ROSARIO WILMOT, Employee, v. WAL-MART STORES, INC., and AMERICAN INT=L GROUP/CLAIMS MANAGEMENT, INC., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 25, 2002
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS. Substantial evidence supported the compensation judge=s conclusion that the employee had had an incapacitating exacerbation of her work injury for purposes of qualifying for a departure from the relevant treatment parameters.
Determined by Wilson, J., Rykken, J., and Stofferahn, J.
Compensation Judge: William R. Johnson.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the compensation judge=s determination that the employee sustained an incapacitating exacerbation that qualified her for a departure under the treatment parameters. We affirm.
The employee sustained a work-related injury to her low back on December 5, 1990, while employed by Wal-Mart Stores, Inc. [the employer]. Pursuant to an award on stipulation filed on October 2, 1992, the employee was paid for a 5.25% whole body impairment.
In May of 1999, the employee sought reimbursement for physical therapy treatments rendered at the direction of her then treating physician, Dr. Skip Silvestrini. The employer and insurer objected, contending that the services were not related to the work injury and did not comply with the treatment parameters because prior authorization had not been received. The matter proceeded to an administrative conference, and, in a Minn. Stat. '176.106 decision and order filed on July 14, 1999, the commissioner=s designee determined that the employer and insurer were not obligated to pay for the physical therapy as neither the healthcare provider nor the employee had sought pre-approval for the treatment. The employee filed a request for formal hearing, and the matter proceeded to hearing before a compensation judge at the Office of Administrative Hearings. At the hearing, the employer and insurer waived their defenses based upon the treatment parameters. In a decision filed on October 15, 1999, Judge Paul V. Rieke found that, since 1990, the employee had had flare-ups of pain and limitation of function in her low back that were related to her 1990 work injury, that, in May of 1998, the employee had had such a flare-up, at which time Dr. Silvestrini had prescribed the physical therapy at issue, and that the physical therapy was reasonable, necessary, and causally related to the employee=s work injury. No appeal was taken from that decision.
In September of 2000, the employee was self-employed, making stained glass out of her home. While she had restrictions on her physical activities, she had been released to work by Dr. Silvestrini on March 24, 2000. On September 26, 2000, the employee returned to Dr. Silvestrini because she had Asuddenly developed increasing pain@ without any precipitating event. At that time, she complained of pressure in her buttock and down her left leg, with sharp shooting pains down the leg with certain movements. The doctor ordered a repeat MRI scan. When the employee returned to Dr. Silvestrini on October 10, 2000, the doctor recommended physical therapy. The employer and insurer apparently denied authorization for the therapy, and, in his office note of January 4, 2001, Dr. Silvestrini took the employee off work and specified that Ashe needs to be on a monitored home exercise program to work on stretching her back, her paraspinal muscles, do some pelvic/abdominal conditioning.@ By February of 2001, Dr. Silvestrini had noted that, Aif anything . . . she is a little worse.@ Indicating that he had reviewed a letter denying the physical therapy, Dr. Silvestrini instructed the employee in a home exercise program and continued her off of work.
On April 27, 2001, the employee filed a request for certification of dispute, seeking authorization for the physical therapy prescribed by Dr. Silvestrini. The dispute was certified on May 7, 2001, and on May 17, 2001, the employee filed a medical request. The employer and insurer responded on May 31, 2001, refusing to authorize the physical therapy.
When the employee returned to Dr. Silvestrini on May 24, 2001, he noted that Aher pain is greatly decreased,@ and he released her to return to work, giving her a prescription to Abe able to access a pool . . . .@
The medical request proceeded to a medical conference, and, in a Minn. Stat. '176.106 decision and order filed on August 10, 2001, the commissioner=s designee determined that the employee had suffered an incapacitating exacerbation and was in need of the physical therapy prescribed by Dr. Silvestrini. The employer and insurer then filed a request for formal hearing.
The employee returned to Dr. Silvestrini on November 7, 2001. His office note of that date reflects that the employee had begun having increasing symptomatology while rolling over to get out of bed. Her pain was located in the low back, worse on the right, but also on the left, with some intermittent radiation into the right thigh. The doctor noted, A[t]he pain can be quite intense at times, and it can be fairly incapacitating.@ Dr. Silvestrini took the employee off work and school and prescribed another round of physical therapy, this time recommending ultrasound, stretching, myofascial release, and a conditioning program. Dr. Silvestrini again related the employee=s condition on that date to the December 5, 1990, work injury.
The employee was examined by independent medical examiner Dr. Paul Cederberg on November 26, 2001. In his report of that date, Dr. Cederberg opined that the employee had reached maximum medical improvement [MMI] from her work injury on March 4, 1992, and that all medical treatment after that date was not reasonable or necessary. Dr. Cederberg made reference to Dr. Silvestrini=s treatment of the employee in November of 2001 and his recommendation for physical therapy but opined that A[t]his [was] for a new onset of right leg symptoms, unrelated to the disc injury at L4-5.@
The matter proceeded to hearing on November 29, 2001. In closing arguments, counsel for the employer and insurer argued,
Whether or not the employee would have qualified for physical therapy back in September I think is moot at this point. Given the fact the employee has had a flare-up with a change in symptoms, I think that=s the issue before the court now, is whether at this point it makes sense to grant the departure based upon the exception to the treatment parameters.
The compensation judge responded, A[s]o now I=m not looking at September of 2000. Now I=m looking at November of 2001?@ Counsel for the employer and insurer then stated, AI don=t think it matters from a medical perspective. Dr. Silvestrini for the new flare-up continues to recommend physical therapy.@
In findings and order filed on December 28, 2001, Judge William R. Johnson found that the employee had sustained two flare-ups, the first in September of 2000 and another in November of 2001, that were incapacitating exacerbations of the employee=s work-related condition so as to qualify for a departure under the treatment parameters and allow for the prescribed physical therapy. The employer and insurer appeal.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Id.
The employer and insurer first contend that the compensation judge erred as a matter of law in his interpretation of Minn. R. 5221.6050, subp. 8E. The employer and insurer cite to a footnote in Riendeau v. Wal-Mart, slip op. (W.C.C.A. Nov. 30, 2001), as providing guidance as to what the compensation judge should consider in determining whether an employee has suffered an incapacitating exacerbation. They contend that this case should be remanded because the compensation judge limited the scope of his consideration to the employee=s ability to function in vocational and nonvocational activities. We are not persuaded.
First, the cited footnote in Riendeau merely lists factors Aperhaps to be considered@ (emphasis added). It does not mandate what a compensation judge must consider, nor does it require a judge to make findings regarding the suggested factors.
Second, it appears that the compensation judge in all likelihood did consider the factors listed in Riendeau. Dr. Silvestrini=s records, which reflect the history of the employee=s exacerbations, examinations, and treatment, were part of the record before the compensation judge. Dr. Silvestrini opined that the employee should be off from work and school as a result of the exacerbations. The employee, who the compensation judge specifically found to be a credible witness, testified that the pain affected her ability to sleep, to perform routine daily tasks, to work, to drive, and to go to school, and she further testified that she told the doctor that her pain was incapacitating. The employee also testified that, since the 1990 work injury, her pain has always been in the lower back but also sometimes on the left side, sometimes on the right side, sometimes down her left leg, and sometimes down her right leg. Dr. Silvestrini=s records confirm that the employee has alternately had symptoms in her right and left lower extremities.
Finally, the determinative issue before this court is whether substantial evidence supports the compensation judge=s finding of incapacitating exacerbation. All of the evidence mentioned above supports that finding. The only evidence to the contrary is the medical opinion of Dr. Cederberg, indicating that no medical treatment was necessary after March of 1992. The compensation judge was, however, entitled to reject Dr. Cederberg=s opinion. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
The employer and insurer also contend that any request for physical therapy for a September 2000 exacerbation is moot, because the employee=s symptoms from that exacerbation had resolved, yet the employee=s only claim at hearing was with regard to that exacerbation. At hearing, the employee=s attorney did state that the employee=s only claim was for the September 2000 exacerbation, and, in his brief on appeal, that attorney indicated that the employee=s symptoms had resolved by May of 2001. However, the employer and insurer introduced medical records concerning Dr. Silvestrini=s treatment of the employee in November of 2001, the employee testified as to that exacerbation, and Dr. Cederberg addressed both the September 2000 and November 2001 exacerbations in his report. The employer and insurer cannot claim any sort of prejudice from the judge=s finding that either or both of the exacerbations were incapacitating so as to entitle the employee to a departure under the treatment parameters.
The issue before the compensation judge was whether the employee had sustained an incapacitating exacerbation that entitled her to a departure under the treatment parameters. At the time of trial, the employee was suffering from such an exacerbation. All of the evidence regarding the November 2001 exacerbation was before the compensation judge, and the employer and insurer indicated at hearing that it did not matter which exacerbation date the compensation judge looked at. Under these circumstances, it would be a clear waste of resources to require the employee to file a new medical request regarding the November 2001 exacerbation. Therefore, because substantial evidence supports the judge=s findings, we affirm those findings in their entirety.
 MRIs performed on April 13, 1995, and August 5, 1999, apparently revealed a small prolapsed herniated disc at L4-5, without neural compression, and a somewhat larger, left-sided broad-based prolapse at L5-S1, with slight S1 deviation. An MRI performed on October 9, 2000, showed a small foraminal disc protrusion on the right at L4-5, a small disc protrusion on the left at L5-S1 causing posterior displacement of the left S1 nerve root, and degenerative changes in the lower lumbar region.
 Minn. R. 5221.6050, subp. 8E, provides for a departure from a treatment parameter Awhere there is an incapacitating exacerbation of the employee=s condition. However, additional treatment for the incapacitating exacerbation may not exceed, and must comply with, the parameters in parts 5221.6050 to 5221.6600.@
 In Riendeau, this court stated, in a footnote,
Factors perhaps to be considered by a judge in determining whether an exacerbation qualifies as an incapacitating exacerbation under the rules here at issue may include not only the exacerbation=s impact on the employee=s ability to work or perform the duties of a job but also its impact on the activities of daily living, the severity of the employee=s pain, the documented history of the exacerbation, findings on examination and treatment, and any other factors that the judge may consider relevant.
 Contrary to the employee=s contention, this argument was raised at the hearing.