DARWIN STATELY, Employee/Appellant, v. RED LAKE BUILDERS and GAB ROBINS N. AM., INC., Employer-Insurer, and MERITCARE HEALTH SYS., CENTRAL MINN. NEUROSCIENCES, LTD., and CENTER FOR PAIN MGMT., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 30, 2010
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY; MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS. Substantial evidence, including expert opinion, supported the compensation judge’s conclusion that in-home use of a hospital bed was not reasonably required to treat the employee’s low back condition, and the judge did not err in concluding that the employee’s claim did not qualify for a departure from the treatment parameters or application of the “rare case” exception to the parameters pursuant to Jacka v. Coca Cola Bottling Co., 580 N.W.2d 27, 58 W.C.D. 395 (Minn. 1998).
Determined by: Wilson, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Adam Wolkoff
Attorneys: Yuri Jelokov, Rodgers, Garbow & Jelokov, Bemidji, MN, for the Appellant. Michael Forde and Andrew Grimsrud, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the judge’s decision denying the employee’s claim for an in-home hospital bed for treatment of his low back condition. We affirm.
The employee sustained a work-related injury to his low back while working for Red Lake Builders [the employer] on March 1, 2002. The employer and its workers’ compensation insurer accepted liability for the injury and paid various workers’ compensation benefits, including expenses related to a low back fusion surgery performed on April 7, 2003, and benefits for a 20% permanent partial disability of the whole body. The fusion surgery was performed by Dr. Jeffrey Gerdes.
Upon his discharge from the hospital, the employee was provided with a hospital bed for use at home. For approximately six to eight months, the employer and insurer paid the rental charges associated with that bed. The bed was removed from the employee’s home at the employer and insurer’s direction. The employee subsequently continued to receive care from Dr. Gerdes and from his primary care doctor, Mark Cunningham.
In June of 2004, the employee was referred to Dr. Michael Gonzales for pain management. Dr. Gonzales treated the employee primarily with pain medication, including opioids, and exercise. Sacroiliac injections performed in January of 2005 were not effective in reducing the employee’s pain. The employee eventually also came under the care of neurosurgeon Dr. Alejandro Mendez.
At some point between 2005 and 2007, the employee again began using a hospital bed in his home, and he has continued to use it since that time.
It was eventually determined that the employee had a failed fusion. Dr. Mendez evaluated the employee to determine whether surgery would be effective. He indicated that a fusion revision offered only a 30% chance of significantly improving the employee’s low back pain.
On August 7, 2007, Dr. Mendez wrote a letter, indicating that the employee had experienced no resolution of his low back pain and that the employee’s diagnosis was chronic low back pain with demonstrated pseudoarthrosis at L5-S1 and possibly L4-5. Noting that the employee reported increased back pain when he used a regular bed, Dr. Mendez recommended that the employee continue using a hospital bed on a permanent basis.
In late 2007, the parties entered into a stipulation for settlement, pursuant to which the employee was paid a lump sum of $140,000 in full, final, and complete settlement of any and all claims, past, present, or future, with the exception of medical expenses. The stipulation for settlement indicated that the employee had been paid more than $25,000 in permanent total disability benefits and that he was receiving Social Security disability benefits. The award on stipulation was filed on November 19, 2007.
The employee filed a medical request on August 28, 2009, seeking payment for the hospital bed, based on Dr. Mendez’s report. Relying on Minn. R. 5221.6200, subp. 8.D.(2), the applicable medical treatment parameter, the employer and insurer denied the claim. In November of 2009, following an administrative conference, the employee filed a request for formal hearing.
At the employer and insurer’s request, Dr. Paul Biewen conducted a medical records review to evaluate the employee’s request for an in-home hospital bed. In his report of January 6, 2010, Dr. Biewen outlined the records that he had reviewed, including Dr. Mendez’s August 2007 report, and opined that a hospital bed was not medically necessary because the employee did not have “a structural abnormality in his spine or an identifiable medical reason for requiring a hospital bed.”
On April 6, 2010, Dr. Gonzales wrote to the employee’s attorney. In that letter, Dr. Gonzales diagnosed the employee as suffering from “lumbar radiculitis complicated by pseudoarthrosis . . . associated with a failed fusion,” which he considered to be a documented “medical complication of [the employee’s] original difficulties.” It was Dr. Gonzales opinion that a hospital bed was medically reasonable and necessary to “help to control the position of [the employee’s] spine while he is sleeping.”
The matter came on for hearing on April 7, 2010. In findings and order filed on April 22, 2010, the compensation judge adopted the opinions of Dr. Biewen and denied the employee’s request for an in-home hospital bed. The employee appeals.
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).
Minn. Stat. §176.135 provides that the employer and insurer shall furnish such medical treatment and supplies “as may reasonably be required . . . to cure and relieve from the effects of the injury.” The medical treatment parameters were established to serve as a guide for determining what constitutes reasonable and necessary medical treatment. Pursuant to Minn. R. 5221.6050, subp. 1.A., “all treatment must be medically necessary treatment, as defined in part 5221.6040, subpart 10.” Minn. R. 5221.6040, subp. 10, defines medically necessary treatment as “those health services for a compensable injury that are reasonable and necessary for the diagnosis and cure or significant relief of a condition.” Minn. R. 5221.6200, subp. 8.D.(2), provides specifically that beds are not indicated for home use for low back conditions.
In the instant case, the compensation judge expressly adopted the opinion of Dr. Biewen, who indicated that the requested hospital bed “was not medically necessary.” The employee contends that substantial evidence does not support the conclusion that the hospital bed is not reasonable and necessary, contending also that the judge should not have adopted the opinion of Dr. Biewen. We are not persuaded.
The employee argues that Dr. Biewen lacked foundation for his opinion because he did not take a history from the employee, did not examine him, and did not review certain specific radiologic studies or the records of Dr. Gonzales. Contending that these “key medical records” reveal a fusion defect and instability, the employee argues that, without reviewing these records, “Dr. Biewen did not have sufficient information to have adequate foundation for his diagnosis and opinions.” However, it is apparent, from his report, that Dr. Biewen did have the August 2007 letter of Dr. Mendez, which indicated that the employee had continuing back pain following his fusion surgery and that he had demonstrated pseudoarthrosis at L5-S1 and possibly L4-5. Dr. Mendez’s letter was issued after the studies noted by the employee, and Dr. Mendez’s records reflect that he was aware of Dr. Gonzales’s treatment and diagnoses. Dr. Mendez’s letter was also written after the August 7, 2007, flexion/extension x-ray ordered to determine whether the employee had overt instability in his back. That x-ray, taken on August 7, 2007, was interpreted as showing “no instability” on flexion or extension. While Dr. Mendez did not use the words “failed fusion” in his letter, Dr. Gonzales defined pseudarthrosis as “failure of fusion” in his April 6, 2010, letter. In other words, the compensation judge could reasonably conclude that Dr. Biewen had adequate information about the nature of the employee’s condition to render an opinion. Furthermore, the employee has pointed to no specific medical information, unknown to Dr. Biewen, that would have required Dr. Biewen to change his opinion.
We would also note that there is also no requirement in the law that a doctor physically examine an employee or obtain a medical history directly from an employee before a compensation judge may reasonably accept that doctor’s opinion. Dr. Biewen performed a medical records review. As a physician of physical medicine and rehabilitation, he had adequate education and experience to give a medical opinion, and, as noted above, he had sufficient information about the employee’s medical status. A judge’s choice between experts whose testimony conflicts is usually upheld 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). We are not persuaded that Dr. Biewen assumed facts that are not supported by the evidence. The fact that Dr. Biewen did not examine the employee goes to weight, not foundation for his opinion, and was for the compensation judge to evaluate.
In addition to adopting Dr. Biewen’s opinion, the judge also made findings that the employee had not experienced subjective pain relief or objective improvement in his condition during the period in which he was using the hospital bed. The employee contends that the judge applied an inappropriate standard by using the words “significant long term” subjective pain relief and “progressive” objective improvement. However, “cure or significant relief” of a condition is part of the definition of medically necessary treatment. We find the judge’s choice of words to be in keeping with caselaw on what constitutes reasonable and necessary.
Further, substantial evidence supports the judge’s finding that use of a hospital bed will not result in subjective pain relief or objective improvement in the employee’s condition. While the employee testified that using a hospital bed decreased his back and leg pain and helped him sleep, Dr. Gonzales’s records from 2005 to the present repeatedly indicate that the employee continued to have pain and trouble falling and staying asleep. In addition, on January 5, 2010, Ann Day, P.A., reported that the employee had stated that “he basically has not had any significant relief of pain since his surgery.”
While there are some medical records that reflect improvement in the employee’s activity level at various times, there are no medical records that attribute this improvement to the use of a hospital bed. In fact, in a January 2, 2009, office note, Dr. Gonzales noted that the employee “has experienced some significant improvement since his last visit. [The employee] attributes this to his current dose of opioid.” There is no reference in any of the medical records indicating that Dr. Gonzales was even aware that the employee was using a hospital bed until his April 6, 2010, letter, written one day before the hearing.
There is substantial evidence to support the judge’s conclusion that a hospital bed is not reasonable and necessary to cure or relieve the employee from the effects of his work-related condition.
Having found that the hospital bed was not reasonable and necessary treatment, the compensation judge went on to find that the treatment parameters did not allow for a hospital bed as treatment for a low back condition and that this matter did not qualify for a “rare case” exception to the treatment parameters as established in Jacka v. Coca Cola Bottling Co., 580 N.W.2d 27, 58 W.C.D. 395 (Minn. 1998). The employee contends that the judge erred by failing to address the issue of whether the employee qualified for a departure under Minn. R. 5221.6050, subp. 8.A. or D. However, while he did not specifically cite Minn. R. 5221.6050, subp. 8.A. or D., it is obvious from the judge’s findings that he was looking at the criteria for departure.
Finally, the employee argues that the judge erred in finding that the employee’s situation did not qualify for a “rare case” exception under Jacka. Again we are not persuaded. As noted in the judge’s memorandum, the employee’s doctors did not provide “any real explanation” for why this case should be considered for a “rare case” exception, and the judge reasonably concluded that this case is not medically complicated or otherwise unusual. The employee has a failed fusion, which, while unfortunate, is not particularly rare. And, in Jacka, the supreme court stated that “a compensation judge may depart from the rules in those rare cases in which departure is necessary to obtain proper treatment.” 580 N.W.2d at 35-36, 58 W.C.D. at 408. The compensation judge has, in effect, found that a hospital bed is not proper treatment for this employee’s low back condition. We therefore affirm the judge’s denial of the employee’s claim.
 An August 13, 2003, notation by Ron Thiessen, a nurse with Dr. Gerdes’s office, indicated that the employee had called, asking to have his prescription for a hospital bed renewed. The employee stated that he would need the bed for as long as he continued to have pain. On August 20, 2003, Dr. Gerdes noted that he would extend the prescription for the hospital bed for two months but that he wanted the employee “up and about.”
 The employee decided not to proceed with a revision.
 Dr. Majid Ghazi noted on October 25, 2007, that the employee did not have instability of his lower spine.
 The compensation judge may also have been using this language to indicate consideration of the grounds for departure from the parameters. See Minn. R. 5221.6050, subp. 8.D.
 The most recent notation to this effect was from February 10, 2010.
 The employee also argues that the judge erred by finding that the employee’s use of prescription medication had increased over the last four years. The medical records can be interpreted in different ways, but there is substantial evidence to support the judge’s interpretation. As this was only one of several reasons the judge gave for denying the employee’s claim, we find it unnecessary to address this issue further.
 See footnote 4 and related discussion.
 The employee also raises arguments regarding the validity and constitutionality of Minn. R. 5221.6200, subp. 8.D.(2), issues which we have no authority to address.