JAMES J. DUGGAN, Employee, v. UNITED PROPERTIES and WESTERN NAT=L INS. GROUP, Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 1, 2007
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS; RULES CONSTRUED - MINN. R. 5221.6100, SUBP.2.G(1). Where the chart notes of the employee=s treating and consulting physicians, along with the employee=s testimony, provided sufficient evidence that the employee=s condition had not improved with initial nonsurgical management, and where the consulting physician recommended that the employee undergo a discogram, following an MRI scan, so that he could review the diagnostic testing to determine the level and extent of pathology and the appropriate treatment options, the compensation judge=s conclusion that the employee had satisfied the criteria in Minn. R. 5221.6100, subp. 2.G.(1), for authorizing discography was not clearly erroneous and unsupported by substantial evidence.
Determined by Rykken, J., Johnson, C.J., and Pederson, J.
Compensation Judge: Gary P. Mesna
Attorneys: James Michael Gallagher, Bloomington, MN, for the Respondent. Michael D. Miller and Nancy Lamo, McCollum, Crowley, Moschet & Miller, Bloomington, MN, for the Appellants.
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal from the compensation judge=s approval of payment for a discogram. We affirm.
On October 1, 2004, James J. Duggan, the employee, was employed as a maintenance worker by United Properties, which was then insured for workers= compensation liability by Western National Insurance Group. On that date, he sustained an admitted injury to his low back, while lifting an extension ladder to place it on the ladder racks of his truck. The employee initially sought treatment at Aspen Medical Group, on October 5, 2004, reporting a sudden onset of low back pain while twisting and holding a ladder. Dr. William Dickey=s chart notes state that the employee reported continued low back pain, but no radiation to his lower extremities, nor weakness or hypesthesia. Dr. Dickey diagnosed an acute back strain, and recommended that the employee remain off work for the remainder of that day and that he work on a limited-duty basis for the remainder of the week. He assigned physical work restrictions and recommended that the employee perform exercises as well as receive physical therapy.
At a follow-up appointment on November 16, 2004, the employee reported to Ms. Cathy O=Brien, Nurse Practitioner, that he had discontinued his exercises and his physical therapy due to resulting pain and discomfort, but reported that his pain had improved somewhat. The employee reported some occasional mild radicular symptoms into his left hip and some continued low back pain. Ms. O=Brien noted that the employee was tender to palpation of the paraspinal muscles at the L1-L2 vertebral level, but noted no other positive findings on examination. She recommended that the employee complete his physical therapy and that he perform his prescribed exercises.
The employee consulted Dr. Gene Lawson at Aspen Clinic in late December 2004, who recommended physical therapy. At an appointment in early January 2005, Dr. Lawson noted no acute stress and that the employee was walking easily, and that the employee reported no muscle spasms but continued to experience tenderness in his paralumbar and upper sacroiliac area on his left side.
As of January 24, 2005, Dr. Lawson again examined the employee, and stated that the employee was working without significant restrictions but that his physical therapist had recommended a back strengthening program; Dr. Lawson also recommended such a program. The employee participated in a work hardening program in early 2005, but noticed only limited improvement, and as of late March 2005, he noted worsening discomfort in his low back and pain radiating into his left buttocks and groin area. He consulted Dr. Lawson, who prescribed a Medrol Dose-pak and referred him to treatment with the Physicians Neck and Back Clinic. The employee attended 20 rehabilitation sessions at that clinic. According to the June 30, 2005, discharge report issued by Dr. Patrick Hergott at the Physicians Neck and Back Clinics, the employee=s Asubjective pain in the back is 60-70% improved,@ and the employee reported that his back was stronger and his ability to perform functional activities had improved. As of June 30, 2005, Dr. Hergott released the employee to return to his regular work duties without restriction. In a Health Care Provider Report issued by Dr. Hergott on July 25, 2005, he determined that the employee had reached maximum medical improvement (MMI) as of June 30, 2005, and had sustained no permanent partial disability as a result of his work injury.
By late September 2005, the employee returned to Dr. Lawson, advising him that he had lost his previous job, was attempting to locate replacement employment, and that he still noted residual discomfort and therefore was unsure what to advise potential employers concerning his physical capabilities.
On December 20, 2005, the employee consulted Dr. Manuel Pinto for a second opinion concerning treatment recommendations. In his chart note of that date, Dr. Pinto noted that the employee reported pain in his lumbosacral area as well as some referred pain into his groin area, aggravated by coughing and physical activity. Dr. Pinto assessed low back pain, probably discogenic in nature. He concluded that the employee=s symptoms were consistent with either pathology at the L2-3 level or the L5-S1 level. He advised that additional discogenic findings could be implicated by both the employee=s mechanical-type complaints and the aggravation of his symptoms resulting from sitting. Dr. Pinto prescribed a Medrol Dose-pak and anti-inflammatory medication. Because the employee=s symptoms had persisted beyond one year post-injury, Dr. Pinto also recommended an MRI to determine the extent of the employee=s pathology. An MRI, conducted on December 22, 2005, was interpreted by Dr. Pinto to show evidence of lumbar disc derangement at L5-S1 and the L4-5 levels, with some foraminal stenosis at the L4-5 level, and a small synovial cyst extending into the foramen on the right side at the L4-5 level. The foramen at the L5-S1 level also appeared to be tight.
Dr. Pinto re-examined the employee on January 13, 2006. He concluded that the employee=s groin pain was Aprobably referred from the L5-S1 discogenic disc disease,@ and recommended an epidural steroid injection. Dr. Pinto also commented that if the employee=s symptoms continued, he next would recommend a discogram at four levels, after which he would consult with the employee to Adiscuss the results of the test and his treatment options.@ The employee underwent the epidural injection, but noted improvement only for 2-3 days.
The employer and insurer evidently denied the employee=s request for authorization to proceed with a discogram, and therefore the employee filed a medical request in May 2006 for approval of a discogram. On the basis of the employer and insurer=s objection, an administrative conference was held to address the medical claim. In a decision and order pursuant to Minn. Stat. ' 176.106, served and filed June 15, 2006, a mediator/arbitrator concluded that the requested discogram was not warranted at that time under the applicable medical treatment parameter, Minn. R. 5221.6100, subp. 2.G. The employee appealed, requesting a formal hearing, which was conducted on August 10, 2006, before a compensation judge. In his findings served and filed August 17, 2006, the compensation judge found that the employee=s condition satisfied the requirements of the treatment parameters and approved the discogram. The employer and insurer appeal.
On appeal, the employer and insurer argue that a discogram is not reasonable and necessary for the diagnosis and cure or significant relief of the employee=s back condition. They also argue that a discogram, in these circumstances, is not consistent with the applicable treatment parameters under Minn. R. 5221.6100, subp. 2.G.(1). The employee claims that his medical condition satisfies the requirements for disocography as set forth in that section of the treatment parameters.
Minn. Stat. ' 176.135, subd. 1(a), states that an employer is to furnish Aany medical, psychological, chiropractic, podiatric, surgical and hospital treatment . . . as may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury.@ The question of reasonableness is one of fact which, as is the case with other fact issues, is one for the compensation judge to resolve. Jones v. Wal Mart Stores, Inc., slip op. (W.C.C.A. Sept. 9, 2002). The question for this court is whether substantial evidence exists to support the decision of the compensation judge. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984). Under legislation enacted with the objective of controlling medical costs in the workers= compensation system, the Minnesota Department of Labor and Industry promulgated treatment parameter rules for health care provider treatment. Hirsch v. Bartley-Lindsay Co., 537 N.W.2d 480, 483, 53 W.C.D. 144, 148 (Minn. 1995). Minn. R. 5221.6100 outlines parameters for medical imaging.
The applicable parameter in this case, Minn. R. 5221.6100, subp. 2.G.(1), outlines specific imaging procedures allowed to assess and diagnosis an employee=s low back pain. That rule provides that discography is indicated when
(1) all of the following are present:
(a) back pain is the predominant complaint;
(b) the patient has failed to improve with initial nonsurgical management;
(c) other imaging has not established a diagnosis; and
(d) lumbar fusion surgery is being considered as a therapy.
The employer and insurer agree that the evidence shows that he employee=s predominant complaint has been back pain. They argue, however, that none of the other prerequisites for discography have been met.
The compensation judge addressed each of the three other factors set forth in this section of the treatment parameters. He concluded that the employee had received conservative care for his low back injury, including physical therapy, an epidural steroid injection, and exercise, but with limited success. The judge concluded that the employee has noted limited improvement with his initial non-surgical treatment. The employer and insurer argue that the employee=s medical records show that the employee had made good progress following his therapy program provided by the Physicians Neck and Back Clinic. The employer and insurer also cite to the opinion of Dr. Hergott, who concluded that the employee had reached MMI and could work without restrictions. Although the evidence shows that the employee noted improvement from his physical therapy and treatment at the Physicians Neck and Back Clinic, the employee testified that his symptoms continued. He consulted with both Drs. Lawson and Pinto concerning whether he should continue working at his physically demanding job, based upon his ongoing symptoms and his concerns that he may further injure his back if he continued to work at manual labor. Although Dr. Pinto=s initial chart note states that the employee complained of a Atired feeling in his back with soreness,@ and that the employee=s symptoms had essentially reached a plateau, the employee testified that his symptoms persist and are worsened with physical work and Aa lot of walking.@ The employee also testified that after sitting down, especially after driving a car, he notices a Atugging@ that extends from his back to his left groin area. Based on the employee=s medical records and testimony, it was not unreasonable for the compensation judge to conclude that the employee failed to improve with initial non-surgical management.
With regard to the third criteria of the treatment parameter, that other imaging has not established a diagnosis, the employer and insurer argue that the MRI scan established a diagnosis of discogenic disease, and therefore this third requirement of the rule has not been met. In his chart note of December 20, 2005, Dr. Pinto recommended that the employee undergo an MRI which he would review to determine the extent of pathology at the L2-3 or L5-S1 vertebral levels. Dr. Pinto=s notes reflect that he suspected the employee=s pain complaints were related to the L5-S1 level, but he was unsure. The compensation judge concluded that a scan would not solely determine a diagnosis but that, instead, a doctor would need to determine a diagnosis after correlating the MRI findings with clinical examination findings and the results from any other tests that had been conducted. The compensation judge concluded that a Adiscogram would help determine which level is the main problem and what treatment options would be appropriate.@ Based on the evidence in the record, the compensation judge reasonably concluded that the employee had satisfied this third requirement of the treatment parameters.
With regard to the fourth requirement of the treatment parameter, that lumbar fusion surgery is being considered as therapy, the compensation judge concluded as follows:
What Dr. Pinto did say was that after the discogram, he would be able to discuss treatment options. The court believes that it can reasonably be inferred from Dr. Pinto=s statement that fusion surgery is at least one of the treatment options that would be considered, especially in light of the findings on the MRI scan. To require Dr. Pinto to discuss fusion surgery before the discogram, would really be putting the cart before the horse. Many doctors do not wish to cause undue stress, anxiety, and alarm in their patients by suggesting the possibility of surgery before they have a definitive diagnosis and before they determine that there is a reasonable likelihood that surgery will be necessary.
The employer and insurer argue that it was speculative for the compensation judge to infer that fusion surgery was at least one of the treatment options being considered by Dr. Pinto. While Dr. Pinto=s chart notes do not specifically state that he is considering fusion surgery as a form of treatment for the employee, his chart notes state that he would discuss treatment options with the employee once he had received the results from the discogram. While it would have been preferable to have a definitive statement from Dr. Pinto concerning the various treatment options he was considering, we cannot conclude that the compensation judge was unreasonable in finding that this fourth prerequisite was satisfied.
Considering the record in its entirety, and considering the ongoing nature of the employee=s symptoms and Dr. Pinto=s recommendations for additional diagnostic testing, it was not unreasonable for the compensation judge to conclude that the employee has met the criteria of the medical treatment parameters under Minn. R. 5221.6100, subp. 2.G.(1). Accordingly, the compensation judge=s award of the discogram is affirmed.
 There is no dispute that the employee sustained an injury in early October 2004. In their pleadings, the parties have identified the date of injury as October 1, 2004, although the employee=s medical record of October 5, 2004, refers to an injury on the previous day, October 4. The discrepancy in dates has no bearing on the employee=s claim, and therefore we have referred to the date of injury as being October 1, 2004.