AUGUSTINE G. GARCIA, Employee/Appellant, v. NORTHERN STATES POWER CO., SELF-INSURED, and INJURED WORKERS PHARMACY, Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
FEBRUARY 22, 2008
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Given the high cost of and number of prescriptions at issue and the relative lack of evidence concerning the purpose and efficacy of those prescriptions, it was not unreasonable for the compensation judge to deny the employee’s claim for payment.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: Lorrie L. Bescheinen, Borkon, Ramstead, Mariani, Fishman, & Carp, Minneapolis, MN, for the Appellant. Kerry Koep, Minneapolis, MN, for the Respondent.
DEBRA A. WILSON, Judge
The employee appeals from the judge’s decision denying prescription medication costs from February 24, 2006, through May 3, 2007. We affirm.
The employee sustained a work-related injury to his low back on June 7, 1979, while working for NSP [the employer]. The self-insured employer admitted liability for the injury. The employee underwent lumbar fusion surgery in November of 1983 and was paid benefits for a 15% permanent partial disability of the back. The employee has experienced periodic flare-ups of low back pain since that time.
On January 15, 2001, the employee sustained a work-related injury to his neck and back while employed by the employer. The effects of the neck injury continued but the injury to the low back was temporary. The employee underwent additional surgery to the low back on August 26, 2004. He has also undergone conservative treatment for his low back and neck, including physical therapy, exercises, and medications.
On January 17, 2005, the employee was seen by Dr. Margaret Wallenfriedman for followup of his low back condition. At that time, he complained of some occasional lumbar sacral pain. She recommended an anti-inflammatory, heat, ice, and physical therapy for the occasional pain.
On May 15, 2005, the employee was examined by independent medical examiner Dr. Mark Friedland. At that time, the employee complained of constant low back pain with constant right gluteal numbness and pain. The employee also reported experiencing neck pain every three or four days. Dr. Friedland noted that the employee used Neurontin, Celebrex, and tizanidine for pain. It was Dr. Friedland’s opinion that the employee did not require any further treatment with respect to his neck or low back conditions.
When seen again by Dr. Wallenfriedman on July 25, 2005, the employee complained of right lower extremity pain traveling down the posterior aspect of his leg to his knee. He was also starting to feel weakness and numbness in the leg. Dr. Wallenfriedman ordered an MRI to determine whether there was impingement on the nerve root or disc reherniation. Apparently the MRI and a subsequent CT myelogram disclosed no basis for the leg pain.
The employee was seen by Dr. John Beall on January 10, 2006, for followup of his neck pain. Dr. Beall indicated that the employee had experienced chronic neck and low back pain since the work accident in January 2001, and the doctor noted that it was difficult for the employee to drive safely because he had trouble rotating his neck. Dr. Beall diagnosed chronic neck pain and referred the employee back to Dr. Sherief Mikhail for some intensive therapy.
In mid-January of 2006, the employee and the employer and insurer entered into a stipulation for settlement. The award on stipulation was filed on February 1, 2006.
When seen by Dr. Mikhail on January 25, 2006, the employee was complaining of increasing neck and upper back pain as well as pain between his shoulder blades and headaches. Dr. Mikhail noted that the employee had been managed on “an anti-inflammatory and a non-narcotic pain medication” but that he was no longer using either medication. Dr. Mikhail diagnosed nonspecific cervical spine pain and headaches. He started the employee on Celebrex as an anti-inflammatory and indicated that the employee “will continue Tizanidine 4mg one to two tablets at bedtime for analgesia, headache prevention, muscle relaxation and to maintain a good sleep pattern.” The doctor also ordered an MRI. When the employee returned to Dr. Mikhail on February 20, 2006, he reported improvement in his neck and upper back pain. An MRI on January 27, 2006, showed mild to moderate widely-scattered changes of cervical spondylosis. Dr. Mikhail recommended that the employee continue Celebrex and tizanidine and that he take Neurontin at bedtime “since this has alleviated some of his neuropathic complaints.” It was Dr. Mikhail’s opinion that “the patient will require this medication regimen for continued pain management. When the patient does not take these medications, he does have a significant increase in his discomfort.”
Injured Workers Pharmacy records reflect that Dr. Beall prescribed and the employee filled prescriptions for Celebrex, tizanide, and the generic form of Neurontin on February 24, 2006, May 18, 2006, and August 9, 2006. In addition, the employee filled prescriptions for baclofen on July 21, 2006, and August 22, 2006.
The employee returned to Dr. Beall on August 22, 2006, for followup of his neck pain. He indicated that his neck pain was getting worse and that, as a result of that pain, he was only getting three hours of sleep a night. At that time, Dr. Beall assessed chronic neck pain and increased the employee’s dosage of Neurontin. The employee filled prescriptions for Neurontin on August 25, 2006, and October 17, 2006.
On October 30, 2006, the employee was seen again by Dr. Beall, who recorded that the employee had “back and neck pain acting up, chronic. Has never taken anything.” He also noted that the employee’s blood pressure was “up a bit.” The doctor’s assessment at that time was back pain, and he prescribed Ultram, noting that the employee “has been to a lot of physical therapy in the past.” With regard to the hypertension, the doctor started the employee on “hctz.” Thereafter the employee filled prescriptions for tizanidine, Celebrex, tramadol, acetaminophen/codeine, baclofen and Neurontin.
The employee returned to Dr. Beall on January 4, 2007, complaining of ongoing neck pain and headaches. Dr. Beall noted that the employee
has been to physical therapy and has seen neurosurgeons and he is currently not a surgical candi[d]ate. He needs some help with pain control. He has been successfully avoiding narcotics but he has not been sleeping well due to pain. He is having problems with work comp as well. He is on muscle muscle relaxants (Tizanidine, Baclof[e]n & Ultram) which had been enough. He also takes Neurontin.
On exam, the doctor noted decreased range of motion in the employee’s neck and tenderness along the spine. He diagnosed chronic neck pain and noted that the employee would continue on his current medications and also take Vicodin 5/500 “up to 4 tabs per day.” Thereafter, the employee filled prescriptions for 180 tablets of hydrocodone on January 5, 2007, January 29, 2007, February 21, 2007, March 16, 2007, and April 9, 2007. In addition, he continued to refill prescriptions for Ultram, baclofen, Neurontin, tizanidine, and Celebrex.
On April 24, 2007, the employee had a neurological consultation with Dr. Neil Dahlquist. The doctor’s impression was chronic pain syndrome related to “Workman’s Compensation injuries involving the neck and lower back.” In his letter of that date, Dr. Dahlquist noted that the employee was taking prednisone, Neurontin, medications for asthma, tizanidine, Celebrex, baclofen, atenolol, and Fosamax. He did not mention Vicodin or Ultram. It was his recommendation that the employee switch from Neurontin to Lyrica. Thereafter, on May 2, 2007, the employee refilled a prescription for Vicodin, and on May 3, 2007, he filled a prescription for Lyrica.
The employee filed a claim petition on August 9, 2006, seeking payment of medical benefits including prescription medications filled at Walgreens pharmacy and at Injured Workers Pharmacy.
The matter proceeded to hearing on May 17, 2007. At hearing, the employee testified that he takes prednisone, Allegra, Advair, Singular, and albuterol for his asthma and that he takes atenolol for his high blood pressure. He claimed reimbursement for Celebrex, tizanidine, Neurontin, baclofen, Ultram, acetaminophen/codeine, Vicodin, and Lyrica. He testified that he takes the Vicodin only when “my pain gets real bad,” that “I don’t take it unless I absolutely have to take it.” He was unable to explain what most of his medications were for.
The record in the case closed on August 14, 2007, after approval of a partial award on stipulation. In findings and order filed on October 9, 2007, the compensation judge found that the 1979 and 2001 work injuries were a substantial contributing cause of the employee’s need for Neurontin and tizanidine, filled by Walgreens Pharmacy on February 5, 2006, and February 14, 2006, and the judge ordered payment of those charges. However, the judge found that the prescriptions filled by Injured Workers Pharmacy from February 24, 2006, through May 3, 2007, were not reasonable and necessary. The employee 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).
The employee contends that the compensation judge erred in finding that the medications filled at Injured Workers Pharmacy were not reasonable and necessary, when there was no doctor’s opinion to that effect. We are not persuaded.
The employee has the burden of proving that the health care services are reasonable and necessary. Wright v. Kimro, 34 W.C.D. 702 (W.C.C.A. 1982) The reasonableness and necessity of medical treatment under Minn. Stat. § 176.135 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). A compensation judge may not ignore or “disregard” uncontroverted medical opinion. See Flansburg v. Giza, 284 Minn. 199, 169 N.W.2d 744, 25 W.C.D. 3 (1969). Such opinion, however, is not necessarily conclusive upon the trier of fact. See Tuomela v. Reserve Mining Co., 299 Minn. 203, 216 N.W.2d 638, 27 W.C.D. 312 (1974). In the instant case, all of the medications filled at Injured Workers Pharmacy were prescribed by Dr. Beall. However, Dr. Beall did not provide any report or narrative that would explain the reasonableness and necessity of the medications he prescribed, and his office notes are generally vague at best. The fact that a physician has prescribed medications or that the medications are related to a specific injury does not automatically qualify those medications as reasonable and necessary.
The employee further contends that medical records indicate that Dr. Beall changed the employee’s medications “to try to find a combination that would decrease his pain and increase his function.” Later in his brief, the employee states, “[i]t appears the primary purpose of his current medical care and treatment is to provide him with a level of function that will allow him to perform some activities at home although he will not be returning to the work place.” However, there is no statement from the doctor to that effect. Nowhere in Dr. Beall’s office notes does he indicate that he is trying to increase the employee’s function, and a review of his prescriptions suggests that he simply added one prescription on top of another, rather than trying to find a combination.
For example, Dr. Beall first prescribed Ultram on October 30, 2006. The employee contends, that “after a trial of [Ultram], Dr. Beall determined that [Ultram] was not proving to be effective. Therefore, in lieu of [Ultram] the employee was prescribed [Vicodin].” This is not borne out by the record. The employee filled a prescription for an 87-day supply of Ultram on November 1, 2006. The Vicodin was prescribed on January 4, 2007, and the employee received a 30-day supply of Vicodin on January 5, 2007. He then got another 87-day supply of Ultram on January 20, 2007, and another 30-day supply of Vicodin on January 29, 2007. There is no evidence in Dr. Beall’s records or the pharmacy printout that the Vicodin was prescribed in lieu of the Ultram. Rather, the records would suggest that the employee was using both medications at the same time.
Substantial evidence supports the denial of the various medications as not reasonable and necessary. Baclofen was first prescribed on July 21, 2006, and there is no notation in Dr. Beall’s records as to why that was prescribed. A prescription for acetaminophen/codeine #3 was filled at the Injured Workers Pharmacy on November 2, 2006. Dr. Beall’s records contain no information as to why that medication was prescribed at that time, and the employee testified that he was trying to avoid narcotic medications because he is a recovering alcoholic.
The compensation judge found that Vicodin had been dispensed in excess of the recommended dosage. That finding is well supported by the evidence. The Injured Worker Pharmacy records reflect that the employee received 1080 tablets of Vicodin in a 118-day period. Even if 30 days are added onto the date of the last refill, the employee had 1080 tablets to cover 148 days, which averages out to 7.3 tablets a day, when Dr. Beall had prescribed only “up to 4 a day.” In addition, the employee testified that he tried to avoid taking narcotic medications and that he does not take the Vicodin unless he absolutely has to. The employee further contends that Injured Workers Pharmacy is a mail order pharmacy and that to “assure continuity for the Employees in taking their medication, it is necessary for them to send medications early in order to assure their arrival [i]n a timely manner.” However, the employee submitted no evidence to support that contention.
The employee also contends that there is no evidence that any of the employee’s physicians had any concerns about the employee’s use of medications as prescribed by Dr. Beall. However, there is no evidence that any doctor was aware of all of the medications that Dr. Beall was prescribing, and there is no evidence that Dr. Beall was aware of the numerous medications that the employee was taking for asthma. Also, while Dr. Dahlquist listed many of the employee’s medications in his April 24, 2007, letter, he did not identify the asthma medications by name and did not appear to be aware that the employee was taking Vicodin and Ultram. There is ample support in the record for the judge’s comment, in her memorandum, that Dr. Beall was not monitoring the employee’s medication use.
The compensation judge listed “considerations which may be relevant in determining whether services are reasonably required,” including, evidence of a reasonable treatment plan, documentation of the details of the treatment, the degree and duration of relief resulting from the treatment, whether the frequency of treatment is warranted, the relationship of the treatment to the goal of returning the employee to suitable employment, potential aggravation of underlying conditions, duration of treatment, and cost. See Field-Seifert v. Goodhue County, slip op. (W.C.C.A. Mar. 5, 1990). The judge considered many of these factors and adequately addressed them in her decision.
Finally, the employee contends that a denial of reasonable and necessary medical treatment should not result “just because a treatment plan does not include a return to work possibility.” We agree, but we are not persuaded that the judge denied the claimed prescription costs on that basis. Rather, the judge pointed to Dr. Beall’s records as failing to document a comprehensive treatment plan or the necessity for each prescription, the lack of evidence concerning the degree and duration of relief resulting from the medications, and concern about the cost of the prescriptions. Under these circumstances, the judge’s statement that “[t]he employee has not been working for the period of February 24, 2006 through March 29, 2007, when the medications were dispensed by Injured Workers Pharmacy,” does not establish that the judge believed that return to work is a necessary part of any treatment plan.
The total cost of the prescriptions at issue was $9,906.69, for a period of just over 14 months. Given that high cost and the relative lack of evidence in the record as to the purpose and efficacy of the medications, it was not unreasonable for the compensation judge to deny payment for the prescriptions filled by the Injured Workers Pharmacy. The judge’s decision in that regard is therefore affirmed.
 See Findings and Order filed October 9, 2007.
 According to Dr. Wallenfriedman’s records.
 The employee identified Dr. Beall as his treating physician.
 Records submitted at hearing do not establish when the employee was first seen by Dr. Mikhail.
 The stipulation for settlement fully, finally, and completely resolved all of the employee’s claims arising out of alleged injuries of June 4, 1981, January 1, 1970, and June 7, 1979, with the exception of future non-chiropractic medical expenses.
 As doctors refer to the drug as Neurontin in this case, we will use that name hereafter.
 Tramadol is the generic form of Ultram. Hereinafter we will use the name Ultram for this medication.
 Vicodin is the brand name for hydrocodone bitartrate and acetaminophen. We will use the term Vicodin for this medication hereafter.
 This partial stipulation for settlement settled all claims of intervenor St. Paul Radiology/Midwest Radiology as they related to several injuries, including those of June 7, 1979, and January 15, 2001.
 The employee contends that Dr. Beall recommended a trial of baclofen as a result of an increase in neck pain. We have no office note from July 2006. On January 4, 2007, Dr. Beall does mention that the employee is taking baclofin as a muscle relaxant but does not explain why the employee needed an additional muscle relaxant when the employee was taking tizanidine and Ultram for that purpose.
 The employee testified that Dr. Flynn prescribed his asthma medications.
 Dr. Mikhail’s office note of January 25, 2006, provides some evidence that the use of Celebrex, tizanidine and Neurontin may have been reasonable and necessary to relieve the effects of the employee’s work injury at that time. However, there is no evidence that those medications continued to be reasonable and necessary when repeatedly prescribed by Dr. Beall, particularly when he prescribed numerous additional medications. At hearing, the employee did not testify about the various medications prescribed by Dr. Beall, and there was no evidence as to whether those medications allow the employee to function better or as to the degree of relief obtained.