5-Minute IME Doesn’t Defeat Massage Necessity Claims

Frank Ferreri

Concord, NH (WorkersCompensation.com) – Is it reasonable and necessary for an employee to up and move out of state to receive treatment for an at-work injury?

Because an independent medical examination doctor spent just five minutes reviewing the case of a nurse seeking reimbursement for massage therapy, in Appeal of Laura Leborgne, No. 2019-0464 (N.H. 08/12/20), the New Hampshire Supreme Court held that the nurse established medical necessity despite some paperwork problems.

N.H. to N.Y. for Massages

The nurse was injured while moving a patient from a chair to a bed. She reported feeling sudden and severe pain in her jaw, neck, shoulder, and upper right side of her body. Diagnosed with a trapezius strain, the nurse found that the treatment she received didn’t fully control her pain.

The nurse was prescribed medications that included opioids. Eventually, in effort to ween off opioids, she relocated to New York to receive treatment that included massage therapy. Although she still experienced pain, she reported that she had a better quality of life, was able to sleep better, and was no longer in a “fog” from opioids.

After paying for massage sessions out of pocket, the nurse sought reimbursement, and her claim was denied. She requested a hearing with the New Hampshire Department of Labor, which upheld the denial, prompting her to appeal to the state’s Compensation Appeals Board.

The IME doctor concluded the massage therapy was “excessive” and “not reasonable, related, or medically necessary to the nurse’s injury,” leading the board to rule against the nurse.

Despite finding that the nurse and her doctor were credible and faulting the IME doctor for spending only five minutes with the nurse before making his medical conclusions, the board explained that the New York massage therapists did not complete or submit required New Hampshire workers’ compensation forms.

The nurse appealed to the Granite State’s top court.

Reasonable, Necessary, Related

In New Hampshire, as in other states, to obtain reimbursement for medical treatment, the employee must prove that the treatment is reasonable, necessary, and related to the workplace injury.

Here, the state’s supreme court explained that the board found that the nurse’s doctor’s medical opinions were held more weight than the IME doctor’s. In particular, the court highlighted the board’s assessment that the nurse’s doctor’s opinions were “slightly more reasonable and sounder” due to the brevity of the IME doctor’s time with the nurse.

The court additionally explained that issues about the forms were irrelevant to whether the treatment was reasonable and necessary.

“[The board] improperly determined that the [nurse] had failed to establish that her New York massage therapy treatment was reasonable, necessary, and related to her .. injury because the form … had not been submitted,” the court explained.

Instead, given that the board credited the nurse’s doctor over the IME doctor, the court concluded that the nurse established that the massage treatment was reasonable, necessary, and related to her workplace injury. Therefore, it reversed the board’s decision against her.

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