COREY FOX, Employee, v. YELLOW FREIGHT SYS., SELF-INSURED, Employer/Appellant.

 

WORKERS' COMPENSATION COURT OF APPEALS

OCTOBER 1, 2002

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - CHIROPRACTIC TREATMENT.  The record as a whole did not support the judge's award of chiropractic expenses after the initial 12 weeks of treatment, either under case law standards or the applicable treatment parameters.

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence failed to support the judge' findings regarding the existence of a preexisting condition but did support his findings that the employee' lumbar condition was causally related to the employee's work injury.

 

Modified in part and reversed in part.

 

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

Compensation Judge: James R. Otto.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The self-insured employer appeals from the compensation judge's findings regarding the nature of the employee's injury, that the employee is a candidate for a microdiscectomy, that  chiropractic treatment, with the exception of the use of a vasopneumatic device, was reasonable and necessary, that the employer failed to satisfy the requirements of Minn. R. 5221.6050, subp. 9C(3), and that the unique facts of this case justify a departure from the treatment parameters. We modify in part and reverse in part.

 

BACKGROUND

 

On August 15, 2001, the employee was working for Yellow Freight Systems [employer] as a mechanic when he sustained a work-related injury to his low back.  The self-insured employer admitted liability for the injury.

 

The employee began treatment with Dr. Albert Hoff, Jr., D.C., on August 20, 2001.  On a patient health questionnaire completed on that date, the employee indicated that his symptoms consisted of tightness and soreness in the low back and left leg.  Dr. Hoff diagnosed "lumbar strain with radiculities," thoracic strain, lumbosacral strain, and lumbar disc syndrome. Dr. Hoff took the employee off work and began daily chiropractic treatments, consisting of passive manipulation to the thoracic, lumbar, and cervical spine, electric muscle stimulation, and use of a "vasopneumatic device," applied to the lumbar area.

 

On August 27, 2001, Dr. Hoff released the employee to return to work.  The employee worked for about one week doing light maintenance but then returned to his usual job.  At some point, the nature of all of the work at the employer changed, becoming light-duty mechanical work.  After that, the employee continued to work as a mechanic, with virtually no time loss.  The employee treated with Dr. Hoff on a five-day-a-week basis through September 21, 2001.  From September 24 through October 17, 2001, the employee treated with Dr. Hoff three times a week.

 

On October 15, 2001, the employer had the employee examined by independent examiner Dr. Steven Jackson, D.C.  It was Dr. Jackson's impression that the employee had signs of a left-sided sacroiliac articulation strain, but he could not rule out a possible herniated disc on the left at L5-S1.  He opined that use of the vasopneumatic device was not indicated for the employee's injury and that reasonable and necessary treatment would have consisted of five visits per week for the first two weeks, three visits per week for the next four weeks, two visits per week for the next four weeks, and then one visit per week for the final two weeks of the twelve-week treatment limit set by the treatment parameters.^[1]  Dr. Jackson also noted that Dr. Hoff's billings showed a primary diagnosis code of tension headaches yet indicated that Dr. Hoff had treated three to four areas of the employee's spine.  It was Dr. Jackson's opinion that the August 2001 work injury involved injury to the low back only.  Dr. Jackson opined that the employee would reach maximum medical improvement on November 5, 2001.

 

On October 25, 2001, the employer wrote to Dr. Hoff, informing him that they were approving treatment based on Dr. Jackson' recommendations and that they were taking a credit for payments made for nonwork-related conditions involving headaches and shoulder, cervical, and thoracic symptoms.  That letter included a recap of treatments authorized by Dr. Jackson, including "1x/wk for 2 weeks: 10-29-01 through 11-04-01."^[2]

 

On November 6, 2001, Dr. Hoff wrote to the employer requesting "an extension of [the employee's care] beyond the twelve week perimeters . . . ."  In that letter, Dr. Hoff indicated that an extension was necessary "to allow the patient to continue to heal, he has shown moderate to good improvement overall, however he is still prone to exacerbation and pain if he overexerts or works in a prolonged twisted or awkward position, such as on a roller or creeper, while performing his mechanical duties."  On that same date, the employer wrote to Dr. Hoff, confirming a telephone conversation of that date and saying that treatment had been authorized only through November 4, 2001.

 

On November 12, 2001, the employee began treating with Dr. Hoff twice a week.  In his report dated November 13, 2001, Dr. Hoff indicated that, in addition to his chiropractic treatments, the employee had been given "home active care," which included spinal exercises, use of heat and ice at home, and instruction in proper lifting, sitting, bending and sleeping procedures.  Dr. Hoff also recommended that an MRI be performed.

 

On November 19, 2001, the employee filed a medical request seeking payment of Dr. Hoff's treatment charges and the MRI that had been recommended.  The employer responded that they had approved the MRI on November 16, 2001, but would only pay for chiropractic treatment in conformity with Dr. Jackson's report.

 

An MRI was performed on December 5, 2001, and showed,

 

[M]oderate degeneration of the L5-S1 intervertebral disc.  A broad-based high signal density central and left paracentral annular tear is seen with mild diffuse posterior annular bulging and no superimposed active disc herniation.  There is moderate desiccation of the nucleus pulposa, [as well as a] moderate-sized, caudally extruded, broad-based left paracentral and left posterolateral disc herniation at L4-5 with moderate subarticular recess impingement on the left L5 nerve root.

 

Dr. Hoff subsequently referred the employee to Dr. Steven Lebow for a neurological consultation.  Dr. Lebow examined the employee on December 26, 2001, and reviewed the MRI.  Noting that the employee continued to have pain in his low back and down his left leg and that he felt quite limited at work, Dr. Lebow recommended an L4-5 epidural.  He opined that, if there were a favorable result from the epidural, a back stabilization program would be advisable in addition to the therapy that the employee was receiving through Dr. Hoff's office.  An epidural steroid injection was performed on January 2, 2002, which the employee found symptomatically helpful.  Dr. Lebow's office then referred the employee to physical therapy for a strengthening-type exercise program.  The employee's treatment with Dr. Hoff was reduced to once a week in late February of 2002.

 

In a decision filed after the medical conference, a compensation judge allowed payment of chiropractic treatment charges, excluding the vasopneumatic device, only through October 15, 2001.  The employee requested a formal hearing, and the matter proceeded to hearing before a compensation judge on April 11, 2002.  In a decision filed on April 24, 2002, the judge found, in relevant part, that the employee had degenerative changes in his back prior to August 15, 2001, that the employee had permanently aggravated his pre-existing degeneration and/or spondylolysis on August 15, 2001, that the employee was a candidate for microdiscectomy if his exercise program and chiropractic adjustments did not eliminate his radicular pain, that treatment rendered by Dr. Hoff (with the exception of the vasopneumatic device) was reasonable and necessary, that the employer did not timely respond with sufficient specificity to Dr. Hoff's request for an extension of treatment, and that a departure from the treatment parameters was appropriate under the unique facts of the case.  The employer appeals from these findings.

 

STANDARD OF REVIEW

 

In reviewing cases 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 (1992).  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, "[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, "unless 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

 

1.  Nature of the Injury

 

The employer first contends that there is "no medical evidence provided to the Court supporting any finding that the employee suffered from pre-existing moderate degeneration of his intervertebral disc at L4-5, moderate disc degeneration in L5-S1 and/or associated with bilateral spondylolysis."  We agree.

 

While the employee testified to having had low back problems prior to the August 2001 work injury, no medical records were introduced to establish the existence of the specific pre-existing degenerative changes that the judge found.  The compensation judge referred to Dr. Thomas Gilbert's interpretation of a December 5, 2001, MRI as support for his finding.  We note, however, that while the December 5, 2001, MRI showed degenerative changes in the lumbosacral spine, no doctor has opined that those changes pre-existed the August 2001 work injury.  Finding 1 is therefore reversed.

 

The employer also disputes the judge's finding that the August 2001 work injury caused a permanent aggravation of the employee's pre-existing conditions or that the injury caused, aggravated, or accelerated "a broad-based central and left paracentral annular tear with mild diffuse posterior annular bulging with moderate desiccation of his nucleus pulposa of his L5-S1 disc space with radicular distress down his left leg."  As stated above, there is no evidence of a pre-existing condition. We cannot agree, however, that there is no support for the finding of causation as to the degenerative changes at L5-S1.  The December 5, 2001, MRI was interpreted as showing moderate degeneration of the L5-S1 intervertebral disc, and Dr. Lebow repeatedly related that disc degeneration to the August 2001 injury.^[3]  Therefore, Finding 2 is modified to read:

 

2.    On August 15, 2001, Mr. Corey W. Fox sustained a work injury that permanently aggravated, accelerated, or caused: (1) a moderate-sized L4-5 caudally-extruded left paracentral and left posterolateral disc herniation with moderate subarticular recess impingement on his left L5 nerve root, and (2) a broad-based central and left paracentral annular tear with mild diffuse posterior annular bulging with moderate desiccation of his nucleus pulposa of his L5-S1 disc space with radicular distress down his left leg.

 

Finally, the employer appeals from Finding 3, in which the judge determined that the employee is a candidate for a microdiscectomy if his current exercise program and chiropractic adjustments do not eliminate his radicular pain or chronic disabling pain.  The employer contends that there is no evidence to support such a finding, and we agree.  In his report of December 26, 2001, Dr. Lebow stated that "if [the employee] continues to have radicular pain down the left leg at some point microdiscectomy might be considered" (emphasis added).  This is the only medical record addressing microdiscectomy, and it cannot reasonably be interpreted as indicating that the employee is a candidate for microdiscectomy if his current treatment program does not eliminate his pain.  Finding 3 is therefore reversed.

 

2.  Reasonableness and Necessity of Chiropractic Treatment

 

The employer contends that the compensation judge erred in finding that all disputed chiropractic treatments, with the exception of the vasopneumatic device, were reasonable and necessary.^[4]  The determination of reasonableness and necessity is a factual one to be made by the compensation judge.  Among the factors which the compensation judge may consider on this issue are the following:

 

(1)    Evidence of a reasonable treatment plan;

(2)    Documentation of the details of the treatment;

(3)    The degree and duration of relief resulting from the treatment;

(4)    Whether the frequency of treatment was warranted;

(5)    The relationship of the treatment to the goal of returning the employee to suitable employment;

(6)    Potential aggravation of underlying conditions by additional chiropractic treatment;

(7)    Duration of treatment; and

(8)    The cost of treatment in light of relief provided.

 

Field-Seifert v. Goodhue Co., slip op. (W.C.C.A., Mar. 5, 1990).  Other factors that may be considered include:

 

(1)    The employee's testimony about the relief obtained;

(2)    The possibility that other conditions not discovered by the chiropractor may be causing the employee's problem;

(3)    Whether scheduling is on a regular basis as opposed to an as needed basis;

(4)    The period of relief from pain;

(5)    The use of alternative medical providers in the event of continuing pain;

(6)    The employee's overall activities and the extent of the employee's ability to continue to work;

(7)    A recommendation of long-term chiropractic care into the future that suggests a maintenance program rather than treatment of the injury; and

(8)    Psychological dependency of the employee on chiropractic care.

 

Horst v. Perkins Restaurant, 45 W.C.D. 9 (W.C.C.A. 1991).

 

The compensation judge did not make specific findings regarding any of these factors, nor did he address the factors in his memorandum, other than to say

 

Mr. Corey Fox's treatment to date has kept him working (with basically no lost time); and his symptomatology has progressively improved to the point where he now can do heavier lifting due to time and Dr. Hoff's treatment.  The treatment provided by Dr. Hoff was reasonably required to provide relief to Mr. Fox when he has flare-ups and to assist him in the healing process.

 

After careful review, we conclude that substantial evidence does not support the conclusion that all of Dr. Hoff's treatments were reasonable and necessary.

 

Dr. Hoff's records are difficult to decipher, and his reports are inconsistent and at odds with his treatment records and billing statements.  For example, in his report of November 13, 2001, Dr. Hoff stated that he initially treated the employee five times per week for two weeks, then three times per week through November 1, 2001, and then two times per week or as needed.  However, Dr. Hoff's treatment records and billing statements for that period establish that Dr. Hoff in fact treated the employee five times per week for five weeks, then three times per week for four weeks, then two times per week for two weeks and at the time of his report he was again treating the employee three times per week.

 

Subsequently, in one of two letters that he wrote on March 4, 2002, Dr. Hoff stated that he initially treated the employee five times per week for five weeks but then reduced treatments to four times per week because the employee was making subjective improvement.  We note initially that Dr. Hoff never treated the employee four times per week.  More importantly, his records reflect that treatment was reduced from five times per week to three times per week on September 24, 2001, but notations from the days leading up to and following September 24, 2001, all contain the same record of low back pain and tightness.  There is no evidence in the record to indicate that the employee was showing any subjective improvement at that time.  Similarly, treatment frequency was reduced to twice per week as of October 22, 2001, but the treatment notes reflect complaints of low back pain and tightness both before and after that date.

 

Dr. Hoff released the employee to return to work on August 27, 2001, and the employee has continued to work without lost time,  except for two days in March of 2002 due to an adverse reaction to medication.  The employee testified that Dr. Hoff's treatments have allowed him to continue working.  Dr. Hoff's records, however, reflect that the employee went without treatment from November 15, 2001 through December 4, 2001, and there is no explanation for this gap in treatment and no evidence that the lack of treatment affected the employee's ability to work in any way.

 

There is also no clear evidence of a reasonable treatment plan.  Dr. Hoff noted on September 12, 2001, that his treatment plan was "chiropractic care with physical therapy five times a week for two weeks and four times a week for four weeks with a re-evaluation after four weeks."  Six days later, on September 18, 2001, the doctor completed the same form, this time describing the treatment plan as "chiropractic care with physical therapy four times per week with a re-evaluation after four weeks."  In his letter to the employer of November 6, 2001, Dr. Hoff described his treatment plan as "of a conservative nature, which includes passive manipulation to the thoracic and lumbar spine . . . .  Initial treatment was daily, he had re-exams on a regular basis and most current treatment plan is twice-weekly basis with a re-evaluation in the next two to four weeks."  In his November 13, 2001, letter to employee's counsel, Dr. Hoff indicated that treatment was then twice-weekly "or PRN as needed by the patient."  There is no indication of any real treatment plan after that date,^[5] and Dr. Hoff's treatment records and the employee's testimony reflect that the employee did not go to "as needed" treatment until April of 2002.

 

The only evidence submitted regarding the degree of relief resulting from the treatment was the employee's testimony that the amount of relief was "tremendous."  There is no evidence regarding the duration of relief.  The most that can be drawn from the employee's testimony is the suggestion that, as time went on, the duration of relief increased.

 

Scheduling throughout most of the course of Dr. Hoff's treatment appears to have been regular.^[6]  As of the time of trial, treatment had run from August 20, 2001, through April 10, 2002, for a total charge of $8,419.00.

 

In his brief, the employee contends "it is obvious that the long term chiropractic care which the employer and insurer object to is primarily for treatment of flare-ups, as well as to allow him to continue working and progressively improve his condition."  We note, however, that the employee had received 46 chiropractic treatments before there was any suggestion of a "flare-up" in Dr. Hoff's records.^[7]  That suggested "flare-up" came the day after Dr. Hoff wrote to the employer requesting that he be allowed to treat the employee beyond the twelve weeks allowed by the treatment parameters.

 

For all of these reasons, the judge's finding that all of Dr. Hoff's disputed treatments were reasonable and necessary is reversed.  However, independent medical examiners Dr. Wayne Thompson and Dr. Jackson agreed that some chiropractic treatments were reasonable and necessary to relieve the effects of the work injury,^[8] and the employer stipulated that treatment was reasonable and necessary through October 15, 2001, and paid for treatment through October 31, 2001.  We therefore modify the judge's finding as to reasonableness and necessity of chiropractic treatment to conform with the report of Dr. Jackson, approving treatment through twelve weeks after its inception.  The employer is responsible for treatments rendered by Dr. Hoff through November 11, 2001, with the exception of the vasopneumatic device, to the extent allowed under the fee schedule.

 

3.  Treatment Parameters

 

The compensation judge found that the employer did not respond to Dr. Hoff's letter requesting "an extension of care beyond the 12 week parameter" within seven working days of receipt of that letter.  The judge further found that the employer did not provide notice to Dr. Hoff as to why the proposed treatment was not reasonable and did not provide notice to the employee or Dr. Hoff of their right to have a review of the insurer's denial, as specified by Minn. R. 5221.6050, subp. 9C(3).^[9]  The employer contends that it should not be held liable for ongoing chiropractic treatments for failure to respond in a particular fashion when it had been in communication all along with the chiropractor and when he knew of the employer's intention to deny future chiropractic bills.

 

Dr. Hoff wrote to the employer on November 6, 2001, requesting an extension.  His letter purports to be in follow-up to a conversation with the employer on that date.  On that same date, the employer wrote to Dr. Hoff, confirming their conversation and reiterating that treatment was authorized only through November 4, 2001.^[10]  There is no dispute that the employer did not respond within seven business days with the reasons for their denial or the chiropractor's right to a review.^[11]  However, while the employer did not strictly comply with the requirements of the rule, the employer did send Dr. Hoff notice of their denial, and the doctor does not suggest that he was not aware that the employer would not pay for chiropractic treatments beyond November 4, 2001.  Under the circumstances, we find substantial compliance with the rule, and we decline to find the employer liable for payment of the subsequent chiropractic treatments based solely on Minn. R. 5221.6050, subp. 9C(3).  In this regard, we would note also that Dr. Hoff's request for an extension did not itself comply with all of the requirements of Minn. R. 5221.6050, subp. 9B(3), the rule governing such requests.^[12]

 

The employer also contends that the compensation judge did not appear to consult the treatment parameters and that Dr. Hoff's treatment after November 4, 2001, did not qualify for an additional twelve visits after twelve weeks under Minn. R. 5221.6200, subp. 3B, or for a departure under Minn. R. 5221.6050, subp. 8.^[13]  We agree.

 

As we stated in Boryca v. Marvin Lumber & Cedar, slip op. (W.C.C.A. Nov. 10, 1999), "the treatment parameters are complex, and they are not workable in litigation unless the parties inform the judge as to which specific rules are at issue and the judge then explains in his or her decision, with reference to the evidence, as to how the rules allow, or preclude, any given claimed treatment expense."  While the judge referred in Finding 10 to Minn. R. 5221.6050, subp. 8, he did not indicate under which specific circumstances the employee qualified for a departure.  Rather, he noted in that finding,

 

Under the unique facts of this case, a departure from the Permanent Treatment Parameters is, and was, appropriate due to the findings on MRI scan of a serious disc problem at two different levels and where the treatment is currently provided on an occasional and as-needed basis; and is reasonably necessary to relieve Mr. Fox of his disabling symptomatology; and when Mr. Fox's subjective complaints of pain are progressively improving; and when his functional status (especially his vocational activities) has objectively improved to date of hearing (See Minn. Rule 5221.6050, Subp. 8).

 

After review of the evidence, and in light of our decision under traditional case law standards for reasonableness and necessity, we find that the record simply will not support an award of chiropractic expenses beyond the initial twelve weeks of treatment, either under Minn. R. 5221.6200, subp. 3B, or Minn. R. 5221.6050, subp. 8.

 

A review of the medical records in conjunction with the treatment parameters establishes that the employee would not qualify for an additional twelve treatments, under Minn. R. 5221.6200, subp. 3, because treatment was given on a regularly scheduled basis.^[14]

 

The employee would also not qualify for a departure, because there is no documented medical complication, there is no evidence that "previous treatment did not meet the accepted standard of practice," and there is no evidence of an incapacitating exacerbation.

 

Minn. R. 5221.6050, subp. 8C, allows a departure where the "treatment is necessary to assist the employee in the initial return to work where the employee's work activities place stress on the part of the body affected by the work injury."  However, the employee has been back to work since late August 2001, and treatment rendered after October 31, 2001, cannot reasonably be considered to be in furtherance of an "initial return to work."

 

Finally, Minn. R. 5221.6050, subp. 8D, provides for a departure where the treatment meets two of the following three criteria, as documented in the medical records:

 

(1) the employee's subjective complaints of pain are progressively improving as evidenced by documentation in the medical record of decreased distribution, frequency, or intensity of symptoms;

 

(2) the employee's objective clinical findings are progressively improving, as evidenced by documentation in the medical record of resolution or objectively measured improvement in physical signs of injury; and

 

(3) the employee's functional status, especially vocational activity, is objectively improving as evidenced by documentation in the medical record, or successive reports of work ability, of less restrictive limitations on activity.

 

While Dr. Hoff's November 13, 2001, letter suggests "progressive improvement," no progressive improvement is documented in his treatment records, there are no objective clinical findings of improvement, and the employee's restrictions became more significant over time.^[15]  The judge's award of expenses for treatment after the initial twelve weeks is therefore reversed.