JEANNE E. ROSCH, Employee/Appellant, v. LONG PRAIRIE MEM=L HOSP., and IOWA NAT=L MUT. INS. CO./MIGA, Employer-Insurer, and MEDICARE/NORIDIAN ADMIN. SERVS., MEDICAL ADVANCED PAIN SPECIALISTS, CENTRACARE CLINIC/ST. CLOUD HOSP., PETERS SNYDER DRUG, and NORTH MEM=L HEALTH, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 1, 2003
CAUSATION - SUBSTANTIAL CONTRIBUTING CAUSE; MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Substantial evidence, including expert medical opinion, supported the compensation judge=s decision that certain claimed treatment was not reasonable and necessary to cure or relieve the employee from the effects of her work injury.
Determined by Johnson, C.J., Rykken, J., and Pederson, J.
Compensation Judge: Nancy Olson.
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge=s denial of certain treatment expenses. We affirm.
Jeanne Rosch, the employee, sustained a personal injury to her back on March 20, 1977, while working for Long Prairie Memorial Hospital and Nursing Home, the employer. The employer and its insurer admitted liability for the employee=s personal injury and commenced payment of wage loss and medical benefits. On the date of her injury, the employee earned a weekly wage of $55.20.
In December 1979, the parties entered into a settlement of claims for permanent partial disability benefits to the extent of 35% of the spine and a settlement of all claims for wage loss benefits through December 13, 1983, a date 350 weeks from the date of the employee=s injury. An award on stipulation was filed on January 18, 1980. In June 1997, the parties entered into a second settlement, in which the employee was paid $96,000 for a full, final and complete settlement of all claims for benefits arising out of the March 20, 1977 personal injury, including claims for chiropractic expenses, health club expenses, psychological or psychiatric expenses, and related mileage expenses. Claims for other reasonable and necessary medical expenses remained open.
The employee received extensive medical treatment following her personal injury. A cervical MRI in April 1989 showed a small disc protrusion at C4-5 on the right with spurring. A repeat cervical MRI in 1991 again showed the disc protrusion and spurring at C4-5, with a bulging disc at C5-6 and C6-7. In August 1994, Dr. Timothy Garvey performed an anterior cervical corpectomy and discectomy at C4-5 and C5-6, bilateral foraminotomies at C4-5 and an anterior fusion from C4 through C6. A cervical MRI in January 1995 showed a central disc protrusion at C6-7, with a right-sided disc herniation. In May 1995, Dr. Garvey performed an anterior cervical decompression with discectomy and foraminotomy and fusion at C6-7. The employee reported no improvement in her symptoms from this second surgery.
In June 1996, the employee was evaluated by Dr. Phillip B. Haber, a licensed psychologist, at the request of her attorney. Dr. Haber concluded the employee was no longer capable of sustained gainful employment. The doctor further noted the employee demonstrated
elements of psychopathology in both the objective personality evaluation and the individual personality evaluation. This type of psychopathology undoubtedly contributes to the frequency and intensity of her physical symptoms which, in our experiences, are quite common in individuals with Jeanne Rosch=s type of medical problem. Her onset of symptoms has been 19 years ago, and her ability to benefit from a program of inpatient or out-patient chronic pain rehabilitation is felt to be extremely poor.
(Resp. Ex. 6.)
On April 15, 1999, the employee was examined by Dr. L. Michael Espeland at Medical Advanced Pain Specialists (MAPS). The employee=s chief complaint was neck pain extending bilaterally into her arms, with associated weakness, muscle spasm and tingling. The doctor recommended medial branch block procedures. In June 1999, Dr. Espelland diagnosed failed neck surgery syndrome and concluded the employee was a candidate for a radiofrequency neurotomy in the cervical region. In January 2000, Dr. James Anderson at MAPS performed a radiofrequency ablation of the medial branches of the cervical nerves for pain relief. In February, March, April, August, October and November 2000, Dr. Anderson performed trigger point injections.
In February 2001, Dr. David M. Schultz at MAPS examined the employee and concluded that she continued to experience neck pain, cervicalgia and headaches. The doctor recommended a trial phase of spinal cord stimulation through an implantable pain device. A trial spinal cord stimulator was surgically implanted in June but was removed a few days later and categorized as a failed test. In July 2001, the employee was hospitalized at North Memorial Hospital, and Dr. Anderson inserted a lumbar epidural catheter for a narcotic infusion for pain control. On September 4, 2001, Dr. Schultz concluded the trial narcotic infusion was successful and recommended implantation of an infusion pump. The employee received another trigger point injection in November 2001, and Dr. Schultz concluded that it was not beneficial for relieving the employee=s pain for greater than three days. In March 2002, Dr. Schultz recommended that the employee see a psychologist to be evaluated for an infusion pump. In May 2002, the employee was examined by Dr. McAllister, a psychologist at MAPS, who concluded there were significant psychosocial/emotional components to the employee=s pain problem. Following this evaluation, Dr. Schultz recommended a physical therapy program, which commenced in June 2002. Dr. Schultz opined, however, the employee was not fully compliant with the recommendation for physical therapy. The employee was discharged from the physical therapy program on January 21, 2003. She was advised to self-manage her symptoms and obtain physical therapy at a clinic closer to her home.
On April 20, 2001, the employee saw Dr. Joel I. Gedan at the request of the employer and insurer. The doctor obtained a history from the employee, reviewed her medical records and conducted a physical examination. Dr. Gedan found no objective signs or symptoms to suggest any significant cervical radiculopathy or myelopathy. Dr. Gedan diagnosed chronic complaints of neck and bilateral upper extremity pain, chronic daily headaches and multi-level degenerative changes in the cervical spine. The doctor opined, however, that none of these diagnoses related to the March 20, 1977 work injury. He stated the 1977 work injury resulted in a cervical strain without evidence of cervical radiculopathy or myelopathy. The doctor felt it unreasonable to attribute the employee=s persistent complaints to the 1977 injury because, he stated, soft tissue injuries of that nature generally resolve within one to two months. Dr. Gedan recommended no further surgery or invasive treatment and recommended tapering off the employee=s medications. The doctor did not recommend the implantation of a spinal cord stimulator or intrathecal device for the delivery of narcotics. Dr. Gedan noted the employee=s MMPI had showed elements of depression, increased somatic concerns and elevated scores on the hysterical scale. The doctor opined ongoing medical care would only perpetuate the employee=s complaints. Dr. Gedan recommended the employee be maintained on one nonnarcotic analgesic and a drug for neuropathic or chronic pain such as an anti-depressant or anti-convulsant. The employee=s need for these medications, the doctor opined, was related to the employee=s subjective complaints and not to the March 1977 work injury.
Dr. Gedan re-examined the employee on December 16, 2002, and found no significant change in the employee=s condition or diagnosis from his prior examination. The doctor again stated his examination demonstrated evidence of chronic persistent subjective complaints in the absence of any identifiable injury that would explain her symptoms. Dr. Gedan further opined the treatment the employee received from MAPS was not reasonable or necessary to cure and relieve the employee from the effects of her March 1977 injury. The doctor recommended no additional treatment for the employee relative to the 1977 work injury.
The deposition of Dr. Schultz was taken on January 7, 2003. Dr. Schultz diagnosed the employee=s condition as failed cervical spine surgery syndrome causing neuropathic pain resulting from injured or permanently deranged nerves exiting from the cervical spinal cord. He stated that the treatment at MAPS was necessary to determine what structures were causing the employee=s pain and that the treatment was designed to reduce pain and enable the employee to become more functional. The doctor testified he initially recommended an implantable pain control device for the employee. However, following the evaluation by Dr. McAllister, Dr. Schultz recommended a multi-disciplinary chronic pain program, after which the employee would be a candidate for a trial of an infusion pump. The doctor opined the treatment at MAPS to date and the proposed treatment were reasonable and necessary to cure and relieve the employee from the effects of her 1977 work injury.
The employee filed a Medical Request seeking payment for treatment at MAPS, the surgery and hospitalization for the implantation of the spinal cord stimulator at North Memorial Hospital, and prescription drug expenses. In a Findings and Order filed March 5, 2003, the compensation judge ordered the insurer to pay that portion of the treatment at MAPS related to the prescribing of and monitoring the employee=s use of various pain medications. The judge also ordered the insurer to pay the prescription drug expenses at Peters Snyder Drugs and to reimburse the employee for medical mileage. The compensation judge also found, however, that MAPS was not entitled to payment of bills relating to trigger point therapy, physical therapy, the trial of the spinal cord stimulator and the drug infusion pump, and the evaluation by Dr. McAllister. The employee appeals from the denial of payment for these expenses.
In her memorandum, the compensation judge referred to Athe massive amount of treatment records@ (Memo. at p. 7). The employee asserts that the compensation judge concluded that, given the massive amount of treatment records, she was incapable of reaching a decision and that she admitted to not basing her decision on the evidence submitted by the employee. Accordingly, the employee contends that because the judge failed to review all of the evidence presented by the parties, this court should remand the matter to a different compensation judge for further findings. The employee=s argument misapprehends the compensation judge=s decision.
The compensation judge found the treatment at MAPS resulting in prescriptions for and monitoring of Oxicod, Amitryptyline and Methadone was reasonable and necessary medical care. Accordingly, the judge ordered the employer and insurer to pay for that treatment. The judge, however, concluded that the bill from MAPS was insufficiently itemized to allow the judge to determine the exact amount of the payment. In her memorandum, the compensation judge stated:
The compensation judge also realizes that this decision will require some work by MAPS, the employer and insurer, and the employee, to determine exactly which visits should be paid. Due to the massive amount of treatment records and bills this compensation judge was not able to evaluate visit by visit which visits should be paid with MAPS. It is hoped that with an itemized bill from MAPS the parties will be able to reach agreement on what treatment was for the prescription and monitoring of Oxicod, Amitryptylan [sic], and Methadone as part of the overall drug treatment plan.
We cannot conclude from the compensation judge=s memorandum that the judge failed to review all of the evidence presented by the parties.
The employee next argues the compensation judge erroneously denied payment for the trigger point therapy, the associated physical therapy, the surgical implantation of a spinal cord stimulator and the insertion of a lumbar epidural catheter for a narcotic infusion for pain control. The employee contends that, because she met the qualifications of the treatment parameters governing the utilization of these types of treatments, the treatments are compensable. We disagree.
The parties agreed at the hearing that the issue before the compensation judge was whether the claimed medical expenses were reasonable and necessary medical treatment to cure and relieve the employee from the effects of the personal injury. (T. 5-7.) In a statement of issues in the Findings and Order, the judge stated that the issue was whether certain medical treatment was reasonable and necessary to cure and relieve the employee from the effects of the personal injury. At the hearing, neither party asserted the treatment parameters were applicable or at issue. Since the applicability of the treatment parameters was not raised at the hearing, this court will not consider the question for the first time on appeal. Wise-Thackery v. Universal Colour Lab, Inc., slip op. (W.C.C.A. Dec. 31, 1998); Olson v. Allina Health Sys., 59 W.C.D. 37 (W.C.C.A. 1999).
The employee next argues the compensation judge=s denial of the claimed medical expenses was unsupported by substantial evidence. We disagree.
On appeal, this court=s function is to determine whether the compensation judge=s findings of fact are Aclearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1. 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). In this case, we cannot conclude the compensation judge=s denial of the requested medical expenses was clearly erroneous or unsupported by the record as a whole.
Evidence submitted at the hearing supports the compensation judge=s conclusion that the denied treatment was not reasonable or necessary. In 1996, Dr. Garvey recommended the employee continue with a common sense approach to active conditioning, aerobic conditioning, upper and lower extremity strengthening and utilization of proper body posture mechanics. Dr. Haber concluded the employee demonstrated a type of psychopathology that undoubtedly contributed to the frequency and intensity of her physical symptoms. The employee testified the trigger point injections provided only two to three days of relief and that the spinal cord stimulator did nothing to relieve her symptoms. While Dr. Schultz testified all of the treatment at MAPS was reasonable and necessary, Dr. Gedan recommended the employee be maintained on a non-narcotic analgesic and chronic pain medication. The compensation judge rejected the opinions of Dr. Schultz and accepted those of Dr. Gedan. It is the function of the compensation judge to choose between conflicting medical testimony. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
The compensation judge also found that the employee=s headache complaints were not causally related to her personal injury and that the employee=s prescriptions for Isometh, Cyclobenzepine, Baclofen and Meclizine were related to her complaints of headaches and dizziness and were not causally related to the personal injury. The employee contends these findings are unsupported by substantial evidence, arguing that all of her treating doctors related her headache problems to her personal injury. Accordingly, the employee contends the judge=s denial of payment for these expenses is unsupported by substantial evidence. Again, we must disagree.
As with other factual determination, questions of medical causation fall within the province of the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). In 2001, Dr. Gedan examined the employee and diagnosed chronic daily headaches. The doctor opined, however, that these headaches were unrelated to the March 20, 1977, personal injury. The compensation judge specifically adopted the opinion of Dr. Gedan. Accordingly, the compensation judge decision=s is supported by substantial evidence. Nord, 360 N.W.2d 337, 37 W.C.D. 364.
Medicare intervened in this proceeding, seeking reimbursement for payments made to Tri County Hospital, Wadena Medical Center, CentraCare Clinic, University of Minnesota Physicians, and MeritCare Medical Group. CentraCare Clinic also intervened. The compensation judge denied the claims because the medical records and bills from those providers were not in evidence. The employee contends the records and bills from these providers were attached as exhibits to the intervention petitions filed with the court. Accordingly, the employee contends the compensation judge erred in denying these claims.
Medicare and CentraCare Clinic did intervene in the case. However, no medical records and/or bills were offered into evidence at the hearing from any of the above-named medical providers. While the records and bills from the providers may have been filed in connection with an application to intervene, such bills or records were not offered into evidence at the hearing. A party should not expect a compensation judge to consider any documentation or other evidence that is not submitted to the judge at the hearing in paper form. Beckwith v. Sun Country Airlines, 63 W.C.D. 511 (W.C.C.A. 2003). The compensation judge=s denial of the employee=s claim for these medical expenses is therefore affirmed.