HANNAH J. JAYNES, Employee/Cross-Appellant, v. GOLDEN CREST NURSING HOME, and CONSTITUTION STATE SERVS., Employer-Insurer/Appellants, and RRHS UMCM MESABA CLINICS, MN DEP'T OF HUMAN SERVS., INGENIX/UCARE MINN., and ST. LUKE=S CLINICS, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 13, 2006
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS; RULES CONSTRUED - MINN. R. 5221.6300, SUBP. 6.B. Where subpart 11.B. of Minn. R. 5221.6300, as incorporated under subpart 6.B. of that rule, was inapplicable to the employee=s shoulder surgery because subpart 11.B. pertains specifically to epicondylitis, and where there was no basis for concluding that the treating doctors= examination finding of impingement did not qualify as an Aobjective physical finding@ for purposes of subpart 15.B. of the rule, also incorporated under subpart 6.B., the compensation judge=s conclusion that the employee=s surgery was in compliance with Minn. R. 5221.6300 of the treatment parameters was not clearly erroneous and unsupported by substantial evidence.
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS; RULES CONSTRUED - MINN. R. 5221.6500, SUBP. 3.B. Where the repeated pre-surgery examination finding of impingement was sufficient to satisfy the required diagnosis of Aacromial impingement syndrome@ in Minn. R. 5221.6500, subp. 3.B., where the shoulder surgery eventually performed did involve a paring of the acromion, and where the judge reasonably found that the employee satisfied the other physical requirements at issue under the rule, the compensation judge=s conclusion that the employee=s surgery was in compliance with the requirements of Minn. R. 5221.6500, subp. 3.B., was not clearly erroneous and unsupported by substantial evidence.
MEDICAL TREATMENT & EXPENSE - SURGERY. Where the employer and insurer had conceded at hearing that the surgery was causally related to the work injury, and where that surgery was in compliance with the medical treatment parameters, the shoulder surgery at issue was presumptively reasonable and necessary absent a showing that the employee=s circumstances constituted the sort of Arare case@ referenced in Pelowski v. K-Mart Corporation, 627 N.W.2d 89, 93, 61 W.C.D. 276, 281 (Minn. 2001), and the employer and insurer=s argument as to its reasonableness and necessity was not addressed.
Determined by: Pederson, J., Rykken, J., and Wilson, J.
Compensation Judge: Jerome G. Arnold
Attorneys: Steven Christensen, Attorney at Law, Roseville, MN, for the Cross-Appellant. James S. Pikala and Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Appellants.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge's award of repeat shoulder surgery, and the employee cross-appeals from the judge=s construction, in his memorandum, of Minnesota Rules 5221.6300, subpart 6B. We affirm.
On December 20, 2003, Hannah Jaynes sustained an injury to her right shoulder when she attempted to catch a falling patient in the course of her work as a licensed practical nurse with Golden Crest Nursing Home [the employer]. Ms. Jaynes [the employee] was forty-seven years old on that date and was earning a weekly wage of $454.72. On January 6, 2004, the employee commenced treatment with her family internist, Dr. Mitch Cardwell, who diagnosed tendinitis and prescribed medication and physical therapy. The therapy proved ineffective, and on January 29, 2004, Dr. Cardwell restricted the employee from working, prescribed additional medication, and ordered an MRI scan of the injured right shoulder. The MRI scan was conducted on February 6, 2004, and, aside from revealing what appeared to be results of a surgical resection that the employee had undergone in October of 2000, was read to be negative. Subsequently, on February 23, 2004, the employee was examined by orthopedic surgeon Dr. William Schnell, who, after reviewing the MRI scan, diagnosed post traumatic bursitis and tendonitis, administered a right shoulder subacromial injection, and released the employee to return to work on March 1, 2004, restricted from lifting over ten pounds. On March 24, 2004, the employee returned to Dr. Cardwell with complaints of a continuing burning sensation in her right shoulder, unrelieved by the injection, and Dr. Cardwell increased her medication and continued to prescribe physical therapy.
On April 8, 2004, on referral from Dr. Cardwell, the employee saw orthopedic surgeon Dr. Leonard Jennings, who in October of 2000 had already performed on the employee=s right shoulder a A[d]iagnostic arthroscopy and arthrotomy with excision lateral clavicle, acromioplasty and exploration, rotator cuff.@ Dr. Jennings diagnosed Adefinite signs of impingement@ on both of the employee=s shoulders, much more on the right than on the left, and recommended an MRI arthrogram of the right shoulder. The right shoulder MRI arthrogram was conducted on April 21, 2004, and, although it was degraded somewhat due to a motion artifact, was read to be normal. On April 22, 2004, noting that the arthrogram had failed to reveal anything definite and that the employee had not improved with four months of physical therapy, Dr. Jennings recommended Aarthroscopy of the shoulder and possible arthroscopic debridement, etc.,@ noting further that A[w]e would check it under anesthesia to see if there is any instability and if so, might have to repair a labral tear, etc.@ On May 11, 2004, Dr. Jennings performed a diagnostic arthroscopy of the right shoulder joint and glenohumeral joint, with subacromial decompression, diagnosing postoperatively right shoulder impingement with minor degenerative changes interarticularly but no evidence of instability.
The employee=s right shoulder problems continued notwithstanding her surgery, and on June 17, 2004, with the employee showing decreased range of motion both active and passive, Dr. Jennings administered a cortisone injection and continued the employee=s physical therapy and exercise program. The injection brought only brief relief, however, and on June 24, 2004, Dr. Jennings recommended another MRI arthrogram and anticipated a need for additional surgery. The second MRI arthrogram was conducted on July 12, 2004, and was read to be negative, revealing normal synovial surfaces and no evidence of rotator cuff tendon tear. On July 21, 2004, Dr. Jennings reported that the MRI arthrogram had Afailed to show any real pathology,@ and on July 26, 2004, Dr. Cardwell recommended a cortisone injection and prescribed physical therapy.
On August 18, 2004, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Stephen Barron. In his report on August 25, 2004, Dr. Barron indicated that, on physical examination, he had found tenderness and positive impingement signs in the employee=s right shoulder. He opined, however, that the employee was able to work without restrictions, that ongoing physical therapy or treatment was not reasonable or necessary, that the employee had reached maximum medical improvement [MMI] with regard to her December 2003 work injury, and that she had no functional impairment secondary to that injury.
On September 16, 2004, the employee returned to Dr. Jennings with complaints of substantial ongoing pain. Noting that the employee Adefinitely has signs of impingement@ but, with essentially normal radiological findings, was Ahard to evaluate,@ Dr. Jennings concluded that the employee might require Arepeat arthroscopic debridement@ surgery, and he suggested that she obtain a second opinion in that regard. The employee declined for the time being to be seen by anyone else, however, and Dr. Jennings released her to sedentary work for only about three hours a day, mainly with the left arm. On October 14, 2004, Dr. Jennings affirmatively recommended a right shoulder arthroscopic debridement, opining that the employee was not capable of continuing in her regular job, and on October 20, 2004, he reiterated that recommendation. On October 26, 2004, Dr. Cardwell noted that the employee had Anot been able to go back to work since April@ due to her shoulder injury, which he diagnosed as a right shoulder rotator cuff tear, and he continued her restriction from work Auntil she can get into surgery and have appropriate rehab.@
On November 8, 2004, the employee filed a medical request, seeking approval of and payment for an MRI arthrogram and the surgery recommended by Dr. Jennings. In a medical response filed November 19, 2004, the employer and insurer refused to pay for the requested treatment, on grounds that it was not reasonable and necessary, was not causally related to the employee=s work injury, and was outside the scope of the Minnesota workers= compensation medical treatment parameters. On that same date, the employer and insurer filed a petition to discontinue the employee=s benefits, on grounds that the employee had reached MMI with regard to her work injury and was able to return to her regular job without restriction, citing in support of their petition the reports of Drs. Barron and Jennings. On December 3, 2004, the medical request and the petition to discontinue were consolidated for hearing.
The employee=s complaints of pain continued into January of 2005, for which complaints she continued to see both Dr. Jennings and Dr. Cardwell. Dr. Cardwell continued to prescribe medications, and, in a report on January 24, 2005, Dr. Jennings opined that the employee=s ongoing problems were related to her December 20, 2003, work injury. Upon a paper review of the employee=s recent medical records conducted February 8, 2005, Dr. Barron opined in part that the employee=s December 2003 work injury had caused a permanent aggravation of the employee=s preexisting right shoulder condition but that, while he had earlier found positive impingement signs upon examination of the employee, surgery was not currently indicated because the impingement signs were subjective and had not been substantiated by objective MRI scan and x-ray results. If surgery were performed, he added, the employee=s December 2003 work injury would have no causal relationship to that surgery, because the work injury had resolved as of August 18, 2004. On February 11, 2005, Dr. Cardwell noted that the employee continued to have a Apositive impingement sign, pain with internal and external rotation,@ and Atenderness to palpat[ion] along the supraspinatus tendons@ and that she could only abduct about ninety degrees without having pain.
The consolidated medical request and petition to discontinue came on for hearing on February 18, 2005, where issues were as follows: (1) whether the employer and insurer were entitled to discontinue the employee=s benefits based on the employee=s being more than ninety days post MMI; (2) whether the employer and insurer should be allowed to discontinue benefits based on the employee=s having no work-related physical restrictions; (3) whether the employer and insurer were required to pay for the surgery recommended by Dr. Jennings; and (4) whether the employer and insurer were required to pay for the repeat MRI scan and arthrogram. By a decision filed February 24, 2005, the compensation judge granted the employee=s request for the treatment at issue, in apparent reliance on the opinions of the employee=s treating doctors and rejecting the opinion of Dr. Barron. In her decision, the judge stated, AIf Dr. Jennings, after review of the repeat MRI and arthrogram[,] still believes that the additional right shoulder surgery is reasonable and necessary, the employer and insurer will be required to pay for that surgery.@ The employer and insurer subsequently appealed from that decision, and the order requiring them to pay for the treatment at issue was stayed.
On March 16, 2005, the employee underwent a repeat MRI and arthrogram, which was again compromised by a magnetic artifact. The study revealed postoperative changes consistent with the employee=s prior operative history, with the rotator cuff, biceps tendon, labrum, and glenohumeral ligaments appearing to be intact, and evidence of Aa Type 3 capsule demonstrated anteriorly.@ While the employee=s February 24, 2005, approval of surgery remained on appeal, the employee continued to see both Dr. Jennings and Dr. Cardwell, the latter continuing to prescribe medications and stressing the urgency of repair surgery against what he observed as increasing adhesive capsulitis and consequent loss of range of motion. Upon seeing the employee on June 3, 2005, Dr. Cardwell diagnosed the employee=s condition as Aa grade two adhesive capsulitis and tendonitis,@ adding that A[u]nfortunately this is a work comp injury and work comp has been denying her second surgery,@Adragging their feet.@ On June 16, 2005, Dr. Cardwell noted that the employee=s limited range of motion Ain all axes with pain now is ridiculous,@ that her shoulder was Aalmost a totally nonfunctional joint@ that was Agoing to get worse and worse and worse,@ and that, if no workers= compensation resolution proved possible, Ashe needs to go on her regular insurance and get her shoulder fixed.@ On August 9, 2005, Dr. Cardwell reiterated the employee=s need for right shoulder surgery, and when she saw him again on August 30, 2005, the employee informed Dr. Cardwell that she was in the process of seeking medical assistance in order to proceed with it. When she saw him again on September 21, 2005, the employee informed Dr. Cardwell that she had qualified for UCare.
By a decision filed October 13, 2005, this court affirmed the employee=s February 24, 2005, award of a repeat MRI scan, but we vacated her award of the surgery recommended by Dr. Jennings, on grounds that it had been made contingent on results of the MRI, which were at that time evidence not yet in existence.
On October 28, 2005, the employee was examined for the employer and insurer again by Dr. Barron, and three days later, on October 31, 2005, she filed a medical request, again claiming entitlement to the right shoulder surgery recommended by Dr. Jennings and Dr. Cardwell. In his report on November 7, 2005, Dr. Barron opined again that, while the employee=s ongoing right shoulder problems remained causally related to her December 2003 work injury, additional surgery was not warranted, because examination findings of impingement were subjective and not substantiated by MRI findings.
On November 14, 2005, the employee was seen on referral from Dr. Cardwell by orthopedist Dr. Michael Momont, for a Asecond opinion consultation regarding chronic right shoulder pain.@ Dr. Momont concluded that it did not appear that the employee=s symptoms were stemming from any anatomical abnormalities in her shoulder, and he recommended an EMG of her right upper extremity, Ato evaluate referred sources of pain.@ In a medical response filed November 16, 2005, the employer and insurer denied the employee=s request for surgery, based essentially on the November 7, 2005, report of Dr. Barron. On January 4, 2006, the employee underwent the EMG that had been recommended by Dr. Momont. The EMG was read by neurologist Dr. David McKee to reveal no neuropathic etiology for the employee=s complaints of shoulder pain, the only identified abnormalities appearing to be related to a carpal tunnel syndrome.
On January 10, 2006, the employee underwent right shoulder surgery by Dr. Jennings, described in the operative report as follows: AArthroscopy of the glenohumeral joint with thorough examination, examined under anesthesia both preop and with the scope in the joint itself, plus a subacromial decompression, excision bursa scar tissue and the large anterior spur or at least type of curvature in the acromion causing some impingement on the rotator cuff.@ Subsequent to that surgery, the employee=s condition began to improve, and Dr. Cardwell and Dr. Jennings both recommended physical therapy. When she saw him in follow-up on March 31, 2006, the employee reported to Dr. Cardwell that she had weakness and a lot of pain in her shoulder, but he found her to have good range of motion without crepitation and an ability to abduct to 180 degrees with good internal rotation without impingement. He did note that she had limited external rotation, however, and he lamented the employer and insurer=s refusal to pay for physical therapy. When Dr. Jennings saw her on April 12, 2006, Dr. Jennings noted that the employee was doing fairly well working part time at light duty, that there was an increase in her right shoulder range of motion, although she still had some occasional aches and pains related to her work.
On April 13, 2006, after reviewing the operative report and other records related to the employee=s January 10, 2006, right shoulder surgery, Dr. Barron issued yet another supplemental report, confirming his earlier prospective position, that the surgery performed by Dr. Jennings on the employee=s right shoulder in January 2006 was not reasonable and necessary and was unrelated to the employee=s December 2003 work injury.
The matter came on for hearing on April 17, 2006. Issues at hearing included whether the surgery performed by Dr. Jennings on January 10, 2006, was reasonable and necessary treatment for the employee=s December 20, 2003, work injury and whether it was in compliance with the treatment parameters. The employer and insurer conceded at hearing that the surgery was causally related to the work injury, but they contended that it was not reasonable and necessary, arguing in part that the specific procedure to be performed was never even clearly identified prior to the surgery. The employer and insurer contended further that the surgery ultimately performed was not in conformance with the requirements of Minnesota Rules 5221.6300, subpart 6B, of the treatment parameters, which establishes a Asecond opinion@ requirement in cases of repeat surgery to the upper extremity, or with Minnesota Rules 5221.6500, subpart 3D, of the parameters, which establishes specific parameters for surgical excision of the distal clavicle. The employee argued that Rule 5221.6300, subpart 6D, did not apply, in that the 2006 surgery at issue was not identical to the 2004 surgery and therefore was not Arepeat surgery@ for purposes of that subpart, and she argued further that the applicable subpart of Rule 5221.6500 was subpart 3B, which defines parameters for surgical acromioplasty, rather than subpart 3D, which defines parameters for excision of the distal clavicle.
By findings and order filed May 11, 2006, the compensation judge awarded payment for the surgery at issue, concluding that it was reasonable and necessary and that A[t]he treatment parameters at Minn. R. 5221.6300 and 5221.6500, subp. 3B have been satisfied.@ In his memorandum, the judge explained that, in finding the surgery reasonable and necessary, he had Aadopted the opinions of Dr. Jennings and Dr. Cardwell on the need for surgery and rejected the opinions of Dr. Barron to the extent such are contrary.@ The judge stated also in his memorandum that, A[c]ontrary to the employee=s assertion[,] repeat surgery as that term is used in [Minn. R. 5221.6300,] subp. 6B is intended to not only apply to identical repeat surgery but also includes additional surgical procedure to the same body parts,@ but he went on to conclude that the specific second opinion provision of subpart 6B was inapplicable in this case, A[a]s the insurer opted for the independent medical examination and did not request the employee to obtain a second opinion on the need for surgery.@ The employer and insurer appeal from the award of the surgery, both as reasonable and necessary and as in compliance with the treatment parameters, and the employee cross-appeals from the judge=s construction of the term Arepeat surgery@ as it is used in subpart 6B of Minnesota Rules 5221.6300.
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.
At hearing, the employer and insurer asserted that the surgery at issue was not in compliance with the requirements of Minnesota Rules 5221.6300, subpart 6B, or Minnesota Rules 5221.6500, subpart 3D, of the treatment parameters. In awarding payment for the surgery, the compensation judge concluded at Finding 27 that A[t]he treatment parameters at Minn. R. 5221.6300 and 5221.6500, subp. 3B have been satisfied,@ implying in his memorandum that subpart 6B was the applicable subpart of Rule 5221.6300, contrary to arguments of the employee at hearing, and that subpart 3B was the applicable subpart of Rule 5221.6500, contrary to arguments of the employer and insurer at hearing. On appeal, the employer and insurer continue to contest the employee=s compliance with Rule 5221.6300, albeit on grounds other than subpart 6B=s second opinion requirement, and they continue to argue that subpart 3D rather than subpart 3B is the applicable subpart of Rule 5221.6500.
1. Minnesota Rules 5221.6300
Minnesota Rules 5221.6300, subpart 6B, which establishes parameters for Arepeat surgery@ for upper extremity disorders, provides in part that, in addition to having to meet certain requirements as to a second opinion, the claiming employee must also meet the parameters of Minnesota Rule 5221.6300, subparts 11 to 16, and Minnesota Rule 5221.6500, just as must an employee who is claiming payment for an initial surgery. The employer and insurer contend that the employee did not meet the subpart=s requirement that she also meet the provisions of subparts 15 and 11 of Minnesota Rules 5221.6300. Subpart 15B of Rule 5221.6300 provides in part that,
[i]f the [employee] continues with symptoms and objective physical findings after six months of initial nonsurgical management, and if the [employee]=s condition prevents the resumption of the regular activities of daily life including regular vocational activities, then surgical evaluation or chronic management is indicated. Surgical evaluation and surgical therapy must meet all of the parameters of subpart 11, item B, with the modifications in subitems (1) to (3).
Minn. R. 5221.6300, subp. 15B. Noting that subpart 11B of the rule as well as subpart 15B requires Aobjective physical findings@ before surgery may be conducted, the employer and insurer argue that the judge erred in concluding that the provisions of Minnesota Rules 5221.6300 were satisfied without radiological corroboration of the need for surgery. We are not, however, persuaded.
Initially, we would note that subpart 11B of the rule is inapplicable under the circumstances of this case, in that, as its very title implies, it provides parameters specifically for epicondylitis, a condition not part of the employee=s right shoulder diagnosis. More to the point of the employer and insurer=s argument, we see no basis, in either the rules or any other evidence presented at hearing, for the judge to have felt obligated to accept Dr. Barron=s assertion that Dr. Jennings= and Dr. Cardwell=s examination findings of impingement were not Aobjective physical findings@ for purposes of Minnesota Rules 5221.6300, subpart 15B, however Asubjective@ Dr. Barron may have concluded his own findings to be. Indeed, although the employer and insurer at one point in their brief substitute the phrase Aobjective clinical@ for Aobjective physical@ findings, at no point in the rule at issue is Aradiological@ substituted for Aobjective physical.@ We conclude that it was not unreasonable for the compensation judge to conclude that Dr. Jennings= and Dr. Cardwell=s examination findings of impingement were Aobjective physical@ findings. Therefore, the employer and insurer having alleged no other noncompliance with the rule=s requirements, we affirm the compensation judge=s conclusion that the employee=s surgery was in compliance with Minnesota Rules 5221.6300 of the treatment parameters.
2. Minnesota Rules 5221.6500
As indicated above, and contrary to the position of the employer and insurer at hearing, the compensation judge applied subpart 3B of Minnesota Rules 5221.6500, which defines parameters for surgical A[a]cromioplasty,@ rather than subpart 3D of that rule, which defines parameters for surgical A[e]xcision of [the] distal clavicle.@ Subpart 3B provides for acromioplasty in cases of Aacromial impingement syndrome,@ whereas subpart 3D provides for excision of the distal clavicle in cases of either acromioclavicular separation or osteoarthrosis of the acromioclavicular joint or Ashoulder impingement syndrome.@ Minn. R. 5221.6500, subps. 3B and 3D (underscoring added). On appeal, the employer and insurer continue to contend that subpart 3D is the applicable subpart, arguing that the employee Adid not have a diagnosis of acromial impingement syndrome and, even if she did, she did not have the requisite objective findings required by that Rule.@ We are not persuaded.
On any number of occasions, Dr. Jennings made specific findings of Aimpingement@ in the employee=s right shoulder, and Dr. Cardwell and even Dr. Barron made similar findings. It is true that none of these doctors specified whether he thought that that impingement was specifically Aacromial,@ as opposed to some other perhaps more general shoulder impingement. We conclude, however, that the general finding of impingement in this case would constitute sufficiently substantial prior-surgery evidence to satisfy the diagnostic element of either subpart 3B or subpart 3D. Once having observed the interior of the employee=s shoulder arthroscopically, Dr. Jennings was able to more accurately identify the location of the impingement, and his surgical report reasonably indicates that his address was to the acromion, not to the clavicle.
As for the Aobjective findings@ that the employer and insurer argue were not present for the employee, Minnesota Rules 5221.6500, subpart 3B, provides in pertinent part that, in addition to satisfying a diagnosis defined earlier in the rule, acromioplasty surgery may only be performed if (a) Athe employee=s condition has failed to improve after adequate initial nonsurgical care@ and (b) Athe employee exhibits pain with active elevation from 90 to 130 degrees and pain at night, and a positive impingement test.@ Minn. R. 5221.6500, subp. 3B(2). The compensation judge concluded at Finding 27 that the employee=s right shoulder condition had failed to improve despite both adequate nonsurgical care and her surgery of May 11, 2004, and that the employee=s clinical findings at periods here relevant included exhibition of pain with active elevation, pain at night, and a positive impingement test. These conclusions were not unreasonable, given repeated evidence in the medical records of the employee=s complaints of severe pain and her doctors= findings of limited range of motion and definite impingement. Therefore, the employer and insurer having alleged no other noncompliance, we affirm the compensation judge=s conclusion that the surgery at issue has satisfied the parameters established at Minnesota Rules 5221.6500, subpart 3B. Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
The employer and insurer conceded at hearing that the surgery at issue was causally related to the work injury and that therefore the treatment parameters apply. We have concluded that the surgery was in compliance with the treatment parameters. As we have suggested in the past, satisfaction of the treatment parameters by definition implies a presumption that the treatment at issue is reasonable and necessary, absent a finding that circumstances in the case constitute a Arare case@ exception to the parameters. See Pelowski v. K-Mart Corporation, 627 N.W.2d 89, 93, 61 W.C.D. 276, 281 (Minn. 2001) (A[i]n the absence of [Arare case@] circumstances warranting a departure from treatment parameter rules, treatment in compliance with the parameter rules should be compensable@). Normally this exception would be invoked in cases where the parameters have not technically been met but the injured employee nevertheless clearly requires the treatment at issue. Here that situation is reversed, and the employer and insurer have not, at any rate, argued that this case constitutes a rare case exception. Nor do we, having reviewed the case, see any reason to presume that such an argument is being advanced or any basis, after all, to conclude that the employee=s case is a rare one for purposes of this rule. Therefore we will not address the employer and insurer=s reasonableness and necessity argument.
Because we have affirmed that the surgery at issue was in compliance with both Minnesota Rules 5221.6300 and Minnesota Rules 5221.6500 of the treatment parameters, and because we have concluded that this is not a rare case exception to the presumption that satisfaction of the parameters implies that treatment at issue is reasonable and necessary, we affirm in its entirety the compensation judge=s award of payment for the surgery at issue. Because the employer and insurer have conceded in their brief that the physical therapy at issue should also be approved should payment for the surgery be approved, we affirm also the judge=s award of the physical therapy. Because we have affirmed the judge=s award of the medical benefits, the employee=s cross appeal is moot, and we will not address it.
 The employer and insurer also appealed nominally from a finding - - Finding 2 - - that included the conclusion that the employee=s right shoulder had not given her any material problems prior to her 2003 work injury, appearing to at least bring into issue the causal link between the employee=s condition and her work injury. However, they had already conceded at hearing that the employee=s right shoulder condition was causally related to her December 2003 work injury, and they have not addressed a causation issue in their brief, and we will therefore not address one. See Minn. R. 9800.0900, subp. 1 (AIssues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be decided by the court.@).
 Minnesota Rules 5221.6300, subpart 6B, provides that A[r]epeat surgery . . . is not indicated unless the need for the repeat surgery is confirmed by a second opinion obtained before surgery, if requested by the insurer.@ The compensation judge concluded at Finding 22 that,
[u]pon the medical provider requesting authorization for the requested surgery, the employer and insurer did not request the employee to obtain a second opinion . . . from a physician of her choosing but rather elected to have the employee undergo an independent medical examination by a physician of the employer and insurer=s choice.
At Finding 25, the judge concluded further that Dr. Momont, upon being consulted Aregarding chronic right shoulder pain,@Adid not render an opinion as to surgical intervention for [the employee=s] right should[er] complaints.@ The employer and insurer appealed nominally from Findings 22 and 25, but they have not briefed an issue as to the second opinion requirement in subpart 6B of Minnesota Rules 5221.6300, and accordingly we will not address one. See Minn. R. 9800.0900, subp. 1.
 On page 27.