RONALD P. ADAMICH, Employee, v. LAURI KOSKI, INC., and WESTERN NAT=L INS. GROUP, Employer-Insurer/Appellants, and SMDC HEALTH SYS., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 11, 2007
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS. Evidence concerning the severity of the employee=s symptoms during flareups and the improvement in function resulting from physical therapy adequately supported the compensation judge=s application of the Arare case@ exception to the treatment parameters.
Determined by: Wilson, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Gregory A. Bonovetz
Attorneys: Michael J. Cuzzo, Cuzzo & Envall, Duluth, MN, for the Respondent. James A. Wade, Johnson, Killen & Seiler, Duluth, MN, for the Appellants.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the compensation judge=s finding that the employee=s physical therapy treatments between September 27, 2005, and June 12, 2007, were not closed out by a stipulation for settlement and qualify for a departure from the medical treatment parameters. We affirm.
On September 9, 2003, the employee sustained a work-related injury to his low back while working for Lauri Koski, Inc.[the employer], then insured for workers= compensation liability by Western National Insurance Group. The employer and insurer accepted liability for the injury and paid for medical care and prescriptions for the employee.
The employee received treatment at the Duluth Clinic, primarily from Dr. Lynn Quenemoen. Dr. Quenemoen diagnosed multi-level lumbar spondylosis and disc disease, along with right-sided disc protrusion at L2-3 and L3-4. His diagnosis was based, in part, on an MRI scan performed on November 3, 2003. Dr. Quenemoen referred the employee to a neurosurgeon, who determined that the employee was not a surgical candidate.
The employee=s treatment included physical therapy, a TENS unit, steroid injections, and numerous medications. Dr. Quenemoen opined that physical therapy has been successful for treating intermittent flare-ups. That physical therapy has been performed by Kristine Kerr.
The employee=s symptoms have waxed and waned over the years, but he is never pain free. His base level of pain over the last few years has been a 3 on a scale of 1 to 10. When his condition flares up, his pain will range from 7 to 10 on the 10-point scale.
In April of 2005, the employee=s pain flared to the point where he described it to Dr. Quenemoen as Aintolerable.@ Dr. Quenemoen requested an MRI to see if surgery might be beneficial at that time. The MRI was eventually performed on May 19, 2005, and showed no significant change from the prior scan.
In October of 2005, the parties entered into a stipulation for settlement, settling claims made in an amended claim petition filed in April of 2005. Under the terms of the stipulation, the parties agreed that the employee had been permanently and totally disabled since September 10, 2003. The employee was paid $83,000 in full, final, and complete settlement of claims related to the September 9, 2003, work injury, with the exception of Afuture reasonable and necessary medical expenses . . . subject to the Employer/Insurer=s defenses.@ The stipulation specifically closed out claims for certain medical expenses, including Apain clinics or pain management programs.@ An award on stipulation was filed on November 14, 2005.
The employee continued to receive physical therapy treatments periodically when his back symptoms flared. From September 27, 2005, through June 12, 2007, he treated 46 times. Ms. Kerr=s notes reflect that, generally, when the employee came in for a flare-up, he would be hunched over and unable to stand up straight, he would be rotated to the right, there would be tightness or spasm throughout his back, and he would complain of pain, limited mobility, and difficulty sleeping.
Treatment records indicate that, on some occasions, the employee required only one treatment to return him to his pre-flare-up level of functioning; at other times, he might need as many as five or six treatments. In her September 20, 2006, office note, Ms. Kerr stated that, on average, the employee was back to status quo in three to five visits. The treatments were authorized by Dr. Quenemoen, until he left the Duluth Clinic, and then by Dr. Josefino Diaz.
On August 2, 2005, Dr. Paul Cederberg re-examined the employee on behalf of the employer and insurer. In his report of August 9, 2005, he opined that the employee had reached maximum medical improvement from the September 9, 2003, injury as of March 9, 2004.
On June 6, 2006, the employee filed a medical request, seeking payment for physical therapy treatments dating back to September 27, 2005. The employer and insurer filed a medical response, alleging that the physical therapy qualified as Apain clinics or pain management programs,@ which were specifically closed out under the terms of the stipulation for settlement, that the treatment was not reasonable or necessary, that passive care is inappropriate for treatment of chronic pain syndrome per the treatment parameters, and that the frequency of treatment exceeded the limits established by the treatment parameters.
Dr. Cederberg examined the employee again on October 3, 2006, and, in his report of October 5, 2006, he diagnosed an extruded disc herniation at L2-3 and degenerative disc disease of the lumbar spine. It was his opinion that the continued passive treatment modalities (physical therapy) were not curative and were not reasonable and necessary and that continued passive care was inappropriate for chronic pain syndrome. He also noted numerous inconsistencies on examination, which to him demonstrated a functional overlay involving malingering and/or an underlying psychological disorder that was not amenable to physical therapy modalities.
Dr. Cederberg examined the employee yet again on March 6, 2007. In his report of March 8, 2007, Dr. Cederberg concluded that the employee showed no change in his overall status since the time of his last exam, and it remained his opinion that the physical therapy treatments were not reasonable or necessary for the chronic pain syndrome. He further stated that, while the employee had an extruded lumbar disc, Ahe has no objective findings regarding his low back and numerous inconsistencies on examination.@
The medical request proceeded to hearing on June 18, 2007. At issue was whether the facts of the case established a reasonable basis for a departure from the treatment parameters, whether the passive treatment provided to the employee between September 27, 2005, and June 12, 2007, constituted reasonable and necessary medical treatment, and whether the treatment was foreclosed by the terms of the parties= settlement. In findings and order filed on June 28, 2007, the compensation judge found that the physical therapy treatments at issue did not constitute Apain clinics or pain management programs@ and that a departure from the treatment parameters was Amost appropriate.@ The employer and insurer appeal.
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 (2006). 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).
Pursuant to Minn. R. 5221.6200, subp. 3, the use of passive treatment modalities is generally not indicated beyond twelve calendar weeks from the initiation of passive treatment. An additional twelve visits for passive treatment over an additional twelve months may be provided in certain instances. Minn. R. 5221.6200, subp. 3B. A departure from this treatment parameter may be appropriate under Minn. R. 5221.6050, subps. 8C and 8D. However, at hearing, the employee was seeking a departure under Jacka v. Coca-Cola Bottling Co., 580 N.W. 2d 27, 58 W.C.D. 395 (Minn. 1998). The compensation judge found that a departure from the treatment parameters was Amost appropriate,@ explaining in his memorandum that a departure under Jacka was appropriate because, without physical therapy treatments, the employee would likely suffer from Aa pronounced, ongoing diminution in his ability to function.@
The employer and insurer assert that the judge misapplied the holding in Jacka and Asti v. Northwest Airlines, 588 N.W. 2d 737, 59 W.C.D. 59 (Minn. 1999), in that there is nothing in the record to suggest that the employee requires physical therapy in order to continue working. The employer and insurer also argue that the employee=s testimony that physical therapy decreases his pain level and increases his ability to stand and walk around does not provide a sufficient basis for a departure from the parameters. We are not persuaded.
In Jacka, the Minnesota Supreme Court held that, because Athe treatment parameters cannot anticipate every exceptional circumstance, we acknowledge that a compensation judge may depart from the rules in those rare cases in which departure is necessary to obtain proper treatment.@ Jacka, 580 at 35, 36, 58 W.C.D. at 408. Whether the Arare case@ exception is applicable is generally a fact question, subject to review on appeal under the Hengemuhle standard. Martin v. Xerox Corp., 59 W.C.D. 509 (W.C.C.A. 1999).
In the instant case, the parties stipulated that the employee is permanently totally disabled. When an employee is permanently totally disabled, the rules focus on the effectiveness of treatment with regard to the employee=s functional status, rather than his ability to return to or maintain work. See Minn. R. 5221.6200, subp. 3B(2). Therefore, the issue here is whether the nature of the employee=s symptoms, and the relief and improvement in function provided by physical therapy, establish an adequate basis for application of the Arare case@ exception.
In unappealed findings, the compensation judge determined that the employee has continued to experience debilitating pain as a result of his work injury, involving periodic intensification of symptoms Awhich dramatically affect his ability to function@ and preclude him from performing Aeven simple tasks such as putting on his own socks and shoes or driving an automobile; these flare-ups effectively preclude him from performing even simple day-to-day activities.@ As the employee describes it, he is twisted to the side and forward and cannot straighten up during a flare-up. It is Aalmost impossible@ to get dressed and a chore to drink a glass of water because he cannot tip back far enough to drink. Further, he testified, he can only walk short distances, has difficulty getting into or out of a car, cannot cook, cannot negotiate stairs, and cannot sleep more than two to three hours a night. After taking medication and sitting in a specific chair with a heating pad for a day or two, he finally calls for a physical therapy appointment.
Physical therapy notes confirm the employee=s complaints and indicate that he only sought treatment for flare-ups. On September 27, 2005, for example, the therapist noted that the employee Ais stuck in a flexed posture of 40 degrees,@ that walking was limited to 100 feet Abefore absolutely needing to sit,@ that driving Ais uncomfortable even for short distances,@ and that the employee=s Asitting tolerance is 10 min.@ Both the employee=s testimony and treatment notes indicate that physical therapy improves the employee=s ability to function, and Dr. Quenenmoen testified that the MRI provides an objective basis for the employee=s pain complaints, that the employee has periodic flare-ups related to his condition, and that physical therapy has been successful in treating those flare-ups.
Contrary to the employer and insurer=s contention, the case of Amunrud v. Advance United Expressway, slip op. (W.C.C.A. Feb. 2, 2004), is not controlling. In Amunrud, this court affirmed a compensation judge=s finding that the treatment at issue did not qualify for a Arare case exception@ to the treatment parameters in part because the treatment Awas not reasonable and necessary treatment.@ In contrast, the compensation judge in the present case implicitly determined that physical therapy was reasonable and necessary, as Athe only treatment which provides some relief, the only treatment which improves his ability to function.@ The judge=s conclusion to this effect is, again, supported by the evidence concerning the severity of the employee=s symptoms during exacerbations and the relief of pain and improvement in function resulting from physical therapy. We also note that the physical therapist=s records are detailed and that there is no evidence that the employee receives treatment on anything other than an as-needed basis.
Finally, we reject the the employer and insurer=s contention that the physical therapy treatments constitute a Apain clinic or pain management program@ which are specifically excluded under the stipulation for settlement. While the term Apain clinic@ is not defined in the statute or rules, the term is generally understood to describe a formal out-patient or in-patient program involving multiple disciplines. APain management program@ similarly suggests a multidisciplinary approach to treating pain, generally including education on pain, relaxation training, psychosocial counseling, and medical evaluation. See Minn. R. 5221.6600, subp. 2E. The employee=s treatments with the physical therapist have not involved any such multidisciplinary approach, and we decline to stretch the commonly-understood meanings of Apain clinic@ and Apain management program@ to include physical therapy.
The record easily supports the compensation judge=s conclusion that the physical therapy treatments at issue are reasonable and necessary and that they are not precluded by the terms of the stipulation for settlement. While the judge=s application of the Arare case@ exception to the treatment parameters presents a closer issue, the evidence as to the severity of the employee=s symptoms during flare-ups and the improvement in function resulting from physical therapy is adequate to justify the judge=s conclusion. We therefore affirm the award.
 He had also examined the employee on September 7, 2004.
 Minn. R. 5221.6200, subp. 3B(1), provides for an additional 12 visits if all of the following apply:
(a) the employee is released to work or is permanently totally disabled and the additional passive treatment must result in progressive improvement in, or maintenance of, functional status achieved during the initial 12 weeks of passive care;
(b) the treatment must not be given on a regularly scheduled basis;
(c) the health care provider must document in the medical record a plan to encourage the employee=s independence and decreased reliance on health care providers:
(d) management of the employee=s condition must include active treatment modalities during this period:
(e) the additional 12 visits of passive treatment must not delay the required surgical or chronic pain evaluation required by this chapter; and
(f) passive care is inappropriate while the employee has chronic pain syndrome.
 Minn. R. 5221.6050, subp. 8D, allows treatment to continue where two of the following three criteria are met, as documented in the medical record:
(1) the employee=s subjective complaints of pain are progressively improving as evidenced by documentation in the medical record of decreased distribution, frequency, or intensity of symptoms;
(2) the employee=s objective clinical findings are progressively improving, as evidenced by documentation in the medical record of resolution or objectively measured improvement in physical signs of injury; and
(3) the employee=s functional status, especially vocational activity, is objectively improving as evidenced by documentation in the medical record, or successive reports of work ability, of less restrictive limitations on activity.
 The employer and insurer contend that the employee did not qualify for a departure pursuant to Minn. R. 5221.6050, subp. 8. The compensation judge, however, did not make findings as to a departure pursuant to the rules, as the employee did not contend that he was seeking a departure under the rules. Because the employer and insurer do not argue that the judge erred by failing to consider the departure criteria contained in Minn. R. 5221.6050, subp. 8, we will not address that issue.
 In that case, the compensation judge had found, in part, that there was no reasonable treatment plan, that the details of the treatment were not well documented, that the treatment was provided on a regular basis, and that little effort had been made to increase the employee=s independence.