Jennifer Moore v. K-Mart Corporation , 234 W. Va. 658 ( 2015 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2015 Term FILED
February 5, 2015
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 12-1127
JENNIFER MOORE,
Claimant Below, Petitioner
v.
K-MART CORPORATION,
Employer Below, Respondent
Appeal from the Workers’ Compensation
Board of Review
No. 2046853
REVERSED AND REMANDED
Submitted: January 14, 2015
Filed: February 5, 2015
George Zivkovich, Esq. Michael A. Kawash, Esq.
Parkersburg, West Virginia Robinson & McElwee PLLC
Counsel for Petitioner Charleston, West Virginia
Counsel for Respondent
CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE BENJAMIN dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. “Interpreting a statute or an administrative rule or regulation
presents a purely legal question subject to de novo review.” Syl. Pt. 1, Appalachian
Power Co. v. State Tax Dep’t of W.Va., 195 W.Va. 573, 466 S.E.2d 424 (1995).
2. “One of the basic purposes of workmen’s compensation legislation
is to impose upon industry the cost of medical expenses incurred in the treatment and
rehabilitation of workers who have suffered injuries in the course of and as a result of
their employment[.]” Syl. Pt. 2, in part, Ney v. State Workmen’s Comp. Com’r, 171
W.Va. 13, 297 S.E.2d 212 (1982).
3. “Any rules or regulations drafted by an agency must faithfully
reflect the intention of the Legislature, as expressed in the controlling legislation. Where
a statute contains clear and unambiguous language, an agency’s rules or regulations must
give that language the same clear and unambiguous force and effect that the language
commands in the statute.” Syl. Pt. 4, Maikotter v. Univ. of W.Va. Bd. of Trs., 206 W.Va.
691, 527 S.E.2d 802 (1999).
4. West Virginia Code of State Rules § 85-20-62.2 (2006), which
provides, in part, that “[t]he Commission, Insurance Commissioner, private carrier or
self-insured employer, whichever is applicable, will not reimburse for IV chelation
therapy performed in office[,]” unreasonably denies reimbursement when such treatment
i
is medically necessary, in contravention of the Workers’ Compensation Act, West
Virginia Code § 23-4-3 (2010), and it is therefore invalid.
ii
Workman, Chief Justice:
In this workers’ compensation appeal, the claimant/petitioner, Jennifer
Moore (“Petitioner”), challenges the validity of a regulation insofar as it denies
reimbursement for medically necessary intravenous chelation therapy when the therapy is
performed in a physician’s office. Having studied the record and reviewed the arguments
of the parties in consideration of applicable legal authority, we conclude the portion of
the regulation challenged is unreasonable and inconsistent with the Workers’
Compensation Act, specifically West Virginia Code § 23-4-3 (2010), and hereby
invalidate it. We reverse the order of the Workers’ Compensation Board of Review
(“BOR”) and remand this matter for entry of an order directing that Petitioner’s
reasonable expenses for medically necessary chelation therapy be reimbursed.
I. FACTUAL AND PROCEDURAL HISTORY
Petitioner worked for the K-Mart Corporation (“Respondent”) for more
than thirty years. During the course of her employment, Petitioner used belt sanders and
grinders to refurbish furniture. She worked in a small room with poor ventilation and was
exposed to furniture dust and metal dust. Petitioner developed symptoms of tingling and
numbness in her feet. 1 Following medical testing, her treating physician, Jonathan
Murphy, M.D., an internal medicine specialist familiar with the principles of toxicology,
1
Petitioner testified at deposition that she began having problems with her feet in
June of 2006. Her symptoms included burning and tingling that felt like crushed ice
coming out of the bottom of her feet. Over time, Petitioner’s symptoms grew worse.
1
diagnosed Petitioner with peripheral neuropathy due to toxic exposure to heavy metals at
the workplace. 2 Petitioner filed a claim for workers’ compensation and following
litigation, the claim was ruled compensable.3
In 2008, Dr. Murphy began treating Petitioner with intravenous chelation
therapy and her symptoms have improved. In layman’s terms, the process of chelation
therapy is simple: it is a chemical process in which a synthetic solution is injected into the
bloodstream to help remove heavy metals4 and/or minerals from the body.5 Dr. Murphy
has extensive experience performing this therapy in his office; he states there are no
2
Petitioner’s urine toxicology revealed elevated levels of heavy metals including
aluminum, lead, and nickel.
3
Petitioner protested the claim administrator’s order of July 3, 2008, which denied
compensability of the claim. In support of her protest, Petitioner submitted various
medical records including diagnostic test reports from Dr. Murphy’s office. She also
submitted her deposition testimony and the deposition testimony of Dr. Murphy. An
Administrative Law Judge with the Workers’ Compensation Office of Judges reviewed
this evidence and found the claim compensable by decision dated April 29, 2010.
Respondent appealed, and by order dated December 15, 2010, the BOR affirmed the
decision of the Administrative Law Judge, with modifications.
4
“The so-called heavy metals [include] . . . lead, cadmium, zinc, mercury and iron
and, while aluminum is not a heavy metal, aluminum may be considered as such for the
purposes hereinafter mentioned as it tends to some extent to be chelated by the processes
concerned.” U.S. v. Evers, 453 F.Supp. 1141, 1143 n.4 (1978).
5
During chelation therapy, a patient receives intravenous injections of the
chelating drug, usually disodium ethylenediamine tetraacetic acid (“EDTA”). Evers, 453
F.Supp. at 1143. The chelating drug binds to the harmful metals and they are passed out
of the body through the kidneys. EDTA intravenous treatment is often recommended for
lead poisoning and other diseases requiring removal of heavy metals from the body.
Rogers v. State Bd. of Med. Exam’rs, 371 So.2d 1037, 1039 (Fla. 1979).
2
chelation programs in hospitals in West Virginia that treat chronic heavy metal toxicity.
The record is undisputed that this treatment is medically necessary to treat Petitioner’s
compensable condition. 6 In this appeal, Petitioner is seeking reimbursement for these
medical expenses.
Petitioner appeals the August 29, 2012, order of the BOR, which denied her
request for reimbursement for medical expenses for intravenous chelation therapy from
May 1, 2008, through October 15, 2010. 7 The BOR denied reimbursement for these
medical expenses pursuant to West Virginia Code of State Rules § 85-20-62.2 (2006)
which provides, in part, that: “The Commission, Insurance Commissioner, private carrier
or self-insured employer, whichever is applicable, will not reimburse for IV chelation
therapy performed in office.”8
6
The danger associated with the harmful metals remaining in the blood is that the
blood vessels may become clogged, disallowing free passage of the blood through the
blood vessels causing stroke, senility because of inadequate blood supply to the brain,
gangrene resulting from failure of sufficient blood in the limbs, and various degrees of
numbness, dizziness and pain associated with poor circulation. Evers, 453 F.Supp. at
1144.
7
At his deposition in September of 2009, Dr. Murphy testified that Petitioner had
undergone approximately thirty treatments and her peripheral neuropathy symptoms
improved. Dr. Murphy recommended that in the future, Petitioner have four intravenous
chelation therapy treatments per year.
8
The full text of West Virginia Code of State Rules § 85-20-62.2, reads as
follows:
(continued . . .)
3
In so ruling, the BOR reversed a decision of an Administrative Law Judge
(“ALJ”) with the Workers’ Compensation Office of Judges (“OOJs”). The ALJ had
reversed the claim administrator’s order denying reimbursement for chelation therapy,
concluding that reimbursement was appropriate because “[t]he Claim Administrator must
provide medically related and reasonably required medical treatment, health care or
healthcare goods and services under the W.Va. Code §23-4-3 and 85 CSR 20.”
II. STANDARD OF REVIEW
Petitioner contends the BOR erred in reversing the OOJs’ order granting
reimbursement for medically necessary intravenous chelation therapy. Our review of
workers’ compensation appeals is guided by the criteria set forth in West Virginia Code §
23-5-15 (2010):
(b) In reviewing a decision of the board of review, the
Supreme Court of Appeals shall consider the record provided
All chelation therapy (oral and IV) requires prior
authorization and consultation with a Board Certified Medical
Toxicologist, an occupational medicine specialist, or general
internist familiar with principals of toxicology, prior to
initiation of the therapy. In the rare incident, in which acute
encephalopathy occurs as the result of heavy metal toxicity, a
consultation with the Poison Control Center will serve as
confirmation of the need for such chelation therapy. The
Commission, Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, will not reimburse
for IV chelation therapy performed in office.
The record reflects that Petitioner was unable to receive prior authorization for
chelation therapy, as required by the regulation, because the claim was held non­
compensable at the time she began this treatment. See footnote 3, supra.
4
by the board and give deference to the board’s findings,
reasoning and conclusions, in accordance with subsections (c)
and (d) of this section.
....
(d) If the decision of the board effectively represents a
reversal of a prior ruling of either the commission or the
Office of Judges that was entered on the same issue in the
same claim, the decision of the board may be reversed or
modified by the Supreme Court of Appeals only if the
decision is in clear violation of constitutional or statutory
provisions, is clearly the result of erroneous conclusions of
law, or is so clearly wrong based upon the evidentiary record
that even when all inferences are resolved in favor of the
board’s findings, reasoning and conclusions, there is
insufficient support to sustain the decision. The court may not
conduct a de novo re-weighing of the evidentiary record. If
the court reverses or modifies a decision of the board
pursuant to this subsection, it shall state with specificity the
basis for the reversal or modification and the manner in which
the decision of the board clearly violated constitutional or
statutory provisions, resulted from erroneous conclusions of
law, or was so clearly wrong based upon the evidentiary
record that even when all inferences are resolved in favor of
the board’s findings, reasoning and conclusions, there is
insufficient support to sustain the decision.
Resolution of this matter requires us to interpret a provision contained in
the West Virginia Code of State Rules and our review is therefore de novo. “Interpreting
a statute or an administrative rule or regulation presents a purely legal question subject to
de novo review.” Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep’t of W.Va., 195
W.Va. 573, 466 S.E.2d 424 (1995); Hale v. W.Va. Office of Ins. Com’r, 228 W.Va. 781,
784, 724 S.E.2d 752, 755 (2012). With these principles in mind, we consider the
arguments of the parties.
5
III. DISCUSSION
The sole issue we address in this appeal is whether Petitioner is entitled to
receive reimbursement for medically necessary intravenous chelation therapy when the
therapy was performed in her physician’s office. Petitioner urges this Court to invalidate
the challenged portion of West Virginia Code of State Rules § 85-20-62.2 as arbitrary
and capricious. She maintains the BOR’s decision is tantamount to a denial of medical
treatment in contravention of West Virginia Code § 23-4-3, 9 which requires the claim
9
West Virginia Code § 23-4-3, provides, in part, that:
The commission, and effective upon termination of the
commission, all private carriers and self-insured employers or
their agents, shall disburse and pay for personal injuries to the
employees who are entitled to the benefits under this chapter
as follows:
(1) Sums for health care services, rehabilitation
services, durable medical and other goods and other supplies
and medically related items as may be reasonably required.
The commission, and effective upon termination of the
commission, all private carriers and self-insured employers or
their agents, shall determine that which is reasonably required
within the meaning of this section in accordance with the
guidelines developed by the health care advisory panel
pursuant to section three-b [§ 23-4-3b] of this article:
Provided, That nothing in this section shall prevent the
implementation of guidelines applicable to a particular type
of treatment or service or to a particular type of injury before
guidelines have been developed for other types of treatment
or services or injuries: Provided, however, That any
guidelines for utilization review which are developed in
addition to the guidelines provided for in section three-b of
this article may be used by the commission, and effective
upon termination of the commission, all private carriers and
self-insured employers or their agents, until superseded by
(continued . . .)
6
administrator provide medically related and reasonably required medical treatment,
healthcare or healthcare goods and services. Respondent, conversely, argues the medical
treatment at issue should be denied consistent with the regulatory bounds of the workers’
compensation system.
We begin by recognizing the Workers’ Compensation Act provides benefits
to workers who have “received personal injuries in the course of and resulting from their
covered employment[.]” W.Va. Code § 23-4-1 (2010). Under the Act, the term “personal
injury” includes occupational disease. W.Va. Code § 23-4-1(b). “One of the basic
purposes of workmen’s compensation legislation is to impose upon industry the cost of
medical expenses incurred in the treatment and rehabilitation of workers who have
suffered injuries in the course of and as a result of their employment[.]” Syl. Pt. 2, in part,
Ney v. State Workmen’s Comp. Com’r, 171 W.Va. 13, 297 S.E.2d 212 (1982).
guidelines developed by the health care advisory panel
pursuant to said section. Each health care provider who seeks
to provide services or treatment which are not within any
guideline shall submit to the commission, and effective upon
termination of the commission, all private carriers, self-
insured employers and other payors, specific justification for
the need for the additional services in the particular case and
the commission shall have the justification reviewed by a
health care professional before authorizing the additional
services. The commission, and effective upon termination of
the commission, all private carriers, self-insured employers
and other payors, may enter into preferred provider and
managed care agreements which provides for fees and other
payments which deviate from the schedule set forth in this
subsection.
7
Pursuant to West Virginia Code § 23-4-3b (2010), the Workers’
Compensation Commission established guidelines for health care treatment reasonably
required for various types of injuries and occupational diseases. W.Va. Code § 23-4­
3b(1). See Syl. Pt. 10, Simpson v. W.Va. Office of the Ins. Comm’r, 223 W.Va. 495, 678
S.E.2d 1 (2009) (upholding constitutionality of statute whereby Legislature specifically
delegated its rule-making authority for medical management of workers’ compensation
claims and awards of disability).
According to the agency regulation at issue, a claimant will be denied
reimbursement for intravenous chelation therapy performed in an office. W.Va. Code of
State Rules § 85-20-62.2. However, an administrative regulation is not, itself, the
equivalent of a statute. “To be valid, a regulation promulgated by an administrative
agency must carry out the legislative intent of its governing statutes.” Hale, 228 W.Va. at
785, 724 S.E.2d at 756. As a rule of statutory construction, we have repeatedly held that
[a]ny rules or regulations drafted by an agency must
faithfully reflect the intention of the Legislature, as expressed
in the controlling legislation. Where a statute contains clear
and unambiguous language, an agency’s rules or regulations
must give that language the same clear and unambiguous
force and effect that the language commands in the statute.
Syl. Pt. 4, Maikotter v. Univ. of W.Va. Bd. of Trs., 206 W.Va. 691, 527 S.E.2d 802(1999). The “[p]rocedures and rules properly promulgated by an administrative agency
with authority to enforce a law will be upheld so long as they are reasonable and do not
enlarge, amend or repeal substantive rights created by statute.” Hale, 228 W.Va. at 786,
8
724 S.E.2d at 757 (quoting Syl. Pt. 4, State ex rel. Callaghan v. W.Va. Civil Serv.
Comm’n, 166 W.Va. 117, 273 S.E.2d (1980)); see also, Anderson & Anderson
Contractors, Inc. v. Latimer, 162 W.Va. 803, 807-08, 257 S.E.2d 878, 881 (1979)
(“Although an agency may have power to promulgate rules and regulations, the rules and
regulations must be reasonable and conform to the laws enacted by the Legislature.”).
At the outset of this Court’s analysis, it is imperative to acknowledge what
arguments Respondent fails to advance. Importantly, Respondent does not argue the
regulation was promulgated for health and safety concerns. Based on our review of the
record, we discern no medical rationale for the distinction between chelation therapy
performed in an office and chelation therapy performed elsewhere. We would be
extremely hesitant to invalidate the regulation if there was any medical justification
contained in the regulation or the record to support the distinction. The record reflects
that Dr. Murphy has treated dozens of patients in his office for heavy metal toxicity. He
has not experienced any patient suffering complications from the treatments, nor has he
encountered a patient who has not benefited from the removal of the heavy metals
through chelation therapy.
Furthermore, Respondent does not argue that the regulation was
promulgated to promote economic efficiency. In fact, we discern no cost-saving rationale
for the distinction between chelation therapy performed in an office and chelation therapy
performed elsewhere. To the contrary, Dr. Murphy reported that chelation therapy
9
generally costs $400 per unit and he provides this medical treatment in office at the
discounted rate of $105 per unit.
Respondent does not articulate any rational basis to deny reimbursement for
medically necessary chelation therapy treatment when performed in an office. Even so,
Respondent argues the BOR properly applied the regulation to discourage chelation
therapy due to the controversial nature of the therapy. This contention lacks merit both
factually and legally. The controversy in the medical community surrounding chelation
therapy has to do with the use of that therapy for other medical problems including
arteriosclerosis (hardening of the arteries), not when the therapy is used to treat heavy
metal toxicity.
Chelation therapy has been approved by the federal
Food and Drug Administration (FDA) only as a means for the
removal of heavy metals from the body. However, non-FDA­
approved, or “off-label,” use of medications by physicians is
not prohibited by the FDA and is generally accepted in the
medical profession. . . . Approximately 1,000 physicians in
the United States engage in the off-label use of chelation
therapy to treat arteriosclerosis and other vascular conditions.
Of these 1,000 United States-based physicians, 750 belong to
the American College for Advancement in Medicine
(ACAM), which has 1,000 members worldwide and which
endorsed chelation therapy as a valid course of treatment for
occlusive vascular and degenerative diseases associated with
aging. To that end, ACAM developed a protocol . . . for using
chelation therapy to treat such diseases.
State Bd. of Registration for Healing Arts v. McDonagh, 123 S.W.3d 146, 149-50 (Mo.
2003) (citations and footnotes omitted). See also Friedrich v. Sec. of Health and Human
Servs., 894 F.2d 829, 838 (6th Cir. 1990) (upholding validity of regulation denying
10
Medicare Part B reimbursement for chelation therapy to treat arteriosclerosis because
Secretary of Health and Human Services found it to be not reasonable and necessary for
the treatment of that illness).
Respondent states the regulation does not require that the chelation therapy
be performed in a hospital; it just prohibits reimbursement when performed in an office.
This point only highlights the arbitrary nature of this portion of the regulation. Applying
the plain language of the regulation, Dr. Murphy could travel to Petitioner’s home to
administer the chelation therapy and the cost would be reimbursable. Ostensibly, Dr.
Murphy could walk out of his office and meet Petitioner in the parking lot of his medical
practice to administer the chelation therapy and the cost would be reimbursable; this
asinine example reveals the absence of any rational basis for the challenged portion of
West Virginia Code of State Rules § 85-20-62.2. Nevertheless, we are not asked in this
case to say whether we think this regulation is wise. We are asked to hold if it violates the
Act. And that, we do.
To the extent Respondent argues the regulation furthers the legitimate goal
of ensuring chelation therapy is used only to treat appropriate medical conditions, its
position is nonsensical. Medical necessity and appropriateness of treatment have always
11
been prerequisites to a worker’s recovery of medical benefits.10 Dr. Murphy administers
chelation therapy to Petitioner to treat her symptoms of neuropathy related to heavy metal
toxicity. There is no evidence Petitioner ever received chelation therapy as treatment for
arteriosclerosis or any other non-compensable condition. Consequently, we fail to see
how Petitioner’s chelation therapy treatment is in any way controversial.
The primary reason Respondent’s argument lacks merit is because it
ignores the fundamental purpose of workers’ compensation legislation. There is no
rational basis to discourage medically necessary treatment; this reasoning is wholly
incompatible with the Act’s benevolent objectives. One of the overriding purposes of the
Act is to provide reasonable and necessary medical treatment to employees who are
injured on the job. W.Va. Code § 23-4-1. The regulation is discordant with West Virginia
Code § 23-4-3, which provides the claim administrator must provide medically related
and reasonably required medical treatment, healthcare or healthcare goods and services.
See generally, Riley Family Trust v. Hood, 874 P.2d 503, 504 (Colo. App. 1994)
(affirming payment of reasonable and necessary massage therapy prescribed by treating
physician and performed by certified massage therapist even though regulation required
10
In addition to their obligation as medical professionals, physicians have
financial incentives to provide appropriate medical treatment under the workers’
compensation system because the commission may suspend or permanently terminate
their right to obtain payment for services if the “commission finds that the health care
provider is regularly providing to injured employees health care that is excessive,
medically unreasonable or unethical[.]” W.Va. Code § 23-4-3c(1) (2010).
12
therapy be administered by or under on-site supervision of a physician or registered
physical therapist).
The challenged portion of the regulation is also contradicted by other
statutes, namely West Virginia Code § 23-1-1(b) (2010), which provides the Act shall
“be interpreted so as to assure the quick and efficient delivery of indemnity and medical
benefits to injured workers at a reasonable cost to the employers[.]” In addition, West
Virginia Code § 23-5-13 (2010), provides: “[i]t is also the policy of this chapter to
prohibit the denial of just claims of injured or deceased workers or their dependents on
technicalities.” Therefore, finding no legitimate justification for the challenged portion of
the regulation at issue, we conclude it is unreasonable to deny reimbursement for
medically necessary chelation therapy to treat heavy metal toxicity simply because the
therapy was performed in a physician’s office.
Based on the foregoing, we hold that West Virginia Code of State Rules §
85-20-62.2 (2006), which provides, in part, that “[t]he Commission, Insurance
Commissioner, private carrier or self-insured employer, whichever is applicable, will not
reimburse for IV chelation therapy performed in office[,]” unreasonably denies
reimbursement when such treatment is medically necessary, in contravention of the
Workers’ Compensation Act, West Virginia Code § 23-4-3 (2010), and it is therefore
invalid. Petitioner suffers from peripheral neuropathy due to toxic exposure to heavy
metals at the workplace. She is entitled to receive reasonable and necessary medical
13
benefits to treat this compensable condition whether she receives such treatment in her
physician’s office or elsewhere.
IV. CONCLUSION
For the reasons set forth above, the August 29, 2012, order of the BOR is
reversed, and this matter is remanded for entry of an order directing that Petitioner’s
reasonable expenses for medically necessary chelation therapy be reimbursed.
Reversed and remanded.
14