JENNY DOERING, Employee/Appellant, v. CASEY=S GEN. STORE, and EMC INS. COS./CCMSI, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 28, 2006
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS; MEDICAL TREATMENT & EXPENSE - CHRONIC MANAGEMENT. The compensation judge properly concluded that the employee=s treatment for chronic pain and depression was governed by the treatment parameters covering Achronic management,@ where the treatment at issue was rendered after the employee had received all appropriate nonsurgical and surgical care.
Determined by: Wilson, J., Rykken, J., and Pederson, J.
Compensation Judge: William R. Johnson
Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Appellant. Laura L. Enga, The Law Office of Laura L. Enga, New Hope, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge=s finding that counseling for her chronic pain and depression is limited to a maximum of 12 sessions. We affirm.
The employee sustained a work-related injury to her low back on June 27, 2001, while working for Casey=s General Store [the employer]. She underwent an anterior/posterior fusion in September of 2002, and a second surgery in October 2002, to relieve nerve impingement caused by a bone fragment. The surgeries did not relieve her symptoms, and the employee has continued to experience low back pain that runs down into her legs and feet. The employee has been rated as having a 21% permanent partial disability of the whole body and has been adjudicated to be permanently totally disabled.
The employee uses a TENS unit, takes medication, and has tried cortisone shots, a brace, and physical therapy to treat her condition. The employee=s treating doctor, Dr. Struthers, recommended counseling. The employee was seen by licensed psychologist Douglas Henning, at the Douglas County Hospital, on March 11, 2004. The employee indicated that her reason for coming in was Areally get frustrated, pain everyday.@ Her stated goal for treatment was to Alearn coping skills to deal with chronic pain.@ Mr. Henning diagnosed the employee as having major depression, single episode, and chronic pain with psychological factors. The employee has seen Mr. Henning for individual psychotherapy on more than 30 occasions since that time. The employer and insurer paid for more than 25 of those sessions before discontinuing payment based on Minn. R. 5221.6600, subp. 2F(3), which provides for a maximum of 12 sessions.
The employee filed a medical request for payment of Mr. Henning=s outstanding charges and ongoing treatment. The employer and insurer responded, in part, that the requested treatment exceeded that allowed by the treatment parameters. When the matter proceeded to a medical conference, the employer and insurer prevailed. The employee then requested a formal hearing, which was held on December 22, 2005. In findings and order filed on January 23, 2006, the compensation judge found that there had been no request for a departure from the treatment parameters and that Minn. R. 5221.6600, subp. 2F(3), was controlling, and he denied the employee=s request for further counseling. The employee appeals.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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 (2004). Substantial evidence supports the findings if, in the context of the entire record, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
The employee contends that the judge erred in finding that the employee=s treatment for depression falls under the treatment parameter dealing with chronic management. We are not convinced.
While the employee alleges that Mr. Henning=s treatment is focused on A[the employee=s] depression with associated suicidal tendencies,@ there is no evidence to support that argument. Chronic pain is listed as a targeted problem on 26 of the 30 progress notes prepared by Mr. Henning. Mr. Henning testified that the employee=s work injury was a substantial contributing factor in the employee=s development of chronic pain and depression, but he also testified that 80% of people who experience chronic pain Aalso have a diagnosable depression that goes along with that.@ He further testified that the chronic pain and depression are very related, that they Areally are coexisting,@ and A[s]o I think the chronic pain problems and her depression are intricately related within herself and they really are hard to separate from the other family issues.@ No evidence was submitted to establish that Mr. Henning is rendering different treatments for the different diagnoses, or that he has one treatment plan for chronic pain and a different one for depression. In addition, while the employee testified that she has thought about suicide Aquite a few times@ and has talked to Mr. Henning about that, Mr. Henning=s progress notes each indicate either that there was Ano indication@ for a risk assessment of Asuicidality@ or that the employee denied suicidal thoughts. And, in his deposition, Mr. Henning did not mention the employee having suicidal tendencies or that he was treating her in an attempt to prevent suicide.
Minn. R. 5221.6600 deals with AChronic Management.@ and provides in part as follows:
Subp. 1. Scope. This part applies to chronic management of all types of physical injuries . . . . If a patient continues with symptoms and physical findings after all appropriate initial nonsurgical and surgical treatment has been rendered, and if the patient=s condition prevents the resumption of the regular activities of daily life including regular vocational activities, then the patient may be a candidate for chronic management. The purpose of chronic management is twofold: the patient should be made independent of health care providers in the ongoing care of a chronic condition; and the patient should be returned to the highest functional status reasonably possible.
A. Personality or psychological evaluation may be indicated for patients who are candidates for chronic management. The treating health care provider may perform this evaluation or may refer the patient for consultation with another health care provider in order to obtain a psychological evaluation. These evaluations may be used to assess the patient for a number of psychological conditions which may interfere with recovery from the injury. Since more than one of these psychological conditions may be present in a given case, the health care provider performing the evaluation must consider all of the following:
(1) Is symptom magnification occurring?
(2) Does the patient exhibit an emotional reaction to the injury, such as depression, fear or anger, which is interfering with recovery?
(3) Are there other personality factors or disorders which are interfering with recovery?
(4) Is the patient chemically dependent?
(5) Are there any interpersonal conflicts interfering with recovery?
(6) Does the patient have a chronic pain syndrome or psychogenic pain?
(7) In cases in which surgery is a possible treatment, are psychological factor likely to interfere with the potential benefit of the surgery?
Subp. 2. Chronic management modalities.
* * *
F. Individual or group psychological or psychiatric counseling.
(1) Indications: a personality or psychosocial evaluation has revealed one or more of the problems listed in subpart 1, item A, which interfere with recovery from the physical injury, but the patient does not need or is not a candidate for a pain management program.
(2) Requirements: there must be a specific set of goals based on the initial personality or psychosocial evaluation and a timetable for achieving those goals within the prescribed number of treatment or therapy sessions. There must be a prescribed frequency of attendance and the treating health care provider must maintain adequate documentation of attendance. There must be a prescribed duration of treatment.
(3) Treatment period: a maximum of 12 sessions. Only one completed program of individual or group psychological or psychiatric counseling is indicated for an injury.
At oral argument, counsel for the employee argued that major depression, single episode, is not covered by this treatment parameter and that Minn. Stat. '176.135, providing generally for the provision of reasonable and necessary treatment, therefore governs. We disagree.
Minn. R. 5221.6600, subp. 1, provides that an employee may be a candidate for chronic management if she continues with symptoms and physical findings after all appropriate nonsurgical and surgical treatment has been rendered and if her condition prevents the resumption of the regular activities of daily life. Employee=s counsel agreed at oral argument that the employee is post- nonsurgical and surgical treatment, and the employee testified that she cannot do the household chores that she used to do, that she no longer has an active lifestyle, and that she is unable to work. The employee has been adjudicated to be permanently totally disabled and testified that she receives social security disability benefits. The employee clearly meets the criteria set forth in the treatment parameter for chronic management.
In addition, Minn. R. 5221.6600, subp. 2F(1), provides that individual psychological counseling is indicated if the employee has one or more of the problems listed in subp. 1A. It is therefore apparent that this treatment parameter covers those Aproblems@ listed in subp. 1A, and both depression and chronic pain syndrome are addressed in that subpart.
Finally, the fact that the employee has not been formally diagnosed with Achronic@ depression is not determinative of the outcome here. While Mr. Henning initially diagnosed the employee as having Amajor depression, single episode,@ he acknowledged in deposition testimony that,
[W]e look at a single episode as something that would be addressed and relatively cleared up for a period of time, a few weeks to a few months. This has been something that really has been recurring and seems to be ongoing B so it=s become more of an ongoing issue.
In addition, Mr. Henning=s testimony that the chronic pain and depression Ais an ongoing problem that will probably last at some level the rest of her life@ strongly suggests that the condition is chronic in nature. In any event, we conclude that depression that continues beyond the nonsurgical and surgical phases of treatment is covered by Minn. R. 5221.6600, subp. 2F(3), regardless of whether a physician has characterized the condition as chronic.
Because the employer and insurer have already paid for more than the 12 sessions allowed by the governing treatment parameter, and because there was no claim for a departure from this parameter, the judge=s decision denying payment for additional counseling sessions is affirmed.
 According to the employee=s testimony at hearing.