RONALD C. BROWN, Employee, v. REM CENT. LAKES and LIBERTY MUT. INS. CO., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 25, 2009
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS; RULES CONSTRUED - MINN. R. 5221.6200, SUBP. 6C(1). Where there was expert opinion supporting the reasonableness and necessity of the evaluation awarded by the judge, and where the record reasonably supported the judge’s conclusions that the employee had neuropathic pain and was not a viable candidate for other surgery, the judge did not err in concluding that the employee was entitled to expenses related to a trial screening of a spinal cord stimulator. The evaluation and second opinion required by the parameters prior to implantation of a spinal cord stimulator are not prerequisites to a trial screening of the device.
Determined by: Pederson, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Peggy A. Brenden
Attorneys: Gregg B. Nelson, Nelson Law Office, Inver Grove Heights, MN, for the Respondent. Randee S. Held, Law Offices of Bakken, Robinson & Grove, Golden Valley, MN, for the Appellants.
WILLIAM R. PEDERSON, Judge
REM Central Lakes and Liberty Mutual Insurance Company appeal from the compensation judge’s order awarding the reasonable and necessary medical expenses associated with a trial screening for a spinal cord stimulator under Minn. R. 5221.6200, subp. 6C(1). We affirm.
On July 31, 1979, Ronald Brown [the employee] injured his low back while employed as a construction worker with Lommel Construction. Following that injury, the employee was diagnosed with an L4-5 disc herniation, for which he underwent surgery in late 1979. In 1980, the employee experienced a recurrence of his disc problems and underwent a second surgery at the L4-5 level. In 1983, the employee, Lommel Construction, and its workers’ compensation insurer entered into a full, final, and complete settlement of the employee’s claims arising out of the 1979 injury, except claims for future reasonable and necessary medical treatment.
In June of 1984, the employee began working for REM Central Lakes, Inc., an operator of group homes for developmentally disabled individuals. The employee’s job involved providing direct care to the residents, as well as supervisory responsibilities. On February 19, 1996, while REM was self-insured, and on October 16, 1998, while REM was insured by Royal SunAlliance, the employee sustained admitted injuries to his low back. He evidently missed some time from work following those injuries but eventually returned to full duty with REM.
On September 18, 2003, the employee was assisting a client who was unsteady on his feet walk down a hallway. The client slipped, and, while making an effort to steady him, the employee felt a “pop” in his low back and immediate, intense pain. The employee has had persistent left leg pain and numbness since that time and has not returned to work. On the date of his last injury, REM was insured by Liberty Mutual Insurance Company [Liberty Mutual].
Following the 2003 injury, the employee has been followed extensively by Nurse Practitioner Marlene Wood and Dr. Larry Rapp at the Eleah Medical Center in Elbow Lake, Minnesota. Ms. Wood obtained a lumbar MRI scan on September 23, 2003, and arranged for the employee to be evaluated by orthopedic spine surgeon Dr. Sunny Kim a week later. Dr. Kim reviewed the MRI scan and diagnosed a “left L4 radiculopathy due to foraminal disc herniation at L4-L5 complicated by degenerative spondylolisthesis.” An epidural steroid injection administered on November 11, 2003, provided no lasting benefit. Dr. Kim then recommended that the employee undergo L4-L5 decompression and fusion using pedicle fixation and cages.
On December 9, 2003, the employee was examined at the request of REM/Liberty Mutual by orthopedist Dr. Nolan Segal. In a report issued January 13, 2004, Dr. Segal concluded that the employee had advanced degenerative disc disease at the L4-5 level that had been aggravated by the September 18, 2003, injury. He attributed the employee’s ongoing symptoms, however, to his preexisting condition. Dr. Segal did not anticipate any permanent disability as a result of the work injury, and he did not believe that the employee’s 2003 injury had caused the need for the surgery recommended by Dr. Kim. In his opinion, the contemplated surgery was related solely to the employee’s preexisting condition. And, because of the employee’s extensive smoking history, he did not believe the employee was a good surgical candidate.
In a letter to the employee’s attorney dated October 29, 2004, Dr. Kim stated his opinion that the employee’s L4-L5 disc herniation had clearly arisen from the employee’s work injury on September 18, 2003. He acknowledged the employee’s preexisting spondylolisthesis and earlier surgeries but felt that, had it not been for the work-related injury, the employee would not be in his current situation. He believed that the 2003 injury “represent[ed] a new permanent injury resulting in permanent changes to the [employee’s] spine problem.”
The employee was examined a second time by Dr. Segal on November 16, 2004. Dr. Segal opined that the employee’s 2003 injury was a temporary aggravation of a preexisting condition that had lasted until December 9, 2003, and that the employee had reached maximum medical improvement [MMI] by that date. He attributed the employee’s back condition to the work-related injury of July 31, 1979, and to a nonwork-related aggravation in May of 1980. He recommended that the employee commence a program of low impact general conditioning exercises, as well as flexibility and strengthening exercises. He recommended also that the employee be weaned off of narcotic analgesic medication. And he again stated that the employee could not be considered a candidate for surgery unless he stopped smoking.
The employee was last seen by Dr. Kim on December 28, 2004. At that visit, Dr. Kim noted that the employee continued to have severe sciatica and that he required narcotics prescribed by the Eleah Medical Center for pain control. According to Dr. Kim, the employee remained disabled.
In 2005, the employee entered into a settlement closing out all claims relating to the 1979, 1996, 1998, and 2003 injuries, except claims for reasonable and necessary medical treatment causally related to any of the four claimed injuries, which would be the sole responsibility of REM/Liberty Mutual. The parties’ settlement was approved by Award on Stipulation served and filed May 11, 2005.
The employee continued to be seen on a regular basis, for medication management, at the Eleah Medical Center. On February 9, 2006, Ms. Wood obtained a pain clinic consultation with Dr. Sam Elghor at the Center for Pain Management in Sartell, Minnesota. Dr. Elghor recorded a history indicating that the employee had experienced incapacitating left leg pain that had begun following the employee’s injury on September 18, 2003. The employee described constant pain that had been helped some with rest and pain medications, including Oxycodone, Darvocet, Neurontin, and Ibuprofen. Dr. Elghor noted that the employee had been experiencing severe left lower extremity pain for over two years but was not now in favor of undergoing fusion surgery, especially if there were no guaranties that his left leg pain would improve. The doctor recommended a trial of an epidural injection to be performed through the transforaminal route at the left L4-5 level.
About two weeks later, on February 22, 2006, the employee underwent the recommended steroid injection. When seen by Dr. Elghor in follow up a month later, the employee reported pain relief for only a few days. At that point, Dr. Elghor recommended a spinal cord stimulator as the best option for controlling the employee’s significant radicular pain.
The employee continued to treat his symptoms with regularly-prescribed narcotic medication, and, eventually, on August 13, 2008, filed a Medical Request seeking “approval of spinal cord stimulator as prescribed by Dr. Elghor.” REM and Liberty Mutual, the only insurer remaining liable for the employee’s medical expenses, filed a Medical Response on August 29, 2008, denying that the requested procedure was “appropriate, reasonable or necessary.” REM/Liberty Mutual also contended that the employee’s claim lacked current medical opinions to support it.
REM/Liberty Mutual arranged for the employee to have a third evaluation by Dr. Segal on September 24, 2008. By report dated October 28, 2008, Dr. Segal diagnosed the employee’s condition as “advanced degenerative disc disease at the L4-5 level with a degenerative spondylolisthesis and with left L4-5 stenosis, secondary to the above.” He reported that the employee had “non-physical findings on examination, including considerable guarding with range of motion without palpable spasm, pain with rotation of the trunk as a whole, and a discrepancy in straight leg raising between the seated and supine positions, as well as diffuse tenderness without associated spasm.” Dr. Segal did not believe that an implantable spinal cord stimulator would be of any significant benefit. He concluded that, given the evidence of symptom embellishment and the employee’s long-term smoking history, the employee was a poor candidate for either a spinal fusion or a spinal cord stimulator. In any event, Dr. Segal opined, the employee would need a thorough psychological assessment to see if he was an appropriate candidate for a spinal cord stimulator.
In a letter to the employee’s attorney dated November 11, 2008, Dr. Elghor, who had not examined the employee since March 23, 2006, continued to indicate that a spinal cord stimulator was a valid treatment option for a patient suffering from neuropathic pain. And he was of the opinion that the need for the spinal cord stimulator was directly related to the employee’s injury of September 18, 2003. As to the procedure itself, Dr. Elghor explained that
This will involve placement of a small cable-like structure into the epidural space in his lower thoracic spine. This will be connected to an external generator. The theory is to provide electrical stimulation in that area. This has been shown to stop the transmission of the pain signals through the spinal cord and up to the brain. If the trial is successful, then a rechargeable battery is implanted in a subcutaneous pocket either in the buttock or abdominal area.
In follow-up correspondence on January 15, 2009, Dr. Elghor indicated that there were no guarantees that decompression and fusion surgery would provide the intended relief. In his experience, nerve damage lasting more than three months is unlikely to improve after decompressive surgeries. Dr. Elghor also explained that a trial of spinal cord stimulation will help predict whether a permanent system should be implanted. He stated that the implant is inserted only after successful trial and that a psychological evaluation is requested for every patient considered for spinal cord stimulation.
The employee’s Medical Request came on for a hearing before a compensation judge on February 3, 2009. Evidence included the employee’s testimony, portions of the employee’s medical records, and the reports issued by Dr. Segal. The sole issue presented to the judge was whether a spinal cord stimulator was reasonable, necessary, and causally related to any of the employee’s work injuries. The employee testified that he had been experiencing unrelenting left lower extremity pain since his injury on September 18, 2003. He also testified that, over the years, he had tried to quit smoking, without success. In 2007, he tried to quit, with the assistance of prescription medication, but he could not afford the medication and lapsed back into smoking one to two packs of cigarettes a day.
In a Findings and Order issued February 24, 2009, the judge determined that the employee’s work injury of September 18, 2003, is a substantial contributing cause of his current low back condition. The judge further determined that spinal fusion surgery would be appropriate only if the employee quit smoking, a habit the employee is not reasonably likely to quit. And, she determined that the employee has neuropathic pain and is not a candidate for any other surgical therapy. Finding it premature to grant the employee’s request for a spinal cord stimulator, the judge instead found that a trial screening period, as identified in the medical treatment parameters, is reasonable and necessary. She therefore ordered payment of the expenses associated with a trial screening for a spinal cord column stimulator. REM/Liberty Mutual appeal.
Minn. R. 5221.6200, subp. 6C(1), of the treatment parameters, applicable to treatment of low back pain, provides:
C. The following surgical therapies have very limited application and require a second opinion that confirms that the treatment is indicated and within the parameters listed, and a personality or psychosocial evaluation that indicates that the patient is likely to benefit from the treatment.
(1) Dorsal column stimulator is indicated for a patient who has neuropathic pain, and is not a candidate for any other surgical therapy, and has had a favorable response to a trial screening period.
Minn. R. 5221.6200, subp. 6C(1). Here, the judge considered it premature to grant the employee’s request for implantation of a spinal cord stimulator. Instead, because she found that the employee has neuropathic pain, and because she did not consider fusion surgery a viable option, she found that the employee’s current circumstances warranted a trial screening to evaluate his response to the treatment. In her memorandum, the judge explained that, “[w]hether, ultimately, a spinal cord stimulator is reasonable and necessary medical treatment will hinge on the outcome of the trial screening period and as indicated, the results of the personality/psychosocial evaluation and second opinion.”
On appeal, REM/Liberty Mutual argues simply that the judge’s decision must be reversed because the employee has not satisfied the requirements of the treatment parameters. Had the judge actually awarded the spinal cord stimulator as requested by the employee, that argument might have some merit. The employee has not obtained a second opinion confirming that the treatment is indicated, nor has he undergone a personality or psychosocial evaluation that indicates he is likely to benefit from the treatment. That being said, those evaluations - - necessary prior to implantation of the spinal cord stimulator itself - - are not prerequisites to an award of expenses related to the trial screening period, and that was all that the judge awarded here. See Feist v. Packaging of Am./Tenneco, slip op. (W.C.C.A. Jan. 29, 2001). REM/Liberty Mutual has offered no argument opposing the reasonableness or necessity of the trial screening period. Nor do they contend that the judge erred by awarding a benefit not specifically requested by the employee at trial. Finding REM/Liberty Mutual’s treatment parameter arguments misplaced, we affirm the judge’s award of the reasonable medical expenses associated with a trial screening for a spinal column stimulator.
REM/Liberty Mutual also specifically appealed from the judge’s finding that the employee has neuropathic pain and is not a candidate for any other surgery. The judge’s finding of neuropathic pain is supported by Dr. Elghor, and we find no evidence in the record to the contrary. With regard to the fusion surgery, the judge found that, despite concerted efforts to quit smoking, the employee has been unable to do so. The record reasonably supports the conclusion that fusion surgery is not a viable option unless the employee is able to stop smoking. As such, the judge reasonably concluded that other surgery is not a realistic option. We note also that Dr. Elghor did not believe that a decompression and fusion would relieve the employee’s longstanding left leg symptoms. The judge’s findings that the employee has neuropathic pain, and that he is not a candidate for any other surgical therapy, are supported by substantial evidence in the record and are affirmed.