or surgeon, reasonable hospital services and medicines

when needed, and such other treatment as may be approved

by the division for the injuries sustained.

Administrative rules regarding chiropractic services were duly

promulgated to implement the "other treatment as may be approved"

portion of § 39-71-704(l), MCA (1979). Those rules, and the

evidence regarding the nature of Synek's chiropractic treatments

vis-a-vis those rules, form the crux of this case.

Section 24.29.2003, ARM, sets forth the type of chiropractic

treatments which are compensable:

Workers' Comoensation Does Pay (1) For

"therapeutics" defined as: any treatment considered

necessary to return the patient to a preclinical status

or establish a stationary status.

(2) Rehabilitation procedures necessary for reeducation

or functional restoration of a disabled body system or

part.

Section 24.29.2004, ARM, sets forth the chiropractic treatments

which are not compensable:

Workers' Comwensation Does Not Pay (1) For

maintenance -- a regime designed to provide the optimum

state of health while minimizing recurrence of the

clinical status.

(2) Prevent treatment -- procedures necessary to prevent

the development of clinical status.

Via extensive findings based on the testimony and evidence of

record, the Department's hearing examiner determined that Synek's

treatments were "maintenance" rather than "therapeutics" under

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§§ 24.29.2003 and 24.29.2004, ARM. On that basis, the hearing

examiner concluded that the treatments were not compensable.

On petition for judicial review to the Workers' Compensation

Court, Synek argued that the hearing examiner's decision was not

supported by substantial evidence. The court concluded that

substantial evidence supported the decision and affirmed the

determination that Synek's treatments were not compensable.

In reviewing an agency's decision in a contested case

procedure under the Montana Administrative Procedure Act,

reviewing courts apply the standards of review contained in § 2-4-

704, MCA; State Comp. Mut. v. Lee Rost Logging (1992), 252 Mont.

97, 102, 827 P.2d 85, 88. Section 2-4-704(2) (a) (v), MCA, provides

that the agency's decision may be reversed if substantial rights

have been prejudiced because the agency's findings, inferences,

conclusions or decisions are clearly erroneous in view of the

substantial evidence of record. Lee Rost, 827 P.2d at 88. We

apply the same standard of review as did the Workers' Compensation

court.

Synek argues that her treatments have been aimed at achieving

stability and, therefore, that they are compensable "therapeutics"

under 5 29.24.2003, ARM, and not "maintenance" as defined in §

29.24.2004, ARM. She asserts that a patient whose condition is

unstable at any point in time following the work-related injury is

entitled to chiropractic treatment at the insurer's expense. She

further contends that the hearing examiner's application of the

chiropractic rules produces an absurd result which justifies

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reversal.

In 1987, Berish wrote to the State Fund that Synek was being

treated:

as needed for temporary relief of pain. Her condition

continues to deteriorate gradually and remains unstable.

I am providing palliative care for her so that she may

function more comfortably on a day to day basis.

Berish reaffirmed this characterization of Synek's treatments

during the hearing. She testified that her treatment of Synek's

condition was "palliative'1 in nature, a term she defined as

offering relief from pain with no cure expected. Berish also

testified that, as of November 1988, Synek had reached a state of

"maximum medical improvement," and that she did not expect further

improvement in Synek's condition.

Berish's testimony establishes that the chiropractic

treatments for which Synek seeks compensation are not compensable

under the applicable administrative rules. Section 24.29.2003,

-, authorizes payment fox treatments necessary to return the

patient to a preclinical status or establish a stationary status.

Berish's characterization of Synek's condition was that it was

worsening, was not expected to become preclinical and might never

reach a stable condition. Thus, Berish's testimony supports the

Department's determination that her treatments of Synek were not

"therapeutics" for which workers' compensation is available under

5 24.29.2003, ARM. Indeed, Berish's testimony that the treatments

were provided "as needed," and for "temporary relief from pain,"

corresponds to the definition of "maintenance" contained in--and

not compensable under--§ 24.29.2004, ARM, in that the treatments

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were provided to optimize Synek's state of health by relieving pain

as her condition deteriorates with age. We conclude that the

hearing examiner's findings and decision were supported by

substantial evidence and are not clearly erroneous.

Anticipating our conclusion that the hearing examiner's

determination is supported by substantial evidence, Synek argues

that §§ 24.29.2003 and 24.29.2004, ARM, are unreasonable, lead to

an absurd result and constitute an improper basis for denial of her

claim. She contends that Weis v. Div. of Workers' Compensation

(1988), 232 Mont. 218, 755 P.2d 1385, supports her position. Her

reliance on Weis is misplaced.

Weis involved two issues: whether the legislature, in enacting

§ 39-71-122, MCA (1985), intended to restrict the making of an

"impairment rating" to licensed medical physicians; and whether the

Division of Workers' Compensation properly exercised its rulemaking

authority in promulgating an administrative rule under that statute

which restricts impairment ratings to licensed Montana physicians

holding a doctor of medicine degree. We first determined that the

legislature did intend to limit impairment ratings to licensed

medical physicians. On that basis, we concluded that the

Division's administrative interpretation of the statute via its

administrative rule corresponded to the statute and was not

improper. -,Weis 755 P.2d at 1387.

Synek apparently contends that our discussion of the second

issue in Weis supports her argument that 5s 24.29.2003 and

24.29.2004, ARM, are unreasonable and produce an absurd result.

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There, we stated that we give deference to an agency' s

interpretation of a statute via its administrative rules "unless

the interpretation produces an absurd result." -,Weis 755 P.2d at

1387 (citations omitted). In -IWeis we concluded that the

administrative rule essentially mirrored the legislature's intent

in enacting the statute and, therefore, that the Division properly

enacted the administrative rule at issue. Weis -I 755 P.2d at 1387.

Here, unlike in - I Weis the statute under which §§ 24.29.2003

and 24.29.2004, ARM, were promulgated contains broad rulemaking

authority. Section 39-71-704 (1) , MCA (1979), authorizes

compensation for "such other treatment as may be approved by the

division for the injuries sustained." The administrative rules at

issue provide compensation for some types of chiropractic treatment

and prohibit payment for other types of treatment. The rules,

which constitute the Department's "interpretation" of the statute,

are entitled to deference unless they produce an absurd result.

-See Weis -I 755 P.2d at 1387.

The administrative rules at issue, which include treatments of

some kinds and exclude others, and which were promulgated pursuant

to broad statutory language, are not facially or inherently

arbitrary, capricious or unreasonable. Moreover, Synek does not

articulate with any specificity the manner in which these rules

produce an absurd result in this case under either the statute or

the language of the rules themselves. Thus, under the general

rule stated in -rWeis §§ 24.29.2003 and 24.29.2004, ARM, are

entitled to deference. On the basis of the record before us, we

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conclude that the administrative rules at issue here do not produce

an absurd result.

We hold that the Workers' Compensation Court did not err in

affirming the Department's determination that Synek's chiropractic

treatments were not compensable.

2 . Were Synek's procedural due process rights violated

by the Department's procedures?

Synek argues that she was denied due process by the

Department's procedures because of the one-year delay between the

hearing and the hearing examiner's decision. Relying on Carmichael

v. Workers' Compensation Court (1988), 234 Mont. 410, 763 P.2d

1122, she asserts that the legislature's restructuring of the

Department--including the elimination of the Division of Workers'

Compensation--precipitated this delay and constituted an

impermissible retroactive application of statutes.

The issue before us in Carmichael was whether a statutory

mediation requirement enacted in 1987 which, by its terns, applied

to all workers' compensation disputes regardless of when they

arose, constitutionally could be applied to employment-related

injuries which occurred prior to the effective date of the statute.

The Workers' Compensation Court determined that the statute was

applicable and that, while the extra tine required for mediation

would cause some delay, the delay was not so substantial as to

render application of the statute unconstitutional. Carmichael,

763 P.2d at 1126.

On appeal, Carmichael argued that retroactive application of

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the mediation requirement unconstitutionally impaired his

contractual rights by significantly delaying his right to petition

the Workers' Compensation Court. We observed that Carmichael's

contractual workers' compensation rights vested on the date of his

injury and entitled him, as of that date, to directly petition the

Workers' Compensation Court. Carmichael, 763 P.2d at 1124. The

mediation statute subsequently enacted by the legislature required

exhaustion of the mediation procedure prior to filing a petition in

the Workers' Compensation Court, a delay of up to 100 days.

Accordingly, we held that retroactive application of the mediation

statute to Carmichael's work-related injury substantially and

impermissibly impaired his vested contractual rights. Carmichael,

763 P.2d at 1126.

In the case presently before us, no new procedure or inherent

delay is contained in the legislature's restructuring of the

Department. As a result, unlike the situation in Carmichael, this

case does not involve delay specifically and directly imposed by a

legislatively-mandated procedural requirement. W e conclude,

therefore, that application of the statutes restructuring the

Department does not violate Synek's right to due process.

In a related argument, Synek requests this Court to address

the question of what amount o f time is "reasonable" for

adjudication of a workers' compensation petition. We decline to do

so. Each workers' compensation petition and claim presents its own

unique facts and procedural history; these and other legitimate

considerations properly influence the amount of time reasonably

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required to reach a decision. & Capers v. Flautt (S.C. App.

1991), 407 S.E.2d 660.

Finally, Synek argues that she is entitled to a 20% penalty,

as well as attorney‘s fees, on reversal of the Workers'

Compensation Court. Based on our conclusions herein, we need not

address this argument.

Affirmed.

We concur:

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July 25, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certifkd order was sent by United States mail,

following named:

‘Terry Spear

Attorney at Law

490 N. 31st ST., Ste. 116

Billings, MT 59101

Susan C. Witte, Legal Counsel

State Compensation Insurance Fund

P.O. Box 4759

Helena, MT 596044759

ED SMITH

CLERK OF THE SUPREME

STATE OF MONTANA

prepaid, to the

COURT

-