KATHY ANN BROWN, Employee/Appellant, v. CITY OF MINNEAPOLIS, PUBLIC WORKS, SELF-INSURED, Employer, and PRINCIPAL LIFE INS., Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
NOVEMBER 17, 2011
PRACTICE & PROCEDURE - INDEPENDENT MEDICAL EXAMINATION. Where the compensation judge indicated that the employee’s claim for psychological treatment was unclear as to whether the treatment was for an admitted chronic pain condition or for a different mental condition, the compensation judge did not abuse her discretion by continuing the hearing to allow the employer to obtain an independent psychiatric examination of the employee.
EVIDENCE - RES JUDICATA. Res judicata does not bar the compensation judge from denying the employee’s claim for psychological treatment where a previous decision found that the employee’s work injury had aggravated her pre-existing chronic pain syndrome, but had not addressed whether that injury caused or aggravated her depression and/or anxiety.
CAUSATION - PSYCHOLOGICAL CONDITION; EVIDENCE - EXPERT MEDICAL OPINION; MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Substantial evidence, including adequately founded expert opinion, supports the compensation judge’s findings that the employee’s work injury did not aggravate her pre-existing psychological condition and that the non-psychological treatment was not reasonable and necessary.
Determined by: Johnson, J., Pederson, J. and Stofferahn, J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: Mark J. Freeman, Fitch, Johnson, Larson & Held, Minneapolis, MN, for the Appellant. Thomas J. Miller, Assistant City Attorney, Minneapolis, MN, for the Respondent.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge’s finding that certain medical treatment was not reasonable and necessary to cure and relieve the employee from the effects of her personal injuries. We affirm.
Kathy Brown, the employee, sustained multiple personal injuries arising out of her employment with the City of Minneapolis, the employer, affecting her left knee, left elbow, right leg, back and neck. The employer was self-insured for each of the employee’s personal injuries. In May 2007, the employee filed a claim petition seeking benefits as a result of her injuries. In a Findings and Order served and filed February 23, 2009, Compensation Judge Rolf Hagen found the employee sustained a Gillette-type personal injury on October 23, 2007, involving the employee’s neck, back, both knees, and a chronic pain syndrome.
Following the October 23, 2007, injury, the employee obtained medical treatment from and under the direction of Dr. Elena Polukhin initially at Hennepin Faculty Associates and later at Rehabilitation Consultants, P.A. The employee was treated for low back pain, muscle spasms, bilateral knee pain, hip pain, ankle pain, shoulder pain, and difficulty with ambulation. Dr. Polukhin prescribed various modalities of treatment including facet injections, myofascial releases, massage therapy, acupuncture, botox injections, trigger-point injections, an occipital nerve block, physical therapy, pool therapy and chiropractic treatment. The employee also obtained psychological counseling at the Spirit of Hope Counseling Center, and received chiropractic treatment with True Chiropractic and Stucky Chiropractic, acupuncture treatment at Acupuncture and Oriental Medicine, and other treatment at the Minnesota Center for Obesity, Metabolism and Endocrinology.
The employer initially paid for much of the employee’s medical treatment. By letter dated June 18, 2009, the employer wrote Dr. Polukhin stating that 12 weeks of chiropractic treatment had been provided and the employer intended to apply the treatment parameters to all future treatment. (Resp. Ex. 2.) By letter dated August 4, 2009, the employer advised Spirit of Hope Counseling Center that the care and treatment provided was unrelated to the employee’s personal injury and the employer denied liability for the treatment. (Resp. Ex. 4.) In November 2009, the employer notified Acupuncture and Oriental Medicine that twelve weeks of acupuncture treatment had been provided and further treatment was subject to the treatment parameters. (Resp. Ex. 13.) The employee continued to receive treatment from these and other providers.
The employee then filed a Medical Request seeking payment for the denied medical care and treatment. The case came on for hearing before Compensation Judge Cheryl LeClair-Sommer in June 2010. At the hearing, counsel for the employer requested the employee submit to an examination by a psychiatrist pursuant to Minn. Stat. § 176.155. The compensation judge granted the requested examination and continued the hearing.
Dr. Thomas Gratzer, a psychiatrist, examined the employee in September 2010 at the request of the employer. The doctor diagnosed a depressive disorder and dependent personality features which he opined predated the October 2007 injury. The doctor stated that any worsening of the employee’s pre-existing depressive symptoms following the October 2007 personal injury was due to psychosocial stresses unrelated to the injury, including relationship stresses, family conflict, job termination and financial stress. Dr. Gratzer opined the employee did not sustain or develop any psychiatric and/or cognitive difficulties as a result of the October 23, 2007, personal injury. The doctor concluded the employee would benefit from ongoing treatment for her depression but stated such treatment was unrelated to the personal injury and stemmed from her chronic longstanding depressive disorder.
Dr. Bradley Helms, a physical medicine and rehabilitation specialist, examined the employee in December 2010 at the request of the employer. The doctor stated the employee had pre-existing scoliosis but found inconsistencies on examination and profound subjective complaints unexplained by objective examination or diagnostic findings. Dr. Helms’ diagnosis was mechanical low back pain relating to the scoliosis, multiple somatic complaints, examination inconsistencies, and symptom magnification. Dr. Helms opined that none of the employee’s injuries were substantial contributing factors to the employee’s diagnoses or current complaints. Dr. Helms stated there was no medical support for the employee’s continued treatment with Dr. Polukhin, chiropractic treatment, or acupuncture treatment and concluded no additional medical treatment or evaluations were necessary. Further, the doctor concluded the employee did not require any physical restrictions or limitations due to the October 2007 injury based upon the employee’s normal objective examination, symptom magnification, and functional overlay.
The case was again heard by Judge LeClair-Sommer who issued a Findings and Order on March 4, 2011. The compensation judge found the employee’s personal injury did not aggravate or accelerate her pre-existing psychological condition and found the psychological counseling and medication were not reasonable or necessary to treat the personal injury. The judge found that the rest of the requested medical treatment was not reasonable and necessary, that the treatment exceeded the treatment parameters, and that a departure from the treatment parameters was not warranted. Accordingly, the compensation judge denied the employee’s claims for payment of medical expenses. The employee appeals.
1. Examination by Employer’s Physician
At the initial hearing in this matter, counsel for the employer requested the employee be examined by a psychiatrist. The employee objected. The compensation judge granted the employer’s request and continued the hearing to a later date. On appeal, the employee contends the compensation judge abused her discretion in allowing the employer to obtain an independent psychiatric evaluation of the employee. We disagree.
The compensation judge stated it was unclear from the pleadings whether the disputed psychological treatment was for an admitted chronic pain syndrome or resulted from an alleged separate mental condition. Given this confusion, the compensation judge concluded the employer was entitled to have the employee evaluated by a psychiatrist of its choosing. (T. 9-19.) The employee offers no statutory or case law to support her position that the compensation judge abused her discretion. Neither does the employee contend she suffered any prejudice as a result of the continuance of the hearing. Under these circumstances, we cannot agree that the compensation judge abused her discretion.
2. Res Judicata/Collateral Estoppel
The compensation judge found the employee had a long-standing psychological condition which the work injuries did not aggravate or accelerate. Accordingly, the judge found the employee failed to prove she sustained a consequential psychological condition and denied the employee’s claim for psychological counseling and medications. The employee contends Compensation Judge Rolf Hagen’s prior finding that the employee’s October 2007 personal injury caused a chronic pain syndrome is res judicata on the issue of whether there is a psychological component to that injury. The employee contends the employer should have been collaterally estopped from asserting the defense that the October 2007 injury did not include a psychological component in the nature of depression and anxiety. The employee asks this court to reverse the judge’s denial of the medical treatment for the employee’s psychological condition. We are not persuaded.
The doctrine of res judicata precludes the litigation of issues and claims that were in fact decided in an earlier proceeding. See Fischer v. Saga Corp., 498 N.W.2d 449, 48 W.C.D. 368 (Minn. 1993). In the February 2009 Findings and Order, Compensation Judge Hagen found the employee’s personal injury aggravated her pre-existing chronic pain syndrome. Whether that personal injury caused or aggravated the employee’s depression and/or anxiety was not litigated in that proceeding. There was no determination on the merits whether the employee’s personal injury caused any psychological condition other than chronic pain syndrome. A pain disorder is a different diagnosis than depression or anxiety under the Diagnostic & Statistical Manual of Mental Disorders, (4th ed. 2000). See Minn. R. 5223.0010, subp. 4.H. The compensation judge’s decision, that the employee’s personal injury did not aggravate or accelerate her depression and anxiety, is not barred by the doctrine of res judicata.
3. Compensability of a Psychological Condition
The compensation judge accepted the opinion of Dr. Gratzer and found the employee failed to prove she sustained a consequential psychological condition. The employee contends the judge’s reliance on Dr. Gratzer’s opinion is misplaced. She argues Dr. Gratzer ignored the impact of the employee’s multiple work injuries on her chronic pain levels and ignored the fact that Judge Hagen found the 2007 Gillette injury aggravated the employee’s chronic pain syndrome. The employee contends Dr. Gratzer’s opinion lacked foundation and cannot be relied upon to support the judge’s decision. We disagree.
The competency of a medical expert to provide an expert opinion depends upon both the extent of the scientific knowledge of the expert and the expert’s practical experience with the matter that is the subject of the expert opinion. Drews v. Kohl’s, 55 W.C.D. 33 (W.C.C.A. 1996) (citing Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983)), summarily aff’d (Minn. July 11, 1996). Dr. Gratzer obtained a history from the employee, reviewed her medical records, administered psychological tests, and conducted a mental status examination. This level of knowledge is sufficient to afford foundation for the opinions of a medical expert. See, e.g., Caizzo v. McDonald’s, 65 W.C.D. 378 (W.C.C.A. 2005).
Dr. Gratzer thoroughly reviewed the employee’s medical records and took a history from the employee therefore he was well aware of the employee’s pain complaints and treatment for chronic pain. Dr. Gratzer had adequate foundation for his opinion that the employee’s personal injury did not aggravate or accelerate her pre-existing psychological condition. Although there was expert opinion to the contrary, it is the compensation judge’s responsibility, as the trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The compensation judge’s finding that the employee’s psychological condition was unrelated to her personal injury is affirmed.
4. Medical Expenses
The employee contends the record as a whole fails to support the judge’s determination that the disputed medical treatment was not reasonable and necessary to cure and relieve the employee from the effects of her October 2007 personal injury and the determination that a departure from the treatment parameters was not warranted. The employee argues she obtained relief from the various modalities of treatment allowing her to function in her daily activities. Further, the employee contends the evidence establishes a basis for a departure from the treatment parameters. Accordingly, the employee asks this court to reverse the compensation judge’s denial of the disputed medical expenses. We are not persuaded.
The employer is liable for treatment reasonably required to cure and relieve the employee from the effects of a personal injury. Minn. Stat. § 176.135. The reasonableness and necessity of medical treatment under the statute is a question of fact for the compensation judge and the employee has the burden of proof. Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993). Minn. R. 5221.0500, subp. 1.F. provides that a billing charge for a medical service is excessive if the service is not “reasonably required for the cure or relief of the effects of a compensable injury.” Pursuant to subpart 2 of the rule, a payer is not liable for healthcare charges which are excessive under subpart 1.
The compensation judge found the employee’s work injuries were not substantial contributing factors to the aggravation or acceleration of the employee’s longstanding psychological condition and found the employee failed to prove she sustained a consequential psychological injury. We have affirmed this finding. Accordingly, the compensation judge found the psychological treatment provided by Dr. Polukhin and Spirit of Hope Counseling Center was not necessary to treat the employee’s personal injuries. This finding is supported by Dr. Gratzer’s opinion that the employee’s psychological treatment for depression was unrelated to her personal injury. The disputed psychological treatment was not necessitated by the employee’s personal injuries and was excessive under the treatment parameters. Accordingly, the self-insured employer is not liable for the charges.
The judge further found the employee’s non-psychological treatment provided by Dr. Polukhin, True Chiropractic, Stucky Chiropractic, Acupuncture and Oriental Medicine, and the Minnesota Center for Obesity, Metabolism and Endocrinology was not necessary treatment for the employee’s work injuries. In December 2010, Dr. Helms opined there was no medical support for the employee’s continued treatment with Dr. Polukhin or her continued chiropractic or acupuncture treatment. Rather, Dr. Helms concluded no additional medical treatment or evaluations were necessary. The opinions of Dr. Helms provide substantial evidentiary support for the compensation judge’s finding that the disputed non-psychological treatment was not reasonably required for the cure or relief of the effects of a compensable injury. Accordingly, the treatment is excessive and the employer is not liable for the charges. The decision of the compensation judge is affirmed.
 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).