TAMMY J. IRVIN, Employee, v. RED WING SHOE CO., SELF-INSURED, adm=d by CONSTITUTION STATE SERVS., CO., Employer/Appellant, and PRIMARY BEHAVIORAL HEALTH CLINIC, INC., and MEDICAL ADVANCED PAIN SPECIALISTS, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 1, 2007
CAUSATION - CONSEQUENTIAL INJURY. Where the employee sought workers= compensation benefits claiming that her low back condition was caused or substantially contributed to by her earlier injury to her left foot and also developed as a result of her employment during a later period of time, and where the compensation judge found that her low back condition developed as a consequence of the earlier work injury, but made no finding concerning whether the employee later sustained a separate work-related injury, the compensation judge applied an incorrect causation test when arriving at his conclusions. The matter is remanded for reconsideration and a determination of whether the disputed low back condition arose out of and in the course and scope of employment.
MEDICAL TREATMENT & EXPENSE - SUBSTANTIAL EVIDENCE. Where the employee=s extensive conservative treatment as well as four surgeries had not relieved her persistent symptoms and foot pain, where one of the employee=s treating physicians recommended an implantation of a neurostimulator in an attempt to alleviate her symptoms, and where the record contains a properly founded medical opinion concerning the potential benefits of the stimulator, we conclude that substantial evidence in the record supports the judge=s approval of the proposed implantation of the spinal cord stimulator.
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS; RULES CONSTRUED - MINN.. R. 5221.6020, SUBP. 2. The permanent medical treatment parameters do not apply to treatment for an injury after an employer and insurer have denied liability for the injury and have denied that the employee=s current condition, for which the employee sought disputed medical treatment, is causally related to her work injury. A denial of liability includes both a denial of primary liability and a denial of medical causation for subsequent symptoms or conditions.
REHABILITATION - ELIGIBILITY. Where the employee remains subject to physical work restrictions as a result of her work injury, and those restrictions prevent her from returning to her pre-injury job with the employer, and where the employee has not yet returned to suitable gainful employment, the compensation judge=s conclusion that the employee remains a qualified employee for receipt of rehabilitation assistance and his related award of rehabilitation assistance were supported by substantial evidence of record.
Affirmed in part, and vacated and remanded in part.
Determined by: Rykken, J., Johnson, C.J., and Pederson, J.
Compensation Judge: Danny P. Kelly
Attorneys: David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Respondent. Nicole B. Surges, Erstad & Riemer, Minneapolis, MN, for the Appellant.
MIRIAM P. RYKKEN, Judge
The self-insured employer appeals from the compensation judge=s finding that the employee sustained a low back injury as a consequence of her earlier work-related injury to her left foot, and from the judge=s award of temporary partial and temporary total disability benefits, rehabilitation benefits, and payment of medical expenses. We affirm in part, vacate in part, and remand in part to the compensation judge for further consideration and for findings consistent with this decision.
This claim involves an admitted work-related injury that the employee, Tammy J. Irvin, sustained to her left foot on July 16, 1997, while working for Red Wing Shoe Company, the self-insured employer. At issue at the hearing on this matter, and on appeal, are benefits that the employee claims as a result of her left foot injury and as a result of her low back condition, which she contends has developed as a substantial result of her left foot injury. The employer denies that the employee has sustained a low back injury as a consequence of her 1997 work injury, and also denies that the employee is entitled to the benefits sought as a result of her left foot injury.
The employee worked for the employer between November 1981 and 2002. On July 16, 1997, the employee sustained an admitted injury to her left foot when a push-pull cart weighing approximately 1,000 pounds rolled over and crushed her foot. She experienced an immediate onset of sharp foot pain, and initially sought medical treatment from her family physicians. As a result of her injury, the employee has received extensive medical treatment for her left foot, including four foot surgeries, and underwent treatment for a low back condition that later developed. The employer has paid the employee temporary partial and temporary total disability benefits for various periods of time between August 1998 and April 2003, paid medical expenses related to the left foot condition, provided rehabilitation assistance to the employee, and eventually paid permanency benefits based on a rating of 5% permanent partial disability of the whole body, relative to her foot condition.
In June 1998, the employee consulted orthopedist Dr. Scott McGarvey. Based upon radiographic studies, Dr. McGarvey diagnosed sesamoiditis with a probable history of bifibular sesamoid fracture. On August 13, 1998, Dr. McGarvey performed surgery in the nature of a fibular sesamoidectomy. Post-surgery, the employee=s left foot pain initially improved, but later her pain, discomfort, and a Apins and needles@ sensation in her left foot persisted. The employee initially used orthotics, which allowed her to return to work on a full-duty basis. At the referral of Dr. McGarvey, the employee consulted another orthopedist, Dr. Lowell Lutter, to obtain a second opinion. Following his initial examination of the employee in January 1999, Dr. Lutter diagnosed Aplantar lateral first MP pain,@ secondary to a crush injury, and a probable soft tissue injury. Based on MRI scan findings, Dr. Lutter recommended left foot surgery in the nature of a digital nerve decompression, flexor hallucis brevis lengthening, and a metatarsal head decompression. He performed that surgery on April 19, 1999. The employee underwent physical therapy post-operatively, but continued to experience pain, numbness and tingling in her left foot following her surgery.
By early June 1999, Dr. Lutter released the employee to return to work on a light-duty basis. She did so, but later felt that her symptoms had been exacerbated from standing. On June 30, 1999, Dr. Lutter recommended that the employee continue her physical therapy, and also suggested that the employee=s persistent discoloration and edema might reflect Aan RSD-type of syndrome.@ He advised the employee that it might be Anecessary to consider pain center evaluation and a nerve block in an attempt to stabilize the diffuse pain she is having.@ On August 24, 1999, Dr. Lutter examined the employee, at which time she reported continued pain at the same level as before. The employee advised Dr. Lutter that she was working in the employer=s shop area on a light-duty status, and that she had constructed a device or cart similar to a Arollabout@ which allowed her to bear weight on her knee and take pressure off her left foot. Dr. Lutter recommended that the employee continue to work on a sedentary basis for at least two months, and that if she had made no progress by that point, he would request a consultation with the pain management center, perhaps for nerve blocks to relieve her symptoms.
On September 14, 1999, the employee was examined by Dr. Robert Hartman at the request of the self-insured employer. Dr. Hartman concluded that as a result of her crush injury on July 16, 1997, the employee had developed left foot pain, dysesthesias in the distribution of the left great toe and common digital nerve, and a fracture of the fibular sesamoid to the great toe, and that the fracture ultimately healed in a malunited position, resulting in the development of degenerative change in the fibular sesamoid first metatarsal joint. Dr. Hartman recommended restrictions which he deemed were causally related to her work injury, stating as follows:
Ms. Irvin has subjective complaints and tenderness in the region of the plantar incision/first MTP joint. It is not anticipated that this discomfort will resolve. Therefore, Ms. Irvin should be permanently restricted from continuous standing, and continuous walking. She should be employed in a position which allows for positional changes from sitting to standing and walking. Additionally, Ms. Irvin should be permanently restricted from lifting or carrying greater than 30 pounds. Finally, Ms. Irvin should not engage in continuous or repetitious jumping, stair claiming, or ladder climbing. These restrictions are permanent and apply to Ms. Irvin=s activities of daily living, work activities, and recreational activities.
Dr. Hartman concluded that the employee had reached maximum medical improvement (MMI) from her left foot injury; on October 18, 1999, the employer served that report and notice of MMI on the employee.
In November 1999, at the referral of Dr. Lutter, the employee consulted Dr. Lon Lutz, Midway Pain Center, and consulted him periodically through at least February 2005 for nerve blocks and injections to treat her ongoing pain. On March 3, 2000, the employee underwent a physical therapy evaluation, advising of bilateral knee and low back pain that had begun approximately one month earlier and that was aggravated by walking and stair climbing. Dr. Lutter continued to treat the employee, and referred her to Dr. J. Chris Coetzee for an orthopedic consultation. Dr. Coetzee, along with Dr. Diane Palkert as a resident physician, examined the employee in June 2000, and noted that the employee walked with an antalgic gait, favoring her left foot, and that she did not have much movement of her left foot. They diagnosed Alikely elements of RSD [reflex sympathetic dystrophy] without full-blown RSD,@ and recommended against additional surgical intervention, stating that AWe feel the patient has a high likelihood of having no improvement or becoming worse with a surgical procedure at this point. We feel she needs aggressive desensitization of the left foot and should discontinue the use of her crutches.@
By December 2000, the employee reported to Dr. Lutter that her pain had persisted at the same level since her first surgery in August 1998. Dr. Lutter advised the employee that, in his opinion, the only surgical procedure left to be done was a nerve resection of the digital nerve, and that such a procedure had a A50 percent chance of working.@ In February 2001, the employee reported that she had a recurrence of pain in her midfoot area after an approximately 20-day attempt at returning to full-duty work. On March 12, 2001, Dr. Lutter performed that additional left foot surgery on the employee, in the nature of an interdigital nerve resection of the left, first and second nerve.
On April 24, 2001, the employee reported some continued pain but also a resolution of her deep aching foot pain. At that time, the employee was off work due to a voluntary six-week layoff. Dr. Lutter released her to return to work in a sedentary position for approximately three weeks, once her layoff ended. He suggested that she later could gradually return to her full-time mechanic work. According to Dr. Lutter=s chart note of August 14, 2001, the employee had returned to full-time work as a mechanic, but noticed difficulties with that job. After discussing the employee=s position with the QRC and the employer=s nurse and claims coordinator, Dr. Lutter recommended that the employee=s work be modified to limit the amount of weight she was required to carry while standing.
According to the employee, she began to note low back pain in November or December 2001, and on January 30, 2002, she reported to her employer that she had experienced low back pain as a result of kneeling on the rolling stool that she used while working in the tool crib. (Employee=s Exh. O.)
On April 23, 2002, the employee consulted Dr. Lutter=s colleague, Dr. Palkert, reporting continued left foot pain and that she had difficulty even walking half a block because of her pain. In her chart note of that date, Dr. Palkert commented that the employee had undergone several surgeries on her left foot and that she would never have a Anormal foot.@ Dr. Palkert recommended a surgical debridement of the sesamoid, although she advised the employee that the surgery would not completely relieve all of her pain. On June 12, 2002, the employee underwent that surgical procedure, performed by Dr. Palkert, which involved debridement of the bipartite medial sesamoid, and also included placement of a screw to treat the bipartite sesamoid.
In mid-July 2002, the employee consulted Katherine Lofberg, certified family nurse practitioner at the Lake City Medical Center, reporting left great toe pain after stubbing her toe post-surgery, and also reporting low back pain. Ms. Lofberg diagnosed a left great toe sprain, and also concluded that the employee=s low back pain was Alikely secondary to adjustments made to accommodate her foot discomfort.@ By July 30, 2002, Dr. Palkert released the employee to return to work, but only to a job that allowed sitting and no standing. The employee was unable to return to work for the employer after her June 2002 surgery.
At an August 28, 2002, consultation with Ms. Lofberg, the employee reported worsening mid-low back discomfort that initially had begun in January 2002. In her chart note, Ms. Lofberg commented that AI believe her low-back discomfort is a direct result of her gait, which is dramatically impacted because of her ongoing foot problems.@ By September 2002, Dr. Palkert advised the employee and her QRC that, because the employee was unable to stand for any length of time, she should consider some type of job retraining for a job that did not require prolonged standing. Dr. Palkert also commented that the employee=s left foot would never return to the point where the employee would be able to stand on it all day and work as a mechanic.
Also in September 2002, at Ms. Lofberg=s referral, the employee consulted Dr. Robert Taylor, D.O., for osteopathic manipulation of her low back. The employee reported low back pain that she had noted since January 2002. She advised Dr. Taylor that she had developed a gait abnormality because of her foot injury, that she walked with a cane, and that she had been unable to work since June 2002 because of her foot condition and foot surgery. The employee also reported that she received no significant benefit from physical therapy or oral nonsteroidal anti-inflammatories and analgesics. Dr. Taylor diagnosed A[c]hronic low back pain secondary to her gait imbalance due to her prior left foot injury and surgeries@ and A[s]omatic dysfunction of the cervical spine, thoracic spine, lumbar spine, and pelvis.@ Dr. Taylor provided the employee with eight osteopathic manipulation treatments for her low back, between September 2002 and January 2003. He concluded that the employee=s symptoms had reached a plateau, and he referred her for further evaluation at the Mayo Clinic and for continued care with her family physician or nurse practitioner.
On December 4 and 5, 2002, at the recommendation of Dr. Palkert, the employee underwent a functional capacity evaluation (FCE). The therapist who conducted the FCE recommended that the employee be restricted to light-work activity and that she should limit her standing and walking to less than 15 minutes continuously. Dr. Palkert concurred with those recommendations, and also concluded that the employee could not tolerate returning to a job where she would be required to stand on her feet all day, and should undergo vocational training for a new job. Dr. Palkert also concluded that by January 2, 2003, the employee had reached maximum medical improvement (MMI) for her left foot condition. The employer served the employee with notice of MMI.
On January 11, 2003, the employee underwent an independent orthopedic examination with Dr. Dennis Callahan, at the employer=s request. The employee reported continued left foot pain and low back pain. By then, the employee wore an orthotic in both shoes, as well as high top above-the-ankle boots, and used a cane for walking. She reported low back pain, with no radiation into her legs or upper back. The employee described to Dr. Callahan the type of rolling walker device that she had used at work, and to which she attributed her low back symptoms. Dr. Callahan, however, concluded that the employee=s low back symptoms had not developed from her use of the rolling walker device. He also concluded that the employee had reached MMI from her left foot injury, and stated that since he did not believe that the employee=s back problem was related to her work activities, Athe questions about maximum medical improvement . . . and disability are irrelevant, since I believe there is no pathology in her back.@ Dr. Callahan recommended that although the employee was not restricted by her low back condition, she should abide by the restrictions earlier assigned by Dr. Palkert for her foot condition. He also recommended two or three physical therapy sessions for instructions on strengthening exercises.
In January 2003, the employee consulted Dr. Robert De Pompolo, at the Lake City Clinic of the Mayo Health System. The employee reported low back pain, advising that she had used a wheeled stool at work to move from bench to bench to avoid standing and walking. The employee reported that the use of the stool eventually irritated her low back and that she noted an onset of low back pain one year earlier, and that she was unable to work due to her low back pain. An MRI scan showed a small annular tear and bulge at the L4-5 vertebral level and degenerative joint disease in the lower lumbar spine. At Dr. De Pompolo=s referral, the employee received physical therapy.
Dr. Palkert again examined the employee on May 7, 2003, diagnosing chronic left foot pain. She recommended against any further surgical intervention, but advised that the employee could benefit from sympathetic therapy system treatment (STS) due to her symptoms including sweating, discoloration and continued pain. Dr. Palkert also recommended a ARoll-About@ so that the employee could remain active by limiting her weight-bearing on her left foot.
The employee continued to receive treatment through the Mayo Health System including sacroiliac joint injections in June and July 2003, and later in May 2004, which provided some temporary relief. Dr. De Pompolo also recommended continued work restrictions. In addition, in a letter dated December 22, 2003, Dr. De Pompolo outlined his opinion on the cause of the employee=s low back symptoms, stating that:
The patient=s chronic left foot pain has altered her gait pattern, and she walks with an antalgic gait. It is certainly reasonable that this has contributed to her present back problem. In addition, when I first saw her, the patient suggested that the back pain was initiated at work when she was scooting around on a wheeled chair. Either of these events, if not both, likely contributed to her pain substantially, based on the patient=s history and presentation.
In a report dated January 22, 2004, Dr. Taylor outlined his opinion on the cause of the employee=s low back condition. He concluded that Ait seems likely that her left foot injury suffered while on the job and subsequent surgeries to repair that injury have caused her to have a gait abnormality and subsequent back pain.@
By February 2004, Dr. Lutz diagnosed the employee with complex regional pain syndrome, which had been detected as a possible diagnosis by Dr. Lutter in 1999 and by Dr. Coetzee in 2000. Dr. Lutz restricted the employee from work, due to her ongoing symptoms, and in March 2004, he recommended against additional injections, as they had provided limited relief of the employee=s foot symptoms. Dr. Lutz discussed the possibility of diagnostic lumbar facet joint blocks to treat the employee=s low back pain, pending the results of her physical therapy treatments. He also suggested the surgical implantation of a spinal cord stimulator, on a trial basis, to treat, at least in part, her left lower extremity pain.
Dr. Callahan re-examined the employee on May 21, 2004, at the employer=s request. In his report of June 24, 2004, he concluded that the employee had Ano significant orthopedic abnormality either with regard to her lower back or her foot,@ and found Aa component of functional overlay,@ concluding that the employee=s symptomatic complaints far outweighed any objective findings. He recommended continued use of an orthotic and a semi-rigid rocker bottom shoe for the employee=s left foot, but recommended no treatment or therapy for her low back. Dr. Callahan concluded that the employee had reached MMI with regard to her left foot and low back condition. He recommended a pain program directed at returning the employee to maximum function.
Dr. Lutz concurred with Dr. Callahan=s recommendation that the employee participate in a pain program, and referred the employee for a psychological assessment to obtain recommendations for ongoing care and treatment for her chronic pain syndrome.
The employer began providing the employee with rehabilitation assistance in 1999 through the services of a qualified rehabilitation assistant (QRC); those services continued until at least early 2005. Although the employer had accommodated the employee=s physical work restrictions and provided modified work for an extended period of time, the employee was unable to return to work following her last surgery in 2002. Evidently by 2003, the employer concluded that it no longer could accommodate the employee=s restrictions, and the employee began working with a placement specialist. She since has held short-term temporary positions with three companies, and has performed some seasonal work, mowing lawns and driving a tractor.
In September 2002, the employee filed a claim petition, based on two injury datesBher July 16, 1997, admitted left foot injury and a claimed low back injury on January 28, 2002 - - seeking payment of medical expenses related to her low back condition. The employer denied primary liability for the low back injury, and, in April 2004, the parties settled that claim. In exchange for a to-date settlement of the employee=s claim for payment of medical expenses related to her low back, the employer agreed to pay for outstanding expenses incurred at the Mayo Clinic and agreed to reimburse the employee=s medical health insurer for benefits it earlier paid on the employee=s behalf. The employer maintained its denial of primary liability for the claimed low back injury.
On April 10, 2003, the employer filed a notice of intention to discontinue benefits (NOID), contending that the employee had reached MMI (based on Dr. Palkert=s opinion that she had reached MMI for her left foot condition), that she had reached the statutorily-defined 90 days following notice of MMI, and therefore was not entitled to further payment of temporary total disability benefits. The employee objected to the discontinuance, alleging that she had not yet reached MMI for her low back condition. By order on May 2, 2003, issued following an administrative conference, a compensation judge granted the employer=s request to discontinue benefits. In his order, the judge concluded that the exhibits submitted at the conference did not establish the compensability of the employee=s low back condition.
In August 2004, the employee filed another claim petition, seeking payment of temporary total disability benefits from January 27, 2004, as well as intermittent temporary partial disability benefits in 2004 and 2005, based on both her left foot injury of July 16, 1997, and her low back condition which she claimed occurred as a consequence of her 1997 work-related injury. Through later medical requests, the employee sought payment of outstanding medical bills and sought approval of surgery to implant a spinal cord stimulator. The employee also filed a rehabilitation request, seeking payment of outstanding rehabilitation bills and requesting provision of ongoing rehabilitation assistance. The employee=s medical requests and rehabilitation request referred to both the 1997 injury and a claimed 2002 injury.
In its responses to the multiple pleadings, the employer denied the employee=s claims for benefits, and denied liability for her claimed low back injury, contending that her low back condition was not causally related to her work activities or her 1997 work injury. All claims were consolidated for a hearing that eventually was held on October 20 and November 17, 2005. Among the issues addressed at the hearing were whether the employee sustained an injury to her low back as a compensable consequence of her admitted work-related injury to her left foot, whether a trial use of a spinal cord stimulation was reasonable, necessary and causally related to the employee=s work injury, and whether the employee was entitled to payment of temporary partial and temporary total disability benefits, payment for past rehabilitation services, provision of ongoing rehabilitation services, and payment of medical expenses.
The record remained open following the hearing, to allow the parties to each schedule an independent psychiatric or psychological evaluation of the employee and to submit reports and cross-examination depositions of the examining psychiatrists or psychologists, and also to allow time for the parties to submit written closing arguments into the record. The employer submitted a report by Dr. Thomas Gratzer, who conducted an independent psychiatric evaluation of the employee. Dr. Gratzer outlined his diagnoses of undifferentiated somatoform disorder and history of depressive disorder, and avoidant personality features. He referred to the employee=s 1997 left foot injury and a low back injury of January 28, 2002, and concluded that the employee=s psychiatric conditions pre-existed her work injury and that she had not developed any psychiatric sequelae from those injuries. He concluded that the employee was not experiencing depression or any psychiatric symptoms requiring treatment. Concerning the issue of MMI, Dr. Gratzer concluded that Athe term Maximum Medical Improvement does not apply,@ because the employee had not developed any psychiatric sequelae from her work injury. He also addressed the issue of the proposed spinal cord stimulator, and expressed his opinion that such a stimulator was contraindicated. He felt that the implantation of a spinal cord stimulator would likely increase rather than decrease the employee=s physical complaints. Dr. Gratzer concluded that the employee had reached MMI from her work injury; the employer served the employee with Dr. Gratzer=s report and with notice of MMI on December 1, 2005.
The employee did not submit a report post-hearing from a separate psychiatric or psychological expert. Included in the hearing exhibits was a letter dated October 18, 2005, to Dr. Lutz from John Patrick Cronin, Ph.D., licensed psychologist. Dr. Lutz evidently had referred the employee to Dr. Cronin for chronic pain assessment and recommendations concerning the implantation of a neurostimulator. In his letter, Dr. Cronin provided his opinion that the employee was a good candidate for the neurostimulator, and that Athere does not appear to be any contraindication from a psychological or psychiatric standpoint at this time.@
The record closed on April 24, 2006, following receipt of the employer=s written closing argument. In his findings and order served and filed on June 19, 2006, the compensation judge found that the employee had sustained an injury to her low back as a consequence of her July 1997 left foot injury. He found that the employee had been temporarily partially and temporarily totally disabled from employment for periods of time in 2004 and 2005, as a result of her work injury of July 16, 1997. The compensation judge found that a trial use of a spinal cord stimulator would represent reasonable and necessary treatment to cure and relieve the effects of the employee=s 1997 injury, and approved payment for the same. He also found that the employee=s outstanding medical expenses related to treatment of her low back were reasonable, necessary and causally related to her 1997 injury. In addition, the compensation judge concluded that the services earlier provided by the employee=s QRC were reasonable and necessary, and that the employee continued to be a qualified employee, as defined by the statute, and therefore was entitled to receipt of ongoing rehabilitation services. The self-insured employer appeals.
Low Back Injury
The compensation judge found that Aas a consequence of the July 16, 1997 personal injury to the left foot the employee has sustained a low back injury arising out of and in the course of her employment with Red Wing Shoe Company.@ He based that finding on the employee=s testimony, which he found to be credible, and on her medical records and the opinions of her medical providers. At finding 22, the compensation judge stated that:
The employee credibly testified that she has experienced low back pain since January 2002. The employee testified that she walks with an altered gait because of her left foot condition causing her low back pain. Employee also testified that the cart she made at work to get around caused her low back symptoms.
Based on his conclusion that there was a causal connection between the employee=s left foot injury in 1997 and her low back condition, the compensation judge awarded benefits related to both her left foot condition and low back condition. The employer has appealed, arguing that the compensation judge=s determination of a causal connection between the employee=s left foot and low back condition is unsupported by substantial evidence and is clearly erroneous. The employer also appeals from the compensation judge=s award of various benefits. We conclude that the compensation judge failed to apply the proper test of causation, and remand for reconsideration.
When determining the compensability of an injury in circumstances such as those presented here, a clear distinction must be made between the law applicable to establishing liability for a personal injury and that which is applicable to a claimed consequence of a compensable injury. The employer denied primary liability for the employee=s low back condition, contending that it neither resulted from her use of a wheeled cart or rolling stool at work nor as a direct consequence of her earlier left foot injury. Where a permanently weakened physical condition caused by a personal injury is aggravated by an employee=s subsequent normal physical activities to the extent of requiring additional medical treatment, such treatment is compensable, so long as it could be said that the additional care was Aa natural consequence flowing from the primary injury@ and not the result of Aunreasonable, negligent, dangerous, or abnormal activity on the part of the employee.@ Eide v. Whirlpool Seeger Co., 260 Minn. 98, 109 N.W.2d 47, 21 W.C.D. 437 (1961); see also Gerhardt v. Welch, 267 Minn. 206, 125 N.W.2d 721, 23 W.C.D. 108 (1964) (Minnesota Supreme Court adopted the Adirect and natural consequence rule@ set forth at Larson, Workers= Compensation Law ' 13.00). Where, however, the claim is that the disability and need for medical treatment was caused by the effects of another personal injury, as in this case where the employee reported her gradual onset of low back pain after using a wheeled cart at work, the issue is whether the claimed injury Aarose out of and in the course of employment,@ as set forth in Minn. Stat. ' 176.011, subd. 16.
The parties litigated and the compensation judge decided this case based upon the direct and natural consequences rule. In Heinemann v. Independent Sch. Dist. No. 279, 63 W.C.D. 312 (W.C.C.A. 2003), this court held the direct and natural consequence rule is applicable only in those cases in which the consequences for which benefits are sought did not result from a second work injury. AWhere, as here, the claim is that the disability was caused, at least in substantial part, by the effects of a second personal injury, the issue is whether the claimed injury arose out of and in the course of employment.@ Id. at 320. In this case, the compensation judge made no finding whether the employee sustained an injury to her low back arising out of and in the course of her employment.
We therefore vacate those findings related to an award based on the employee=s low back condition, Findings Nos. 22, 29, and 30, and remand the matter to the compensation judge for reconsideration. On remand, the compensation judge must determine whether the employee=s low back condition arose out of and in the course and scope of her employment. If he decides that issue in the affirmative, he must then determine the date of such injury, and related issues of insurance coverage, notice and weekly wage at the time of injury.
The employee has been paid temporary total and temporary partial disability benefits for various periods of time. She now seeks payment of temporary total disability and temporary partial disability benefits continuing from January 27, 2004. Because the employee=s claims for temporary disability benefits may be related to both the employee=s left foot and low back condition, and because findings concerning whether the employee sustained a separate injury may have an impact on issues such as weekly wage, compensation rate, statutory limitations on benefits, and determination of maximum medical improvement, we also vacate the compensation judge=s findings and orders related to awards of temporary disability benefits, including Findings Nos. 36, 37 and 40, and Orders Nos. 1, 2, 3 and 4, and remand the case to the compensation judge. Once he has determined the issue of whether the employee=s low back condition is work-related as well as the duration of that injury, he then will need to issue findings concerning the employee=s entitlement to claimed temporary disability benefits, as well as other findings, such as attainment of maximum medical improvement, which are necessary to the resolution of this case.
Based on the reframing of the issues, in line with this court=s holding in Heinemann, and in view of the possibility that a separate insurer could be included as a party, it may be necessary for the compensation judge to hold an additional hearing to allow for all parties to present evidence.
Claim for Spinal Cord Stimulator. The self-insured employer has appealed from the compensation judge=s approval of a surgically implanted spinal cord stimulator. Upon review of the employee=s medical records and the medical opinions in the record, we conclude that substantial evidence in the record supports the compensation judge=s finding that the spinal cord stimulator is reasonable and necessary medical treatment for the employee=s left foot condition. We therefore affirm that award.
An employer is required to furnish medical treatment as may reasonably be required at the time of the injury and at any time thereafter to cure or relieve the employee from the effects of the work-related injury. See Minn. Stat. ' 176.135, subd. 1a. An employee has the burden of proving that medical expenses are reasonable, necessary, and causally related to her work injury. See Adkins v. University Health Care Ctr., 405 N.W.2d 233, 39 W.C.D. 898 (Minn. 1987). The reasonableness and necessity of medical treatment 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).
In May 2004, Dr. Lutz discussed with the employee the possibility of a surgical implantation of a spinal cord stimulator, on a trial basis, to treat her left lower extremity pain. As noted by the compensation judge, Dr. Lutz concluded that the use of such a stimulator, at least on a trial basis, would be appropriate because none of the various treatments earlier provided to the employee had long-lasting benefit.
The record contains conflicting medical opinions on the need for and efficacy of the spinal cord stimulator. The employer argues that there is a limited likelihood that the stimulator would provide pain relief, and that adverse side effects could result from its use. The employer denied authorization for the surgical procedure, based, in part, on the opinion of Dr. Gratzer, who concluded that such a stimulator is contraindicated and would likely increase rather than decrease the employee=s physical complaints. Notwithstanding the conflicting medical opinions in the record, the compensation judge relied on the opinion of Dr. Lutz and concluded that a trial of the spinal cord stimulator would be reasonable. Based on the record as a whole, it was reasonable for the compensation judge to rely on Dr. Lutz=s opinion. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (a trier of fact's choice between experts whose testimonies conflict is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence). The compensation judge cited to the employee=s persistent foot pain and her earlier medical treatment which had included various types of conservative treatment, such as injection therapy, physical therapy and numerous medications. In view of the persistent symptoms reported by the employee, and the ongoing effects of her injury, and in consideration of the medical opinion rendered by Dr. Lutz concerning the potential benefits of the stimulator, we conclude that evidence in the record adequately supports the judge=s approval of the proposed implantation of the spinal cord stimulator.
The employer argues that application of the medical treatment parameters bars the authorization of the spinal cord stimulator, and that the compensation judge erred by not addressing the parameters. We conclude, however, that the treatment parameters are inapplicable to this case, based on the employer=s denial that the employee=s current condition, for which she seeks the disputed treatment, is causally related to her work injury. The treatment parameters do not apply to treatment for an injury after an insurer has denied liability for the injury. If an employer has denied liability for an injury, it does not enjoy the practical protections afforded by the treatment parameters. Minn. R. 5221.6020, subd. 2; Schulenberg v. Corn Plus, 65 W.C.D.237 (W.C.C.A. 2005). As this court stated in Mattson v. Northwest Airlines, slip op. (W.C.C.A. Nov. 29, 1999), Afor the purposes of application of the permanent medical treatment parameters, a denial of liability includes both a denial of primary liability and a denial of medical causation for subsequent symptoms or conditions.@ See also Oldenburg v. Phllips & Temro Corp., 60 W.C.D. 8 (W.C.C.A. 1999), summarily aff=d 606 N.W.2d 445 (Minn. 2000); Winquist v. Hansen Gravel, Inc., slip op. (W.C.C.A., Dec. 6, 1999). The medical treatment parameters do not apply here to limit the compensability of the claimed surgically implanted spinal cord stimulator, and we conclude that the compensation judge did not err in awarding payment for that treatment. We therefore affirm that award.
Claim for Medical Expenses incurred at HealthEast and MAPS. The employer also appeals from the compensation judge=s award of expenses for medical treatment provided by HealthEast between January 19 and August 23, 2004, and treatment provided by Medical Advanced Pain Specialists (MAPS) between August 15, 2003, and April 18, 2005. The compensation judge listed the employee=s claim for these expenses in the introduction to his findings and order, but he issued only one finding addressing the compensability of these expenses, at Finding No. 30, where he stated that Athe outstanding medical expenses for the employee=s low back were causally related, reasonable and necessary to cure and relieve the effects of the July 16, 1997 personal injury.@ There is no finding addressing whether the disputed treatment, including that rendered to the employee=s left foot, was reasonable and necessary to treat the employee=s left foot condition. Nor is there a finding stating whether the disputed treatment was also related to treatment of the employee=s low back condition.
Consistent with our discussion above on the disputed compensability of the employee=s low back condition, we have already vacated the portion of the judge=s findings and order related to medical treatment for the employee=s low back. We also vacate Orders Nos. 6 and 10, concerning payment to HealthEast and MAPS. On remand, therefore, the compensation judge should address the issue of the compensability of the disputed treatment at HealthEast and MAPS, including a determination of whether the treatment was causally related to the employee=s left foot condition and/or her low back condition, and whether the treatment represented reasonable and necessary treatment that was causally related to the employee=s work-related injury or injuries.
The employer has provided extensive rehabilitation assistance to the employee, but by the time of the hearing had suspended approval for services. The compensation judge determined that the employee remained qualified for rehabilitation assistance, and awarded payment of the outstanding vocational rehabilitation expenses incurred by the employee=s QRC as well as payment for ongoing services. The employer appeals from the compensation judge=s award of rehabilitation benefits, arguing that the employee had not cooperated with rehabilitation assistance, that the assistance had been ineffectual, and that employee is no longer qualified to receive rehabilitation assistance.
"Rehabilitation is intended to restore the injured employee so the employee may return to a job related to the employee=s former employment or to a job in another work area which produces an economic status as close as possible to that the employee would have enjoyed without disability." Minn. Stat. ' 176.102, subd. 1(b). In order to be eligible for rehabilitation services, an injured employee must be deemed a "qualified employee." See Minn. R. 5220.0130, subp. 1. "Qualified employee" is defined in Minn. R. 5220.0100, subp. 22, as follows:
"Qualified employee" means an employee who, because of the effects of a work‑related injury or disease, whether or not combined with the effects of a prior injury or disability:
A. is permanently precluded or is likely to be permanently precluded from engaging in the employee=s usual and customary occupation or from engaging in the job the employee held at the time of injury;
B. cannot reasonably be expected to return to suitable gainful employment with the date‑of‑injury employer; and
C. can reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services, considering the treating physician=s opinion of the employee=s work ability.
In this case, the first two factors are satisfied. The employee is precluded from engaging in the job she held at the time of her left foot injury in 1997, and, based on the record, it does not appear that she can reasonably expect to return to suitable gainful employment with the employer. Although she continued to work for the employer following her injury, and following her various periods of post-surgery recuperation, the employer no longer is able to accommodate her physical work restrictions. As to the third factor, the employee=s treating physicians have released the employee to work, within specific work restrictions. Her QRC testified that the employee is Aemployable,@and that she could continue to benefit from vocational rehabilitation services.
The employer argues that the employee did not cooperate with rehabilitation assistance, citing to portions of the QRC=s testimony that point to the employee=s limited attempts to follow through on various recommendations or job leads made by the QRC and the employee=s failure to take advantage of available services and educational opportunities. The QRC acknowledged that the employee has not followed her recommendations to take selective clerical and computer keying classes to enhance her skills, and that the employee was not interested in working in an office setting, but also testified that the employee had cooperated with the rehabilitation services Ato the best of her ability.@ The employer also argues that although it Ahas provided rehabilitation assistance intermittently since 1999, neither the QRC or placement specialist have actually placed the employee in any position.@ We are not persuaded, based on this hearing record, that either the employee=s participation in the rehabilitation or a lack of job placement are determinative.
The QRC worked with the employee for an extended period of time, but later was precluded from providing additional assistance, other than minimal contacts with the employee. The record contains reports prepared by the employee=s QRC and placement specialist which document the services provided to the employee, and contains testimony by the employee and the QRC. There is no other vocational evidence or opinion in the record on which the employer bases its arguments concerning the nature of the rehabilitation services. The compensation judge outlined the employee=s work restrictions, the barriers to employment presented by the employee=s restrictions and transferable skills and by the current labor market, and also referred to positive factors for locating suitable employment. He concluded that the employee remained qualified to receive rehabilitation assistance, explaining that the employee remained subject to physical work restrictions as a result of her work injury, that those restrictions had prevented her from returning to her pre-injury job with the employer, and that she had not yet returned to suitable gainful employment. Based on the record, it was not unreasonable for the judge to award rehabilitation assistance. The compensation judge=s conclusions are supported by substantial evidence in the record, and we affirm the award of rehabilitation services. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).
 Sesamoid bones are Anumerous ovoid nodular bones, often small, usually found embedded within a tendon or joint capsule, principally in the hands and feet.@ Sesamoiditis is an Ainflammation of the sesamoid bones and surrounding structure.@ Dorland=s Illustrated Medical Dictionary, 232, 1630 (29th ed., 2000).
 RSD, an abbreviation for the diagnosis of reflex sympathetic dystrophy, is alternatively referred to as chronic regional pain syndrome and complex regional pain syndrome.
 In his letter of January 22, 2004, Dr. Taylor defined somatic dysfunction as Athe impaired or altered function of related components of the somatic system[,] those being the skeletal, arthrodial, myofascial, and related vascular, lymphatic and neural elements.@
 In his report, Dr. Callahan stated that he found it hard to believe that the etiology of the employee=s low back condition was related to her use of a rolling cart, Aparticularly since she has had problems with her foot for some three or four years before her back pain started. I cannot find any orthopedic abnormalities to explain her subjective symptoms. There is no evidence of any motor defect, nor any neurologic deficit.@
 See Minn. Stat. ' 176.101, subd. 1(j).
 Dr. Cronin=s clinic, Primary Behavioral Health Clinic, Inc., had been granted intervention status to this claim. Following pre-hearing discussions between the parties and the compensation judge, however, that intervenor=s claim was dismissed without prejudice and therefore was not addressed at the hearing.
 The first mention of the employee=s use of a wheeled cart or stool is found in Dr. Lutter=s chart note of August 24, 1999, at which time the employee advised Dr. Lutter that she was working in the employer=s shop area, and that she had constructed a device or cart similar to a Arollabout@ which allowed her to bear weight on her knee and take pressure off her left foot.
 A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which this court may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff=d (Minn. June 3, 1993).
 Larson, Workers= Compensation Law ' 13.00, states that
When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is a result of an independent intervening cause attributable to the claimant=s own negligence or misconduct.
In the current version of Larson, this rule is set forth at ' 10.01 and is unchanged except the words Anegligence or misconduct@ are replaced by the words Aintentional conduct.@ 1 Arthur Larson & Lex K. Larson, Larson=s Workers= Compensation Law ' 10.01 (2006).
 The QRC testified that a representative of the employer advised her, by letter dated December 4, 2004, that it would not pay for any more vocational rehabilitation services.