Roland Romero v. Northrop Grumman Corp.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 06-1210

ROLAND ROMERO

VERSUS

NORTHROP GRUMMAN CORP.

**********

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 02-02336
CHARLOTTE A. L. BUSHNELL, WORKERS’ COMPENSATION JUDGE

**********

JOHN D. SAUNDERS
JUDGE

**********

Court composed of John D. Saunders, Jimmie C. Peters, and Michael G. Sullivan,
Judges.

AFFIRMED.

Aubrey D. Denton
Attorney at Law
P. O. Drawer 52110
Lafayette, LA 70505-2110
(337) 289-9151
Counsel for Plaintiff/Appellant:
Roland Romero

Mark L. Riley
Onebane Law Firm
P. O. Box 3507
Lafayette, LA 70502-3507
(337) 237-2660
Counsel for Plaintiff/Appellant:
Roland Romero

Christopher M. Trahan
Raggio, Cappel, Chozen, & Berniard
P. O. Box 820
Lake Charles, LA 70602-0820
(337) 436-9481
Counsel for Defendant/Appellee:
Northrop Grumman Corp.

SAUNDERS, Judge.

Claimant, Roland Romero, became ill after exposure to organic solvents at his

place of employment. He filed a claim against his employer, Defendant, Northrop

Grumman Corporation. After a trial on the merits, the WCJ ruled in favor of

Claimant, finding that he proved his condition was causally related to workplace

exposure to toxic chemicals. On April 1, 2002, Claimant filed a separate Disputed

Claim for Compensation against Defendant, alleging that Defendant failed to pay for

his reasonable and necessary medical treatment. Defendant filed an answer on May1,

2002; on January 21, 2003, he filed a motion for an expedited hearing seeking an

order to compel Claimant to submit to a medical evaluation. In response, Claimant

filed a motion to dismiss as well as several exceptions on February 12, 2003. The

WCJ denied all motions and exceptions, as Claimant was hospitalized at the time of

the hearing.

Defendant again filed a motion for an expedited hearing, seeking to compel

Claimant to submit to a medical evaluation on July 9, 2003, which the WCJ granted.

Defendant filed a motion and order to terminate unnecessary medical treatment on

March 25, 2004. After a hearing on the motion on September 29, 2004, the WCJ

appointed its own Independent Medical Examination (IME) physician to review the

evidence and render a report. On May 8, 2006, the WCJ granted Defendant’s motion,

allowing the discontinuance of the unnecessary medical treatments. We affirm.

FACTS AND PROCEDURAL HISTORY

Claimant, Roland Romero, originally filed a Disputed Claim for

Compensation (1008 claim) against Defendant, Northrop Grumman Corporation, on

January 5, 1999, asserting that he had been diagnosed with organic brain syndrome

and that his condition was the result of exposure to toxic chemicals during the course

of his employment. Claimant was employed by Defendant as an aircraft structures

mechanic from November 1997 until March 1998, when he suddenly became ill. As

an aircraft structures mechanic, Claimant’s duties included cleaning the outboard

sections of the wings of various aircraft, which he did using organic solvents.

Claimant first sought treatment of his illness with Dr. John Robert Mathias, a

Houston, Texas neurogastroenterologist, on December 1, 1998. At that time,

Claimant’s main complaints were nausea, vomiting, early satiety, bloating, distention,

and constipation. Claimant stated that his problems had begun four months

previously when he had been exposed to a large dose of Toluene while at work. In

Dr. Mathias’ report dated December 8, 1998, he states that Claimant’s major problem

was that he could not have a bowel movement. He also found that Claimant had

developed severe migraine headaches, had a neurogenic bladder, and was

approximately one hundred pounds overweight. Dr. Mathias also conducted a five-

hour glucose tolerance test and diagnosed Claimant with diabetes mellitus, also

referred to as diabetes, type II.

On April 22, 1999, Dr. Mathias prescribed weekly injections of 30g of

intravenous immuno gamma globulin (IVIg) for twelve weeks. On June 10, 1999,

Claimant returned to Dr. Mathias’ office and reported a “slight improvement” in his

condition. Therefore, Dr. Mathias continued the weekly injections.

Dr. Mathias contacted Ella Daley, a former licensed practical nurse and the

owner of La Bon Sante Health and Wellness Center in Lake Charles, Louisiana,

regarding colon hydrotherapy to help alleviate Claimant’s constipation. Claimant

received the colon hydrotherapy at La Bon Sante, and at the time of the hearing, he

was continuing to receive colon hydrotherapy treatments five times a week.

2

On January 11, 2001, Dr. Mathias wrote a prescription for equipment and home

health care for manual lymphatic drainage, as well as a prescription for equipment

and oxy-ozone sauna therapy treatment. Claimant then began receiving these

treatments at La Bon Sante, as well as ear candling. On February 12, 2002, Dr.

Mathias wrote a prescription stating that the lymphatic drainage could be done at

Claimant’s home and that a massage table was medically necessary.

Dr. Mathias referred Claimant to Dr. James P. Gaharan, a physician board

certified in internal medicine hematology and board eligible in medical oncology, for

the administration of the IVIg treatment. Dr. Gaharan first saw Claimant on April 26,

1999 and performed a basic physical examination. Dr. Gaharan’s report reflects that

Dr. Mathias had diagnosed Claimant with gastrointestinal motility disorder and that

he had been receiving weekly 15g IVIg treatments.

Claimant’s initial claim against Defendant was heard on February 14 and

February 16, 2000. The WCJ ruled in favor of Claimant, finding that he proved his

condition was causally related to workplace exposure to toxic chemicals. Defendant

did not appeal the ruling of the WCJ; however, Claimant appealed the ruling on the

limited issues of whether the WCJ had properly left the record open for later evidence

on the question of Defendant’s right to a credit and whether it erred in denying

Claimant an award of penalties and attorney fees. On appeal, this court reversed the

granting of a credit to the Defendant, as well as the denial of attorney’s fees and

penalties. Accordingly, Claimant was awarded $2,000.00, and $7,500.00, and

Defendant was required to pay Claimant indemnity for his medical treatment.

Claimant subsequently instituted the instant litigation by filing a new Disputed

Claim for Compensation (1008 claim), under a different docket number, on April 1,

3

2002, claiming that Defendant failed to pay for his reasonable and necessary medical

treatment as required by the Workers’ Compensation Act. Defendant filed an answer

to the claim on May 1, 2002. Claimant subsequently filed an amended Disputed

Claim for Compensation on May 28, 2002. On October 16, 2002, a joint motion to

continue the matter originally scheduled for October 17, 2002 was filed and signed.

After taking the depositions of Claimant’s two treating physicians, Defendant

requested that Claimant submit himself to an evaluation by Dr. Richard Sachson, an

endocrinologist in Dallas, Texas. Claimant, through his attorney, refused to submit

to the requested evaluation. On January 23, 2003, Defendant filed a motion and order

for an expedited hearing with the Office of Workers’ Compensation (OWC) pursuant

to La.R.S. 23:1124, seeking an order to compel Claimant to submit to an evaluation

by Dr. Sachson. The order was signed by the WCJ on February 5, 2003, and the

hearing was set for March 10, 2003.

In response, Claimant filed a motion and order to dismiss his 1008 claim

relating to the issue of his medical treatment on February 12, 2003. At the same time,

he filed a motion in limine and peremptory exceptions of res judicata, no cause of

action and/or no right of action, arguing that Defendant was precluded from

questioning the medical treatment Claimant was receiving by virtue of the judgment

handed down by the WCJ, which found his claim to be compensable. The motion in

limine and exceptions filed by Claimant were set to be heard on March 10, 2003,

along with Defendant’s motion for an expedited hearing.

Issuing its oral reasons for judgment at the hearing, the WCJ denied Claimant’s

motion and exceptions, as well as Defendant’s motion for an expedited hearing

because at the time of the hearing, Claimant was hospitalized with an infection and

4

there was concern that, according to reports issued by two of Claimant’s physicians,

it would be potentially dangerous for him to travel more than thirty to sixty minutes.

Defendant again filed a motion for an expedited hearing on July 9, 2003,

seeking an order mandating Claimant to submit to evaluation by Dr. Bashar Saad, an

internist and endocrinologist in Alexandria, Louisiana, and Dr. Austin J. Sumner, a

neurologist in New Orleans. In response to Defendant’s motion, Claimant filed a

motion for a protective order, which was signed by the WCJ on July 11, 2003, and the

hearing on said motion was set for October 30, 2003. After the motion was heard on

October 30, the WCJ granted Defendant’s motion, and Claimant was ordered to

undergo evaluations by both Dr. Sumner and Dr. Saad.

Dr. Sumner, the Richard M. Paddison Professor of Neurology, professor of

neuroscience, and Head of the Department of Neurology at Louisiana State University

Health Sciences Center since 1988, was contacted on May 27, 2003 by defense

counsel to determine whether Claimant’s treatment was appropriate. In particular, he

was asked to determine whether Claimant was suffering from any disease process

which would be properly treated with IVIg, manual lymphatic drainage, home

colonics (colon hydrotherapy), oxy-ozone sauna therapy, or ear candling.

Dr. Sumner reviewed copies of Claimant’s medical records and various

depositions and examined Claimant on January 14, 2004. He issued a report on his

findings, dated March 12, 2004. During the examination, Claimant told Dr. Sumner

that his “brain didn’t work” and that he “had numbness in the left side of his face and

weakness around the left shoulder and left leg.” Dr. Sumner stated in his report that

Claimant had diabetes mellitus and was morbidly obese. He also noted that Claimant

complained of headaches, dizziness, nausea, vomiting, persistent metallic taste in his

5

mouth, blurring of vision, photophobia, progressive weight gain, and bladder

problems, which culminated in the placement of a suprapubic catheter.

Dr. Bashar Saad, was also asked to evaluate Claimant and determine whether

Claimant’s medical treatment was appropriate. Before evaluating Claimant on

January 19, 2004, Dr. Saad had the opportunity to review two boxes of medical

records concerning Claimant’s previous care. He noted that at his examination,

Claimant complained of diabetes, type II, neuropathy, organic brain syndrome, atonic

bladder, depression, gastrointestinal motor dysfunction, sleep apnea, headache,

dizziness, numbness, lack of feeling in hands and feet, shortness of breath upon

exertion, occasional vomiting, constant abdominal pain, and significant weight gain.

Dr. Saad further noted that Claimant has been on weekly infusions of IVIg since April

1999. The results of the examination yielded a normal blood pressure and heart rate.

Dr. Saad also noted in his report that Claimant was morbidly obese.

On March 25, 2004, Defendant filed a motion and order to terminate

unnecessary medical treatment, asserting that Claimant was receiving four types of

treatment which were not medically necessary: IVIg injections, manual lymphatic

drainage, oxy-ozone sauna therapy, and ear candling. Accordingly, Defendant

requested the WCJ to authorize the termination of the unnecessary treatments. The

motion was signed by the WCJ on March 29, 2004, and the hearing on the motion

was set for May 13, 2004. However, on May 12, 2004, the hearing was continued to

September 29, 2004.

At the conclusion of the hearing on Defendant’s motion to terminate

unnecessary medical treatment, the trial WCJ requested that counsel for both parties

submit post-hearing briefs and advised that it was considering appointing its own

6

IME physician pursuant to the Workers’ Compensation Statute.

On June 7, 2005, the WCJ issued an order appointing Dr. Patricia Rosen, a

toxicologist in Austin, Texas, to review the evidence and render a report on the issue

of whether the IVIg treatments should be discontinued.

Dr. Rosen sent an email posing four questions to OWC on September 12, 2005,

requesting additional information. The questions posed were:

1) What was the nature of exposures: specifically, what was the chemical and

in what quantity (parts per million or other measure)?

2)Were others in the same environment affected and if so, how?

3) What was the period of time for each exposure?

4) Would I be able to evaluate Dr. Carson’s report?

However, on September 14, 2005, Dr. Rosen submitted her report, dated

September 12, 2005, without first obtaining the additional requested information

from OWC.

On February 21, 2006, the WCJ sent correspondence to Dr. Rosen asking

whether the opinion expressed in her report would change had she received the

additional information. Dr. Rosen responded on March 15, 2006, stating that her

opinion as to whether the use of IVIg should be discontinued would not change.

On May 8, 2006, the WCJ handed down its written reasons for judgment,

granting Defendant’s motion and allowing the discontinuance of the IVIg infusions,

the manual lymphatic drainage, the oxy-ozone sauna therapy, and the ear candling.

Claimant, now appeals with four assignments of error.

ASSIGNMENTS OF ERROR:

7

1) The WCJ erred in issuing a ruling in a matter which had been dismissed.

2) The WCJ erred in modifying the original judgment to allow the termination

of medication already authorized based on the opinions of physicians who did not

recognize the existence of Mr. Romero’s disease.

3) The WCJ erred in modifying the original judgment to allow the termination

of treatment that aided Mr. Romero’s quality of life without properly considering the

effects of termination on Mr. Romero.

STANDARD OF REVIEW

A trial court’s factual determinations are subject to the manifest error standard

of review and may not be overturned unless they are found to be “manifestly

erroneous” or “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, p. 844 (La.1989).

In applying the standard, the appellate court must determine not whether the trier of

fact’s conclusion was right or wrong, but that it was reasonable. Stobart v. State, 617

So.2d 880 (La.1993). Where there are two permissible views of the evidence, a

factfinder’s choice between them can never be manifestly erroneous. Id. at 880.

Therefore, “if the [factfinder’s] findings are reasonable in light of the record reviewed

in its entirety, the court of appeal may not reverse, even though convinced that had

it been sitting as the trier of fact, it would have weighed the evidence differently.”

Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

LAW AND ANALYSIS

Assignment of Error No. 1:

In his brief, Claimant argues that the WCJ erred in issuing a ruling in a matter

which had been dismissed. He asserts that the underlying matter of the instant

litigation, “Romero v. Northrop Grumman, Docket # 02-02336 District 04 OWC”,

8

was filed pursuant to a 1008 claim filed by Claimant on April 1, 2002. On February

14, 2003, on the motion of Claimant, the matter was dismissed. Defendant later filed

its motion to terminate unnecessary medical treatment on October 1, 2004. Claimant

argues that without a new 1008 claim being filed, there was no pending litigation in

which Defendant could file its motion and thus, no jurisdiction for the WCJ to issue

rulings, as the claim had been dismissed.

Defendant counters, asserting that while La.R.S. 23:1310.3 provides that a

claim for benefits shall be initiated “by the filing of the appropriate form with the

office of workers’ compensation administration”, pursuant to La.R.S. 23:1310.8, the

WCJ has continuing jurisdiction over each case, including the authority to order a

physical examination of the employee. Louisiana Revised Statutes 23:1310.8 states,

in pertinent part:

A. (1) The power and jurisdiction of the workers’
compensation judge over each case shall be continuing and
he may, upon application by a party and after a
contradictory hearing, make such modifications or changes
with respect to former findings or orders relating thereto if,
in his opinion, it may be justified, including the right to
require physical examinations as provided for in R.S.
23:1123 . . . .

....

B. Upon the application of any party in interest, on the
ground of a change in conditions, the workers’
compensation judge may, after a contradictory hearing,
review any award, and, on such review, may make an
award ending, diminishing, or increasing the compensation
previously awarded, subject to the maximum or minimum
provided in the Workers’ Compensation Act, and shall
state his conclusions of fact and rulings of law, and the
director shall immediately send to the parties a copy of the
award.

Therefore, Defendant avers that there is no requirement that each new dispute to be

9

brought before the workers’ compensation court be initiated by the filing of a new

1008 claim. Defendant asserts that by filing a 1008 claim with the Office of Workers’

Compensation (OWC) under a new docket number and instituting the instant

proceedings, Claimant placed the provision of adequate medical care at issue.

Defendant answered the claim and filed a motion for expedited hearing, requesting

that Claimant be ordered to submit to a medical evaluation before Claimant moved

to dismiss his claim. Therefore, Defendant contends that, although the provisions of

workers’ compensation law do not strictly follow the rules of our Code of Civil

Procedure, when Defendant filed its motion for an expedited hearing, it essentially

filed a reconventional demand, stating its own cause of action by putting the issue of

what constituted appropriate medical care at issue. Accordingly, when Defendant

then filed its motion to terminate unnecessary medical care, it was filing the

equivalent of a supplemental petition in accordance with the provisions of La.Code

Civ.P. art. 1155. Therefore, Defendant argues that dismissal of Claimant’s principal

demand did not affect or dismiss the reconventional demand, which had already been

filed. Defendant additionally points out that at no time during the proceedings before

the WCJ did Claimant object that any procedural flaw existed.

After examining the record, we do not find that any procedural flaw existed in

the proceedings. Although Claimant filed a separate claim under a new docket

number on April 1, 2002, La.R.S. 23:1310.8 clearly provides for continuing

jurisdiction of the WCJ over each case. Pursuant to La.R.S. 23:1121, an employer

has the right to have a claimant submit himself to an examination while the claimant

is receiving payments from the employer under workers’ compensation. Additionally,

as stated earlier, under La.R.S. 23:1310.8, the WCJ had continuing jurisdiction to

10

make modifications or changes with respect to her former findings or orders upon

Defendant’s application. Therefore, Defendant could have filed its motion to

terminate unnecessary medical benefits in the original proceedings. However,

because Claimant filed a new 1008 claim, Defendant’s motion was filed under the

docket number of new proceedings. Nonetheless, we find that because Claimant put

his medical treatment at issue in the instant proceedings, and Defendant filed its

motion for an expedited hearing, which placed the appropriateness of Claimant’s

medical treatment at issue prior to Claimant’s dismissal, Defendant’s motion to

terminate unnecessary medical benefits was properly before the WCJ. Further, as

Defendant pointed out, Claimant made no objection at the trial court level. Had

Claimant had any procedural objection, he should have raised such objection at the

time of the hearing. Accordingly, we find that the WCJ did not err in ruling on the

motion to terminate unnecessary medical treatment, as it was not dismissed with

Claimant’s claim. Thus, the matter is properly before us, and we may now address

the appropriateness of Claimant’s medical treatment.

Assignment of Errors Nos. 2 & 3:

Claimant contends that the WCJ erred in relying on the opinions of Dr. Saad,

Dr. Sumner, and Dr. Rosen. He further contends that WCJ erred in modifying the

original judgment to allow the termination of treatment that aided his quality of life

without properly considering the effects of such termination.

Louisiana Revised Statutes 23:1203A provides that the employer must furnish

all reasonably necessary medical treatment to an injured employee. It states, in

pertinent part:

In every case coming under this Chapter, the employer
shall furnish all necessary drugs, supplies, hospital care

11

and services, medical and surgical treatment, and any non-
medical treatment recognized by the laws of this state as
legal, and shall utilize such state, federal, public or private
facilities as will provide the injured employee with such
necessary services.

Claimant argues that although the medical treatments he was receiving were

not working toward curing his condition, they are palliative in nature, and are

therefore, considered reasonable and necessary. See Dubois v. La. Forest Prods.,

Inc., 98-895 (La.App. 3 Cir. 12/9/98), 722 So.2d 409, writ denied, 99-49 (La.

2/26/99), 738 So.2d 586, Veal v. Trans Gulf Inc., (La.App. 4 Cir. 9/23/98), 723 So.2d

987, and Ferrier v. Jordache-Ditto’s, 94-1317, 94-1318 (La.App. 3 Cir. 5/17/95), 662

So.2d 14.

Intravenous Immuno Gamma Globulin (IVIg)

Claimant’s treating physician, Dr. Mathias, initially prescribed the IVIg

injections for Claimant. In his deposition, Dr. Mathias testified, “ . . . if there were

one thing that he was on that was controversial, it would be the gamma globulin.” In

his deposition, Dr. Mathias testified, “[T]he assumption is that he has an

inflammatory polyneuropathy and therefore, it may help him.” When asked what lead

Claimant to be placed on IVIg, Dr. Mathias stated, “We have a man of severe disease.

We have nothing to lose by trying it. He had slight improvement. That’s why we

continued.” He further testified that he thought that Claimant felt better after

receiving the IVIg treatment. However, he stated, “You know, whether we’re doing

anything over the long haul with gamma is, as I said, this may be the only thing that

he’s on that is of question.”

Dr. Mathias testified that he would defer to Dr. Gaharan’s experience on the

issue of the harm associated with discontinuing the IVIg. However, he stated that he

12

thought it would be reasonable to discontinue the IVIg on a trial basis. He further

pointed out that the central line necessary for the administration of IVIg is a risk

factor for sepsis. He explained that if Claimant were to develop sepsis, “it would be

the end” since Claimant has diabetes, and his immune response function is

considerably impaired.

Dr. Gaharan testified that he only conducted a basic physical examination of

Claimant and that he made no independent diagnosis of Claimant. Instead, he relied

on the diagnosis of Dr. Mathias and on his findings regarding whether Claimant’s

condition necessitated IVIg treatment. In his deposition, when asked if he knew why

Dr. Mathias prescribed the IVIg injections, Dr. Gaharan responded, “A demyelinating

or polyneuropathy autonomic nervous system dysfunction secondary to toxic

exposure from the chemicals that were mentioned in the first note.” He further

testified that his role in Claimant’s IVIg treatments is basically that of a technician

who administers the treatment and oversees the operations in the clinic.

Dr. Gaharan testified that if Dr. Mathias called and told him he was

discontinuing Claimant’s IVIg, he would want to know the reason because “this is a

similar situation to other folks that we’re treating immunoglobulin for demyelinating

disorders and it’s been my experience in those situations that doing that sort of thing

usually results in detrimental effects on the patient.” He expounded, “Based on my

experience with other individuals ... discontinuing the medical treatments has resulted

in a regression or progression, whichever way you want to phrase it, of their disease

process. So, it’s not been a good thing to do in those individuals.” He went on to

state that, in his opinion, it would not be good to do in Claimant’s case, as it would

pose a substantial risk, and it could potentially worsen his condition.

13

Dr. Sumner was contacted by defense counsel and asked to review Claimant’s

medical records, to perform an evaluation of Claimant, and to determine whether the

medical treatment Claimant was receiving was appropriate. He was informed that

WCJ had already made the determination that Claimant was suffering from an illness

caused by workplace exposure to toxic chemicals. When asked in his deposition

whether he felt that claimant’s treatment with IVIg was inappropriate, Dr. Sumner

responded, “Absolutely I feel that he was getting it inappropriately.” He went on to

state that he did not think “that there is any evidence, on the basis of my neurological

assessment of Mr. Romero, that he suffers from immune mediated injury to the

nervous system either centrally or peripherally.” He further stated that the only

condition under which such treatment would have been appropriate was if Claimant

had suffered from chronic inflammatory demyelinated polyradicular (CIDP)

neuropathy. However, in his opinion, there was no basis of such diagnosis by Dr.

Mathias in the record. He went on to testify that, in his opinion, Claimant does not

have polyneuropathy, nor does he have a condition caused by toxic solvent exposure

that affected his autonomic nervous system. Rather, in his opinion, Claimant’s

symptoms are caused by diabetes. Thus, Claimant argues that Dr. Sumner, “while an

undoubtedly excellent neurologist,” is of “no help” to the case at hand because he

does not believe that Claimant suffers from organic brain syndrome, and therefore,

he does not think Claimant needs IVIg treatment.

Defendant counters this argument by pointing out that Dr. Sumner further

testified that the neurological problems caused by exposure to organic solvents are

not appropriately treated with IVIg. In fact, when asked whether IVIg would be

appropriate treatment for such disease, Dr. Sumner’s response was, “The answer is

14

most definitely no.” Dr. Sumner admitted in his deposition that Claimant does have

some symptoms of organic brain syndrome, as is indicated by a mild degree of

atrophy of the brain on an MRI. Therefore, he stated, there is a possibility that

Claimant’s symptoms could be related to organic brain syndrome. He concluded by

testifying that he did not find any evidence of any disease process which would be

appropriately treated with IVIg, because even had he accepted that Claimant’s

problems were due to toxic exposure, there is no evidence that the mechanism of the

injury would respond to IVIg. Dr. Sumner testified that Claimant explained that as

far as he could tell, IVIg was having “no effect” on his symptoms, as he was not

aware of any difference before or after he received the treatment.

In Dr. Sumner’s opinion, there was at least as great a risk of death, if not

greater, in continuing the IVIg treatment as in terminating it, as IVIg can induce

kidney failure and stroke.

Dr. Rosen stated in her report to the WCJ:

It was unclear why the patient was receiving Gamma
Globulin treatment. There is a prevalent opinion by the
experts interviewed that Gamma Globulin is not indicated
and may be deleterious to this patient’s health. The article
of JAMA does not list any of Mr. Romero’s medical
conditions as benefitting from the use of Gamma Globulin.
The Medline information also does not list any conditions
that this patient has that would benefit from Gamma
Globulin. Also, and of great concern, is that the person
who is requesting this medication be given, does not feel it
is indicated and is unsure of whether he recommended it in
the first place. The person providing the medication says
he is functioning as a technician and doesn’t know the
diagnosis that would indicate the need for this therapy.
Intravenous Gamma Globulin is not indicated for this
patient.”

Claimant asserts that although Dr. Rosen stated in her report that IVIg is, in her

opinion, unnecessary, the WCJ should not rely on this opinion, as she stated in the

15

next paragraph, “Additionally, the materials reviewed do not support injury of any

sort by the chemicals is reported to be exposed to . . . . It is more likely that the

patient’s illness is due to some other disorder such as Alzheimer’s.” Defendant, in

its brief, admits that Dr. Rosen went beyond the scope of her assignment by

expressing in her report opinions relating to whether Claimant’s problems were

caused by toxic exposure. Nevertheless, as Defendant points out, Dr. Rosen directly

answered the question posed to her by the WCJ.

Dr. Rosen requested additional information from OWC on September 12, 2005;

however, she submitted her report to the court on September 14, before she obtained

the requested information. In response to a query from the WCJ, Dr. Rosen stated

that the additional requested information would not change her opinion that IVIg

injections were inappropriate and unnecessary to treat any of Claimant’s conditions.

Dr. James W. Albers, professor of neurology at the University of Michigan

Health System at Ann Arbor, Michigan, also issued a medical report on the use of

IVIg, specifically in relation to Claimant’s medical condition. In his report dated

September 8, 2002, he stated, “Based on my review of all materials you provided to

me, I cannot determine the indication, or justification for the prescribed IVIg

treatment.” He went on to state that he is familiar with the medication and that he

prescribes it frequently, particularly for CIDP. In his report, Dr. Albers discussed the

dangers of IVIg as well. Although IVIg is relatively safe, Dr. Albers noted that IVIg

does have side effects which include headache, fever, chills, flushing, nausea,

dyspnea, dizziness, and abdominal cramps. He noted that in more severe cases, IVIg

has also been linked to renal dysfunction, acute renal failure, and vascular

complications. However, Dr. Albers stated in his report that the strongest argument

16

against the administration of IVIg is that the long term effects are unknown. He

stated, “[i]f for no other reason, this should be the strongest argument against

administering a medication to treat an undiagnosed condition using an expensive,

potential dangerous medication, for which there is no justifiable indication.”

Dr. Albers concluded his report, stating, “Based on my education and

experience, and consistent with the results of my literature review, it is my opinion

that the scientific evidence does not support the use of IVIg treatment for adult onset

diabetes mellitus, any forms of toxic neuropathy, neurogenic bladder, gastroparesis,

occupational exposure to solvents, or, for that matter, any identified occupational

disease.” He further states that Claimant does not suffer from any of the disorders for

which IVIg has established medical efficacy, or for which IVIg is generally

administered consistent with the standard of practice.

Based on this evidence, we do not find that the WCJ committed manifest error

in allowing the discontinuation of the IVIg treatments. The physician who prescribed

the IVIg testified that he did so based on an “assumption” and that they had “nothing

to lose.” All of the other physicians, with the exception of one, who did not conduct

his own examination and admittedly relied on the diagnosis of Dr. Mathias, stated

that the IVIg was inappropriate treatment for Claimant’s condition. Additionally, the

majority of the medical testimony seems to show that continuation of the treatment

may pose more risks than benefits for Claimant. Only one physician indicated that

Claimant’s condition may worsen if treatment was discontinued. Even Dr. Mathias,

the prescribing physician, had no objection to discontinuing the IVIg treatments on

a trial basis. Considering the testimony of the physicians advising against the use of

IVIg for Claimant’s condition, the minimal impact IVIg has had on his condition, and

17

the risks involved in continuing the IVIg treatments, we find it reasonable that the

WCJ allowed termination of the IVIg treatments.

OTHER THERAPIES

In addition to IVIg, Claimant was also receiving colon hydrotherapy, oxy-

ozone sauna therapy, manual lymphatic drainage, and ear candling at La Bon Sante

Wellness Center. At the hearing, the WCJ allowed Ms. Daley to be offered as an

expert witness in homeopathic treatment or alternative medicine. Ms. Daley testified

that she was originally contacted by Dr. Mathias because Claimant had been unable

to produce a bowel movement for several weeks, and Dr. Mathias wanted to try colon

hydrotherapy, a process that uses the continual flow of water to flush out old stool

and toxins, to alleviate the problem.

Ms. Daley testified that although she initially saw Claimant only in connection

with the colon hydrotherapy treatment, she later received prescriptions for oxy-ozone

sauna therapy and manual lymphatic drainage therapy. At the time of the hearing,

Claimant was receiving three oxy-ozone sauna therapy treatments a week at La Bon

Sante. Ms. Daley explained that in oxy-ozone sauna therapy, the patient gets into a

steam cabinet where oxygen and water combine to create O3 steam, or ozone, which

opens up the pores of the skin and allows toxins to flow out. She stated that she

believes Claimant derives a benefit from the oxy-ozone sauna therapy. She

explained, “Well, number one, it relieves the aches and pains of his body; also gets

the oxygen going into the bloodstream and into the brain, and he always feels good

afterward.”

Ms. Daley testified that she also performs manual lymphatic drainage therapy

on Claimant. She described manual lymphatic drainage therapy as “a very light

18

massage” that stimulates the lymphatic system which “picks up those toxins and

moves them out of the body through urination and defecation.” When asked whether

she believed Claimant benefits from the manual lymphatic drainage, Ms. Daley

answered in the affirmative. She further explained, “He didn’t stay swollen all the

time like he used to stay. ... He just feels better.”

In addition to the oxy-ozone sauna therapy and the manual lymphatic drainage

therapy, Ms. Daley testified that she also removes the wax from Claimant’s ears

approximately once a week through a process called ear candling. Ms. Daley testified

that Claimant accumulates an excessive amount of wax and fungus in his ears, which

causes them to swell and become painful, so he benefits from this process. She stated

that before the ear candling, Claimant suffered from a number of ear infections that

required medical treatment; however, since beginning his treatment, she stated that

he has experienced a reduction in the number of ear infections he has had. However,

she was unable to testify as to whether or how often he had been to an ear, nose, and

throat physician over that time.

Dr. Jeffery Joseph, an otolaryngologist and facial plastic surgeon, reviewed

Claimant’s medical records and was asked whether Claimant could benefit from ear

candling. Dr. Joseph explained that ear candling is an alternative treatment for the

removal of ear wax in which a hollow candle is placed in the ear and through some

wicking action, cerumen or protective ear wax is sucked out of the ear. He also

explained that the procedure is not one practiced by doctors. In his deposition, Dr.

Joseph testified that the records reviewed reflected that Claimant was going to a spa

once every couple of weeks, and at times, as much as once a week, to have this

procedure performed. He testified that, in his opinion, ear candling has no medical

19

efficacy and there is “no reason anyone would need to have ear wax removed once

a week or every other week.” He went on to state that he was unable to find any

literature to support that theory that exposure to organic solvents might cause

excessive wax build up. He further testified that ear candling can be dangerous

because there is a risk of burning the ear if hot wax drips into the ear canal, damaging

the ear drum. Despite the danger associated with ear candling, Dr. Joseph testified

that his main objection to the procedure is that it is not effective in removing ear wax.

Dr. Mathias testified that he had no opinion whether ear candling, oxy-ozone

sauna therapy, or manual lymphatic drainage therapy were medically necessary. In

fact, when asked, he did not even know what oxy-ozone sauna therapy was or what

manual lymphatic drainage therapy accomplished, even though he is the physician

who prescribed them for Claimant. He testified that he prescribed them after he had

consulted with a physical therapist who recommended that Claimant might benefit

from the therapies.

Dr. Sumner had “no idea” what oxy-ozone sauna therapy was, or why it was

prescribed for Claimant’s condition. He further stated that he was not aware of

manual lymphatic drainage as an accepted medical treatment and stated, “Certainly,

it is not something that I would regard as appropriate treatment.” He testified instead

that the appropriate treatment for swelling of Claimant’s legs would be elastic

stockings or elevation of the legs when sitting.

Based on this evidence, we do not find that the WCJ committed manifest error

in allowing the termination of oxy-ozone sauna therapy, manual lymphatic drainage,

or ear candling, as there is no evidence that they are reasonable or medically

necessary for the treatment of Claimant’s condition.

20

CONCLUSION

After our review of the record, we do not find that any procedural flaw existed

in the proceedings. Therefore, we find that the instant matter was properly before the

WCJ. Further, we do not find that the WCJ committed manifest error in allowing the

termination of Claimant’s IVIg treatment, manual lymphatic drainage therapy, oxy-

ozone sauna therapy, and ear candling, as they are not necessary medical treatments

for his work-related condition. Accordingly, we affirm the decision of the WCJ. All

costs are assessed against Claimant, Roland Romero.

AFFIRMED.

21