STEVEN JACKSON, Employee, v. MINNEAPOLIS PUBLIC SCH. SPECIAL DIST. #1, SELF-INSURED/SEDGWICK CLAIMS MGMT. SERVS., Employer/Appellant.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 8, 2010
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS; RULES CONSTRUED - MINN. R. 5221.6050, SUBP. 8. The compensation judge's conclusion that the employee had a documented medical complication satisfying the departure provision of Minn. R. 5221.6050, subp. 8.A, was supported by substantial evidence including medical records and lay testimony.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Gary P. Mesna
Attorneys: James A. Batchelor, Batchelor Law Firm, Minneapolis, MN, for the Respondent. Thomas V. Maguire, Brown & Carlson, Minneapolis, MN, for the Appellant.
DAVID A. STOFFERAHN, Judge
The self-insured employer appeals from the compensation judge’s determination that the provision of a Tempur-Pedic bed proposed by the employee’s treating doctor is reasonable and necessary for the treatment of the employee's sleep difficulties to which the pain from his work injury contributes, and that a departure from the treatment parameters is warranted based on a documented medical complication consisting of the employee's pre-existing sleep apnea coupled with stenosis, extensive fibrosis, potential arachnoiditis associated with his work injury, two surgeries for a preexisting low back condition, and two low back surgeries resulting from his work injury. We affirm.
The employee, Steven Jackson, sustained an admitted injury to his low back on November 27, 2007, resulting from the use of a broken seat in the school bus he operated for the employer, the Minneapolis Public Schools. On that date, he saw his family physician, Dr. David Berman at Aspen Medical Group, and reported pain in the low back which radiated into the buttocks and down his legs. Dr. Berman diagnosed a lumbar strain.
The employee was subsequently treated with physical therapy and other conservative modalities. On December 17, 2007, the employee underwent a lumbar epidural steroid injection. His symptoms failed to improve, and Dr. Berman referred the employee to a neurosurgeon, Dr. Mahmoud Nagib. The employee had previously consulted with Dr. Nagib and had undergone two surgeries by Dr. Nagib for a herniated disc at L5-S1 in 1990 or 1991 with good recovery.
Dr. Nagib’s diagnosis in 2007 was of lumbar disc disease with severe back pain. A lumbar MRI scan was performed on January 16, 2008, which showed moderate degenerative lumbar spondylosis with degenerative disc and facet disease throughout the lumbar spine, severe central stenosis at L4-5, and moderate central stenosis at L3-4 and S1. Dr. Nagib recommended surgery for what he diagnosed as a right-sided L4-5 lateral recess syndrome and an entrapment of the right L4 nerve root.
The employee was seen by an orthopedic surgeon, Dr. David Carlson, on behalf of the employer on March 6, 2008. Dr. Carlson concluded that the work injury had occasioned an acute aggravation of the employee’s pre-existing spinal stenosis, most likely in the form of a herniated disc at L4-5. He recommended continuing symptomatic treatment with conservative measures including home exercise program instead of the surgery offered by Dr. Nagib. In his view, the employee had reached MMI with a seven percent permanent partial disability for a herniated disc at one level.
The employee elected to undergo surgery, and on April 29, 2008, Dr. Nagib performed a transfacet L4-5 laminectomy on the right side with decompression of the right L4 nerve root and resection of an apparent synovial cyst which appeared to compress and displace the L4 nerve root.
Following the surgery, the employee’s symptoms continued. Additional therapy failed to improve them. Electrodiagnostic testing was performed on November 7, 2008, to evaluate possible left L5 nerve root compression. The study showed evidence of denervation in the left lower limb, most significantly in the L5 myotome but also in the S1 myotome, consistent with polyradiculopathy affecting the left L5 and S1 nerve roots. A lumbar myelogram and CT on the same date showed multilevel degenerative changes of the lumbar spine, most notably at L4-5. There was severe canal stenosis, worse on left, with accompanying severe neural foraminal stenosis at L5-S1.
On November 28, 2008, the employee underwent a second surgery, in the form of a combined transfacet extended laminectomy of L4 on the left with decompression of both L4 and L5 nerve roots. During the procedure, Dr. Nagib noted “a significant amount of epidural fibrosis.” Over several months following the second surgery, the employee’s leg pain gradually improved. However, he was left with back pain despite further physical therapy in early 2009.
The employee testified at the hearing that since the work injury in 2007 his back pain has prevented him from sleeping for more than about two hours at a time. He has been able to remain comfortable in one position for only that long before increasing pain wakes him. At some point, the employee began testing mattresses at stores in the hope that he would find one that would provide longer periods of rest. He also discussed the problem with Dr. Nagib, who suggested that he try out a Tempur-Pedic mattress. The employee testified that he had tried numerous mattresses at furniture stores and that he had found that a Tempur-Pedic mattress allowed him to lie comfortably in one position much longer than any of the others.
The employee also has a documented history of obstructive sleep apnea which was confirmed by a polysomnogram on January 14, 2004. At that time, his reported symptoms included daytime fatigue, somnolence, severe snoring, and a feeling of almost choking. Attempts to treat the condition with a continuous positive airflow pressure nasal mask were unavailing, and the employee’s physicians recommended surgery in the form of septoplasty and uvuloplasty. However, after the surgery was scheduled in July 2004, the employee was found to be hypokalemic, and the surgery was cancelled.
In a letter to the employee's family physician dated April 9, 2009, Dr. Nagib noted that the employee continued to have a significant degree of lumbar pain. An updated lumbar myelogram and CT had shown dye blocks at L4-5 and at L3-4 indicating a degree of stenosis. Dr. Nagib opined that the stenosis could be related to arachnoiditis and the extensive fibrosis noted previously. The doctor felt that the employee's inability to sleep was contributing to his poor situation. In this letter, Dr. Nagib noted that the employee had reported that he was able to obtain pain and sleep relief using a specific type of mattress. He suggested that it might be appropriate to consider the use of this mattress to see if an improvement in the employee’s clinical picture might be obtained through improvement in his sleep pattern. In the doctor’s view, the only treatment alternative would be major surgery in the form of a decompressive laminectomy through L4, L5 and L3. However, he thought that further surgical intervention would be fraught with numerous potential complications and that there could still be persistent pain even after surgery.
On May 6, 2009, the employee filed a medical request for the Tempur-Pedic bed (mattress and box spring) he had tried out at a furniture store and about which he had told Dr. Nagib. The self-insured employer filed a medical response on May 11, 2009, denying the request.
The employee was seen by Dr. Berman, his family doctor, on May 15, 2009. He complained of severe back pain, especially at night, and again noted difficulty sleeping. Dr. Berman noted that the employee had severe depression as a result of his pain.
Following an administrative conference on June 24, 2009, a compensation judge denied the employee's request, noting that the medical treatment parameters disqualify mattresses as a treatment for back injuries. The employee filed a request for a formal hearing on the issue on August 4, 2009.
The employer asked their expert, Dr. Carlson, to review the medical records since the date of his prior examination of the employee, and to provide an opinion about the employee's request for the Tempur-Pedic bed. On August 27, 2009, Dr. Carlson provided a report in which he opined that a bed or mattress was not reasonable or necessary to cure and relieve the employee’s low back problems. He did not consider the situation to be a rare case requiring departure from the treatment parameters. In addition, Dr. Carlson noted that some other mattress might do as well for the employee as the Tempur-Pedic brand, which was quite expensive. Dr. Carlson recommended that the employee’s treatment should consist of a home exercise program coupled with the use of over-the-counter pain medications.
Dr. Nagib provided the employee’s attorney with a letter opinion on September 6, 2009. In it, the doctor noted that the employee had extensive lumbar and lumbosacral problems that had been treated with both conservative and surgical methods and he was still experiencing a significant exacerbation of lumbar and lumbosacral pain which greatly limited his activities and prevented him from resting. The employee had reported that a Tempur-Pedic bed alleviated his symptoms and allowed him to rest. Dr. Nagib concluded that the purchase of a Tempur-Pedic bed was reasonable and necessary treatment, in that it would have a positive impact on the employee's pain syndrome. Dr. Nagib stated, “We have to understand the patient’s condition is almost desperate.” In his view, the alternative of added surgeries would “aggravate the problem and make a bad situation worse.”
A hearing was held on the employee's medical request on October 23, 2009, before a compensation judge. Following the hearing, the compensation judge found that the provision of a Tempur-Pedic mattress and box spring was medically reasonable and necessary treatment. The compensation judge further found that a departure from the treatment parameters was warranted based on a documented medical complication consisting of the employee's pre-existing sleep apnea coupled with the stenosis, extensive fibrosis, and potential arachnoiditis associated with the work injury. The employer and insurer appeal.
The medical treatment parameters provide that “beds, waterbeds, mattresses, chairs, recliners, and loungers” are “not indicated for home use for low back conditions.” Minn. R. 5221.6200, subp. 8.D.(2). However, Minn. R. 5221.6050, subp. 8.A, permits a departure from the parameters where there is a documented medical complication. In Smith v. Country Manor Health Care, 60 W.C.D. 1, (W.C.C.A. 2000), citing Dorland’s Illustrated Medical Dictionary 363 (28th ed. 1994), we noted that a “complication” is defined as “a disease or diseases concurrent with another disease,” and as “the concurrence of two or more diseases in the same patient.” In Smith, we held that a medical complication within the rule includes situations where a work injury, in combination with a pre-existing condition, causes a more complicated course of symptoms, disability and treatment results.
The compensation judge expressly accepted Dr. Nagib’s opinion that a Tempur-Pedic bed was reasonable and necessary for the treatment of the employee’s work injury. He found that the employee’s significant low back pain was a substantial contributing factor, in addition to pre-existing sleep apnea, to the employee's inability to sleep. He further found that the employee has stenosis with extensive fibrosis as well as suspected arachnoiditis. On the basis of these findings, the judge determined that the employee had a documented medical complication within the meaning of the treatment parameters which permitted a departure from the guidelines.
The question of reasonableness of medical treatment is one of fact for the compensation judge. Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993). The issue for this court is whether substantial evidence supports the compensation judge’s determination. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984). While the employer, on appeal, contends that the compensation judge erred as a “matter of law” in departing from the parameters, the arguments made by the employer go to the sufficiency of the evidence which supports the compensation judge’s decision and we consider the present case on that basis.
The employer argues that the finding of a medical complication was unsupported because the diagnosis of arachnoiditis was speculative and unsubstantiated by objective findings, and because there was no evidence that the employee’s specific symptoms are related to arachnoiditis. The employer points out that Dr. Carlson’s diagnosis was only of L5 degenerative changes with moderate stenosis, and that Dr. Carlson did not diagnose fibrosis or arachnoiditis; they contend that evidence of these conditions was absent. We note, however, that Dr. Nagib’s surgery report of November 28, 2008, documents extensive fibrosis as physically observed during the surgery. Further, Dr. Nagib’s opinion was not that arachnoiditis was the source of the employee’s symptoms, but rather that the observed fibrosis and possible arachnoiditis were contraindications to further surgery, and he considered the provision of the recommended mattress and box spring to be an alternative worth attempting to alleviate the effects of the employee’s pain. We have noted above that a medical complication need not be in itself the cause of the employee's symptoms, but merely a concurrent disease or condition which renders treatment or relief of the work injury more complicated.
While Dr. Carlson, the self-insured employer’s expert, did not agree with Dr. Nagib as to whether the use of a Tempur-Pedic bed was reasonable and necessary, the judge’s choice between medical opinions in the case will usually not be disturbed on appeal unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The employer argues that Dr. Nagib’s opinion is insufficiently supported by the facts because the employee never tried the bed overnight, because Dr. Nagib’s recommendation did not identify a specific model within the Tempur-Pedic line, and because, in their view, the employee’s obesity may play a significant role in his pain which has not been addressed. These arguments, however, go to the weight to be given the medical opinion by the compensation judge, rather than its admissibility.
The employer argues that the compensation judge should have considered less costly alternatives, such as a hospital bed, sleep medications, weight reduction, or pain treatment. It is true that Dr. Carlson suggested that some “less costly alternative bed” might “do just as well” to “provide a decent mattress for his comfort,” but in the same opinion he specifically stated his opinion that none of them were required to cure and relieve the effects of the work injury. Beyond this, there was no specific evidence offered as to the costs, availability, or effectiveness of some other specific treatment for the judge to consider. The judge did, however, consider alternative treatment options to reduce costs, by awarding $4,500 for a less expensive Tempur-Pedic bed than the approximately $8,500 model that had been requested by the employee.
Finally, the employer contends that there was no specific evidence of a $4,500 Tempur-Pedic bed consistent with the judge’s award. Accordingly, the employer argues, the award was without evidentiary support and the judge, having decided that the higher-priced bed was too expensive, should simply have denied the employee's request in its entirety. We note, however, that employer’s counsel elicited testimony from the employee on cross-examination that there were other Tempur-Pedic beds he had tried and which also provided greater relief than non Tempur-Pedic beds he had also tried. The employee testified that two of those lower price models were priced at about $3,200 and $4,500. We conclude the compensation judge's decision to award one of these less expensive beds had sufficient support.
 In addition to certain specific departure criteria contained in the parameters themselves, including the exception for a documented medical complication, our supreme court has held that departure from the parameters may be appropriate “in those rare cases in which departure is necessary to obtain proper treatment.” Jacka v. Coca Cola Bottling Co., 580 N.W.2d 27, 35, 58 W.C.D. 395, 408 (Minn. 1998); see also Hausladen v. Egan Mech., slip op. (W.C.C.A. Jan 7, 2010) (rare case exception requires unusual circumstances). The departure in the present case, however, was predicated not on the “rare case” exception, but on the specific departure provisions of Minn.R. 5221.6050, subp. 8.A, and we have not considered this case under the “rare case” doctrine.