DENISE A. HAUSLADEN, Employee, v. EGAN MECH. and ARCH INS. CO./GALLAGHER BASSETT SERVS., INC., Employer-Insurer/Appellants, and THERAPY PARTNERS., INC., Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 7, 2010
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS. Where the employee was working at her usual and customary occupation with no formal restrictions, there was no medical evidence explaining in any detail what the employee might hope to gain from the proposed treatment, and there was nothing otherwise unusual about the case, the compensation judge erred in concluding that the employee was entitled to a chronic pain evaluation under the “rare case” exception to the treatment parameters.
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS; MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. The record adequately established that the employee’s epidural injections and requested repeat MRI scan were consistent with the applicable treatment parameters and that the employee’s treatment with Dr. Biewen was reasonable and necessary.
Affirmed in part and reversed in part.
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 Respondent. Jay T. Hartman, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Appellants.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the compensation judge’s award of a pain clinic evaluation under the “rare case” exception to the treatment parameters and from the judge’s award of certain other medical expenses, including an MRI scan. We reverse the award of a pain clinic evaluation but affirm as to the other expenses.
The employee sustained a work-related injury to her low back on June 6, 2006, while employed as a sheet metal worker by Egan Mechanical [the employer]. She was subsequently seen by Kimberly Hauch, a physician assistant at the Columbia Park Medical Group. Ms. Hauch diagnosed a lumbar strain sprain, with intermittent leg pain, recommended restrictions, and prescribed medications and physical therapy. On August 3, 2006, the employee underwent a lumbar MRI scan, which disclosed degenerative disc disease, with a central annular disc bulge, at L5-S1.
A few days after the MRI scan, the employee returned to Columbia Park Medical Group and was seen by Dr. Jeffrey Meyer. About a week later, Dr. Meyer referred her to Physicians Neck and Back Clinics [PNBC] for evaluation. The employee subsequently participated in an active rehabilitation program at that facility and, in mid-December of 2006, after 29 therapy sessions, PNBC physician Dr. Alison Coulter released the employee to return to her usual job duties, without restrictions, recommending that she quit smoking, increase her cardiovascular activities, and use a device called a “Roman chair” for further strengthening.
On January 5, 2007, Dr. Meyer noted that the employee’s back pain had improved and that she had attained normal strength in the PNBC program. He released the employee to work without restrictions but stressed that she should obtain the Roman chair recommended by Dr. Coulter. Shortly thereafter, the employee was laid off from her job and began receiving unemployment benefits.
The employee was evaluated again by Dr. Meyer in April of 2007. At that time, Dr. Meyer’s assessment was “chronic low back pain without radiculopathy.” Noting that the employee seemed to be deconditioned and was reporting “significant pain impacting her life,” Dr. Meyer referred her to Dr. Miles Belgrade at the University Fairview Pain Center.
The employee obtained a job as a sheet metal worker for another employer in June of 2007. She subsequently continued to work in that capacity, with no restrictions and little or no wage loss related to her low back condition. The employee testified, however, that she requires assistance at work because of her low back condition and that continuing symptoms have affected her ability to engage in recreational activities.
The matter initially came on for hearing before a compensation judge in January of 2008. Issues included the employee’s request for approval of the referral to Dr. Belgrade and the applicability of the treatment parameters to that claim. In a decision issued on February 11, 2008, the compensation judge concluded that the treatment parameters were applicable, because the employer and insurer had admitted liability and paid benefits, and that, pursuant to the parameters, the employee was not entitled to pain clinic evaluation or treatment.
On appeal, a panel of this court affirmed the judge’s decision as to the applicability of the treatment parameters. We concluded, however, that a remand was required to allow the judge to consider whether a departure from the parameters was warranted under the applicable departure rules, Minn. R. 5221.6050, subp. 8, and, if not, whether the requested pain clinic referral qualified for a “rare case” exception to the parameters pursuant to case law. Neither party appealed from this court’s decision.
In May of 2008, the employee began receiving treatment from Dr. Paul Biewen, a physical medicine and rehabilitation specialist. While other providers, including Dr. Meyer, had found no radiculopathy, Dr. Biewen diagnosed the employee as having “discogenic pain due to the disc abnormality at the L5-S1 level with a component of right-sided radicular pain.” Dr. Biewen’s initial recommendations included a follow-up MRI scan and a trial of lumbar epidural injections. He made no changes to the employee’s medications and did not suggest any restrictions on the employee’s work activities.
The employer and insurer declined to approve the MRI scan, despite repeated recommendations by Dr. Biewen. In August of 2008, the employee underwent an epidural injection at L5-S1, which apparently produced at least some improvement in her symptoms. Two months later, in October of 2008, Dr. Biewen recommended that the employee undergo additional physical therapy, using a “Swiss Ball,” which the employer and insurer also declined to approve. However, the employee’s private insurance apparently paid for that therapy.
In December of 2008, the employee received a second lumbar epidural steroid injection, but she “did not gain much relief from this,” according to office notes. Dr. Biewen continued to diagnose the employee as suffering from a “[r]ight disc herniation with low back and right-sided radicular pain,” and he continued to recommend a second MRI scan.
On April 10, 2009, the matter came on again for hearing before a compensation judge for two purposes: resolution of the issues on remand relative to the requested pain clinic evaluation, and consideration of the employee’s claim for additional medical expenses, including expenses related to the recommended second MRI scan, office visits with Dr. Biewen, the most recent round of physical therapy, and the epidural injections. Additional testimony and evidence was offered at this hearing.
In a decision issued on June 9, 2009, the compensation judge concluded that the requested pain clinic evaluation did not qualify for a departure under the relevant treatment parameters. The judge also concluded, however, that the “proposed evaluation, and if appropriate, pain clinic treatment with Dr. Belgrade, is reasonable and necessary medical treatment and qualifies as a ‘rare case’ exception” pursuant to case law. The employer and insurer were therefore ordered “to pay for the reasonable fee service sums for the pain clinic treatment of this employee.” The employee’s claim for physical therapy was denied, but the employer and insurer were ordered to pay expenses for Dr. Biewen’s treatment, the epidural injections, and the requested MRI scan. The employer and insurer appeal.
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).
1. Pain Clinic Referral
It is undisputed, on appeal, that the employee is not entitled to a pain clinic evaluation or treatment under the treatment parameters governing chronic management, see Minn. R. 5221.6600, or under the rules governing departure from the parameters, see Minn. R. 5221.6050, subp. 8. The compensation judge concluded, however, that the employee was entitled to the requested referral to Dr. Belgrade under the “rare case” exception to the parameters.
The “rare case” exception was first enunciated by the supreme court in Jacka v. Coca Cola Bottling Co., 580 N.W.2d 27, 58 W.C.D. 395 (Minn. 1998), and subsequently applied by the court in Asti v. Northwest Airlines, 588 N.W.2d 737, 59 W.C.D. 59 (Minn. 1999). As explained by the court in Jacka, because “the treatment parameters cannot anticipate every exceptional circumstance,” “a compensation judge may depart from the rules in those rare instances in which departure is necessary to obtain proper treatment.” Jacka, 580 N.W.2d at 35, 58 W.C.D. at 408 (emphasis added). Whether the “rare case” exception is applicable is generally a fact question. See Martin v. Xerox Corp., 59 W.C.D. 509 (W.C.C.A. 1999).
In the present case, the compensation judge explained her decision in part by finding that the employee‘s lack of formal restrictions and her steady employment did not “adequately reflect [her] physical functioning and vocational activities,” going on to note the employee’s testimony about her continuing symptoms, her need for help at work, and her desire to avoid formal restrictions in order to maintain eligibility for union employment. While it is evident to us that the judge considered the record in a careful and thoughtful way, and while we are not entirely unsympathetic to the employee’s wish to find some treatment that will alleviate her residual symptoms, we are unable, on this record, to affirm the judge’s award.
Absolutely nothing about this case qualifies as exceptional or rare, as contemplated by case law. The employee sustained a low back injury which does not preclude her from performing her customary, high-paying occupation. In fact, she had been performing this work for more than two years by the time of the second hearing before the compensation judge, albeit, as she claims, with some help from coworkers. Her symptoms apparently flare up, on occasion, and she may have missed a day or two of work due to low back pain, but such occurrences are typical with chronic back injuries. Moreover, there is no evidence, from any source, that the employee is in any imminent danger of losing her job. And, importantly, while Dr. Biewen has expressed concern about the employee’s ability to maintain her current employment, long term, if her symptoms and mobility do not improve, Dr. Biewen has not offered any opinion as to the employee’s need for a chronic pain evaluation or treatment. As for Dr. Meyer, who made the referral, he has said only that the referral is reasonable to help relieve the employee’s back pain “and allow her to cope.”
We are, as a rule, extremely hesitant to overturn a judge’s decision on an issue of fact. At the same time, however, fact issues are not immune from review. To put it simply, if we were to affirm the judge’s decision here, virtually any employee with continuing symptoms could claim entitlement to chronic pain treatment. Such a result would be inconsistent both with the intent of treatment parameters and of case law governing “rare case” exceptions. See Kozlak v. Minnegasco, 64 W.C.D. 454 (W.C.C.A. 2004). As we have observed in the past, “the rare case exception is just that” and should not be used simply to avoid the limitations on treatment specified in the rules. Martin, 59 W.C.D. at 517.
Again, the record here reveals nothing in the least unusual about this case. The employee’s condition is not medically complex, she continues to work at her usual and customary occupation, and there is no medical evidence that explains in any detail what the employee might be expected to gain from the requested treatment. Furthermore, the employee’s most recent treating physician, Dr. Biewen, has offered no opinion about the requested evaluation or treatment. Under these circumstances, the judge’s decision is not supported by substantial evidence, and we reverse the award of the referral to Dr. Belgrade.
2. Dr. Biewen’s Treatment/Epidural Injections
The compensation judge awarded the employee expenses for her four office visits with Dr. Biewen and also for the epidural injections, performed at Suburban Imaging. On appeal, the employer and insurer contend that substantial evidence does not support the judge’s award, in that there is no evidence that this treatment “did or could be expected to return her as nearly as possible, to her pre-injury state of wellness.” We are not persuaded.
The compensation judge concluded that the employee has continuing symptoms due to her work-related injury, and there is no argument, to the contrary, on appeal. Dr. Biewen offered the employee treatment that had not yet been tried, and at least one of the epidural injections produced at least some improvement in the employee’s symptoms. As the compensation judge viewed it, Dr. Biewen explained “the need for the treatment, follow-up care provided, and the ongoing benefits of treatment.” While any improvement in the employee’s symptoms may have been brief, a lack of improvement, standing alone, provides no grounds to reverse a compensation judge’s decision as to the compensability of medical expenses. Because the record supports the award of expenses for the employee’s office visits to Dr. Biewen, we affirm her decision on that issue.
The compensability of the two lumbar epidural steroid injections is especially clear. The employer and insurer conceded, at oral argument, that this treatment was consistent with Minn. R. 5221.6200, subp. 5.A.(5), the applicable treatment parameter. In the absence of circumstances warranting a departure, treatment consistent with the parameters is generally compensable. See Pelowski v. K-Mart Corp., 627 N.W.2d 89, 93, 61 W.C.D. 276, 281 (Minn. 2001). The employer and insurer have submitted no evidence that would warrant a departure. We therefore also affirm the award for the epidural injections.
The employee underwent a lumbar MRI scan in August of 2006. Dr. Biewen has recommended that the employee undergo another MRI scan, citing Minn. R. 5221.6100, subp. 1.D.(5), which allows repeat imaging “to evaluate a new episode of injury or exacerbation which would itself warrant an imaging study.” The employer and insurer contend that the record does not support the conclusion that the employee has had any change of symptoms justifying a second scan. While the evidence on this issue is not particularly strong, it does appear that the employee has suffered some exacerbations of her symptoms. Given this evidence, and given the fact that the employee’s first scan is now more than three years old, we cannot conclude that the judge’s decision is inconsistent with the parameters or otherwise unsupported by the record as a whole. We therefore affirm the judge’s approval of the requested second MRI scan.
 Additional background information may be found in this court’s prior decision in this matter, Hausladen v. Egan Mech., No. WC08-136 (W.C.C.A. July 7, 2008).
 While the appeal was pending.
 The employee apparently began seeing Dr. Biewen at the suggestion of her attorney, but Dr. Meyer made the referral.
 At oral argument before this court, counsel agreed that the record for all issues consists of the testimony and exhibits submitted at both hearings.
 The employee contends that the current matter is analogous to the circumstances in Jett v. Wal-Mart Stores, Inc., slip op. (W.C.C.A. Sept. 21, 1999). However, we view Jett as a case construing the chronic management rules, as opposed to one applying the rare case exception. Furthermore, we characterized the chronic pain referral in Jett as “clearly reasonable and necessary.” (Emphasis added.) The same cannot be said here.
 At oral argument, the employer and insurer also claimed that the employee’s treatment with Dr. Biewen constituted an unauthorized change of physicians. However, we see no indication that this issue was raised at hearing before the compensation judge. As such, we will not address it.