GENARO SANCHEZ, Employee, v. QUALITY PORK PROCESSORS, INC., and AIG CLAIMS SERVS., INC., Employer-Insurer/Appellants, and ASPEN MED. GROUP, and PARK NICOLLET HEALTH SERVS., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 29, 2007
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY; EVIDENCE - EXPERT MEDICAL OPINION. Substantial evidence, including the records and adequately founded opinion of the employee=s most recent treating physician, supports the finding that the employee was in need of additional treatment for his right knee injury.
MEDICAL TREATMENT & EXPENSE - MANAGED CARE PLAN. On the facts peculiar to this case, the compensation judge did not err in permitting the employee to obtain further treatment from a medical provider not participating in the employer=s managed care plan.
Determined by: Johnson, C. J., Pederson, J., and Stofferahn, J.
Compensation Judge: Jane Gordon Ertl
Attorneys: Ruth M. Harvey, Chesley, Kroon, Harvey & Carpenter, Mankato, MN, for the Respondent. Timothy P. Eclov, Johnson & Condon, Minneapolis, MN, for the Appellants.
THOMAS L. JOHNSON, Judge
The employer and insurer appeal the compensation judge=s finding that the employee needed further treatment for his right knee injury and the compensation judge=s decision allowing the employee to change his physician to a doctor outside the employer=s managed care plan. We affirm.
On March 12, 2001, Genaro Sanchez, the employee, injured his sternum and fractured the patella of his right knee while working for Quality Pork Processors, Inc., the employer, then insured by AIG Claims Services, Inc. The employer and insurer admitted liability for the employee=s personal injury.
The employer is part of a managed care plan administered by CorVel Corporation [the plan]. The employee was seen by Dr. David Thompson, a participating provider, at the Austin Medical Center on March 13, 2001. The doctor diagnosed a fracture of the right patella and a significant chest and upper abdominal contusion. Dr. Thompson surgically repaired the fractured patella following which the employee received physical therapy. In April 2001, Dr. Thompson released the employee to a sit-down job with the employer, and gave the employee a four percent permanent disability rating. Thereafter, Dr. Thompson advised the employee he was leaving the clinic and the employee began treating with Dr. Stephen Kazi at the Austin Medical Center. On June 25, 2001, Dr. Kazi stated the employee demonstrated a significant degree of symptom magnification, and opined he was capable of returning to work in a seated or standing position with frequent changes of position. On July 30, Dr. Kazi again stated the employee demonstrated extreme symptom magnification and malingering, released the employee to return to work without restrictions, and opined the employee had reached maximum medical improvement. The employee returned to the Austin Medical Center on November 28, 2001, and saw Dr. Daniel Smith complaining of persistent knee pain and swelling. The doctor stated he was unsure of the etiology of the symptoms. Dr. Smith further stated there might be an element of malingering, but noted the employee had a fair amount of swelling on examination.
At some point, the parties agreed the employee could change physicians within the plan from Dr. Kazi to Dr. Mark Ciota whom the employee saw on December 20, 2001. The doctor concluded the employee had received appropriate medical care for his patellar fracture and had reached maximum medical improvement. Dr. Ciota stated the employee might have some chondromalacia of the patella but felt that should resolve over the next six to eight months and opined no further medical care was necessary.
In May 2002, the employee saw Dr. Steven Kirkhorn on referral from Dr. Smith. Dr. Kirkhorn diagnosed right knee pain and recommended restrictions on lifting, standing and walking together with a corticosteroid injection of the right knee. In June 2002, Dr. Smith wrote to Dr. Ciota stating the employee had ongoing knee pain and was a candidate for a corticosteroid injection for persistent pain. On July 29, Dr. Ciota concluded the employee had sustained some early post-traumatic arthritis and provided a Depo-Medrol injection into the right knee.
On August 5, 2002, the employee saw Dr. Edwin Harrington, an orthopedic surgeon within the plan. The doctor noted he had insufficient medical records for a thorough evaluation and the employee signed a release of information form. In December 2002, Dr. Harrington examined the employee and noted a 10-degree extensor lag of the right knee with mild to moderate tenderness over the patella. The doctor stated work restrictions remained appropriate. In May 2003, Dr. Harrington noted the employee had a marked pain response out of proportion to physical findings but recommended further physical therapy. In August 2003, Dr. Harrington stated the employee had reached maximum medical improvement, and placed permanent restrictions on the employee, including no lifting over 40 pounds and no pushing/pulling over 50 pounds with four hours a day of sitting and four hours a day of standing and walking.
The employee filed a claim petition seeking temporary total disability benefits from and after July 16, 2003, and payment of certain medical expenses. Following a hearing, a compensation judge at the Office of Administrative Hearings adopted Dr. Harrington=s opinion regarding physical restrictions and found the need for those restrictions resulted from the employee=s personal injury. The compensation judge found the employee had reached maximum medical improvement and awarded temporary total disability benefits from July 16 through December 19, 2003. Finally, the compensation judge ordered the insurer to pay for medical care to the employee=s low back through August 20, 2003, and to pay for all right knee treatment. No party appealed from the compensation judge=s findings and order.
The employee returned to see Dr. Harrington on March 8, 2006, complaining of constant knee pain with numbness and cramping in his right leg. The doctor diagnosed diffuse pain, weakness, and numbness of the right leg far out of proportion to the physical findings with no objective signs of any weakness or numbness. Dr. Harrington reviewed a functional capacities evaluation done at Saunders Therapy Center in August 2005 and felt the evaluation was reasonable. The doctor opined the employee was capable of working within his previously established restrictions.
In December 2006, the employee saw Dr. Devanshu Kansara at the Tria Orthopaedic Center. The clinic is not a provider in the employer=s managed care plan. The employee gave a history of a work injury in March 2001, followed by an open reduction internal fixation of the right patella. Since the surgery, the employee reported, his knee swelled occasionally with intermittent pain under the kneecap, worsened by activities. He reported a cracking sound under the kneecap associated with a catching sensation and pain going up and down stairs. The employee gave a history of four injections into his knee which gave him 50 percent pain relief for four to five months, but denied having received any physical therapy. An x-ray of the employee=s right knee demonstrated moderate to severe joint space narrowing suggestive of patellofemoral arthritis. On examination, Dr. Kansara noted maximal tenderness over the patella and 2+ patellofemoral crepitation. Dr. Kansara diagnosed patellofemoral arthritis and mild medial compartment arthritis of the right knee. The doctor discussed with the employee non-surgical treatment options including activity modification, medication, corticosteroid injections, and physical therapy. Dr. Kansara stated he would consider a total knee arthroplasty only if the employee=s pain persisted despite non-surgical management. In January 2007, Dr. Kansara re-examined the employee, again discussed treatment options and the employee elected to undergo a total knee arthroplasty.
The deposition of Dr. Harrington was taken by the employer and insurer on March 19, 2007. The doctor testified he treated the employee from August 5, 2002, through March 8, 2006, and stated consistently throughout his examinations the employee=s complaints were out of proportion to the physical findings. The doctor testified that as of March 2006, the employee=s symptoms were unchanged since 2002. Accordingly, he recommended no further medical treatment for the employee. Dr. Harrington denied that he referred the employee to the University of Minnesota or any other knee specialist because the doctor felt it was unnecessary. Dr. Harrington opined, however, the employee did require permanent restrictions due to his personal injury. Assuming the employee had osteoarthritis of the patellofemoral joint as diagnosed by Dr. Kansara, Dr. Harrington agreed that diagnosis could cause additional crepitus and pain for the employee. The doctor further agreed that if the diagnosis was correct, further treatment was reasonable. Given the employee=s wish to treat with another doctor, Dr. Harrington testified the trust relationship between he and the employee was Ashot@ and stated it would be reasonable for the employee to seek additional treatment elsewhere.
The employee filed a medical request seeking to change physicians from Dr. Harrington to Tria Orthopaedics and seeking payment of an outstanding bill from Tria Orthopaedics. Following a hearing, the compensation judge found the employee was in need of further treatment for his right knee, allowed the employee to change physicians to Tria Orthopaedic Center and ordered the employer and insurer to pay the outstanding medical expenses at Tria Orthopaedic Center. The employer and insurer appeal.
1. Need for Additional Treatment
The employer and insurer contend the compensation judge erroneously relied on Dr. Kansara=s diagnosis and his opinion that the employee needs further medical treatment. Specifically, they assert Dr. Kansara was not provided with the records of Dr. Thompson, the surgeon who initially treated Mr. Sanchez, nor any medical records regarding the March 2001 surgery. Dr. Kansara, the appellants contend, was unaware the employee had physical therapy following his surgery, was unaware of prior x-rays and unaware of the reports of Drs. Kazi, Ciota, Smith, Harrington, and Holtz reporting pain complaints in excess of objective findings. The appellants acknowledge minor facts may be omitted from a hypothetical question without damaging foundation or the weight to be given the opinion. See, e.g., Scott v. Southview Chevrolet Co., 276 N.W.2d 185, 30 W.C.D. 426, (Minn. 1978). But, in this case, the appellants argue, the omission of over five years of treatment with multiple doctors and multiple physical therapy referrals is not minor, but an omission of significant and material facts. The appellants maintain that because Dr. Kansara lacked an adequate factual background his opinions lack foundation. Accordingly, the employer and insurer argue the judge=s finding that the employee needs further medical treatment should be reversed.
AThe competency of a witness to provide expert medical testimony depends upon both the degree of the witness= scientific knowledge and the extent of the witness= practical experience with the matter which is the subject of the offered testimony.@ Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983). To establish an adequate foundation, the facts upon which an expert relies for his or her opinion must be supported by the evidence. McDonald v. MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990). Prior to making his diagnosis, Dr. Kansara obtained a history from the employee, independently reviewed x-rays of the right knee compared to the left knee, and examined the employee on two occasions. The x-rays demonstrated moderate to severe patellofemoral joint space narrowing. On examination, Dr. Kansara noted 2+ patellofemoral crepitation. Based on the x-rays and his examination findings, in combination with his expertise as a medical doctor with an orthopedic practice, Dr. Kansara diagnosed patellofemoral arthritis and recommended treatment based on this diagnosis. In addition, Dr. Kansara was aware the employee had injured his knee in a fall at work in March 2001, that he had sustained a patella fracture, and that surgery was performed by Dr. Thompson in 2001 in the nature of an open reduction internal fixation. At the January 25, 2007, examination, the employee reported he had not gone to physical therapy because he had tried therapy in the past without any significant relief. Moreover, after reviewing Dr. Kansara=s medical reports, Dr. Harrington agreed that based upon the recent x-rays, Dr. Kansara=s diagnosis was reasonable. (Resp. Ex. 1 at 70-71.) While a review of the employee=s medical records may have been instructive to Dr. Kansara, in this case, we cannot conclude a lack of such review rendered his opinion without foundation. Accordingly, the compensation judge could reasonably rely on the opinions of Dr. Kansara.
The employee testified he was never able to return to his old job with the employer after his injury. Since March 8, 2006, the date of his last appointment with Dr. Harrington, the employee stated he has continued to have pain in his right knee with a lack of strength causing problems walking and standing. The employee=s testimony together with the opinions of Dr. Kansara support the compensation judge=s finding that the employee requires further medical treatment for his right knee injury. That decision is, therefore, affirmed.
2. Managed Care Plan
The employer and insurer contend the compensation judge erred in permitting the employee to change to a physician outside the managed care plan. They contend Minn. Stat. ' 176.1351 and the rules enacted thereunder provide no applicable exception allowing the employee to obtain treatment outside the plan.
Minn. Stat. ' 176.1351 provides for the establishment of managed care plans. Where treatment for a work injury is provided through a managed care plan, the Aemployee must exhaust the dispute resolution procedure of the certified managed care plan prior to filing a petition or otherwise seeking relief from the commissioner or a compensation judge on an issue related to managed care.@ Minn. Stat. ' 176.1351, subd. 3. The parties stipulated the employee exhausted the plan=s dispute resolution process and appropriately filed a medical request.
The commissioner has adopted rules governing managed care plans in chapter 5218 of the Minnesota Rules, as permitted by subdivision 6 of the statute. Minn. R. 5218.0500, subp. 1, specifically authorizes the provision of medical services by a health care provider who is not a participating provider in four circumstances. Subpart 1.C. provides that a Anonparticipating provider may deliver services to an employee when the employee is referred to the provider by the managed care plan.@ The employee asserts that Dr. Harrington, at least indirectly, referred the employee to Tria Orthopaedics for further treatment. We disagree. While Dr. Harrington may have agreed that if the employee had patellofemoral arthritis additional treatment may be necessary, the doctor did not specifically refer the employee to Tria Orthopaedic Center. Accordingly, Minn. R. 5218.0500, subp. 1.C., is inapplicable in this case.
We further conclude the exceptions contained in items A., B., and D. of Minn. R. 5218.0500, subp. 1, are inapplicable in this case. There is no evidence the employee had a documented history of treatment with Dr. Kansara prior to his personal injury as provided in subp. 1.A., Dr. Kansara was not providing emergency treatment within the meaning of subp. 1.B., and the employer admitted liability for the employee=s personal injury so subp. 1.D. is inapplicable.
While acknowledging that none of the exceptions contained in the rule may be applicable here, the employee contends there must be a Asafety valve@ for employees treated in managed care plans. The employee asserts that although he followed the dispute resolution process, the employer=s managed care plan refused to approve any additional treatment and took the position no further medical treatment was necessary. The plan=s position, the employee contends, operated as a denial of any further medical care, whether inside or outside the plan. In response, the appellants argue that Minn. R. 5218.0500, subp. 1, provides the sole exceptions for obtaining treatment outside the plan. If the employee is in need of further medical treatment, the appellants assert it should be provided inside the plan. Accordingly, the employer and insurer ask that the case be remanded to the compensation judge for a finding of whether the employee is entitled to a change of physician within the managed care plan.
Under Minn. R. 5218.0200, a managed care plan must provide comprehensive medical services to the employee according to its certification and Ain the manner prescribed by the terms and conditions of the managed care plan contract.@ Minn. R. 5218.0200, subps. 1 and 5. The court does not have before it any part of the managed care plan contract or certification, its dispute resolution process, or any of the documents generated by the parties in the dispute resolution process. No representative of the managed care plan appeared or testified at the hearing. There is no evidence before us that the managed care plan afforded the employee an opportunity to obtain further treatment within the plan. Based upon the parties= assertions in their briefs, it appears the primary issue in the dispute resolution process was whether the employee could change physicians to obtain additional medical care. It appears either the plan, the employer, and/or the insurer took the position the employee needed no further medical care as opined by Dr. Harrington and denied the employee=s request to see another doctor. The compensation judge recognized the employee=s situation was then problematic, stating, Athe employee is then limited in his ability to receive reasonable and necessary medical care, regardless of whether or not that care is within the treatment parameters. If the health care providers in the plan feel they have nothing to offer the employee, and he is in need of treatment, he must have the opportunity to obtain medical care outside of the plan.@ (Mem. at 6.) We agree. It is inconsistent with the requirements of Minn. Stat. ' 176.135 to deny the employee medical treatment inside the plan and also deny the employee the opportunity to obtain necessary treatment outside the plan. If the managed care plan will not provide the employee reasonable and necessary medical care, the employee must have the right to seek necessary care outside the plan. Based upon the unique facts in this case, the decision of the compensation judge is affirmed.
 See Minn. R. 5223.0510, subp. 3.A.
 In August 2003, the parties reached a stipulated settlement in which the employer and insurer allowed the employee to change physicians to Dr. Harrington and agreed to a rehabilitation consultation with Gwen Hendrickson, a Qualified Rehabilitation Consultant. The parties further agreed to abide by the rules of the managed care plan. An Award on Stipulation was served and filed on September 5, 2003.
 On cross examination, Dr. Harrington was asked to review Dr. Kansara=s reports of his two examinations of the employee.
 In his brief, the employee asserts the plan stated in its final determination of the dispute process that A[i]t does not appear that Mr. Sanchez is in need of any further medical opinions or treatment that is likely to be helpful regarding his right knee.@ (Resp. Br. at 9.)
 In its brief the appellants state: AThe Managed Care Plan reviewed his case and determined he did not need a change of physicians. The issue before the Managed Care Plan was whether he could change physicians, not to change to an orthopedic surgeon outside the Plan. Simply because the Plan disagreed with his request for a change of physicians does not mean he can make the leap to treating outside the Plan.@ (App. Br. at 21.)
 The parties did not provide the compensation judge or this court with sufficient information about the managed care plan or the dispute resolution procedure to establish any law or precedent. Accordingly, the decision herein is limited to the facts of this case.