ROBIN L. JOHNSON, Employee, v. METZ BAKING CO. and ACE USA/ESIS, Employer-Insurer/Appellants, and INJURED WORKERS PHARMACY, and INGENIX/UNITED HEALTHCARE, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 1, 2009
PRACTICE & PROCEDURE - EXPEDITED HEARING. Where the issues of causation, reasonableness, and necessity of medical treatment raised at the hearing were the same as those raised at the administrative conference, the compensation judge did not expand the issues at the hearing.
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS. An employer and insurer alleging that an injury is merely temporary may not rely on the limits set by the treatment parameters with respect to treatment received by the employee after the alleged resolution of the injury.
MEDICAL TREATMENT & EXPENSE - REASONBLE & NECESSARY. Substantial evidence supports the compensation judge’s determination that the medical expenses claimed by the employee were related to the work injury and were reasonable and necessary.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Gary P. Mesna
Attorneys: Charles M. Cochrane, Cochrane Law Office, Roseville, MN, for the Respondent. James S. Pikala and Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge’s award of medical expenses, claiming that the award represented an improper expansion of issues raised in the medical request, that the award was contrary to the treatment parameters, and that substantial evidence does not support the compensation judge’s decision. We affirm.
Robin Johnson, the employee, claimed an injury to her neck on March 8, 2005, as a result of her employment with Metz Baking Company. In 2007, the parties reached an agreement to settle the employee’s claims on a full, final, and complete basis with certain medical expenses left open by the stipulation.
The present litigation began with the filing of a medical request by the employee in March 2008. The request sought payment of a bill for prescription medication at Injured Workers Pharmacy [IWP] in the amount of $430.40 and payment for services at Multicare Associates, totaling $1,229.00. The response filed by the employer and insurer denied the request, stating, “based upon the report of Dr. Edward Szalapski, dated September 5, 2006, and attached herein, the employee does not need further medical treatment for her neck.”
An administrative conference was held at the Department of Labor and Industry on May 1, 2008, and a decision and order pursuant to Minn. Stat. § 176.106, was issued on May 8, 2008. In the decision, the bill at Multicare Associates was denied as not being causally related to the work injury, but an additional bill for a different date of service was ordered to be paid. The bill at IWP was found to be a departure from the treatment parameters and was denied.
The employee filed a timely request for formal hearing, raising as an issue the “compensability of claimed medication expenses.” The request was filed June 9, 2008.
United Healthcare filed a motion to intervene on August 11, 2008. The intervention claim identified 10 dates of service from October 4, 2007, through June 20, 2008, with total charges of $4,987.00 and a plan payment of $2,883.68.
This matter was heard by Compensation Judge Gary Mesna on August 14, 2008. The employee testified and presented medical records and the claimed bills.
The employer and insurer raised a number of defenses to the employee’s claims at the hearing. First, the employer and insurer argued that the claims at the hearing represented an expansion of the issues raised by the medical request. Second, the employer and insurer took the position that the medical expenses were not in accordance with the treatment parameters. Finally, the employer and insurer relied on the opinion of their IME, Dr. Edward Szalapski, who stated in his September 5, 2006, report that the employee’s work injury was at most a temporary injury and that the employee did not need any “further medical treatment for her neck.”
The compensation judge concluded that the issues raised at hearing were not an expansion of the issues in the employee’s medical request. In his findings and order of September 8, 2008, the compensation judge determined that the treatment parameters did not apply. He awarded payment of the prescription expenses and ordered reimbursement to United Healthcare. The employer and insurer appeal.
1. Expansion of the Issues
A party disagreeing with a decision from an administrative conference held under Minn. Stat. § 176.106 may request a formal hearing to be conducted by a compensation judge. When the request is received by the Office of Administrative Hearings, the hearing is to be held no later than 60 days from the date it has been received by the Office. Minn. Stat. § 176.106, subd. 7. This section mirrors Minn. Stat. § 176.238, subd. 6, which provides for an expedited hearing under certain discontinuance cases. Minn. Stat. § 176.238, subd. 6, also provides that, “the hearing shall be limited to the issues raised by the notice or petition unless all parties agree to expanding the issues.” This court has determined that this provision also applies to formal hearings scheduled to be heard on an expedited basis under Minn.Stat. § 176.106. Owens v. New Morning Windows, slip op. (W.C.C.A. June 5, 2000); Clemmer v. National Steel Pellet Co., No. WC04-212 (W.C.C.A. Dec. 13, 2004).
The employer and insurer contend that the compensation judge improperly expanded the issues beyond those raised by the employee and her medical request. According to this argument, the issues raised in the request were the payment of prescription expenses for hydrocodone at IWP for bills between April and December 2007 totaling $445.49, and the payment of charges at Multicare Associates totaling $1,229.00. Those particular charges and bills were resolved by the administrative conference and consideration of any additional bills expands the issues, according to the employer and insurer. We are not persuaded.
Limiting the issues to those raised in the initial request is primarily a question of fairness. Because a hearing will take place no later than 60 days from the date OAH receives a request for hearing, the parties have little or no opportunity to develop evidence other than that presented at the conference. It is unfair therefore to expect a party to respond to a new issue in such a circumstance. There is a contrary consideration however. Accepting the argument of the employer and insurer would inevitably result in multiple medical requests, multiple conferences and multiple hearings for successive bills in a single case, even though the underlying issues remain the same.
The defenses raised by the employer and insurer to the specific bills presented at the administrative conference in this case are the same as the defenses raised to the bills presented at the hearing. Both at the conference and at the hearing, the employer and insurer argued that the claimed treatment was not related to the work injury, was not reasonable and necessary, and was prohibited by the treatment parameters. The evidence in support of those defenses, Dr. Szalapski’s report, was the same at the conference as at the hearing. Defining the issues in a medical request to be only the specific bills presented at the administrative conference is overly restrictive. In this case, the issues at the hearing were the causation, reasonableness, and necessity of pain medication treatment for the employee. Both parties were prepared to try those issues and the employer and insurer have not contended that they were in some manner prejudiced in their presentation of their defense by the compensation judge’s identification of the issues.
We conclude the compensation judge did not improperly expand the issues at the hearing.
2. Application of Treatment Parameters
The compensation judge concluded that the treatment parameter rules were not applicable because the employer and insurer had denied liability for on-going treatment on the basis that the employee’s cervical complaints were not related to her work injury. The employer and insurer have appealed this determination.
The employer and insurer admit that causation was denied and lack of causation was raised as a defense at the hearing. Their position is that when medical treatment is denied for multiple reasons which include reasonableness and necessity as well as causation, the treatment parameters should be applied. They cite this court’s decision in Hausladen v. Egan Mech., No. WC08-136 (W.C.C.A. July 7, 2008).
In Oldenburg v. Phillips & Temro Corp., 60 W.C.D. 8 (W.C.C.A. 1999), this court held that the treatment parameters do not apply in a case where primary liability was denied by the employer. The decision was based on the plain language in Minn. R. 5221.6020, subp. 2, which provides that the parameters “do not apply to treatment of an injury after an insurer has denied liability for the injury.” We have affirmed Oldenburg in a number of subsequent decisions. Schulenburg v. Corn Plus, 65 W.C.D. 237 (W.C.C.A. 2005); Irvin v. Red Wing Shoe Co., 67 W.C.D. 528 (W.C.C.A. 2007).
Hausladen is consistent with the above-cited case law. The court in Hausladen concluded the compensation judge properly applied the parameters. Although the independent medical examiner in Hausladen had concluded that the employee’s condition was not related to the work injury, the employer did not raise causation as a defense, and relied solely on the treatment parameters. In contrast, in the present case, primary liability for the treatment was denied and was argued at the hearing by the employer and insurer. The case law and the rule prohibit application of the parameters in this case. The compensation judge did not err on this issue.
3. Substantial Evidence
On appeal, the employer and insurer argue that the compensation judge’s award of either the prescription expense at IWP or the reimbursement to United Healthcare lacks the support of substantial evidence. We will consider each of these items in turn.
The bill at IWP was for hydrocodone prescribed by Dr. Terry Domino and for Endocet prescribed by Dr. Sheila Flynn. Dr. Domino practices in occupational medicine at Multicare Associates and has been a treating physician for the employee since March 2005. Over the course of his treatment, Dr. Domino has prescribed physical therapy, done epidural injections, referred the employee for a neurosurgical consultation, referred the employee for a limited trial of chiropractic care, placed work restrictions on the employee, recommended a pain clinic program, and has placed the employee on different medications. The discogram done at the request of the neurosurgeon demonstrated “some element of disc abnormality and pain at 3 levels.” The employee was not felt to be a candidate for fusion surgery however. Dr. Flynn is a physician at Multicare Associates who saw the employee in February, April, and May 2008. Her records are in evidence.
In his report of June 11, 2008, Dr. Domino stated that his diagnosis of the employee’s condition was “chronic cervical pain, left sided, with small C5, C6 central disk protrusion without cervical stenosis.” His opinion was that this condition was related to her work injury and for treatment he recommended “on-going continued narcotic pain management.” Dr. Domino’s report and his records as well as the employee’s testimony constitute substantial evidence to support the compensation judge’s award of prescription expenses.
The intervention claim by United Healthcare seeks reimbursement for plan payments made for medical office visits between October 4, 2007, and June 20, 2008. A number of the office visits were with physicians at Multicare Associates and records of those visits are in evidence. In large part the visits were to obtain renewal of the employee’s pain medication as initially prescribed by Dr. Domino.
There are also some charges for visits with Dr. Kristen Zeller at Midwest Spine Institute. The employee was referred to Dr. Zeller by Dr. Flynn and first saw Dr. Zeller on April 18, 2008. Dr. Zeller’s records from that visit set out the history she obtained from the employee, including a history of the work injury in 2005. Dr. Zeller conducted an examination and reviewed the 2005 MRI. Dr. Zeller’s treatment records after that date are contained in the record as well.
The compensation judge’s determination that the medical treatment which was the basis of the intervention claim by United Healthcare was causally related to the work injury and was reasonable and necessary is supported by substantial evidence.
In their brief, the employer and insurer state that the compensation judge ordered payment of pain medication for the employee until the employer and insurer agreed to a pain clinic program. This is a misreading of the compensation judge’s decision. The compensation judge, in considering the reasonableness of the claimed expenses, was simply reviewing other treatment options that had been recommended previously. There is no claim by the employee for approval of a pain clinic program and the compensation judge’s decision cannot be read as a prospective approval of such a program.