THOMAS C. PORT, Employee, v. POTLATCH CORP., SELF-INSURED, adm=d by COMPCOST, Employer/Appellant, and LAKEWALK SURGERY CTR., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 11, 2006
MEDICAL TREATMENT & EXPENSE - SUBSTANTIAL EVIDENCE. Substantial evidence, including the testimony of the employee and the medical records and opinions of his treating physician, support the compensation judge=s finding that the medical treatment provided to the employee, including a morphine pump and narcotic medications, was reasonable and necessary.
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS. Challenges to the reasonableness and necessity of medical treatment under the treatment parameters will not be considered by this court where the issue was not raised at the hearing before a compensation judge.
Determined by: Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Gregory A. Bonovetz
Attorneys: Sean M. Quinn, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Respondent. James R. Waldhauser, Cousineau McGuire, Minneapolis, MN, for the Appellant.
THOMAS L. JOHNSON, Judge
The self-insured employer appeals the compensation judge=s award of medical expenses since February 2005. We affirm.
On October 7, 1998, Thomas C. Port, the employee, sustained a personal injury while working for Potlatch Corporation, then self-insured with claims administered by CompCost. The employer accepted liability for the personal injury and paid workers= compensation benefits to the employee, including 104 weeks of temporary total disability, 225 weeks of temporary partial disability, 28 percent permanent partial disability, medical benefits and vocational rehabilitation benefits.
The employee first sought medical care on October 25, 1998, at St. Mary=s Walk-in Care Center where he gave a history of low back pain since his October 7, 1998, personal injury. The employee was eventually referred to Dr. Scott Dulebohn, a neurosurgeon. An MRI scan in October 1998 showed a herniated disc at L5-S1 with mild left S1 nerve displacement. Dr. Dulebohn diagnosed an L5-S1 herniated disc without true radicular features and recommended conservative treatment. A second MRI scan in April 1999 was essentially unchanged. In May 1999, Dr. Dulebohn recommended an anterior lumbar interbody fusion at the L5-S1 level.
Dr. Eric Flores, a neurosurgeon, examined the employee in September 1999 for a second opinion. The doctor suggested a discectomy to see whether that procedure would relieve the employee=s symptoms. Dr. Flores performed an L5-S1 hemilaminectomy and microdiscectomy to remove a large herniated disc impinging on the thecal sac and nerve root. By February 2000, the employee reported to Dr. Flores that he had no radiculopathy in his legs, but had continued low back pain.
An MRI scan in April 2000 demonstrated persistent abnormalities at L5-S1 on the left with mild displacement of the left S1 nerve root. The employee saw Dr. Timothy Garvey, a neurosurgeon, in November 2000, complaining of constant low back pain. Dr. Garvey recommended an anterior posterior arthrodesis at L5-S1. In July 2001, Dr. Garvey performed a revision lumbar decompression and fusion at L5-S1 with medial facetectomy and discectomy with translaminar facet screw fixation and a left iliac crest bone graft. The employee followed with Dr. Garvey. By November 2001, the doctor noted the employee was not making good progress and had continued low back and leg pain.
In March 2002, the employee was referred to Dr. Thomas Elliott for a pain management consultation. The doctor diagnosed failed back surgery syndrome, alcohol and drug chemical dependency and major depressive disorder. Dr. Elliott recommended participation in a pain management program and recommended the employee=s opioids be switched to an oral long-acting opiod such as Methadone, OxyContin or sustained-release Morphine Sulfate. The employee enrolled in the pain management program.
The employee returned to see Dr. Garvey in August 2002, after completion of his chronic pain program. The doctor opined the employee had a pseudoarthrosis at L5-S1 that was confirmed by a CT scan. Dr. Garvey concluded the employee=s long-term outcome was poor, and recommended consideration of removal of the segmental fixation, direct inspection of the fusion and repair of any pseudoarthrosis with a pedicle screw fixation.
The employee returned to see Dr. Dulebohn in April 2003 with continued complaints of back and right leg pain. The doctor ordered another MRI scan that showed the employee=s spine had not fully fused at the L5-S1 level and showed a central disc bulge at L4-5. A discogram showed a disc prolapse at L4-5 and an L5 nerve root impingement. Dr. Dulebohn recommended a nucleoplasty at the L4-5 level which he performed in August 2003. In October 2003, the employee told Dr. Dulebohn the procedure did not help.
In January 2004, the employee saw Dr. Hal B. Heyer who performed an intrathecal trial and then implanted a morphine pump. Since then, the morphine pump has been refilled on a regular basis and the level of the pump has been increased elevating the amount of pain medication the employee receives. In addition to the morphine, Dr. Heyer also prescribed and monitored oral pain medication, including Percocet, OxyContin and Oxcycodone. By report dated November 23, 2004, Dr. Heyer stated the employee=s diagnosis was a failed back syndrome. The doctor stated the employee=s pain was never under control with the intrathecal pump so the employee has taken Amassive amounts of OxyContin and Percocet in addition.@ The doctor stated the employee=s reaction to the drugs has ranged from straight intolerance to no pain relief. (Pet. Ex. X.)
The employee filed a claim petition seeking permanent total disability benefits and payment of medical expenses, including prescription medication. The self-insured employer denied the employee was permanently and totally disabled, and contended the employee=s condition had been medically mismanaged and the claimed medical expenses were not reasonable or necessary to treat the employee.
Dr. Lon Lutz, a pain management specialist, reviewed the employee=s medical records at the request of the employer. Dr. Lutz reported the employee was then receiving 22 milligrams (mg) per day of preservative-free morphine and 160 mg of OxyContin, three times a day. The doctor stated Dr. Heyer=s records contained no record of a trial of the morphine pump prior to implantation which Dr. Lutz stated was necessary to demonstrate the device would provide pain relief. Dr. Lutz stated Dr. Heyer=s records document rapidly increasing dosages of narcotics without corresponding pain relief, and opined the employee had developed a significant amount of tolerance to the medication. Dr. Lutz stated he would not prescribe multiple pain medications but would have an individual such as the employee on only one type of medication. Dr. Lutz recommended a psychological evaluation because, he opined, it was common for pain patients to develop depression, and also recommended a management program to monitor and document the employee=s narcotic use. Dr. Lutz concluded the treatment by Dr. Heyer was not reasonable or necessary due to the employee=s lack of response to the treatment and the lack of depth of the record keeping and reporting of Dr. Heyer.
Dr. Heyer responded to the comments of Dr. Lutz by report dated May 27, 2005. The doctor stated he did do a intrathecal trial prior to the implantation of the morphine pump. The doctor further stated he was working closely with the employee to decrease his oral medications and opined the employee was improving. Dr. Heyer concluded the employee needed the medication to control his pain.
Wende Morrell, a nurse and qualified rehabilitation consultant (QRC), has provided medical management to the employee since March 2001. Ms. Morrell testified she and the employee met with Dr. Heyer in April 2005, at which time Dr. Heyer asked the employee to sign a drug contract which he did and a urinalysis was done. Dr. Heyer stated he would be cutting back on the employee=s Percocet with a goal of weaning the employee from oral pain medication.
The employee testified he lives with chronic, unremitting low back pain. On good days, his pain is at a level of two or three and on bad days seven to eight. He stated he wanted the morphine pump because for the two years prior his life was Ajust a fog@ due to the amount of pain medication he was taking, and his objective in agreeing to the morphine pump was to stop the oral medications. His experience, however, was that when the dosage of the morphine pump was increased, he became sick making it necessary to decrease the morphine dosage and add oral pain medication. (T. at 69). The employee testified he was referred to Dr. Heyer by a claims representative from CompCost.
Following a hearing, the compensation judge found the employee was permanently and totally disabled. The compensation judge further found the medical care and treatment, including the prescription medication, provided to the employee was reasonable and necessary. The self-insured employer appeals the award of medical expenses.
The self-insured employer argues Dr. Heyer has grossly mismanaged the employee=s care by continuing an unaltered course of increasing medication despite the fact that the employee=s symptoms have worsened under the doctor=s care. In addition to increasing the dosage in the morphine pump, the appellant contends Dr. Heyer has prescribed up to 300 OxyContin and/or Percocet a month. Accordingly, the appellant contends the judge=s finding that the medical treatment provided to the employee has been reasonable and necessary is unsupported by substantial evidence and must be reversed.
Under Minn. Stat. ' 176.135, the employer is required to furnish all medicines which are reasonable and necessary to cure or relieve the employee from the effects of the 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).
The medical dispute in this case is troubling. Dr. Heyer=s records document sequential trials of different pain medications, at increasing dosages, all without any significant or lasting pain relief. Dr. Lutz disagreed with Dr. Heyer=s treatment regimen and recommended a systematic reduction in the dosage and frequency of the oral medications, and opined Dr. Heyer=s treatment was not reasonable and necessary based upon the employee=s lack of response to the treatment. Dr. Heyer responded, stating the employee was improving and opined his treatment was reasonable and necessary to relieve the employee=s pain.
In his memorandum, the compensation judge stated,
As for the Court=s determination that the medical care and treatment provided to the employee has been reasonable and necessary, including that since February 2005, the Court has carefully reviewed the extensive medical records, has considered the testimony of Dr. Lon J. Lutz in his deposition of May 18, 2005 and the response from Dr. Heyer. Based on this evidence the Court has concluded that especially in light of the intractable pain which the employee has been suffering Dr. Heyer=s treatment has been reasonable. As is most apparent, in this factual situation medical science is less a Ascience@ and more an Aart.@ Of necessity various narcotic Acocktails@ have been tried, various combinations of oral and non-oral narcotics have been used. Unfortunately in a case such as Atrial and error@ is not unreasonable.
Given the testimony of the employee and the medical records and opinions of Dr. Heyer, we cannot conclude the compensation judge=s decision is unsupported by substantial evidence. Accordingly, the judge=s decision must be affirmed.
The employer further contends the compensation judge erred in failing to consider the treatment parameters. The treatment parameters were not raised by either party at the hearing. In Olson v. Allina Health Sys., 59 W.C.D. 37 (W.C.C.A. 1999), this court held challenges to the reasonableness and necessity of medical treatment under the treatment parameters would be considered on appeal only if the issue was raised at the hearing before the compensation judge. Since the treatment parameters were not raised at the hearing, the court will not consider them on appeal.
 See Minn. R. 5221.6010 and 5221.6200.