EDMUND M. WOLFE, Employee, v. WESI JOHNSON SCREENS and CNA INS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 6, 2002

 

HEADNOTES

 

PRACTICE & PROCEDURE - REMAND; MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS; MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Although the judge erred in concluding that the treatment parameters did not apply in this case, and while it would have been preferable for the judge to have analyzed the proposed treatment under the parameters prior to analyzing the case under the Arare case exception,@ there was in this case no basis for remanding the matter to the compensation judge for application of the treatment parameters, in that it was clear from his memorandum that the judge had considered and weighed all of the pertinent evidence carefully and had awarded the RSD treatment at issue based on a reasonable conclusion that the employee had exhausted all other treatment options, that his symptoms remained severe and, together with his narcotic medication, were worsening his overall quality of life, and that the proposed treatment would reasonably alleviate those symptoms.

 

Affirmed.

 

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

Compensation Judge:  Rolf G. Hagen

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge's award of payment for proposed spinal cord stimulator implantation surgery.  We affirm.

 

BACKGROUND

 

On March 1, 1994, Edmund Wolfe [the employee] sustained a work-related injury to his right upper extremity while employed as a designer with Wesi Johnson Screens [the employer].  Mr. Wolfe was forty-three years old on that date and was earning a weekly wage of about $738.71.  The employee=s injury was initially assessed as a chronic overuse syndrome and eventually diagnosed as compression syndrome and radial compartment syndrome.  On August 3, 1994, the employee underwent a release of the right posterior interosseous nerve, which was successful in relieving his right forearm pain, but the employee continued to feel symptoms of right shoulder impingement suggestive of rotator cuff pathology.  An MRI scan of the shoulder on August 31, 1994, revealed a small superior labrum tear or SLAP lesion with suspected involvement of the biceps tendon anchor.  On May 9, 1995, employee=s treating physiatrist, Dr. Alan Bensman, reported that the employee had reached maximum medical improvement [MMI] with regard to his injury, subject to a total permanent partial disability of 10.25% of the whole bodyB3% related to the shoulder, 6.75% related to the employee=s right radial nerve, and .5% related to a right carpal tunnel syndrome.

 

The employee=s shoulder pain continued, and about a year later, on April 29, 1996, the employee underwent right rotator cuff repair.  In a report to the employee=s attorney dated August 14, 1996, the employee=s surgeon, Dr. Daniel Buss, stated his opinion that the employee=s work injury was not a substantial contributing factor in the employee=s shoulder problem Abut may have aggravated it.@

 

The employee improved again following his shoulder surgery, but his strength and range of motion subsequently diminished, and on October 22, 1996, he was seen by Dr. Thomas Valente.  According to Dr. Valente=s later report,^[1] the employee was complaining at the time of pain

 

primarily in the forehand, the thumb, and the hand itself.  He had swelling in the forehand and the pain was a deep, burning sensation.  He also felt paresthesias and numbness over the forearm and hand.  He also noted that there was complete lack of moisture to the palmar aspect of the right hand and the skin was very dry and cracked.  There was profound discoloration and a decrease in strength.  He also noted a difference in nail and hair growth as well as temperature.

 

Examination confirmed many of these complaints, and Dr. Valente diagnosed^[2] Acomplex regional pain syndrome type II otherwise known as reflex sympathetic dystrophy@ [RSD] and treated the employee with a selective sympathetic block.

 

The employee=s condition evidently improved yet again with this treatment, but again the improvement was only temporary, and on March 24, 1997, the employee commenced treatment with hand surgeon Dr. Paul Donahue.  Dr. Donahue diagnosed carpal tunnel syndrome and a history of RSD, stating, AI suspect that [the employee=s] carpal tunnel is a[n] ongoing factor in the causation of the reflex sympathetic dystrophy and should be treated surgically.@  On April 24, 1997, Dr. Donahue performed a right carpal tunnel release, which resulted in moderate improvement of the employee=s hand symptoms but no change in his upper arm symptoms.  On September 3, 1997, Dr. Donahue concluded that the employee had reached maximum medical improvement [MMI] with regard to his right carpal tunnel syndrome, although his upper arm symptoms had still not changed. Dr. Donahue indicated that the employee remained under ongoing care at other facilities Afor follow-up and treatment of his sympathetic dystrophy.@

 

With his symptomatology still not resolved, the employee returned on December 9, 1997, to see Dr. Valente, who administered another stellate ganglion block and referred the employee to neurologist Dr. Crispin See, who examined the employee on January 6, 1998.  Dr. See=s findings on examination of the employee=s right hand included dryness and cracking of the skin, reddish discoloration of the fingers, and tightness of the skin, and he found the employee=s right upper extremity to be warmer than the left.  On those findings Dr. See concluded that the employee had Afindings to suggest reflex sympathetic dystrophy@ and recommended an EMG for further evaluation.  On March 26, 1998, Dr. Valente recommended to the employee=s attorney that, in light of the employee=s fluctuating treatment history, chronic pain management be explored as a treatment option.

 

                        On October 7, 1998, the employee underwent an independent medical examination at the request of the employer and insurer by Dr. Loran Pilling at the Pilling Pain Clinic.  The examination included an MMPI, and Dr. Pilling indicated in his report that the MMPI did not suggest any significant psychopathologyBthat it was Athe type of profile seen in people with chronic pain.@  Dr. Pilling found the employee distressed but not depressed or in need of any psychological counseling, indicating that A[h]is distress is secondary to reflex sympathetic dystrophy of his right arm and his need to be extremely productive.@  Dr. Pilling concluded that A[t]he cause of any condition that I diagnose is the injury at work and the reflex sympathetic dystrophy which developed after surgery,@ which Dr. Pilling expected Awill be a permanent condition.@  The employee was subsequently admitted for a twenty-day pain clinic program, and on December 10, 1998, Dr. Pilling wrote to the insurer indicating that the employee would be returning to work full time with restrictions on December 14, 1998.  On July 15, 1999, Dr. Pilling completed a Health Care Provider Report, on which he reiterated the employee=s diagnosis as RSD.  In a letter on July 22, 1999, to the employee=s attorney, Dr. Pilling reiterated his diagnosis of permanent RSD related to the employee=s March 1994 work injury, indicating that future care for the condition would be primarily the management of pain, which was currently being accomplished by the medications MS Contin, Neurontin, and Trazodone.  The employee apparently continued to treat with the Pilling Pain Clinic on this basis with additional medications until June of 2000, when Dr. Pilling retired from practice.

 

On June 29, 2000, the employee was examined at the request of the employer and insurer by orthopedist Dr. Mark Holm.  Upon examination, Dr. Holm found the employee to have full range of motion of his shoulders, elbows, wrists, and fingers, and he found his right arm to be warm and dry, with no excessive hairiness or sweatiness and no hypersensitivity or shiny tightness to the skin.  Although he found Ano evidence of RSD@ in the arm, Dr. Holm diagnosed in part a A[h]istory of reflex sympathetic dystrophy,@ indicating that the employee had Ahad a good recovery from his reflex sympathetic dystrophy, although he still has chronic pain.@ 

 

On August 1, 2000, the employee changed primary healthcare providers from Dr. Pilling to Medical Advanced Pain Specialists [MAPS].  On that date, the employee was examined by physiatrist Dr. Thomas Cohn, who noted that the employee=s skin was warm, that his hands were very dry, and that there was ecchymosis on his right forearm.  The employee exhibited no edema, but he had pain in his right shoulder with shoulder shrug, and sensation testing revealed noticeable deficit on the right in comparison with the left.  The right arm was hypersensitive, and touching it caused a burning sensation.  Hand grip was also noticeably weaker on the right than on the left.  On these findings, Dr. Cohn=s assessment was that employee Acontinues to have pain with burning, numbness, and tingling in the right arm that is possibly reflex sympathetic dystrophy.@  Dr. Cohn prescribed several medications, recommended a cervical sympathetic block for both diagnostic and therapeutic benefit, and also discussed with the employee the possibility of implanting a spinal cord stimulator as further therapy.  Dr. Cohn indicated that the employee wanted Ato do his own research on [the] benefit[s] of injections and spinal cord stimulators for reflex sympathetic dystrophy.@  The employee returned to MAPS with persistent pain on October 6, 2000, on which date he saw Dr. David Nelson.  Upon examination, Dr. Nelson reiterated the same diagnosis and indicated expressly, AI recommend spinal cord stimulator trial,@ noting that the employee was Aawaiting Work[ers=] Compensation Insurance authorization.@

 

On November 10, 2000, the employee saw occupational medicine specialist Dr. Orrin Mann, who noted that the employee was Aself referred as a result of contentious litigations involvement with his Work Comp claim dating back to 1994.@  Dr. Mann concluded that the employee Adoes not have overt findings compatible with RSD from an objective point of view but his symptomatology certainly is suggestive of it and given his multiple surgical procedures, it is hard to know whether he actually has an RSD versus a causalgia from nerve damage from one of the surgeries.@  Near the end of his report, Dr. Mann indicated that he had Atold the [employee] that I do not see patients who need chronic narcotic pain medication of the nature and severity that he obviously requires.@

 

On December 11, 2000, the employee returned to see Dr. Nelson at MAPS, generally complaining of problems in managing his several medications and requesting a spinal cord stimulator and physical therapy, which had several times been denied by the insurer.  Dr. Nelson assessed continuing Acausalgia of the right arm and left arm pain@ and prescribed Trazodone, Zoloft, Neurontin, and MS Contin, pending approval of the other treatment.  As part of his treatment plan, Dr. Nelson indicated that A[f]uture treatment options for this patient include spinal cord stimulator implantation and physical therapy.@

 

On March 12, 2001, the employee was seen for the employer and insurer by Dr. Richard Galbraith.  Dr. Galbraith concluded that the employee=s condition failed to qualify for a diagnosis of RSD, particularly under Minnesota Rules 5223.0400, subpart 6, which requires that five of the following eight conditions persist concurrently in the affected limb for a rating of permanent partial disability related to motor loss or sensory loss in an upper extremity due to RSD, causalgia, and cognate conditions:^[3]

 

edema, local skin color change of red or purple, osteoporosis in underlying bony structures demonstrated by radiograph, local dyshidrosis, local abnormality of skin temperature regulation, reduced passive range of motion in contiguous or contained joints, local alteration of skin texture of smooth or shiny, or typical findings of reflex sympathetic dystrophy on bone scan.

 

Dr. Galbraith indicated that the employee had failed to qualify under the rule because (1) A[the employee] did not have a radiograph of his right wrist looking for osteoporosis@; (2) A[h]e did not have evidence of reflex sympathetic dystrophy on bone scan, because it was not carried out.@; (3) [h]e had no skin temperature changes that were documented in the record@; (4) A[h]e had no persistent swelling or skin color changes of red or purple@; and (5) A[h]e did not have loss of hair, shininess of the skin, loss of nail growth, or allodynia at any time.@  The employee Acontinues to complain,@ Dr. Galbraith added, Ayet he has continued to work nearly full time.  Anybody who has real RSD cannot do that past or present.@  Dr. Galbraith argued further that the specific treatment here at issue was additionally inappropriate because (1) the employee has never undergone a psychological evaluation to determine if he is stable enough, (2) Athe [employee=s] physician needs to eliminate a significant secondary gain from the patient=s pain,@ and (3) A[the employee] has taken unduly large doses of narcotics in the form of MS Contin.@  On these and other findings on examination, Dr. Galbraith concluded that the employee was neurologically essentially normal, that he was not in need of any work-related restrictions or limitations, and that the recommended spinal cord stimulator installation and treatment was not reasonable and necessary. 

 

On March 21, 2001, the employee returned again to see Dr. Nelson, complaining that his right arm and shoulder pain, which he described as burning and sharp, was becoming increasingly difficult to manage by medication and was resulting also in anxiety and depression.  Dr. Nelson diagnosed Adisabling right upper extremity pain secondary to causalgia of the right arm and shoulder following a work-related injury,@ noting that A[a] spinal cord stimulator had been recommended in the past@ and that insurance authorization had been denied.  Meanwhile, Dr. Nelson proceeded to recommend a stellate ganglion block to decrease the employee=s pain, and he continued to prescribe Trazodone, Neurontin, Zoloft, and MS Contin at current levels.

 

On May 3, 2001, Dr. Nelson mailed a letter to the employee=s attorney addressed ATo Whom it may concern,@ requesting authorization for a spinal cord stimulator for the employee, indicating that the employee Ahas chronic intractable extremity pain secondary to Reflex Sympathetic Dystrophy.@  Dr. Nelson stated in his letter that A[o]ther treatment modalities have been tried and were proven unsatisfactory or judged to be unsuitable or contraindicated for this patient.@  He indicated that the employee had undergone careful screening, including a psychological evaluation, and that the only alternatives to the stimulator remaining for the employee were long-term in-patient hospitalization, additional reconstructive surgery, and continued use of narcotics.  Any of these alternatives would remain costly, he concluded, and none of them was likely to prove as effective in controlling the employee=s condition.  On May 11, 2001, Dr. Cohn also wrote a similar letter ATo Whom It May Concern,@ also  requesting authorization of the stimulator, based on similar reasoning.

 

On May 30, 2001, the employee filed a medical request, alleging entitlement to the spinal cord stimulator treatment.  By a medical response filed June 7, 2001, the employer and insurer denied the employee was suffering from RSD, and alleged that implantation of a spinal cord stimulator was not indicated under Minn. R. 5221.6300 of the treatment parameters.  The employer and insurer also alleged in their response that, even if the employee had been diagnosed with RSD, he has not met the requirements of Minnesota Rules 5221.6305, such as would entitle him to implantation of the spinal cord stimulator.^[4]

 

On June 12, 2001, Dr. Galbraith reviewed Dr. Holm=s June 2000 report and held his own opinion unchanged.  On June 18, 2001, Dr. Nelson again examined the employee, whose worst pain in the past week had been at a level ten on a scale of one to ten and who was expressing severe distress over his discomfort.  Upon examination, Dr. Nelson found the employee=s skin to be pink, warm, and dry to the touch, with decreased temperature noted in the right hand when compared to the left.  He found muscle strength and hand grip on the right slightly less than the left, concluding again that the employee Acontinues to have right arm pain secondary to causalgia and reflex sympathetic dystrophy.@ Dr. Nelson recommended a psychological evaluation, including another MMPI, to which the employee responded that he could not afford to pay for one himself and that, given his current difficulty getting the insurer to pay for procedures, he did not think that he could follow through with obtaining such an evaluation for the time being.  On July 12, 2001, Dr. Galbraith confirmed again his former opinion, that the employee was not subject to RSD.  The employee=s complaints, diagnosis, and treatment plan remained essentially the same at his last appointment with Dr. Nelson on August 15, 2001.

 

The employee=s medical request came on for hearing on August 30, 2001.  Issues at hearing included the nature and extent of the March 1, 1994, work injury and whether the proposed spinal cord stimulator implantation surgery was reasonably required to cure or relieve the effects of that injury.  In a decision issued on September 14, 2001, the compensation judge ruled in the employee=s favor.  The employer and insurer appeal.

 

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 compensation judge determined that the employee suffers from chronic pain in his right upper extremity secondary to RSD/causalgia and related to his March 1994 work injury, that the spinal cord stimulator implantation surgery proposed by Dr. Nelson was reasonable and necessary, that the medical treatment parameters do not apply to the facts in this case, and that, even if they did apply, this was a Arare or exceptional circumstance@ pursuant to Jacka v. Coca Cola Bottling Co., 580 N.W.2d 27, 58 W.C.D. 395 (Minn. 1998), in which departure from the parameters was necessary to allow the employee to obtain proper treatment.

 

On appeal, the employer and insurer contend in part that substantial evidence does not support the judge=s determination that the employee suffers from RSD and, therefore, that the proposed surgery is not reasonable and necessary.  In support of this argument, they contend that Dr. Nelson=s diagnosis of RSD was simply stated as a conclusion without any discussion of the factors set forth in the treatment parameters.^[5]  Nor was the basis for Dr. Pilling=s diagnosis of RSD ever detailed in his records.  Even Dr. Cohn couched his diagnosis in terms of Apossibly reflex sympathetic dystrophy.@  Coupled with the reports of other physicians who disputed the diagnosis and were against surgical intervention, the employer and insurer contend the judge=s findings were unsupported by substantial evidence.  The compensation judge, however, found the employee=s hearing testimony as to the severity of his symptoms to be Ahighly credible,@ and specifically adopted Dr. Nelson=s opinions regarding the nature and extent of the employee=s work injury and the reasonableness and necessity of the proposed spinal cord stimulator surgery.  In a lengthy memorandum, the judge noted that he analyzed the compensability of the proposed treatment under Minn. Stat. ' 176.135 and long-standing case law principles.  See Field-Seifert v. Goodhue County, slip op. (W.C.C.A. Mar. 5, 1990); Horst v. Perkins Restaurant, 45 W.C.D. 9 (W.C.C.A. 1991); Fuller v. Naegele-Shivers Trading, slip op. (W.C.C.A. Apr. 14, 1993).  As it is the compensation judge=s responsibility, as 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), it was within the compensation judge=s discretion to reject the opinion of Dr. Galbraith and accept the opinions of Drs. Nelson, Cohn, and Pilling.  While another factfinder might well have resolved the issues differently, we cannot say the judge=s determination that the employee suffers from RSD/causalgia and that the proposed treatment is reasonable and necessary is clearly erroneous and unsupported by substantial evidence in the record as a whole.  Accordingly, we affirm the judge=s decision as to the employee=s diagnosis and the reasonableness and necessity of the proposed treatment.

 

The employer and insurer also contend that the compensation judge erred as a matter of law by failing to apply the medical treatment parameters to this case.  They argue that the employee=s diagnosis and the appropriateness of the proposed spinal cord stimulator should have been analyzed by the judge under Minn. R. 5221.6305, subp. 1A, and 5221.6305, subp. 3B.  While these arguments have some merit, we are ultimately unpersuaded that the employer and insurer are entitled to any relief on appeal.

 

At Finding 8, the judge concluded that the treatment parameters do not apply in this case, explaining in his memorandum that the treatment parameters apply only where an employer and insurer have not denied liability and that in this case the Aemployer/insurer have denied primary liability with respect to the RSD condition.@  The judge went on in his memorandum to note, AAlternatively, employer/insurer have argued that if the employee suffered from RSD, that said condition resolved.  In essence, employer/insurer argue a temporary aggravation.  As such, again the treatment parameters do not apply.@^[6]  In the present case, however, the employer and insurer admitted liability for the employee=s work injury to his right upper extremity and have paid benefits since 1994.  At trial, the parties stipulated that the employee sustained a personal injury to his right upper extremity arising out of and in the course of his employment on March 1, 1994.  The judge determined that the employee=s diagnosed RSD occurred as a complication of the Aadmitted@ work injury.  The employer and insurer have contested the RSD diagnosis but have never contested liability for the work injury.  We agree with the employer and insurer that the judge erred in concluding the treatment parameters are not applicable for the reasons stated.  That being said, however, we conclude, under the particular circumstances of this case, that no remand or reversal is warranted. 

 

The judge concluded in Finding 9 that, even if the treatment parameters should be found to apply, Athe facts and circumstances of this case constitute a rare or exceptional circumstance in which departure from the treatment parameters is necessary to obtain proper treatment.@  In Martin v. Xerox Corp., 59 W.C.D. 509 (W.C.C.A. 1999), we held that JackaArare case@ medical treatment disputes will be reviewed under Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984), and Minn. Stat. ' 176.421, subd. 1(3).  In other words, the issue before us on appeal is whether the compensation judge=s decision is clearly erroneous and unsupported by substantial evidence in view of the entire record.  Id.

 

The compensation judge explained his decision on the issue in part as follows:

 

The employee has fully participated in and has exhausted all conservative medical treatment without significant or permanent lasting improvement.  Overall, this employee has undergone considerable conservative care and treatment including, but not limited to: extensive physical therapy, participation in chronic pain programs, home exercises, and working with permanent restrictions.  In addition, this employee has undergone multiple surgeries to his right upper extremity all without significant or permanent relief. . . .

 

* * *

 

According to Dr. Cohn, M.D., (employee=s primary treating physician) the spinal cord stimulator has several distinct advantages, including: it has been proven clinically effective in reducing pain; it will allow the employee to discontinue use of narcotics; it is nondestructive, reversible and low risk that can provide a prediction of success prior to full implantation (i.e., the surgery is a two-part surgical procedure whereby initial surgery is performed to determine the effectiveness and if proven effective, the entire procedure would be completed during the second surgical procedure); it is a reasonable substitute for alternative options which will include long-term use of narcotics and long-term inpatient hospitalizations . . . .

 

* * *

 

The testimony of the employee himself was given considerable weight by this Compensation Judge. . . . . The employee is simply asking for approval for a surgical procedure that will hopefully allow him to get off narcotic and other prescriptive medication.  The record indicates that this employee has been on narcotic medication for approximately four years (even the IME physician indicated that the employee has been on a considerable amount of narcotics).  The employee is concerned, as well he should be.  Further, this employee is requesting the approval because he feels that the stimulator/implant will better improve his overall quality of life.  This Compensation Judge agrees and where, as here, the proposed surgery has a strong probability of doing this and getting this employee off not only the narcotic medication but other medication that he is taking in great quantities, the surgery, as a resonable alternative, should be approved.

 

* * *

 

This Compensation Judge believes that under the law, as set forth in Asti, supra, an exception to the treatment parameters exists; more specifically: there is a good medical reason to get this employee off the narcotic medication that he has taken in vast amounts for such a long period of time.  Where, as here, the surgery has a high probability of providing relief without drug intervention, it should be approved.  Also, in doing so, the employee=s overall quality of life and acts of daily living will be improved.

 

While we would have preferred the compensation judge reach his analysis of the Arare case exception@ after first analyzing the proposed treatment under the treatment parameters, in this case, we see no basis to remand for this task in view of his conclusions under case law principles and, alternatively, the rare case exception.  The judge was clearly persuaded that the employee is experiencing severe symptoms, which are worsening and affecting his overall quality of life.  It is very evident from the judge=s memorandum as a whole that he considered and weighed all of the pertinent evidence carefully.  We conclude that the compensation judge=s findings are supported by evidence that Aa reasonable mind might accept as adequate.@  Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).  Therefore, we affirm the decision of the compensation judge.^[7]