                            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


                                  Submitted on Briefs:   March 9, 1995
                                              Decided:   July 25, 1995
Filed:


                                     /
                                  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 flare-
ups due to a very unstable lower back."          She further indicated that
                                        2
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.

                                          3
     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

                                 4
§§ 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

                                            5
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
                                          6
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. -, 755 P.2d at 1387.
          Weis
        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.

                                         7
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 -I
                                            Weis    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 755 P.2d at 1387.
                                                     -I
         Here, unlike in - I the statute under which §§ 24.29.2003
                         Weis
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.

- Weis 755 P.2d at 1387.
See -I
         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 -r
                   Weis        §§ 24.29.2003 and 24.29.2004, ARM, are
entitled to deference.         On the basis of the record before us, we

                                          8
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
                                          9
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.       We     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    of    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

                                           10
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:




                                          11
                                          July 25, 1995

                                 CERTIFICATE OF SERVICE

I hereby certify that the following certifkd order was sent by United States mail, prepaid, to the
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 COURT
                                                    STATE OF MONTANA

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