DENISE A. HAUSLADEN, Employee/Appellant, v. EGAN MECH. and GALLAGHER BASSETT SERVS., INC., Employer-Insurer, and COLUMBIA PARK MED. GROUP, Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
JULY 7, 2008
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS. Under the circumstances of this case, the compensation judge reasonably concluded that there was no dispute as to causation for purposes of applying the treatment parameters. Remand was required, however, for findings as to whether a departure from the parameters was warranted.
Affirmed in part, vacated in part, and remanded.
Determined by: Wilson, J., Stofferahn, J. and Johnson, C.J.
Compensation Judge: Janice M. Culnane
Attorneys: David B. Kempston, Law Office of Thomas D. Mottaz, Coon Rapids, MN, for the Appellant. Jay T. Hartman, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the judge’s finding that the permanent treatment parameters apply to her request for a pain clinic evaluation and from the judge’s resulting denial of the claim. We affirm in part, vacate in part, and remand for further findings.
The employee sustained a work-related injury to her low back on June 6, 2006, while working for Egan Mechanical [the employer] as a sheet metal worker. She began treatment with Kimberly Hauch, PA-C, at the Columbia Park Medical Group on June 27, 2006. Ms. Hauch diagnosed lumbar sprain/strain, low back pain, and intermittent leg pain, released the employee to return to work with limitations, and prescribed medications and physical therapy. The employee was seen again by Ms. Hauch on July 6, July 14, July 24, and August 1, 2006. The employee also attended five physical therapy sessions at the Columbia Park Medical Group from July 11, 2006, to July 24, 2006. At the August 1, 2006, appointment, Ms. Hauch “called for approval for a lumbar MRI.” That scan, performed on August 3, 2006, revealed degenerative disc disease.
The employee subsequently returned to Columbia Park Medical Group on August 9, 2006, and was seen by Dr. Jeffrey D. Meyer. Dr. Meyer assessed acute low back pain, continued the employee on work restrictions and medications, and “discussed referral to PNBC if she does not make a good recovery with conservative treatment.” The employee returned to Dr Meyer on August 16, 2006, at which time he made the referral to Physicians Neck and Back Clinics [PNBC] “for evaluation for an intensive strengthening program.”
The employee was examined by Dr. Alison Coulter at PNBC on August 30, 2006. Dr. Coulter recommended that the employee participate in an active rehabilitation program, twice a week. On December 18, 2006, after 29 sessions, Dr. Coulter released the employee to resume regular work duties, without restriction, and discontinued formal active rehabilitation. Dr. Coulter also encouraged the employee to quit smoking, to increase her cardiovascular exercise, and to use a Roman chair.
According to Dr. Meyer’s office note of January 5, 2007, the employee’s back pain was by that time better but “not gone.” Dr. Meyer also noted that the employee had completed the intensive strengthening program at PNBC and had attained normal strength. At that time, he released the employee to return to work with no limitations and stressed that she needed to obtain a Roman chair.
On April 13, 2007, the employee was again evaluated by Dr. Meyer. In his office note of that date, he reported that the employee had not yet obtained the Roman chair, and he referred her to Dr. Miles Belgrade at the University Fairview Pain Center.
The employee filed a Request for Certification of Dispute on June 11, 2007, indicating that claims adjuster Stephanie Lieser had denied approval for the referral to Dr. Belgrade as recommended by Dr. Meyer. The request also indicated that the charge for the April 17, 2007, visit with Dr. Meyer remained unpaid. The following month, on July 18, 2007, the employee filed a medical request seeking payment of the April 17, 2007, medical bill from Columbia Park Clinic and approval for the referral to Dr. Belgrade.
The employer and insurer filed their medical response on August 3, 2007. The first page of that response indicated that “the referral for pain clinic treatment is not reasonable, necessary or causally related to the employee’s injury.” The second page contained a more detailed explanation as to why the request should not be granted.
The medical request initially came on for an administrative conference on September 5, 2007, at which time the employer and insurer also argued that the employee did not meet the requirements for a chronic pain evaluation under the treatment parameters.
The employee underwent an independent medical examination on September 25, 2007. In his report of that date, Dr. David W. Florence opined that the incident of June 6, 2006, was “at most, a temporary aggravation of a pre-existing condition” and that recovery “should have been complete within three weeks.” He also stated that he did not feel that the employee “is an appropriate candidate for a chronic pain rehabilitation program.”
A hearing took place at the Office of Administrative Hearings on January 11, 2008. In findings and order filed on February 11, 2008, the compensation judge made an unappealed finding that the employer and insurer had admitted liability for the employee’s injury and paid both wage loss and medical benefits. The judge also found that the treatment parameters were applicable to the employee’s request for referral to a pain clinic and that that treatment was not reasonable and necessary under the workers’ compensation law. 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 (2008). 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 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).
Relying on Oldenburg v. Phillips & Temro Corp., 60 W.C.D. 8 (W.C.C.A. 1999), the employee contends that the treatment parameters are inapplicable to the case because the employer and insurer denied causation. We are not persuaded.
In Oldenburg, the employer and insurer had filed a notice of primary liability determination in which they interposed a primary denial of liability. Approximately a month later, the employee filed a medical request seeking payment of chiropractic expenses, and the employer and insurer responded by reiterating their denial of primary liability. The employee subsequently filed a claim petition, and, in their answer, the employer and insurer again specifically denied primary liability and set out a date for an independent medical examination. The examiner ultimately opined that the employee had sustained a temporary aggravation of a preexisting condition, which would have lasted no longer than 90 days. At hearing on the claim petition, the attorney for the employer and insurer indicated that the insurer had paid certain of the claimed treatment expenses but asserted that the employee’s injury was merely temporary, ending at “90 days or thereabouts.”
The compensation judge in Oldenburg applied the treatment parameters and denied the employee’s claim. On appeal, this court reversed, stating, “an employer and insurer alleging that an injury is merely temporary may not reasonably rely on the parameters to deny payment for treatment rendered after the alleged resolution of the injury.” Id. at 13.
Pursuant to Minn. R. 5221.6020, subp. 2, the medical treatment parameters “do not apply to treatment of an injury after an insurer has denied liability for the injury.” See, e.g., Johnson v. Northern Pride, slip op. (W.C.C.A. July 15, 1999). Denial of causation for a condition is no different than a denial of primary liability for the purposes of application of this rule. Mattson v. Northwest Airlines, slip op. (W.C.C.A. Nov. 29, 1999).
In the present case, the independent medical examiner did find that the work injury was merely temporary. However, this was never raised as a defense to the employee’s claim for a referral to a pain clinic. Rather, the employer and insurer have consistently maintained that the employee is not entitled to referral because she has not been compliant with the physical medicine treatment modalities that are appropriate for resolution of her symptoms and because the treatment parameters do not allow for a referral in this case. It appears that the insurer paid for all other medical treatment, including the April 13, 2007, office visit with Dr. Meyer. A single statement on the first page of the medical response constitutes the only indication that the employer and insurer were denying causation for the requested pain clinic evaluation. That sentence, when viewed in conjunction with the explanation on the second page and the insurer’s approval and payment of all other medical expenses, cannot reasonably be viewed as a denial of causation. Substantial evidence therefore supports the judge’s conclusion that the treatment parameters are applicable.
The employee apparently concedes that, under the applicable treatment parameters, she is not entitled to the referral to a pain clinic. She argues, however, that remand is necessary for a determination as to whether a departure is warranted under the “rare case exception.” See Jacka v. Coca-Cola Bottling Co., 580 N.W.2d 27, 58 W.C.D. 395 (Minn. 1998). We agree that a remand is warranted.
At the beginning of the hearing, the compensation judge stated that the single issue at hearing was “whether the recommendation of Dr. Meyer for a pain clinic treatment with Dr. Belgrade . . . is reasonable and necessary to cure and relieve the effects of the employee’s work related injury.” And, in his opening statement, the attorney for the employee argued that, if the treatment parameters applied, then “this is a rare and unusual circumstance where a departure would be warranted.” Contrary to the employer and insurer’s argument on appeal, we do not believe that the judge “implicitly found that a departure was not warranted when she determined that the employee’s ‘request for a medical evaluation and follow-up is not reasonable and necessary medical treatment under the Minnesota Workers’ Compensation Law.’” As the employer and insurer concede in their brief, the compensation judge “did not articulate her rationale for determining that the requested treatment was not reasonable and necessary.”
We see no indication in the record that the employee’s entitlement to a departure, under the applicable departure rule, was litigated or decided, a necessary step in determining the compensability of the claimed treatment. For that reason, we remand this case to the compensation judge to determine whether a departure is warranted under Minn. R. 5221.6050, subp. 8. If the employee does not establish that the requirements of the departure rule were satisfied, the judge should then consider whether the employee qualifies for a “rare case” exception as contemplated by Jacka. See Martin v. Xerox Corp., 59 W.C.D. 509 (W.C.C.A. 1999).
 The employee apparently presented the “no restrictions” slip to the employer on or about January 9, 2007, but was laid off shortly thereafter. The employee received unemployment benefits until she was hired by Metropolitan Mechanical in June of 2007. Since that time she has worked full time, without restrictions or time loss due to her injury, as a sheet metal worker.
 First, upon information and belief, there does not appear to be a dispute relating to the employee’s treatment charges at Columbia Park Medical Group. The employer and insurer do deny, however, the employee’s claim for a pain clinic evaluation or treatment. The employee’s injury involved a lumbar strain. Her MRI scan is benign. The employee went through appropriate treatment at PNBC, regaining full strength and showing great symptomatic relief. The employee has been admonished to continue with strengthening exercises including a Roman chair, Swiss ball or other similar apparatus, and has failed to do so, thereby reverting to the deconditioned state which is responsible for her symptoms. The employee is not entitled to a pain clinic evaluation because she has not been compliant with the physical medicine treatment modalities which are appropriate to resolution of her symptoms. The employee has age-appropriate, cigarette-induced or aggravated degenerative disc disease, and would not be expected to benefit from the psychological approach to pain management utilized in pain clinics in general and with Dr. Miles Belgrade specifically.
 The examination was not performed until after the medical conference.
 See Respondent’s Exhibit 3, which was admitted into evidence at hearing with no objection. This decision and order from the medical conference states, “The Employer/Insurer’s counsel stated during the conference that there was no argument that the requested treatment was not causally related to the work injury.”
 This is the only evidence referenced in the employee’s appeal brief. We note that there apparently was a problem with the tape recording of the employer and insurer’s opening statement at hearing, much of which was “unintelligible.” There is no suggestion on appeal, however, that the employer and insurer were arguing about “causation” at trial.