THOMAS G. MEYERS, Employee, v. HEARTH TECH. f/k/a HEAT-N-GLO FIREPLACE PRODS., and ATLANTIC MUT., Employer-Insurer/Appellants, and MAYO FOUND., and NORIDIAN, Intervenors.
WORKERS COMPENSATION COURT OF APPEALS
OCTOBER 27, 2006
MEDICAL TREATMENT & EXPENSE - SUBSTANTIAL EVIDENCE. Substantial evidence, including the medical records and opinions of the employee=s treating and consulting physicians and the testimony of the employee, supports the compensation judge=s finding that the medical treatment provided to the employee for both his right shoulder condition and migraine headaches, was reasonable, necessary and causally related to his injury.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: Jeremy R. Stevens, Bird, Jacobsen & Stevens, Rochester, MN, for the Respondent. Inger Hansen-Corona, Erstad & Riemer, Minneapolis, MN, for the Appellants.
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal from the compensation judge=s award of payment for medical expenses. We affirm.
Thomas Meyers, the employee, sustained an admitted work-related injury to his right shoulder on December 8, 1994, while employed by Hearth Technologies, formerly known as Heat-N-Glo Fireplace Products, then insured for workers= compensation liability by Atlantic Mutual. The employer and insurer accepted liability for the personal injury and paid workers= compensation benefits to the employee, including temporary total and temporary partial disability benefits, permanent partial disability benefits to the extent of 2% impairment of the body as a whole, medical expenses and rehabilitation benefits. The dispute on appeal relates to the employee=s claim for payment of prescription medication and for treatment of the employee=s migraine headaches.
The employee began working for the employer in 1994, and worked in an assembly line, screwing parts together for fireplaces. By December 8, 1994, after performing repetitive assembly work including operating a screw gun to assemble parts for fireplaces, he developed pain in his right shoulder and arm. He noticed a locking sensation developing in his right shoulder, and initially sought chiropractic care. The employee remained off work for approximately one week and then returned to work within restrictions, working at a different job, that of painting fiber logs to set inside fireplaces. This job required the employee to reach up and across a conveyor at an angle in order to paint the logs. After approximately six weeks, he was no longer able to perform that job. The employee sought medical care from the Lake City Clinic, of the Mayo Health System. His initial treating physician, Dr. Douglas Pflaum, diagnosed infraspinatus muscle pain with adhesive capsulitis. He referred the employee to physical therapy, prescribed pain medication and assigned physical work restrictions. The employee continued to work for the employer at other jobs within his assigned restrictions.
The employee has received periodic ongoing treatment for his right shoulder condition since his injury in 1994. In February 1995, due to the employee=s continued right shoulder symptoms, Dr. Pflaum referred the employee to Dr. Matthew Eich, orthopedic surgeon at the Interstate Medical Center in Red Wing. On March 1, 1995, Dr. Eich manipulated the employee=s right shoulder under anesthesia in order to help him achieve fuller range of motion. In spite of follow-up physical therapy, the employee=s symptoms did not resolve and his chronic right shoulder impingement continued. The employee was prescribed additional pain medication, and used a TENS unit, but his symptoms persisted.
Dr. Eich later recommended surgery, and on July 5, 1995, he performed a diagnostic arthroscopy and bursoscopy, as well as an arthroscopic subacromial acromio-plasty. Following surgery, the employee returned to work for the employer. He was assigned to a different job, sawing metal pieces. The activities involved with that job, however, resulted in increased symptoms. The employer later assigned the employee to other jobs, including wrapping parts for shipping. The employee continued to consult his treating physician due to ongoing symptoms. Dr. Pflaum prescribed an aggressive physical therapy program to alleviate the employee=s developing impingement syndrome.
The employee has tried various medications to alleviate his shoulder symptoms, including Ultram, Tylenol 3, Flexeril, Neurontin, and Vicodin. Because he experienced gastrointestinal symptoms from nonsteroidal anti-inflammatory medications, because he experienced an allergic reaction to naproxen, and because other medication seemed to be ineffective in treating his shoulder symptoms, the employee began taking Vicodin by January 1997.
Since approximately 1996, the employee has experienced migraine headaches; he testified that these were precipitated by an increase in his right shoulder pain. The employee testified that the severity of his headaches has been similar since 1996, but their duration has increased. Since at least 2001, the employee periodically has sought emergency treatment and injections to treat acute migraine pain. He has required Toradol or Imitrex to treat his migraines, as well as occasional injections of Demerol and Visatril.
In May 1996, the employee consulted Dr. Eich for left shoulder symptoms. He attributed those symptoms to lifting materials and also to his increased reliance on his left shoulder due to his restricted right shoulder. The employer and its then-insurer, State Fund Mutual Insurance Company, admitted liability for an injury to the left shoulder on June 19, 1996, and paid certain workers= compensation benefits to the employee.
In September 1996, evidently at the referral of the employer, the employee consulted Dr. Sprangers, medical director of the occupational medicine department at Interstate Medical Center. The employee continued to consult Dr. Sprangers on a periodic basis until 1999, and again consulted him in 2001. In 1996, the employee reported to Dr. Sprangers that his job activities continued to aggravate his shoulder condition, that he used a TENS unit after work, and that his prescribed Ultram provided little relief of shoulder discomfort and caused him considerable gastrointestinal distress. Dr. Sprangers recommended that the employee continue to work at a limited, 8-hour shift, that he continue his home stretching exercises and participate in three physical therapy appointments for exercise instructions, and that he continue taking Flexeril but change to Tylenol 3 instead of the Ultram because of the stomach upset resulting from the Ultram. At later appointments, Dr. Sprangers prescribed continued pain medication, including Vicodin.
In January 1997, Dr. Sprangers recommended that the employee either undergo a shoulder MRI scan or an orthopedic consultation with Dr. Jack Drogt in an attempt to discern why the employee had continued complaints and required Alarge doses of medication for pain.@ Dr. Drogt examined the employee on March 10, 1997, and noted an Aunusual symptom complex@ in view of his physical findings. Dr. Drogt provided him with a steroidal injection to treat his symptoms. He recommended Athat we consider discontinuing the Vicodin and Flexeril. I think the chronic use of these medications is significant and is a problem.@ He further stated that the employee Ais believable and a credible patient, but the symptoms seem to be out of proportion to the physical findings noted.@ At a follow-up appointments three weeks later, the employee reported no relief from the steroid injection. Dr. Drogt recommended aggressive physical rehabilitation and conservative, nonsurgical treatment, in an attempt to reduce the amount of Vicodin and Flexeril needed by the employee for pain relief. He advised that the employee could return to work in his normal capacity.
In April 1997, the employee advised Dr. Sprangers that his pain continued, and that he still needed Flexeril and Vicodin for his shoulder pain and muscle tightness. Dr. Sprangers advised the employee that he would not continue prescribing pain medication unless the employee was compliant with his recommended rehabilitation program. Dr. Sprangers expressed his concern about the employee=s chronic use of Vicodin and Flexeril, although he refilled the employee=s prescription for the same. By May 1997, Dr. Sprangers commented that the employee=s use of Vicodin on a chronic basis possibly was causing his headaches. In a chart note of June 11, 1997, Dr. Sprangers stated that:
I do not believe that the patient=s headaches are related to his shoulder complaints or injury unless he is having secondary back muscle tension or inflammation. There is also a possibility that the patient=s current medication may be causing headaches, the Arebound@ headaches from chronic use of opiate derivative medication.
In July 1997, Dr. Sprangers discussed the employee=s need to taper his use of Vicodin, and concluded that the employee may be a candidate for a pain clinic program, in view of his only slight improvement from attempts at physical therapy rehabilitation. During his treatment of the employee, Dr. Sprangers often referred to his concern about the employee=s continued use of Vicodin, although he continued to prescribe the medication.
In March 1998, the employee was fired from Heat-N-Glo, for reasons not provided in the record. Although he attempted to work for a different employer, at a pallet factory, he was able to work there only briefly due to his shoulder condition.
In January 1999, the employee consulted Dr. Daniel Buss, orthopedic surgeon, at the referral of Dr. Sprangers. Dr. Buss diagnosed a Aright shoulder type V SLAP lesion and impingement syndrome@ and, on May 24, 1999, performed right shoulder surgery in the nature of right shoulder arthroscopic Bankart reconstruction (anatomic labral repair) and an arthroscopic revision subacromial decompression. According to the employee, he felt better after this second surgery, but after six or seven months post-surgery his shoulder again Alocked up.@ Since 1999, the employee has continued to note right shoulder symptoms and occasional right shoulder dislocations.
The employee tried using several other drugs other than Vicodin to alleviate some of his shoulder symptoms, including Ativan, Diazepam and Neurontin. He reported that the last two were successful in reducing his right shoulder symptoms. The employee testified, however, due to the insurer=s contended denial of payment for prescription medication since approximately 2003, he continued to use Vicodin, which he could purchase at a lower cost than the alternative pain medication, Neurontin.
In June 2002, the employee was examined by Dr. Paul Wicklund at the request of the employer and insurer. Dr. Wicklund concurred that the employee=s ongoing right shoulder problems related to his 1994 work injury and also to his continued work through March 1998. Dr. Wicklund found the employee=s 1999 surgery to be reasonable and necessary, but that the surgery was related to the employee=s later work for the employer and not to his 1994 work injury. Dr. Wicklund found no connection between the employee=s migraine headaches and his work injuries to his right and left shoulders.
Dr. Husband, who examined the employee in August 2002 at the request of the employer and State Fund Mutual, insurer for the employee=s 1996 left shoulder injury, concurred that the employee=s right and left shoulder symptoms were related to his work injuries. He concluded, however, that the employee had reached maximum medical improvement from his right shoulder injury within one year of his 1999 surgery, and from his 1996 left shoulder injury within two months of that injury. Both Drs. Wicklund and Husband concluded that the employee could work within certain physical work restrictions. Neither doctor expressed any opinion about the employee=s use of pain medication, and Dr. Husband did not express any opinion concerning the causation of the employee=s migraine headaches.
The employee has not returned to work since 1998, and by March 2001, he became entitled to Social Security disability benefits. In 2003, the employee entered into a settlement agreement with the employer, Atlantic Mutual, State Fund Mutual and the Special Compensation Fund. Under the terms of that agreement, the employee was paid a lump sum settlement in exchange for a full, final and complete close-out of claims related to his right and left shoulder injuries. The only claim remaining open to the employee under the terms of that agreement, subject to potential defenses by the employer and Atlantic Mutual, were medical expenses causally related to his right shoulder condition. As part of that settlement agreement, the parties stipulated that the employee had been permanently totally disabled from employment since March 1, 1998.
The employee has consulted Dr. Pflaum on a periodic basis since 2003, and has continued to receive treatment for migraine headaches, with increased frequency since 2004. In January 2004, the employee filed a medical request, seeking payment for medical expenses, including prescription medication; the employee later amended his request to include chiropractic expenses. The employer and insurer denied the claim, contending that Vicodin, the prescribed pain medication for which the employee sought reimbursement, was not reasonable and necessary to treat the employee=s right shoulder condition. They also contended that the employee=s migraine headaches were not causally related to the employee=s work injury, but instead were due to Vicodin use; they argued that because the Vicodin was neither reasonable nor necessary, the resulting side effect, the employee=s headaches, were not compensable.
In August 2004, at Dr. Pflaum=s referral, the employee consulted Dr. Robert Cofield at the Mayo Clinic, reporting continued right shoulder pain and weakness, limited range of motion, and grinding in his shoulder. Dr. Cofield diagnosed glenohumeral arthritis, and referred the employee back to Dr. Pflaum for pain management.
Dr. Wicklund reexamined the employee in October 2004, and again found no correlation between the employee=s migraine headaches and his 1994 work injury. Following this exam, Dr. Wicklund expressed an opinion on the employee=s use of Vicodin, stating that:
[t]he medical care has been reasonable and necessary but I would not have recommended the use of Vicodin or chiropractic treatment for his alleged injuries. This is because Vicodin is a narcotic and not necessary in the treatment of chronic shoulder problems and this is also true with regard to chiropractic treatment which would have no benefit whatsoever in treating any joint problem related to the shoulder.
On January 25, 2006, the employee consulted Dr. Jeffrey Brault, at Mayo Clinic=s physical medicine and rehabilitation outreach clinic, reporting constant burning right shoulder pain that is worsened with any activity. The employee also reported more frequent migraine headaches, and fairly significant sleep disturbances. Dr. Brault agreed that the employee was not a surgical candidate, but made several treatment recommendations to treat the employee=s right shoulder condition, decreased functional level and chronic pain syndrome. Dr. Brault recommended the use of Neurontin and pain rehabilitation, with the goals of discontinuing Vicodin and increasing his right shoulder function. Dr. Brault also stated that the employee=s headaches were Amost likely associated with the Vicodin as well as potentially underlying migrainous component. They do sound consistent with rebound headaches.@
The employee=s claim was addressed at an evidentiary hearing on January 26, 2006. In her Findings and Order, served and filed February 27, 2006, the compensation judge concluded that the employee continued to experience ongoing effects of his December 8, 1994, work injury to his right shoulder. She found that the employee=s use of ongoing pain medications prescribed to treat his right shoulder was reasonable and necessary. The judge also found that the employee=s 1994 work injury was a substantial contributing factor to the development of his migraine headaches, as those headaches were related to the use of Vicodin and other pain relievers prescribed to treat his right shoulder. She found that the Ause of ongoing pain medications prescribed to treat the right shoulder was reasonable and necessary, considering the lack of other treatment options.@ The compensation judge ordered reimbursement to the employee for medical expenses incurred for treatment of his right shoulder and headaches, and also ordered payment to the intervenors for expenses they had paid on behalf of the employee.
The compensation judge denied the employee=s claim for payment of chiropractic treatment incurred at Lakeview Chiropractic Center, concluding that the chiropractic treatment was causally related to his 1994 injury, but had not been shown to be reasonable and necessary treatment for the right shoulder.
The employer and insurer appeal from the award of medical expenses. No appeal was taken from the denial of chiropractic treatment.
The employer and insurer appeal from the compensation judge=s findings that the employee=s migraine headaches are causally related to the employee=s 1994 injury, and that the employee=s continued use of prescription medication to treat those headaches, and his right shoulder, is reasonable and necessary.
Under Minn. Stat. ' 176.135, an employer is required to furnish all medicines which are reasonable and necessary to cure or relieve an employee from the effects of his work injury. "The employee bears the burden of proving that health provider services were reasonable and necessary." Wylie v. Dan's Plumbing & Heating, 47 W.C.D. 235, 238 (W.C.C.A. 1992) (citing Wright v. Kimro, Inc., 34 W.C.D. 702 (W.C.C.A. 1982)). The reasonableness and necessity of medical treatment under Minn. Stat. ' 176.135 is a question of fact for the compensation judge. See Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993).
Case law in this area has developed a series of factors that a compensation judge may consider when assessing whether certain medical treatment was reasonable and necessary. For example, factors potentially relevant to the compensability of disputed medical treatment include the following: the employee=s opinion as to relief obtained; the provision of services on a scheduled rather than as-needed basis; the duration of relief from symptoms and whether symptoms recur; the use of alternative medical care; whether the employee is psychologically dependent on treatment; evidence as to a reasonable treatment plan; documentation of the details of treatment; whether the frequency of treatment is warranted; the cost of treatment in light of the relief obtained; an employee=s overall activities and the extent of his ability to work; and the potential for aggravation of an underlying condition. Horst v. Perkins Restaurant, 45 W.C.D. 9 (W.C.C.A. 1991); Fuller v. Naegele Shivers Trading, slip op. (W.C.C.A. Mar. 5, 1990). ANot all factors apply in all cases. Similarly, the weight to be attached to any given factor will vary from case to case. The reasonableness and necessity of treatment under case law standards is a question of fact, and a compensation judge=s decision will not be overturned unless it is clearly erroneous and unsupported by the record as a whole.@ Olson v. Allina Health System, 59 W.C.D. 37 (W.C.C.A. 1999).
The employer and insurer argue that the compensation judge insufficiently analyzed the necessary factors concerning the employee=s continued use of Vicodin, and contend that although the compensation judge listed and applied many of the above-mentioned factors in that portion of her decision addressing the employee=s chiropractic claim, she referred only minimally to those factors when analyzing the employee=s claim for medication needed to treat his headaches.
We disagree. Consideration of the above factors is not required in every case involving the issue of compensability of medical expenses. In this case, however, the compensation judge considered many of the above factors and adequately addressed them in her decision. Specifically, she discussed the employee=s treatment in detail, including diagnostic testing that he underwent, the various treatments he received and medications that he attempted; the duration of relief from the various medications; his use of alternative medical treatment; whether other treatment was available; his various treating and consulting physicians and their opinions, and the reported failure for those treatments to resolve the employee=s symptoms.
In concluding that the effects of the employee=s 1994 right shoulder injury have continued, the compensation judge relied on the reports of various treating and consulting physicians, all of which are well-documented in the record. In concluding that the employee=s headaches have resulted from his chronic use of Vicodin, the compensation judge referred to the conclusions reached by Drs. Pflaum, Sprangers and Brault, and found the opinions of Drs. Sprangers and Brault to be more persuasive. The compensation judge concluded that:
The preponderance of the evidence supports the conclusion that the headaches are a result of medication use rather than shoulder pain. Although Dr. Pflaum states that he believes the employee=s headaches are related to the shoulder pain, two physicians, Dr. Sprangers and Dr. Brault, conclude that the headaches are related to the chronic use of Vicodin. Dr. Sprangers[=s] and Dr. Brault=s conclusions are more persuasive. There is no documentation of pre-injury headaches. Since the headaches developed as a result of treatment offered for the work injury, treatment of the headaches is also compensable as related to the work injury. Smith v. Fenske=s Suburban Sanitation, 266 N.W.2d 892, 30 W.C.D. 411 (Minn. 1978).
As to whether the employee=s use of Vicodin was unreasonable and unnecessary, the compensation judge acknowledged that several physicians had noted that chronic use of Vicodin was problematic. The judge concluded, however, that in reviewing,
. . . the sequence of other treatments and recommendations, the Vicodin was continued in most instances when alternative treatments did not resolve the pain. In addition, both Dr. Sprangers and Dr. Pflaum recommended pain clinic referrals, which have not been accomplished. With the past treatment and limited alternatives, the continued medication has been reasonable and necessary.
In her memorandum, the compensation judge cautioned the employee that continued use of the medication was contraindicated and causing his rebound headaches, but also stated that although Dr. Wicklund recommended against Vicodin use, he did not state what recommendations he would make under these circumstances.
The compensation judge recognized that the employee=s continued use of Vicodin is problematic, but noted the absence of effective alternatives up to this point. In the context of the entire record, including the employee=s testimony about the lack of relief from other medications and the medical records and opinions supportive of the compensation judge=s conclusions, we conclude the compensation judge=s decision is supported by substantial evidence. Accordingly, we affirm the award of the employee=s claimed medical expenses. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).