KENNETH R. TOURVILLE, Employee, v. CITY OF ST. PAUL, SELF-INSURED, Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 14, 2003
MEDICAL TREATMENT & EXPENSE - CHANGE OF PHYSICIANS; RULES CONSTRUED - MINN. R. 5221.0430, SUBP. 4. Where there was evidence that the employee=s long-time treating physician had been repeatedly untimely in furnishing records and reports to the employer but the employer had never availed itself of its penalty remedy under Minn. Stat. ' 176.138(c), and where there was evidence in the physician=s detailed treatment records and in the testimony of the employee that the physician had been responsive to the needs of the employee=s medical care and condition and had been helpful in keeping the employee working, the compensation judge=s denial of the employer=s request for a change of physician was not clearly erroneous and unsupported by substantial evidence.
Determined by Pederson, J., Rykken, J. and Stofferahn, J.
Compensation Judge: Bernard Dinner
WILLIAM R. PEDERSON, Judge
The self-insured employer appeals from the compensation judge's denial of its request for a change of treating physician. We affirm.
On October 27, 1986, Kenneth Tourville sustained work-related injuries to his neck and low back in the course of his employment as a truck driver with the City of St. Paul. The City of St. Paul [the employer], which was self-insured against workers= compensation liability, admitted liability for the injuries and commenced payment of various benefits. Mr. Tourville [the employee] was thirty-eight years old on the date of the injuries and was earning a weekly wage of $512.40. Treatment for the injuries eventually included surgery to the low back in 1986 and surgery to the neck in 1989, after both of which surgeries the employee returned to his job with the employer.
In November 1992, the employee commenced treatment for his 1986 work injuries with physiatrist Dr. Karen Ryan, who diagnosed lumbar degenerative disc disease and an MRI verified S1 disc herniation. The employee saw Dr. Ryan about every month or two for about seven years, frequently under various regimens of physical therapy, sometimes under temporary restrictions from working. Over the course of that time, there frequently occurred lapses in Dr. Ryan=s communications with the employer regarding the employee=s treatment and/or his restrictions. At least five or six times during this period, after making inquiry of Dr. Ryan with requests for updating of treatment notes and/or narrative reports and not receiving any prompt reply, the employer resorted to independent medical examinations [IMEs] by Dr. Jeffrey C. Dick for assessments of the employee=s condition. Although repeatedly untimely, Dr. Ryan=s records and reports were normally forthcoming eventually and typically implied the conclusion that she did not anticipate any significant improvement in the employee=s tolerance for sitting and that the employee was permanently precluded from performing his date-of-injury job as a truck driver. Contrary to Dr. Ryan=s opinions and treatment, Dr. Dick=s IME reports regularly indicated that the employee was not so restricted and had no need for further medical care.
On July 7, 1999, the employee sustained further injury to his neck, again while working for the employer. Subsequent to that injury, the employee continued to treat with Dr. Ryan, whose furnishing of records and treatment reports to the employer or to or the case manager assigned to the injury, Karilyn Stein, R.N., continued to be generally untimely. Typically this reporting became more forthcoming when the requests were personally endorsed by the employee himself or when they more specifically implied statutory or other consequences for delay that could affect the employee=s receipt of benefits. Eventually, on February 8, 2000, Dr. Michael Goertz of Preferred WorkCare wrote to Dr. Ryan, evidently attaching a copy of Minn. R. 5218.0500 and Minn. R. 5218.0750, which deal in part with reporting and other obligations of health care providers. In her reply to Dr. Goertz on February 23, 2000, Dr. Ryan acknowledged and apologized for her untimeliness in furnishing hard-copy reports, but she insisted that Ms. Stein had nevertheless received reports of work ability after each of the employee=s office visits and had Abeen kept apprized of [the employee=s] status, as she and I have exchanged several phone messages and faxes relative to the referral to a spine surgeon for consultation, which has been the primary medical issue for [the employee=s] case since early December.@
Over a year later, on May 11, 2001, Ms. Stein wrote to Dr. Ryan, explaining that she was unable to make a recommendation of certain requested physical therapy due to lack of medical documentation. About two weeks later, on May 29, 2001, she wrote to Dr. Ryan requesting a more definitive outline of the employee=s restrictions and clarification as to whether Dr. Ryan and the employee Aare planning ongoing conservative care to minimize his symptoms, or if he desires further examination of his surgical options.@ On July 6, 2001, Ms. Stein wrote to John Brandtjen, the employer=s workers= compensation administrator, enumerating and complaining of several frustrated attempts to obtain medical notes and records from Dr. Ryan. Finally, on August 16, 2001, the employer filed a Medical Request, seeking a change of treating physicians from Dr. Ryan to occupational medicine specialist Dr. Vijay Eyunni. In its request, the employer explained its reasons as follows:
Dr. Ryan has consistently, over a period of many years, failed to submit copies of treatment records for the employee=s work injuries in a timely manner. This is evidenced in numerous letters from the employer, the employer=s representatives, and the managed care provider along with letters from Dr. Ryan and the IME reports of Dr. Dick.
This failure has substantially prejudiced the employer in that it has deprived the employer of the opportunity to monitor the employee=s health care as it was occurring and to obtain second opinions in a timely manner. It has necessitated multiple re-evaluations resulting in substantial and extraordinary expense and delay in processing this claim. This loss of opportunity to properly manage this claim results in impaired quality of care to the employee and is substantially prejudicial to the employer.
(References to exhibits omitted.) The issue was certified as a dispute, an administrative conference was held February 13, 2002, and on February 21, 2002, the mediator/arbitrator filed a Decision and Order Pursuant to Minn. Stat. ' 176.106, denying the employer=s request to change physicians.
On March 11, 2002, the employer filed a Request for Formal Hearing, and the matter was heard on May 17, 2002. The only issue at hearing was whether or not a change of physician from Dr. Ryan Ato another physician presently unknown@ was Ain the best interest@ of the parties pursuant to Minn. R. 5221.0430, subp. 4F. Evidence was submitted at hearing to the effect that Dr. Ryan had repeatedly ignored the employer=s requests for timely submission of medical records and reports pursuant to the statute and the Minnesota Rules and that the employer had been substantially prejudiced, therefore, in its opportunity to monitor the employee=s condition and health care so as to mitigate its liability for wage replacement and medical expenses.
By findings and order filed May 23, 2002, the compensation judge denied the employer=s request for a change of physician, concluding that Dr. Ryan had been the employee=s treating physician for at least ten years and that the requested change of physician would not be in the best interests of the parties. In his accompanying memorandum, the judge acknowledged evidence that Athe failure of Dr. Ryan to submit timely ongoing reports over the years as to employee=s updated medical condition has caused the [employer] to obtain opinions from an IME physician to determine the physical status of the employee@ and that Ait becomes very expensive to have to schedule IMEs in order to obtain medical reports.@ The judge suggested that this problem might be mitigated, however, if A[p]erhaps Dr. Ryan could be paid a reasonable fee for updated medical reports.@ The judge went on to clarify that, A[a]s the issue as to payment for reports is not a direct issue, [this] is only a recommendation,@ but he emphasized that A[t]he bottom line is that the employee should not suffer by losing his doctor as a result of this administrative problem.@ The employer appeals.
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.
1. Timeliness Under the Rules
Asserting that the judge Amade no mention of undisputed evidence that the treating doctor did not comply with the requirements of Minn. Stat. ' 176.138(a) regarding medical data access,@ the employer contends initially that the compensation judge erred as a matter of law Ain disregarding the statute and rules which require that medical providers furnish employers and insurers with treatment records in a timely manner.@ We are not persuaded.
Minn. Stat. ' 176.138(a) provides in part that A[w]ritten medical data that exists at the time the request is made shall be provided by the collector or possessor within seven working days of receiving the request.@ Minn. Stat. ' 176.138(c) provides in part that A[t]he commissioner may impose a penalty of up to $600 payable to the commissioner . . . against a party who does not timely release [written] data as required in this section.@ Minn. R. 5221.0410, subp. 2, provides in part that, A[w]ithin ten days of receipt of a request for information on the prescribed health care provider report form from an employer, insurer, or the commissioner, a health care provider must respond.@ That same subpart goes on to detail the substance required in the health care provider=s report. At subpart 6, the same rule sets out requirements with regard to reports of work ability, which are to be completed by the health care provider within ten days of a request by an insurer or at other intervals in certain circumstances specified in the rule.
We concede that the compensation judge made no express reference to any of these rules by name or number or made any detailed or specific mention of Dr. Ryan=s apparent violation of them. However, as the employee has asserted in his responsive brief, these statutes and rules, relevant to the dissemination of medical records and reports and to the remedy available for a party=s failure properly to comply, were not at issue before the compensation judge. Early in her opening statement at hearing, the employer=s attorney asserted that Dr. Ryan had demonstrated a Aconsistent failure to provide the employer with treatment records and response to requests for information in a timely manner.@ The compensation judge inquired immediately, AWhat part of the rule are you centering in on,@ and the employer=s attorney replied ABest interest of the parties, in terms of, you know B ,@ to which the judge interrupted, AWhat B subd. 4 what?@, and the attorney replied, AF.@ The judge replied immediately, AAll right. Do you want to add anything to what you just said on this?@, and the employer=s attorney replied, ANo, Your Honor,@ ending her opening statement. While it is true that Dr. Ryan was apparently made aware of at least some of the rules other than Minn. R. 5221.0430, subp. 4F, that govern medical reporting in worker=s compensation matters, such rules were never expressly cited or addressed in the course of the hearing before the judge, and their application was therefore never clearly construed.
That said, we note that, although the specific rules at issue may never have been before the judge, the compensation judge did nevertheless, and at any rate, make clear in his memorandum that the Aemployer is entitled to receive reports from the attending physician,@ that Athe reports have been untimely,@ and that Athe untimeliness of the reports by Dr. Ryan@ had been Athe problem@ (underscoring added). We conclude from these statements, and from the remainder of the transcript of the hearing, that the judge was reasonably aware of the reporting obligations imposed by the rules at issue and was taking those obligations into consideration in his deliberations. We agree with the employer that Dr. Ryan=s noncompliance with the rules at issue is essentially undisputed, but we also find nothing in the statute or the rules that affirmatively requires a compensation judge to terminate an injured employee=s relationship with his doctor simply because of the doctor=s noncompliance with the reporting provisions. A different remedy exists to compel the doctor=s compliance, and such an arbitrary action as to terminate an employee=s relationship with his doctor over the doctor=s breach of rules could easily result in a penalty to the employee for his doctor=s delinquency. The remedy for a health care provider=s noncompliance with the statute and rules here at issue is the $600 penalty that is provided for at Minn. Stat. ' 176.138(c), and the employer has never requested such a penalty, nor was such a penalty at issue before the compensation judge.
The supreme court has indicated that an employee is normally granted substantial latitude in choosing his or her treating physician, see Maronde v. Robert Carr Constr. Co., 306 Minn. 529, 532, 235 N.W.2d 207, 209, 28 W.C.D. 129, 132 (1975), and we conclude that this same latitude normally extends also to the retention of a treating physician under challenge by an employer and insurer. We conclude that the judge in this case did not commit an error of law in tolerating Dr. Ryan=s apparent breach of the rules in his balancing of the interests at issue.
2. Substantial Evidence
The employer contends also that substantial evidence does not support the compensation judge=s conclusion, under Minn. R. 5221.0430, subp. 4F, that a change of physician in this case would not be Ain the best interest@ of the parties. Again we are not persuaded.
Minn. Stat. ' 176.135, subd. 2, implies authority for a change of the employee=s treating physician by agreement of the parties or by order, subject to criteria established in the Minnesota Rules. The rule expressly at issue before the compensation judge was Minn. R. 5221.0430, subp. 4, which provides that, once an injured employee has properly selected his or her primary provider, a party=s request to change that provider shall not be approved where
A. a significant reason underlying the request is an attempt to block reasonable treatment or to avoid acting on the provider=s opinion concerning the employee=s ability to return to work;
B. the change is to develop litigation strategy rather than to pursue appropriate diagnosis and treatment;
C. the provider lacks the expertise to treat the employee for the injury;
D. the travel distance to obtain treatment is an unnecessary expense and the same care is available at a more reasonable location;
E. at the time of the . . . request, no further treatment is needed; or
F. for another reason, the request is not in the best interest of the employee and the employer.
Minn. R. 5221.0430, subp. 4. Without proposing at hearing an alternative physician, the employer requests the change from Dr. Ryan on grounds related to Paragraph F of the rule, arguing that a change to a different doctor is Ain the best interest of the employee and the employer.@ The employee contests the requested change under that same paragraph, suggesting a defense also under Paragraphs A and B. We do not reach the latter defense.
With regard to its own interests, the employer argues that Dr. Ryan=s untimeliness in furnishing records and reports has not only obstructed the employer=s statutorily authorized management of the employee=s rehabilitation, thereby limiting the employer=s ability to monitor expenses, but has also necessitated the acquiring of costly independent medical examinations in order to obtain necessary information as to the employee=s condition. In addition to alleging these prejudices to its own interests, the employer argues also that the employee=s own interests are not well served by Dr. Ryan=s treatment, to the extent that that untimeliness impedes case manager Stein=s efforts to coordinate the employee=s treatment and to promptly direct appropriate and useful diagnostic measures. It is evident from Dr. Ryan=s records, however, that Dr. Ryan=s treatment was detailed and attentive, and it is evident from the employee=s testimony that that treatment was helpful. The employee testified at hearing that Dr. Ryan=s treatment usually seemed to him less rushed and more thorough than he was accustomed to with other doctors, that Ashe asks about everything, you know, everything in relationship to your problems and what you=re doing at work,@ that A[s]he just cares.@ He testified that, through various prescribed treatment modalities, including certain home exercises, a Saunders unit, physical therapy, Lidoderm patches, and other medications, A[Dr. Ryan]=s done a lot for me. She=s kept me working. I just want to be able to keep working, you know.@ The employee testified that Dr. Ryan had A[a]bsolutely@ assisted him in returning to his job as a truck driver. He testified that Dr. Ryan Alistens to everything. She sends me to the right people. She just B she gets me back to work.@ Near the end of his testimony, the employee reiterated, AI=ve been with [Dr. Ryan] for 10 years, I=d like to continue with her. I think she really helps me.@
We acknowledge the frustration of the employer in the face of Dr. Ryan=s repeated untimeliness in the furnishing of required and requested records and reports. The employer has an initial remedy, however, that it has not yet availed itself of, in the $600 penalty, payable to the commissioner, that is provided for under Minn. Stat. ' 176.138(c). Particularly in light of the fact that Dr. Ryan=s treatment and treatment records appear to us to have been very responsive to the needs of the employee=s medical care and condition, we do not at this time find unreasonable the compensation judge=s denial of the employer=s request for a change of physicians against the will of the employee. Therefore that decision is affirmed. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.