GLENN A. ARMSTRONG, Employee, v. RJ SPORT & CYCLE and WEST BEND MUT. INS. CO., Employer-Insurer/Appellants, and BLUE CROSS/BLUE SHIELD OF MINN. and ST. MARY’S DULUTH CLINIC HEALTH SYS., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 22, 2011
MEDICAL TREATMENT & EXPENSE - CHRONIC PAIN MANAGEMENT; RULES CONSTRUED - MINN. R. 5221.6040, subp. 3.D. Pursuant to Minn. R. 5221.6040, subp. 3.D., appropriate medical treatment must be provided for any known organic syndrome causing pain before a diagnosis of chronic pain syndrome may be considered. The employee has received extensive treatment for his underlying degenerative disc disease, without resolution of his pain, and the compensation judge’s decision is not reversible on this basis.
MEDICAL TREATMENT & EXPENSE - CHRONIC PAIN MANAGEMENT; RULES CONSTRUED - MINN. R. 5221.6600, SUBP. 2.E. Although in this case, the treatment parameters do not apply where the employer and insurer denied the employee suffers from a chronic pain syndrome, the treatment parameters do provide guidance for analyzing whether a chronic pain management program is reasonable and necessary medical treatment. At a minimum, an admission evaluation should be performed to confirm the diagnosis of chronic pain syndrome and the willingness and ability of the employee to benefit from a chronic pain management program as described in Minn. R. 5221.6600, subp. 2.E.
Affirmed in part, modified in part, and vacated in part.
Determined by: Johnson, C.J., Pederson, J., and Wilson, J.
Compensation Judge: Jerome G. Arnold
Attorneys: Robert T. Brabbit, Brabbit & Salita, Minneapolis, MN, for the Respondent. Mark A. Kleinschmidt and Kirsi L. Poupore, Cousineau McGuire, Minneapolis, MN, for the Appellants.
THOMAS L. JOHNSON, Judge
The employer and insurer appeal the compensation judge’s finding that the employee is a candidate for chronic pain management treatment, the judge’s approval of the employee’s request for authorization of, and payment for, a chronic pain management program, and the judge’s denial of the qualified rehabilitation counselor’s request to terminate rehabilitation services. We affirm in part, modify in part, and vacate in part.
Glenn A. Armstrong, the employee, sustained a personal injury to his low back on February 22, 2006, arising out of and in the course of his employment with RJ Sport & Cycle, the employer. On that date, the employer was insured for workers’ compensation liability by West Bend Mutual Insurance Company, the insurer. Pursuant to a Temporary Order, the employer and insurer paid various workers’ compensation benefits to and on behalf of the employee, including indemnity benefits, medical benefits, and rehabilitation benefits.
On February 23, 2006, the employee was seen by Dr. Chris Chapman at St. Mary’s Duluth Clinic (SMDC) complaining of low back pain. The doctor diagnosed work-related lumbrosacral pain, prescribed Flexeril, ice, and rest, and referred the employee to Dr. Timothy Morton, a physical medicine and rehabilitation specialist at SMDC. The employee also sought chiropractic treatment. An MRI scan in April 2006 was compared to an October 1998 MRI scan and showed unchanged L5-S1 degenerative changes with S1 nerve root involvement on the left and slightly worsened degenerative findings at L4-5. Thereafter, the employee underwent various methods of conservative treatment at SMDC including facet, sacroiliac, and lumbar injections, a lumbar rhizotomy, and physical therapy. The employee reported no long-term relief of his symptoms from these treatments. An MRI scan in November 2006, was unchanged in comparison to the April 2006 scan.
In December 2006, Dr. Richard Strand examined the employee at the request of the employer and insurer. The doctor diagnosed degenerative disc disease and degenerative spondylosis of the lumbar spine at multiple levels with bulging discs. Dr. Strand opined the February 2006 personal injury was a temporary aggravation of a pre-existing degenerative condition from which the employee had reached maximum medical improvement (MMI) by December 14, 2006.
An EMG in January 2007 showed no significant peripheral neuropathy or lumbar radiculopathy to account for the employee’s severe SI radicular pain. Thereafter, Dr. Nancy Ensley, a neurosurgeon at SMDC, examined the employee and diagnosed degenerative disc disease of the lumbrosacral spine which “was at risk to worsen over the years into a picture consistent with spinal stenosis.” (Pet. Ex. A.) Dr. Ensley recommended vigorous physical therapy and suggested light-duty work. The doctor re-examined the employee in July 2007 and stated surgery was inappropriate because the employee’s leg symptoms were minimal.
An October 15, 2007, MRI scan of the lumbar spine showed little change in comparison to the November 2006 scan. The employee followed up with Dr. Ensley on October 23, 2007, and she referred him to Dr. Glazier, a neurosurgeon, for a surgical opinion. Dr. Glazier diagnosed left L4-5 disc protrusion with left L5-S1 radiculopathy and recommended a left L4-5 discectomy which he performed in March 2008. Following the surgery, the employee underwent physical therapy and a work hardening program.
In August 2008, the employee returned to see Dr. Chapman reporting marked improvement of his right leg pain but continuing low back pain. The employee stated he had been unable to work. On October 6, 2008, Dr. Chapman diagnosed chronic low back pain and referred the employee for chronic pain management. The doctor further ordered a functional capacities evaluation (FCE) to see if the employee could be employed, and, if not, he was advised to seek Social Security disability benefits.
The employee completed an FCE on October 7 and 8, 2008, and work limitations were identified. Thereafter, he began a job search for part-time work with the assistance of a qualified rehabilitation consultant (QRC), Franklin Cox.
In February 2009, Dr. Morton also diagnosed chronic low back pain and recommended a trial of trigger point injections. In his office notes, the doctor stated he discussed with the employee the fact that his symptoms would be chronic and a chronic pain program was the best place to deal with his symptoms. Accordingly, Dr. Morton again made a referral to the chronic pain program.
Dr. Strand re-examined the employee in February 2009, again at the request of the insurer. In his report, the doctor stated,
It is my opinion that a pain management program in this case would not be at all useful and would not be appropriate. There is no way that his degenerative changes of his lumbar spine can be changed. It appears that he is going to have chronic pain, and, certainly, the pain management clinics have not proved to anybody that they can solve this kind of chronic pain.
In May 2009, the employee returned to see Dr. Morton who opined the employee could not return to work of any kind due to his severe, chronic low back pain, and again recommended the employee be referred to the chronic pain program. The employer and insurer refused to authorize chronic pain management treatment.
In April 2010, Mr. Cox, the employee’s QRC, filed a Rehabilitation Request asking that vocational rehabilitation services be terminated given the impasse in medical treatment. In response, the employee filed a Rehabilitation Response and Medical Request seeking continuation of rehabilitation services and approval of, and payment for, a chronic pain program.
Following a hearing, the compensation judge found the employee was a candidate for chronic pain management because he continued to have symptoms and physical findings following all appropriate treatment and his condition prevented him from resuming regular activities of daily life. The compensation judge further found that, the treatment parameters not withstanding, a chronic pain management program at SMDC was reasonable medical treatment for the employee. Finally, the compensation judge found the employee remained a qualified employee for rehabilitation services. The employer and insurer appeal.
The employer and insurer appeal the compensation judge’s decision approving the employee’s request for authorization of a chronic pain management program. The appellants contend the employee does not meet the criteria of Minn. R. 5221.6040, subp. 3, which defines chronic pain syndrome. They point specifically to item D which references “any set of verbal or nonverbal behaviors” that “are not consistent with a known organic syndrome which has remained untreated.” The appellants argue the employee suffers from a known organic syndrome, degenerative disc disease, which has not been treated as there is no way to alter its course. The appellants assert there has been no showing by the employee that any of the treatment modalities provided changed the course of his known degenerative condition. Accordingly, the appellants contend the employee fails to meet the requirement of item D of the rule, and argue the compensation judge’s finding that the employee suffers from chronic pain syndrome should be reversed. We are not persuaded.
We read Minn. R. 5221.6040, subp. 3.D., to state that it is premature to conclude an injured employee has a chronic pain syndrome until any known organic syndrome causing pain has been treated. It seems a reasonable requirement that, before an employee be treated for chronic pain syndrome, the employee receive treatment for the known organic syndrome. If the organic syndrome does not respond to appropriate treatment and the employee develops a set of verbal and nonverbal behaviors meeting the other requirements of the rule, an evaluation for admission to a chronic pain treatment program may be appropriate.
The employee has received extensive treatment for his degenerative disc disease, including physical therapy, rhizotomy, injections, and surgery. Despite all treatment, the employee’s organic syndrome continues to produce pain. Dr. Chapman and Dr. Morton diagnosed chronic low back pain and recommended treatment at a pain clinic. We conclude the employee meets the requirements of Minn. R. 5221.6040, subp. 3.D., and decline to reverse the compensation judge’s decision on this basis.
Minn. R. 5221.6600, subp. 2.E., governs chronic pain management programs and provides:
(2) Requirements: an admission evaluation must be performed by a doctor, and a licensed mental health professional, each with at least two years experience in evaluation of chronic pain patients and chronic pain treatment, or one year of formal training in a pain fellowship program. The evaluation must confirm the diagnosis of chronic pain syndrome and a willingness and ability of the patient to benefit from a pain management program. There must be a specific set of prescribed activities and treatments, and a specific timetable of progression in those activities. There must be a set frequency and hours of attendance and the program must maintain adequate documentation of attendance. There must be a set duration of attendance.
In this case, no admission evaluation has been performed confirming the diagnosis of chronic pain syndrome or confirming the willingness and ability of the employee to benefit from a pain management program. Accordingly, the appellants contend the compensation judge erred in ordering the employer and insurer to pay for a chronic pain management program.
The employee contends the medical treatment parameters do not apply because the employer has denied liability for the condition for which treatment is sought, citing Moore v. University of Minn., 60 W.C.D. 302 (W.C.C.A. 2007). In the Moore case, the employer denied liability for any mental condition to which the employee might be subject and did not admit that the employee suffered from chronic pain syndrome. The court held the medical treatment parameters do not apply when the employer denies liability for the condition for which treatment is sought. See also Irvin v. Red Wing Shoe Co., No. WC06-218 (W.C.C.A. May 1, 2007); Mattson v. Northwest Airlines, slip op. (W.C.C.A. Nov. 29, 1999). In this case, the employer and insurer have denied the employee suffers from chronic pain syndrome, the condition for which treatment is sought. Accordingly, the treatment parameters are inapplicable.
While the treatment parameters may not be applicable, they do provide guidance for analyzing whether a chronic pain management program is reasonable and necessary medical treatment. We find this situation analogous to a case in which a doctor refers an injured employee to a medical specialist to determine whether the particular treatment provided by that specialist - - surgery, for example- - is appropriate treatment for the employee. At a minimum, an admission evaluation should be performed to confirm the diagnosis of chronic pain syndrome and the willingness and ability of the employee to benefit from a chronic pain management program as described in Minn. R. 5221.6600, subp. 2.E.(2).
The compensation judge’s order that the employer and insurer pay for a chronic pain management program is vacated as premature. The employer and insurer are ordered to pay for an admission evaluation of the employee for a chronic pain management program.
The employee’s QRC sought discontinuance of rehabilitation services based on the impasse in medical treatment, noting the employee was not released to work pending chronic pain treatment recommended by his doctors and that the employer and insurer refused to authorize the treatment. The compensation judge denied the QRC’s request to terminate rehabilitation services. As this court has ordered a chronic pain program admission evaluation of the employee, the judge’s order is affirmed.
 Previously, the employee sustained a personal injury on July 1, 1996, while working for RJ Sport & Cycle. The employer was then self-insured for workers’ compensation liability with claims administered by Berkley Risk Administrators Company.