CLIFTON MOORE, Employee, v. UNIVERSITY OF MINN., SELF-INSURED/SEDGWICK CLAIMS MGMT., Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 30, 2007
APPEALS - RECORD; PRACTICE & PROCEDURE - RECORD. It is preferable for parties in a workers= compensation proceeding to submit paper copies of all exhibits and other documentation to the compensation judge, in order to clearly establish the scope and contents of the record. For appeal purposes, the Workers= Compensation Court of Appeals reserves the option of considering only those paper exhibits formally submitted and accepted into evidence and those documents in the division file which are specifically identified at hearing by filing date, title, and content. Litigants are advised to develop the record for appeal purposes accordingly.
REHABILITATION - COOPERATION; TEMPORARY TOTAL DISABILITY. Given evidence concerning the employee=s mental health issues and the testimony of the employee=s QRC, the record as a whole supported the compensation judge=s conclusion that the employee had cooperated with rehabilitation sufficient to establish entitlement to temporary total disability benefits, despite concerns about the employee=s record keeping and job search efforts.
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS; MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. The treatment parameters did not bar the employee=s claim for participation in a second chronic pain treatment program where the record reasonably indicated that the employer was denying liability for the conditions for which treatment was sought - - depression and chronic pain syndrome.
Determined by: Wilson, J. Pederson, J., and Rykken, J.
Compensation Judge: Gary M. Hall
Attorneys: Timothy J. McCoy, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Respondent. Kirk C. Thompson and Ted A. Johnson, Cronan, Pearson, Quinlivan, Minneapolis, MN, for the Appellant.
DEBRA A. WILSON, Judge
The self-insured employer appeals from the compensation judge=s decision denying the employer=s request to discontinue temporary total disability benefits and approving the employee=s request for treatment in a chronic pain program. We affirm.
On January 31, 1978, the employee sustained a work-related injury to his low back while employed by the University of Minnesota [the employer], which was self-insured for workers= compensation purposes. In 2000, the employee underwent three-level anterior/posterior lumbar fusion surgery, with hardware, which the parties subsequently stipulated was necessitated by the 1978 work injury. In late December of 2004, the employee=s surgeon removed the fusion hardware. The procedure did not, however, relieve the employee=s continuing low back and leg complaints.
The employee was released to very light work, 15 to 20 hours a week, in late 2005, and he began receiving job placement and other rehabilitation assistance from QRC Marsha Ellingson and placement specialist John Wedl. By this time, Dr. Daniel Reeves, one of the employee=s treating physicians, had referred the employee to Medical Advanced Pain Specialists [MAPS] for evaluation and treatment of ongoing chronic pain.
In early 2006, the employee began participating in a job search, as specified by the first of several job placement plans and agreements. However, medical and rehabilitation records indicate that the employee=s psychological condition was interfering with rehabilitation efforts. As early as April of 2006, QRC Ellingson noted that the employee=s affect was flat, his emotions blunted, his grooming borderline, his thought processes slow, and his concentration inconsistent. In the QRC=s opinion, the employee=s depression and chronic pain constituted major barriers to employment.
In July 2006, placement specialist Wedl issued a report documenting concerns about the employee=s job search activities. According to the report, Mr. Wedl had called a number of companies listed on the employee=s job logs in order to determine whether the employee was still in the running for any of those jobs. Of those employers contacted, virtually Ano one (with the exception of TCF Bank) had either a record of [the employee=s] application or resume or even recognized [the employee=s] name as a person they interviewed or had a conversation with.@ When asked about the discrepancies, the employee explained that he had been having trouble with his concentration, possibly affecting the accuracy of his job logs and job applications.
Also in July of 2006, the employee underwent an epidural steroid injection, performed by Dr. Thomas Cohn at MAPS, for symptoms Aconsistent with intraspinal inflammation.@ In a subsequent report dated August 11, 2006, Dr. Cohn indicated that one more injection would be performed to determine whether the employee=s pain was due to nerve irritation above the fusion. In this same report, Dr. Cohn wrote as follows:
The patient is extremely depressed at this point in time. The patient does need psychological followup absolutely. This is directly related to his work related injury and ongoing pain. The patient is not suicidal at the moment but does need extensive treatment of his depression and control of his pain.
The patient does have significant psychomotor slowing. The patient has problems processing information. At this point in time, until his depression is much better controlled and most likely his pain is better controlled, I do not see the patient being able to function in a work environment. He does need psychological treatment prior to his likely being able to return to a work environment. He would also benefit from a functional capacities evaluation to determine work abilities once he is stabilized with regards to his pain and pain interventions.
We will follow up with the patient within three weeks. We will make further recommendations with regard to treatment, medications, and options of management at that time. Hopefully he will have his psychological evaluation by that time. We will need to look at medications for his depression also.
When the employee finally underwent a recommended MAPS behavioral evaluation in October of 2006, the examining psychologist concluded that the employee was suffering from a pain disorder, associated with both psychological factors and a general medical condition, as well as a severe major depressive disorder. The psychologist went on to recommend that the employee participate in a structured chronic pain program and that he have his medications reviewed by a psychiatrist. The employer, however, declined to approve either treatment recommendation, maintaining in part that the employee=s psychological condition was not related to the 1978 injury.
Later in October of 2006, the employee sought care from Dr. Thomas Gratzer, a psychiatrist. Dr. Gratzer concluded that the employee was suffering from either a major depression, in partial remission, or an adjustment disorder with depressed mood. The employee=s medications were adjusted, and he was advised to follow up with Dr. Gratzer in two or three weeks. By this time, the employee was also seeing a clinical psychologist for counseling. The employee testified that the counseling and his treatment with Dr. Gratzer helped his depression, and medical records indicate that, as of late November 2006, the employee was Amuch better@ with respect to mood, concentration, energy, interest, and ability to sleep. However, on February 9, 2007, following the employee=s approval for Social Security disability benefits, Dr. Reeves indicated that the employee was totally unable to work. As a consequence, rehabilitation professionals discontinued placement efforts.
In March of 2007, the matter came on for hearing for resolution of the employer=s petition to discontinue temporary total disability benefits, on job search grounds, and the employee=s request for approval of the recommended MAPS chronic pain program. At the beginning of the hearing, the parties and the compensation judge agreed to Aincorporate by reference the entire division file in this case.@ Witnesses included the employee, QRC Ellingson, and placement specialist Wedl; documentary evidence submitted to the judge in paper form included various medical and rehabilitation records as well as a report from Dr. Scott Yarosh, the employer=s independent psychiatric examiner.
In a decision issued on June 11, 2007, the compensation judge denied the employer=s request to discontinue temporary total disability benefits and approved the employee=s request for treatment in the MAPS chronic pain program. The employer appeals.
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).
1. The Record
During preliminary discussions at hearing, the compensation judge noted that, A[i]n lieu of some stipulations of threshold facts I think we=ve agreed that we=re going to incorporate by reference the entire division file in this case.@ Counsel for both parties concurred and then went on to offer paper copies of various exhibits, including recent medical and rehabilitation records. We find it necessary to comment on the procedure followed in this case.
As we see it, incorporating the entire division file into the record is generally poor practice. In this particular case, we note initially that the judge=s language is ambiguous. If the judge and the parties intended the entire division file to be considered as substantive evidence bearing on the employee=s entitlement to temporary total disability benefits and treatment at a pain clinic, we fail to see why the judge specified that he was incorporating the division file Ain lieu of some stipulations of threshold facts.@ Just what the compensation judge intended by that qualification is far from clear.
Second, the file in this particular case is especially inappropriate for incorporation. The employee=s injury occurred in 1978, nearly 30 years ago. The original paper file, apparently covering all events and proceedings prior to 2002, has not been imaged and was not transmitted to this court with the remainder of the record on appeal. As such, we can only assume that the compensation judge did not review it. The imaged file, which begins with a claim petition filed in 2002, currently holds well over 200 imaged documents, most of which have no bearing on the issues on appeal. We also question how appropriate it is for a party to cite to a particular imaged document on appeal without having first drawn the compensation judge=s attention to that specific document at the hearing level.
Pursuant to rule, the Arecord@ includes Athose parts of the division=s official file on the matter which the judge incorporates on the record.@ Minn. R. 1420.2900, subp. 7B(3). However, a compensation judge is to accept Aonly relevant and material evidence that is not repetitive or cumulative.@ Id., subp. 6. Further, the parties have some responsibility to avoid inundating the judge and subsequent reviewing bodies with documentation having little or nothing to do with the matters at hand. Clearly, most documents in the division file were simply not relevant to the question of six months of temporary total disability benefits and proposed treatment in the MAPS pain program. In addition, without investigation, parties to a dispute cannot even be certain of just what documents have been imaged as of any given date. In fact, in this particular case, the employer was mistaken as to what the imaged file contains.
We cannot emphasize strongly enough that it is preferable for parties in a workers= compensation proceeding to submit paper copies of all exhibits to the compensation judge in order to clearly define the scope and contents of the record. See Beckwith v. Sun Country Airlines, 63 W.C.D. 511 (W.C.C.A. 2003). However, we have no authority to dictate procedures at the Office of Administrative Hearings, and, as such, we cannot conclude that the compensation judge in the present case erred by incorporating the entire division file. Nevertheless, in future appeals, this court reserves the option of considering only those paper exhibits formally submitted and accepted into evidence at hearing and those documents in the division file which are specifically identified at hearing by filing date, title, and content. Litigants are advised to develop the record for appeal purposes accordingly.
2. Temporary Total Disability Benefits
The employer appeals from the compensation judge=s denial of its petition to discontinue temporary total disability benefits for the period August 23, 2006, through February 9, 2007, arguing that the record as a whole compels the conclusion that the employee did not engage in a diligent job search sufficient to establish entitlement to wage loss benefits. We are not persuaded.
We note initially that the compensation judge properly focused more on the employee=s cooperation with rehabilitation assistance than on the employee=s job search efforts per se, see Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989), finding as follows:
10. Although there is evidence that the employee was not following through on all of his job search goals and record-keeping during the time period in dispute, based on the record as a whole this court has concluded that the employee made a good faith effort to cooperate with rehabilitation efforts and that any deficiencies were due to his injury-related difficulties dealing with chronic pain, interactions and side effects of various medications, problems sleeping, and delays in obtaining treatment.
In his memorandum, the judge further explained,
Without addressing the issue of whether the employee is suffering from a major depression, or whether that major depression was caused, aggravated, or accelerated by his work-related condition, it is clear that he has had depressive symptoms and chronic pain syndrome that are related to his work injury (even Dr. Yarosh noted that the depressive symptoms may be due to a combination of the employee=s underlying personality disorder and his response to opioid medications). It is also clear that these problems were a significant impediment to his job search efforts. In light of those issues, the employee cooperated with rehabilitation efforts to the best of his ability at the time.
Substantial evidence supports the compensation judge=s conclusion.
Medical and rehabilitation records are replete with references to problems that the employee was having as a result of his psychological condition, which Dr. Reeves and some other physicians diagnosed as major depression. QRC Ellingson testified that the employee had Aalways@ cooperated with rehabilitation services and had made a reasonably diligent job search given his mental and emotional problems, explaining, Ahe was very depressed, he=s got sleep problems and chronic pain that interfered with his ability to concentrate and function with job search in the course of this.@
In August of 2006, Dr. Cohn wrote that he did Anot see [the employee] being able to function in a work environment@ until his pain and depression were better controlled. While Mr. Wedl had serious concerns about the discrepancies between the employee=s job logs and information obtained on follow-up with listed employers, he nevertheless testified that the employee was in many respects compliant, and rehabilitation records indicate that Mr. Wedl was at one point so concerned about the employee=s mental status that he left a message for the QRC stating, Athis poor man is struggling like crazy,@ Ahe had no eye contact with me in the meeting,@ Ahe had no concentration,@ Ait=s ridiculous,@ Adon=t know where we=re at trying to keep him in placement,@ and Ahe can=t function.@
We acknowledge that the employee=s job logs were not always accurate, and another fact finder might have found the employee=s explanation unconvincing. However, we cannot say that the compensation judge erred in accepting that explanation, especially in view of overwhelming evidence establishing the employee=s impaired mental status. Moreover, the judge was clearly justified in concluding that the employer had not proven a Apersistent pattern@ of noncooperation sufficient to deny benefits. Cf. Garrett v. Ford Motor Co., slip op. (W.C.C.A. May 12, 1992). Perfect compliance is not required. See, e.g., Nelson v. Quality Pork Processors, No. WC07-138 (W.C.C.A. Oct. 3, 2007).
Especially in view of the medical evidence concerning the employee=s mental status and the testimony of QRC Ellingson, substantial evidence supports the compensation judge=s denial of the employer=s petition to discontinue temporary total disability benefits, and we affirm that decision.
3. Chronic Pain Program
MAPS professionals, including Dr. Cohn, have recommended that the employee receive treatment in the chronic pain program at that facility. Dr. Reeves, one of the employee=s treating physicians, apparently agrees; Dr. Gratzer, the employee=s psychiatrist, would not offer an opinion as to whether the employee requires treatment in a chronic pain program. However, Dr. Gratzer expressly disagreed with much of the opinion of Dr. Yarosh, the employer=s independent examiner, who recommended against chronic pain treatment. More specifically, Dr. Gratzer found no evidence in the employee=s medical records or testing to suggest that the employee was suffering from either functional overlay or a personality disorder, and, in his opinion, the employee=s Aadjustment disorder with depressed mood versus major depression appears to be reasonably connected to physical stresses associated with the work injury.@ Dr. Yarosh concluded, in contrast, that, while the employee is suffering from depression, the proposed chronic pain program is contraindicated because the employee has a personality disorder and a Arelatively immutable, maladaptive pattern of psychological coping mechanisms.@
The compensation judge concluded that the proposed chronic pain program was reasonable, necessary, and causally related to the employee=s 1978 work injury, explaining in his memorandum,
Despite the possibility of multiple etiologies for the employee=s psychological problems, based on the record as a whole it is clear that the employee, at a minimum, suffers from a work injury-related chronic pain syndrome. This court is not persuaded that the employee=s complaints are the result of any Afunctional overlay@. The recommendation of Dr. [Cohn] for a chronic pain program is reasonable under the facts of this case.
The employer appeals, arguing that the award is not supported by substantial evidence and is inconsistent with the applicable medical treatment parameter, which specifies that A[o]nly one completed pain management program is indicated for an injury.@ Minn. R. 5221.6600, subp. 2E(3). In invoking this rule, the employer cites to a reference in the 2006 MAPS evaluation indicating that the employee had completed a chronic pain program at the Sister Kenny Institute in 1978, and the employer maintains that it is undisputed that the employee did in fact undergo chronic pain treatment at Sister Kenny after his initial injury. The compensation judge did not address the treatment parameters in any way, and, under other circumstances we would have remanded the matter for reconsideration and further findings. However, in this particular case, we find a remand unnecessary.
There are several reasons for our decision on this issue. First of all, the employer never raised the parameters as an issue until closing arguments at hearing. Because the limits set by the parameters constitute a defense to a claim for treatment, see Oldenburg v. Phillips & Temro Corp., 60 W.C.D. 8 (W.C.C.A. 1999), the appropriate time to raise the parameters as an issue is at or before the commencement of hearing, before both parties have submitted their testimony and other evidence. The employer=s timing here raises serious questions of unfair surprise. See Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988).
Second, the employer did not submit any records from the employee=s treatment at Sister Kenny, and the only evidence that the employee actually completed a chronic pain program - - a requirement of the rule limiting treatment to one program - - is the one brief reference in the MAPS evaluation cited above. An employer seeking to limit treatment based on the parameters bears the burden of proof, and it is questionable whether this one offhand reference is sufficient to establish that the employee completed the program. In fact, the record does not even necessarily establish that the Sister Kenny program even qualified as a Apain management program@ as defined by the rules. See Minn. R. 5221.6600, subp. 2E.
Third, the record clearly demonstrates that the employer has consistently denied liability for any mental condition to which the employee might be subject, and we see no evidence that the employer has admitted that the employee suffers from chronic pain syndrome, as opposed to simply chronic pain, as a result of his 1978 back injury. In fact, the employer=s responsive brief can reasonably be read to indicate that the employer is denying even that the employee suffers from chronic pain as a result of his work injury. The medical treatment parameters do not apply if the employer has denied liability for the condition for which treatment has been sought. See Irvin v. Red Wing Shoe Co., No. WC06-218 (W.C.C.A. May 1, 2007); Mattson v. Northwest Airlines, slip op. (W.C.C.A. Nov. 29, 1999). Here, it is evident that the recommended pain program is intended to address both the employee=s chronic pain syndrome and accompanying depressive symptoms or depression, conditions for which the employer has not accepted liability. For all the reasons noted above, we reject the employer=s treatment parameter defense.
We are similarly unpersuaded by the employer=s argument that the judge=s approval of chronic pain program treatment is not supported by substantial evidence, even leaving aside the treatment parameters. MAPS professionals, including Dr. Cohn, conducted an extensive evaluation and explained in some detail why it would be appropriate for the employee to participate in a pain program. The employer=s contention that the employee failed to benefit from past chronic pain treatment, even if true, is hardly determinative, given that the employee participated in that treatment nearly 30 years ago and well prior to his three-level fusion. We therefore affirm the judge=s decision that the proposed treatment is reasonable, necessary, and causally related to the employee=s 1978 injury.
 This is the third time this matter has been before this court in the past two years. In our decision of July 13, 2007, we noted that the date of injury was erroneously reported as January 31, 1979, in earlier litigation. The employer=s brief on appeal and certain exhibits at hearing have continued the error, but there is no suggestion that more than one injury is at issue here or that the error in dates has any bearing on the claims. Further background can be found in Moore v. University of Minn., No. WC05-268 (W.C.C.A. Feb. 7, 2006), and Moore v. University of Minn., No. WC07-104 (W.C.C.A. July 13, 2007). These two decisions dealt largely with the causal relationship between the employee=s work injury and his need for certain medication.
 Following litigation over the employer=s demand to choose the employee=s QRC.
 The employer had for months refused to approve the evaluation.
 For example, in its appellate brief, the employer cites to a document purportedly submitted as an exhibit at an administrative conference held on November 20, 2006. However, A[d]ocuments submitted . . . during an administrative conference are not maintained in the permanent division file.@ Minn. R. 1415.3700, subp. 9A.
 Dr. Reeves took the employee off all work on February 9, 2007, apparently based on the employee=s qualification for Social Security disability benefits, and the parties agreed that the employee=s entitlement to wage loss benefits after that date would be left for subsequent litigation.
 The employer insists that, because some of the employee=s job logs were inaccurate, all of the logs are suspect. However, the compensation judge was not required to draw that inference.
 Chronic pain syndrome is defined as follows:
Subp. 3. Chronic pain syndrome. AChronic pain syndrome@ means any set of verbal or nonverbal behaviors that:
A. involve the complaint of enduring pain;
B. differ significantly from the patient=s preinjury behavior;
C. have not responded to previous appropriate treatment;
D. are not consistent with a known organic syndrome which has remained untreated; and
E. interfere with physical, psychological, social, or vocational functioning.
Minn. R. 5221.6040, subp. 3. It is evident from this definition that chronic pain syndrome encompasses something more than simply chronic pain.
 The MAPS evaluator indicated that the employee would likely Abenefit from a structured chronic pain rehabilitation program that focuses on improving the patient=s tolerance of persistent pain and improving his self-management of depression.@