SUSAN M. CORR, Employee/Appellant, v. QUEST ENG=G and ATLANTIC MUT. COS., Employer-Insurer, and MEDICAL ADVANCED PAIN SPECIALISTS, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 18, 2002

 

HEADNOTES

 

SETTLEMENTS - INTERPRETATION; MEDICAL TREATMENT & EXPENSE.  Where the stipulation for settlement specified the primary treating physician and stated that all referrals shall be coordinated through his office, that he must approve any treatment proposed by any provider to whom he refers the employee for care, and that only he may prescribe medication for the employee, the compensation judge reasonably denied  the claimed prescription medication expense and medical treatment on the basis that they were not specifically directed, prescribed or pre-approved by the treating physician.

 

Affirmed.

 

Determined by Rykken, J., Wilson, J., and Pederson, J.

Compensation Judge:  Kathleen Behounek.

 

MAJORITY OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s denial of medical expenses on the basis that the terms of the stipulation for settlement precluded payment for treatment that was neither recommended nor preapproved by the employee=s treating physician. We affirm the compensation judge.

 

BACKGROUND

 

On February 28, 1994, Susan M. Corr, the employee, sustained an admitted injury while working for Quest Engineering, the employer.  On that date, the employer was insured for workers= compensation liability by Atlantic Mutual Companies, the insurer.  The employee worked in the shipping and receiving department, and injured her back while lifting a box of tubing off a tall shelf.  She developed left low back and leg pain after the incident, and obtained medical treatment in the emergency room.  Dr. Rolf Hauck initially treated the employee and recommended physical therapy, which she underwent in early 1994.  CT and MRI scans of the employee=s lumbar spine taken in September and November 1994 showed bilateral spondylolisis at L5 with anterior spondylolisthesis of L5 on S1; severe bilateral neural foraminal stenosis at L5-S1 with evidence of compression upon both L5 nerve roots and low grade mid-line bulging of a degenerating L4-5 disc associated with focal tear of the posterior margin of the annulus fibrosis.

 

Records in evidence document the extensive medical treatment the employee has received since her injury, including referral for surgery by Dr. Paul Crowe in 1994 and pain clinic treatment in early 1995.  By mediation resolution award filed April 27, 1995, the parties entered into a mediation agreement whereby the employer and insurer accepted liability for the employee=s claim, settled all of the employee=s non-medical claims on a full, final and complete basis, and stipulated that the employee=s claims remained open for future medical care.^[1]  Based on the employee=s medical records and testimony, she received no medical treatment for her low back between April 1995 and August 1996.

 

At Dr. Hauck=s referral, the employee began treating with Medical Advanced Pain Specialists (MAPS) on August 21, 1996.  She underwent a lumbar epidural steroid injection at L5-S1, which reportedly was only mildly helpful.  In March 1997, she also commenced but did not complete prescribed physical therapy.  Medical records note ongoing treatment at MAPS, epidural steroid injections, occasional visits to the emergency room for pain relief, recommendation for an additional chronic pain program and continued prescriptions of oral opiates for pain control.

 

In December 1997, Dr. David Schultz, medical director of MAPS, referred the employee to Dr. David Kraker for an opinion concerning surgery.  Dr. Kraker first examined the employee on January 6, 1998, and recommended a repeat MRI, which showed disc degeneration at L4-5 and L5-S1, and a discogram, which showed concordant pain at the L4-5 level.  Based on those results, he recommended fusion surgery from the L4 to the S1 level.  The employee requested pre-authorization for that surgery and, upon receipt of the employee=s request for authorization, the employer and insurer scheduled the employee for an examination with Dr. Douglas Becker.  Following an examination on June 10, 1998, Dr. Becker confirmed the employee=s diagnosis of severe grade II spondylolisthesis.  He concluded that the employee=s work-related injury on February 28, 1994, resulted in a temporary aggravation of the employee=s pre-existing condition, that no permanent partial disability nor permanent work restrictions resulted from that injury, and that no additional medical treatment was required after that date.  Based on Dr. Becker=s opinion, the employer and insurer denied further responsibility for medical treatment. 

 

On July 29, 1998, the employee filed a medical request, requesting authorization for low back fusion surgery recommended by Dr. Kraker, and requesting payment for outstanding charges at Medical Advanced Pain Specialists, totaling $5,284.48, incurred between June 13, 1997 and July 15, 1998.  On August 11, 1998, the employer and insurer filed a medical response, denying liability for the disputed treatment, contending that the employee had recovered from her temporary injury and that the proposed surgery was not related to the work injury.  The employee=s medical request was addressed at an administrative conference before a commissioner=s representative on September 16, 1998.  In a decision issued pursuant to Minn. Stat. ' 176.106, a commissioner=s representative determined that the employee=s work injury was a substantial contributing factor to her need for the disputed treatment and the proposed surgery, and ordered payment for both, basing her decision on the medical opinions of Drs. Premer, Becker and Kraker, that surgery was reasonable and necessary.  No appeal was taken from that administrative decision.

 

The employee underwent surgery on March 11, 1999, in the nature of an anterior lumbar fusion at the L4-5 and L5-S1 levels, stage II bilateral laminectomy at the L4-5 and L5-S1 levels with bilateral foraminotomies, and posterior spinal fusion at the L4-5 and L5-S1 levels, with segmental spinal instrumentation.  The employee=s pain persisted post-surgery.  Medical records in 1999 and early 2000 reflect periodic consultations with Dr. Kraker and continued treatment at MAPS and continued prescriptions for narcotic medication, even though physicians recommended that the employee be weaned off narcotic medication.

 

On January 3, 2000, the employee filed a second medical request, requesting approval for additional trigger point injection prescribed post-surgery by Linda Berntson, a registered nurse, at MAPS.  The parties entered into a stipulation for settlement, settling the employee=s claims on a full, final and complete basis with the exception of certain future medical expenses.  The stipulation for settlement closed out future claims for mental health treatment, chiropractic and osteopathic care, chemical dependency care and treatment, and chronic pain treatment.  The parties stipulated that the employee=s primary treating physician would be Dr. David Kraker, that referrals should be coordinated through Dr. Kraker=s office and that only prescription medication prescribed by Dr. Kraker would be deemed compensable.  An award on stipulation was served and filed on March 10, 2000.

 

In March and April 2000, the employee underwent two caudal epidural injections which provided some pain relief.  On April 4, 2000, medical staff at MAPS recommended a TENS unit, a repeat lumbar epidural steroid injection and continued pain medication.  By letter dated April 11, 2000, the insurer sent Dr. Kraker a copy of the stipulation for settlement, advising him of the stipulation=s terms requiring preapproval of future medical care, and inquiring whether he approved of the continued care the employee was receiving at MAPS.  (Er. Ex. 2.)  The letter indicates that it was also sent to MAPS. 

 

On July 26, 2000, the employee filed another medical request, requesting payment for prescription expenses and for outstanding medical expenses incurred at MAPS after the date of the award on stipulation.  The employer and insurer responded, denying payment for the requested treatment on the basis that Dr. Kraker did not pre-approve the claimed treatment nor directly prescribe the claimed prescription medications.   In September 2000, the employee was hospitalized for two days due to continued pain, and was treated with intravenous Decadron and morphine.  On November 6, 2000, the employee was examined by Dr. Matthew Monsein, at the request of the employer and insurer.  Dr. Monsein recommended that the employee be slowly weaned off her opiate pain medication, and that her future medications be limited to ATylenol, anti-inflammatory medication and possibly Neurontin and/or a tricyclic antidepressant.@

 

Upon Dr. Kraker=s recommendation, the employee underwent additional surgery on January 23, 2001, to remove the instrumentation implanted during her 1999 fusion surgery.  The employee testified that her symptoms did not decrease after that second surgery, and that her pain has increased since September 2000.  She also testified that during periods of time when she did not take pain medication, her pain was so severe that she could not function at all.  (T. 50.)  On March 2, 2001, Dr. Kraker evaluated the employee post-surgery.  He  prescribed  physical therapy for the employee, and also recommended that the employee wean herself off narcotic medications, and that she Ashould do this through MAPS.@  He also recommended biofeedback therapy or other relaxation techniques to help with her chronic pain, also to be provided by MAPS.  The insurer preauthorized payment for physical therapy and pool therapy.  However, it appears that the employee did not complete the recommended therapy nor pool therapy.  On April 6, 2001, Dr. Kraker recommended an additional epidural steroid injection and physical therapy, and then a return to work within permanent work restrictions.  He recommended that MAPS or Dr. Schultz take over her care, and stated that she may benefit from a chronic pain clinic treatment.  By letter to Dr. Kraker dated April 16, 2001, the insurer stated:

 

We are unable to authorize the epidural at L3-4 at this time because Ms. Corr has not followed through with the physical therapy that you had previously recommended.

 

If Ms. Corr completes her course of therapy and if her pain still persist[s] we may at that time reconsider your request.

 

(Er. Ex. 3.)

 

Dr. Kraker again examined the employee on May 11, 2001, again recommending physical therapy.  On May 14, 2001, the employee underwent an initial therapy evaluation at the Sister Kenny Sports and Physical Therapy Center.  The employee did not attend any physical therapy sessions, cancelling due to her inability to drive her standard transmission car because of her low back pain.  By July 6, 2001, Dr. Kraker stated that the employee would Aneed to live with her residual pain@ and that there was nothing further that he could offer her.  He prescribed Wellbutrin to assist the employee with smoking cessation, and prescribed Zantac as Athe stress from her pain does cause gastric irritation.@ 

 

                        The employee=s medical request was addressed at hearing on August 23, 2001.  The employee claimed payment of $1,671.92 in outstanding expenses incurred at MAPS between March 14, 2000, and August 7, 2001, and reimbursement of prescription expenses incurred since March 2000.  Issues at hearing included whether the stipulation for settlement precluded payment of the disputed medical expenses and whether the disputed medical treatment was reasonable and necessary.  In Findings and Order served and filed on October 23, 2001, the compensation judge denied the employee=s claims for reimbursement for prescription and treatment expenses.  She found that the evidence failed to show that Dr. Kraker pre-approved the epidural injections and TENS unit provided to the employee by MAPS and therefore that such treatment was not compensable.  The compensation judge concluded that the terms of the stipulation were clear and unambiguous, binding the parties, and found that, since the treatment was neither prescribed by Dr. Kraker nor pre-approved by him, the treatment is not compensable.  The employee appeals.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Id.

 

DECISION

 

The provision in the settlement agreement giving rise to controversy in this case is Paragraph XIV, B, which reads as follows:

 

Dr. Kraker shall be the primary treating physician and all referrals shall be coordinated through his office.  Dr. Kraker must ap[p]rove any treatment proposed by any provider to whom he refers the employee for care.  Only Dr. Kraker may prescribe medications for the employee.  Any prescription medications not directed and prescribed by Dr. Kraker and any other treatment not pre-approved by Dr. Kraker shall not be compensable.

 

(Er. Ex. 1.)  The compensation judge concluded that the terms of the stipulation for settlement preclude payment of the disputed bills.  The judge concluded that the terms of the stipulation for settlement are clear and unambiguous and that since the claimed treatment and medications were neither prescribed nor pre-approved by Dr. Kraker, they are not compensable.  The employee appeals, arguing that the medical treatment was authorized and approved by Dr. Kraker.

 

The compensation judge denied the employee=s claim for treatment expenses at MAPS incurred subsequent to the March 10, 2000, award on stipulation.  The judge concluded that the Aevidence fails to show that Dr. Kraker pre-approved the epidural injections and TENS unit provided to the employee by MAPS@ (Finding No. 9), and therefore those related expenses were not compensable under the terms of the settlement.  The compensation judge also found that the pharmacy expenses claimed by the employee were related to medications prescribed by medical providers other than Dr. Kraker,^[2] and therefore were not compensable under the terms of the settlement agreement.  In her memorandum, the compensation judge concluded the following:

 

Although Dr. Kraker referred the employee to MAPS for evaluation, the evidence fails to demonstrate that Dr. Kraker pre-approved the epidural injections performed at MAPS in March and April of 2000.  Dr. Kraker issued a note on August 22, 2001, indicating that he was in constant communication with Dr. Schultz at MAPS regarding her care, and that the care was given with his approval.  Dr. Kraker=s note appears to be prepared after the fact, and more importantly, fails to indicate that Dr. Kraker approved the treatment provided to the employee by MAPS prior to rendering the treatment.  There were no contemporary treatment records from Dr. Kraker, showing that he was requested by MAPS to pre-approve the treatment provided to the employee.  The MAPS treatment records similarly fail to show that the treatment recommendations were approved by Dr. Kraker prior to providing the treatment to the employee.  Because the evidence fails to show that the MAPS treatment of the employee was pre-approved by Dr. Kraker, the claim for reimbursement of the expenses is denied.

 

(Memo., p. 4-5.)

 

The employee argues that the medical evidence in the record shows that the treatment at MAPS, as well as the pain medications prescribed to the employee at MAPS, were provided after communication with Dr. Kraker and under his direction.  The employee testified that Dr. Kraker continued to monitor the employee=s pain medications and treatment on a monthly basis and that the treatment that the employee received at MAPS was done with his approval.  The employee argues that A[a]s a practical matter, MAPS was a more appropriate facility to dispense and monitor the employee=s response to medications and as such, this is the way the employee=s medications were actually dispensed.@  (Ee. Brief, p. 8.)  The employee argues that the Aspirit and intent@ of the parties= stipulation for settlement was that Dr. Kraker be involved directly and approve all medications prescribed by the employee, and that this result was obtained in this case.  We are not persuaded.

 

Although the employee continued consulting Dr. Kraker and the medical staff at MAPS after entering into the stipulation for settlement, there is no contemporaneous documentation in the record that the employee=s ongoing treatment at MAPS in 2000 and early 2001 was pre-approved by Dr. Kraker, as required by the terms of the stipulation.  As noted by the compensation judge, such documentation was provided only after the treatment was rendered.^[3]  In addition, the prescriptions for medication in 2000 and 2001 were written by MAPS staff and not by Dr. Kraker, as required by the stipulation for settlement.  Dr. Kraker wrote a two-sentence note on August 22, 2001, indicating he was in constant communication with Dr. Schultz at MAPS and that the care was given with his approval.  However, we note that two other doctors, in addition to Dr. Schultz, and two certified nurse practitioners at MAPS prescribed narcotic medication for the employee from March 14, 2000, through July 10, 2001.  In his office note of March 2, 2001, Dr. Kraker recommended that the employee be weaned off of narcotics.

 

Based on the record before us, we agree that the terms of the stipulation are clear and unambiguous, and we conclude that the compensation judge properly applied the terms of the stipulation in denying payment of the disputed medical expenses.  We therefore affirm the judge=s decision.

 

 

DISSENTING OPINION

 

WILLIAM R. PEDERSON, Judge

 

I would reverse the compensation judge=s determination that the employee=s claimed treatment and medications here in dispute are not compensable under the terms of the stipulation for settlement approved March 10, 2000.  I believe the compensation judge=s interpretation of the stipulation is overly literal, especially as its terms seek to direct the conduct of Dr. Kraker, as well as the employee.

 

Paragraph XIV.B of the parties= stipulation provides as follows:

 

Dr. Kraker shall be the primary treating physician and all referrals shall be coordinated through his office.  Dr. Kraker must ap[p]rove any treatment proposed by any provider to whom he refers the employee for care.  Only Dr. Kraker may prescribe medications for the employee.  Any prescription medications not directed and prescribed by Dr. Kraker and any other treatment not pre-approved by Dr. Kraker shall not be compensable.

 

The apparent purpose of the above-quoted provision is to place the employee=s medical care under the direction of Dr. Kraker.  It also provides that referrals shall be coordinated through Dr. Kraker=s office.  The stipulation does not require written pre-approval by Dr. Kraker before treatment for which he refers the employee may be commenced.  Dr. Kraker obviously contemplated the participation of MAPS in the care of his patient or he would not have made the referral.  He was clearly aware of what MAPS had to offer the employee, as MAPS had initially referred the employee to him.  Dr. Kraker=s pre-approval of treatment by MAPS is implicit in the referral itself.

 

The spirit and intent of the parties= agreement to have Dr. Kraker coordinate the employee=s care has been met in this case.  In a letter to the employee=s attorney dated January 3, 2001, Dr. Schultz stated that he Adiscussed treatment plans including medication management and invasive pain control procedures for Ms. Corr with Dr. Kraker on a regular basis both in person and by telephone.@  Dr. Schultz also stated that he provided copies of all notes regarding pain clinic evaluations, treatments, and recommendations to Dr. Kraker.  Moreover, prescriptions for pain medications written for the employee by doctors at MAPS were done so at Dr. Kraker=s request, and Dr. Kraker concurred with Dr. Schultz=s recommendation for multidisciplinary chronic pain program therapy.  In letters dated June 20 and July 28, 2000, Dr. Kraker stated that he was in agreement with the pain management program provided at MAPS, and, in a note dated August 22, 2001, he stated that he was in constant communication with Dr. Schultz at MAPS and that the employee=s care was given with his approval.

 

Because the settlement agreement imposes obligations on Dr. Kraker, because it was Dr. Kraker who referred the employee to MAPS for care and treatment as contemplated by the stipulation, and because Dr. Kraker was in close contact with the doctors at MAPS regarding the medications and treatment provided, I believe that the treatment was consistent with the requirements of the stipulation.  Accordingly, I would reverse the judge=s determination that the treatment at issue was not compensable.