DANIELLE PINC, Employee/Appellant, v. STEPPING OUT, INC., and MINNESOTA ASSIGNED RISK PLAN/ BERKLEY RISK ADM'RS CO., Employer-Insurer.
WORKERS' COMPENSATION COURT OF APPEALS
MARCH 6, 2009
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS; CAUSATION - MEDICAL TREATMENT. The treatment parameters were not applicable where the employer and insurer admitted primary liability for the employee's right shoulder injury but, in their answer to the employee's claim petition, denied that the employee's claimed surgery was causally related to the work injury and at the hearing did not indicate that they no longer denied causation, but instead focused on their arguments that the claimed treatment was not reasonable and necessary, and contended that the permanent treatment parameters were applicable and that the employee had not satisfied the criteria of the parameters.
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Where the employee had been treated extensively with physical therapy and injections, and the compensation judge erred by finding that the employee had not completed additional physical therapy as recommended by the independent medical examiner and by relying on that finding to conclude that conservative measures had not been exhausted, under these circumstances we vacate the compensation judge's finding that the recommended surgery was not reasonable and necessary, and remand for further consideration.
Reversed in part, vacated in part, and remanded in part.
Determined by: Rykken, J., Johnson C.J., and Stofferahn, J.
Compensation Judge: Danny P. Kelly
Attorneys: David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Appellant. Joan Hallock and Nicholas Micheletti, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee appeals the compensation judge's denial of the employee's request for approval of right shoulder surgery and the judge's denial of the employee's request for reimbursement of expenses. We reverse in part, vacate in part, and remand.
On June 29, 2004, Danielle Pinc, the employee, was injured in a work-related motor vehicle accident while working as an office manager for Stepping Out, Inc., the employer, which was insured for workers' compensation liability by the Minnesota Assigned Risk Plan, the insurer. The employer and insurer admitted liability for the employee's injuries. The employee initially treated with Dr. Rose Marie Langer at Allina Clinic in Hastings, Minnesota, and also underwent physical therapy at HealthSouth. On July 22, 2004, the employee underwent an MRI scan of the cervical spine, which was found to be within normal limits. On October 13, 2004, the employee underwent an EMG of her right arm, which was read as normal.
On November 12, 2004, the employee moved to Colorado. Before seeking medical treatment there, she called the insurer's claims adjuster to request a recommendation for a physician. The claims adjuster referred the employee to Dr. David Zieg, an occupational medicine specialist, in Denver, Colorado. The employee treated with Dr. Zieg on December 7, 2004, reporting right arm pain, intermittent pain in the right shoulder and scapular region, and neck pain. Dr. Zieg assessed cervical, thoracic, and right trapezius strain, and intermittent right arm pain and parathesias of an unclear etiology, and treated the employee with medication and home exercise. In February 2005, Dr. Zieg referred the employee to Dr. Barry Ogin at Colorado Rehabilitation and Occupational Medicine, a specialist in physical medicine and rehabilitation. The employee saw Dr. Ogin on March 1, 2005, reporting aching and stabbing pain along her right parascapular region, and intermittent pain, numbness and tingling in her right arm. His examination indicated full shoulder flexion and abduction without pain, and internal rotation slightly limited on the right side. Dr. Ogin provided trigger point injections and recommended home exercises, and noted that the employee had earlier undergone physical therapy with minimal benefits. Dr. Ogin also referred the employee to Dr. Eric Gish, an osteopath, in April 2005. The employee received eight osteopathic treatments from Dr. Gish between April 2005 and June 2005, and performed home exercises, neither of which provided long-term relief.
The employee returned to Dr. Ogin for additional trigger point injections in May and November 2005. The employee saw Dr. Ogin again in January 2006, reporting short-term relief from the injections; he provided additional injections on January 30, 2006. Dr. Ogin also referred the employee for a 6-month health club membership; the employer and insurer authorized a 3-month membership.
On April 6, 2006, the employee was examined by Dr. G. Gray Wells, orthopedic surgeon, at the employer and insurer's request. Dr. Wells opined that the employee had not yet attained maximum medical improvement from her shoulder injury and recommended further evaluation of her shoulder problems. He also suggested that the employee might have thoracic outlet syndrome, that she did not require any work restrictions, and that she should continue exercising on her own without any chiropractic treatment.
On the same day as her examination with Dr. Wells, the employee was rear-ended in another motor vehicle accident, and was examined on a emergency basis, following which she was diagnosed with mid-thoracic back pain which was considered chronic from her earlier injury.
The employee also treated with Dr. Jason Steinle, a chiropractor, starting in May 2006, and continuing though June 2008. Dr. Steinle treated the employee's cervical and thoracic spine and her right shoulder. By June 19, 2006, Dr. Steinle concluded that the employee had reached MMI from the injuries she sustained in the April 2006 motor vehicle accident, but had not yet reached MMI from her earlier injuries. Dr. Steinle continued to provide chiropractic treatments to the employee; his chart notes reflect that the treatment was for the employee's neck, upper back and right shoulder. His chart notes also reflect that the employee continued to perform strengthening exercises at a gym, but that her right shoulder symptoms persisted, especially with movement.
On February 1, 2007, the employee returned to Dr. Ogin, reporting right shoulder pain. Examination indicated limited internal rotation and negative impingement testing. Dr. Ogin recommended an ultrasound of the right shoulder, which was performed on February 19, 2007, and which indicated a mild right acromioclavicular (AC) joint sprain and evidence of mild tightness at the right posterior capsule, but no evidence of a rotator cuff tear, impingement syndrome or instability. Dr. Ogin treated the employee with a lidocaine injection to the right shoulder which did not provide relief.
Dr. Ogin referred the employee to Dr. Philip Stull, an orthopedic surgeon, for a second opinion. Dr. Stull examined the employee on March 22, 2007, and noted a positive impingement sign. An X-ray indicated that her AC joint had a slight elevation of the distal clavicle. Dr. Stull recommended a MRI arthrogram, which was conducted on April 2, 2007, and was interpreted as being unremarkable. Dr. Stull provided the employee with two right shoulder injections in April 2007 to treat her tenderness over the AC joint. The employee reported to Dr. Stull that her last injection into the AC joint provided approximately 10 days of symptomatic relief. In his report of May 30, 2007, Dr. Stull stated that the employee had failed conservative measures and recommended right shoulder surgery, including an arthroscopy of the shoulder, distal clavicle excision, and acromioplasty.
The employee's surgery was scheduled for June 18, 2007. Dr. Stull attempted to contact the employer and insurer for approval of the surgery. On June 12, 2007, the employee underwent a pre-operative physical, and was billed $185.00 for that examination, which she eventually paid herself. On June 20, 2007, the employer and insurer denied the surgery pending another independent medical examination of the employee.
On August 3, 2007, the employee was examined by Dr. Robert Mack, orthopedic surgeon, at the employer and insurer's request. Upon examination, Dr. Mack noted some tenderness to palpation around the right AC joint, but also found full active range of motion of both shoulders, and no evidence of pathology in the AC joint. He recommended six additional physical therapy visits for instruction on a weight training program and swimming pool program, plus a one-year gym membership for implementing those programs. Dr. Mack recommended against right shoulder surgery, although he considered the medical treatment the employee had received to-date to be reasonable, necessary, and causally related both to her 2004 work injury and her motor vehicle accident in April 2006.
The employee provided Dr. Mack's report to Dr. Stull. In a letter dated September 19, 2007, Dr. Stull stated that he had reviewed Dr. Mack's report and that although he found Dr. Mack's statements to be reasonable, he did not believe that the employee would improve with therapy. He noted that she had earlier undergone therapy, and that, in his experience, therapy for this particular condition "is not that helpful." He concluded that "[u]ltimately I do think she should have the surgery. I think it is medically necessary and related to her injuries that are well documented." Dr. Stull prescribed six weeks of therapy, stating that he would then "revisit the issue with her."
The employee completed the therapy on September 25 and 28, and October 2, 12, 16, and 30, 2007. The additional therapy did not provide relief, as noted in the physical therapist's discharge summary of October 30, 2007. The therapist noted that the employee exhibited a mild impingement sign as point tenderness with mild crepitus in the AC joint, and that the employee reported throughout her therapy regimen that the aching and pain continued in her right shoulder, especially with overhead activities and sleep. The therapist recommended that the employee continue with disciplined gym and home exercises.
The employee returned to Dr. Stull, who continued to recommend surgery. Dr. Stull indicated that the surgery was reasonable, necessary, and causally related to the June 2004 accident, and that the employee had "exhausted conservative measures and [h]ad not done well with them." The employee continued to receive periodic chiropractic treatments. According to Dr. Steinle's June 18, 2008, chart note, the employee reported ongoing pain in her right shoulder, and that at times the radiation into her right arm bothered her "to the point where she immobilizes her right arm against her torso with her left arm just to get relief." The employee also advised Dr. Steinle that she planned to enroll in a Pilates class in July in the hope that the class would help improve her shoulder symptoms.
On March 12, 2008, the employee filed a claim petition for approval of the surgery and reimbursement of the payment for the pre-operative physical examination. In their answer to the claim petition, the employer and insurer denied that the claimed benefits were reasonable, necessary, or causally related to the injury. A hearing was held on July 31, 2008. The employee testified that she continues to have shoulder pain and trouble sleeping due to the pain, and also testified that she is able to work 60 hours per week through two jobs with no restrictions.
At the hearing, the employer and insurer asserted that the employee had not met the applicable treatment parameters for approval of surgery for this condition, citing Minn. R. 5221.6500, subp. 3.B. and Minn. R. 5221.6500, subp. 3.D. The compensation judge found that the treatment parameters were applicable and that the employee had not met the parameters, that a departure was not appropriate, and that even if the parameters were not applicable, the surgery was not reasonable and necessary, and therefore denied the employee's claim. The employee appeals.
STANDARD OF REVIEW
In reviewing cases 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. 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, "[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). 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." Id.
The employee first argues that the compensation judge erred by considering the application of the treatment parameters to the employee's request for approval of surgery since the employer and insurer did not raise the applicability of the treatment parameters until the hearing. This court has indicated that a party must specifically identify which treatment parameters it claims to be applicable. The court has also indicated that a party must make these specific arguments at the trial level to the compensation judge. See Lewis v. St. Therese Home, Inc., slip op. (W.C.C.A. Mar. 31, 2004); Boryca v. Marvin Lumber & Cedar, slip op. at 3 n.3 (W.C.C.A. Nov. 10, 1999). The employer and insurer raised the issue of the treatment parameters at the hearing, and designated those parameters they believed to be applicable. Therefore, we will consider the issue on appeal.
The employee also argues that the treatment parameters are not applicable since the employer and insurer denied that the recommended surgery was causally related to the employee's work injury. We agree. Under legislation enacted with the objective of controlling medical costs in the workers' compensation system, the Minnesota Department of Labor and Industry promulgated treatment parameter rules for health care provider treatment. Hirsch v. Bartley-Lindsay Co., 537 N.W.2d 480, 483, 53 W.C.D. 144, 148 (Minn. 1995). Those rules include an introductory section that outlines the purpose and application of the parameters. Included in that section is the proviso that the parameters do not apply to treatment for an injury after an insurer has denied liability for the injury. Minn. R. 5221.6020, subd. 2. As this court stated in Schulenberg v. Corn Plus, 65 W.C.D.237 (W.C.C.A. 2005), if an employer and insurer have denied liability for an injury, they do not enjoy the practical protections afforded by the treatment parameters. Likewise, an employer and insurer's claim that an injury was temporary in nature, but has fully resolved, negates the application of the treatment parameters. Oldenburg v. Phillips & Temro Corp., 60 W.C.D. 8 (W.C.C.A. 1999), summarily aff'd, 606 N.W.2d 445 (Minn. 2000).
At hearing the employee sought authorization for the right shoulder surgery recommended by Dr. Stull. The employer and insurer, while admitting the employee sustained a right shoulder injury on June 29, 2004, contended that the proposed surgical procedure was not causally related to the employee's work injury, nor did it represent reasonable and necessary medical treatment. They argue that because they had originally admitted liability and had paid medical expenses on behalf of the employee, the treatment parameters are applicable.
This court addressed the applicability of the treatment parameters in Mattson v. Northwest Airlines, slip op. (W.C.C.A. Nov. 29, 1999), where an employer initially admitted primary liability for a work injury and later denied that the employee's current condition was causally related to that injury, and stated that "[F]or all practical purposes, the employer and insurer's denial of medical causation for the employee's . . . condition after [the alleged end of the temporary aggravation], is no different than a denial of primary liability from and after that time." We concluded that,
The permanent medical treatment parameters apply to "treatment of employees with compensable workers' compensation injuries." Minn. R. 5221.6020, subp. 1. The employer and insurer cannot deny the employee's condition is work-related, yet assert the protection of, or demand compliance with, medical treatment parameters that apply only to work injuries. We, therefore, conclude that for the purposes of application of the permanent medical treatment parameters, a denial of liability includes both a denial of primary liability and a denial of medical causation for subsequent symptoms or conditions.
Mattson v. Northwest Airlines, slip op. (W.C.C.A. Nov. 29, 1999).
In this case, the employer and insurer admitted primary liability for the employee's right shoulder injury. The compensation judge found that the employer and insurer disputed the reasonableness and necessity of the recommended surgery but did not dispute causation for the employee's injury. Based on our review of the record and the transcript of arguments presented at the hearing, we find no support in the record for the conclusion that no dispute existed on causation. The employer and insurer denied causation in their answer to the employee's claim petition, specifically stating that the claimed benefits - - the recommended surgery and reimbursement for the pre-operative physical - - were not reasonable, necessary, or causally related to the employee's work injury. At the hearing, the employer and insurer did not indicate that they were no longer denying medical causation for the employee's shoulder condition, only that the permanent treatment parameters were applicable and that the employee had not satisfied the criteria of the parameters. The compensation judge erred by finding that the employer and insurer did not dispute causation, and we therefore reverse that finding.
Because the employer and insurer have denied medical causation for the employee's right shoulder condition and her need for surgery, the medical treatment parameters do not apply to limit the compensability of the claimed treatment. The compensation judge erred in concluding that the permanent treatment parameters applied. We, accordingly, vacate the compensation judge's finding that the medical treatment is not compensable under the permanent medical treatment parameters.
The compensation judge also made an alternative finding on the reasonableness and necessity of the employee's surgery. Although the compensation judge found that conservative treatment had failed to relieve the employee's right shoulder pain, he also found that the employee's recommended surgery was not reasonable and necessary, stating
Conservative treatment has not been exhausted, objective imaging is negative, and physical examinations are equivocal. Some examinations note limited range of motion; others are unlimited. Some physical examinations note positive impingement and some examinations note negative impingement. Some examinations note pain in range-of-motion; other examinations reveal no pain.
The judge noted that the employee has continued to work, and works 60 hours per week, with no formal restrictions relating to the right shoulder. The judge also made a specific finding that the employee had not yet received the six additional physical therapy visits as recommended by Dr. Mack following his IME in August 2007. We note that the record shows that the employee completed the six additional physical therapy visits as recommended by Dr. Mack, and as prescribed by Dr. Stull, on September 25 and 28, and October 2, 12, 16, and 30, 2007. The compensation judge, therefore, erred by finding that the employee had not completed these visits and erred in relying on that finding to conclude that conservative measures had not been exhausted. The employee has been treated extensively with physical therapy and injections. Under these circumstances, and because it is evident that the compensation judge's denial of the claimed surgery was based, at least in part, on his conclusion that the employee had not yet exhausted conservative medical treatment, we vacate the compensation judge's finding that the recommended surgery was not reasonable and necessary and remand for further consideration.
On remand, the compensation judge should reconsider the matter under longstanding case law principles, that is, whether the proposed surgery represents medical treatment that is reasonable and necessary treatment to cure or relieve the effects of the employee's shoulder injury of June 29, 2004. Minn. Stat. § 176.135. The judge should base his decision on the current record.
Given our decision that the treatment parameters are not applicable in this case, we will not consider the employee's argument that the "rare case exception" to the parameters should apply.
 The record does not contain Dr. Wells's report. This background information was provided in Dr. Ogin's report of February 1, 2007, and in Dr. Mack's report of August 6, 2007.
 Minn. R. 5221.6500, subp. 3.B., refers to an acromioplasty; Minn. R. 5221.6500, subp. 3.D., refers to excision of a distal clavicle.
 Minn. R. 5221.6020, subp. 2, states, provides, in part, as follows:
Subp. 2. Application. All treatment must be medically necessary as defined in part 5221.6040, subpart 10. In the absence of a specific parameter, any applicable general parameters govern. . . . Parts 5221.6010 to 5221.6600 do not apply to treatment of an injury after an insurer has denied liability for the injury. However, in such cases the rules do apply to treatment initiated after liability has been established.