SHARON ANDERSON-OLSON, Employee, v. WATERS OF PARK POINT and HOME INS./RISK ENTERS. MGMT., LTD., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 16, 2003
HEADNOTES
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS. Where the employee conceded the requested MRI scan was not consistent with the treatment parameters and did not qualify for a departure under the treatment parameter rules, the compensation judge was not required to make findings applying the treatment parameters. Compare Martin v. Xerox Corp., 59 W.C.D. 509 (W.C.C.A. 1999).
MEDICAL TREATMENT & EXPENSE - RARE CASE EXCEPTION. Where without an MRI scan, the employee would be unable to obtain a neurosurgical consultation previously ordered by a compensation judge, and where other evidence, including the employee=s testimony and the employee=s physicians= treatment records supports the reasonableness and necessity of an MRI scan, the compensation judge=s determination that the employee=s request for an MRI scan was a rare case in which a departure from the treatment parameters was necessary to obtain proper treatment is not clearly erroneous or unsupported by substantial evidence.
Affirmed.
Determined by Johnson, C.J., Pederson, J., and Stofferahn, J.
Compensation Judge: Jane Gordon Ertl
OPINION
THOMAS L. JOHNSON, Judge
The employer and insurer appeal the compensation judge=s determination allowing an MRI scan as a rare case departure from the treatment parameters. We affirm.
BACKGROUND
Sharon Anderson-Olson, the employee, injured her low back and right leg on July 17, 1990, while working for Waters of Park Point. The employer and its insurer accepted liability for the employee=s personal injury.
Following her injury, the employee received a wide range of treatment, including hot packs, massage, deep heat, ultrasound, traction, exercises and medication. In an MRI scan on April 6, 1993, the low back appeared normal, with a slight increase in fluid in the facet joints at L4-5 and L5-S1. In 1995, the employee began treating with Dr. Frank Budd at Orthopaedic Associates of Duluth for complaints of low back and right hip pain. In 1996, Dr. Budd detected a sizable lipoma in the employee=s right hip area, which he surgically removed. Thereafter, the employee continued to treat with Dr. Budd with continuing complaints of low back pain and pain radiating into her right leg. In June 1998, the doctor opined the employee had a typical, definite L5-S1 right-sided disc herniation with nerve root irritation. In March 1999, the employee saw Dr. J. A. Zamzow, also with Orthopaedic Associates. A second MRI scan in March 1999 showed mild lumbar facet degenerative changes with no disc protrusion, neural compression or spinal stenosis. Dr. Zamzow advised the employee that surgery was not necessary and prescribed physical therapy.
In January 2000, the employee returned to see Dr. Larry LeMaster, her family physician, with continuing complaints of low back pain radiating into her right leg. On examination, the doctor found limited range of motion and tenderness over the SI joint and piriformis on the right without motor sensory deficits of the legs. The doctor diagnosed chronic back pain with probable early sciatica and piriformis involvement, and recommended a neurosurgical consultation. In August 2000, the doctor=s examination and diagnosis were unchanged. Dr. LeMaster prescribed Darvocet for pain control and again recommended a neurosurgical consultation.
The employee testified she has had constant low back and right leg pain since her personal injury. She stated, however, the pain has gotten worse over the last three years despite pain medication. She testified she has limited her home and leisure activities because of pain. The employee returned to work as a secretary in May 1999, but testified she has a difficult time sitting for extended periods of time due to low back pain.
The employee filed a medical request in September 2001, seeking approval of a neurosurgical consultation. In a Decision and Order filed November 19, 2001, Judge Bruce H. Johnson ordered the employer and insurer to provide and pay for a consultation with a neurosurgeon to be selected by the employee=s primary care physician. There was no appeal from this decision. The employee then sought an appointment with Dr. Robert F. Donley, a neurosurgeon with the Duluth Clinic. A form memorandum from Dr. Donley=s office listed medical records the doctor wanted the employee to provide, including current imaging studies: a CT or MRI scan as indicated. By report dated March 22, 2002, Dr. LeMaster stated the employee needed an MRI scan of her low back prior to being seen by a neurosurgeon. The employee testified Dr. Donley=s office told her he would not see her without an MRI scan taken within three months of his examination. The employer and insurer refused authorization for the MRI scan.
The employee filed a medical request seeking approval for an MRI scan. The case was heard by a compensation judge at the Office of Administrative Hearings on September 24, 2002. In a Findings and Order filed October 18, 2002, the compensation judge found the requested MRI scan was beyond the treatment parameters. However, the judge found the requested MRI scan was a reasonable and necessary medical diagnostic tool and concluded it qualified as a rare case departure from the treatment parameters. The judge ordered the employer and insurer to pay for the MRI scan subject to the fee schedule. The employer and insurer appeal.
DECISION
1. Treatment Parameters
The medical treatment parameters contain rules covering medical imaging, including MRI scans.[1] The appellants argue the compensation judge=s order allowing an MRI scan is contrary to the applicable provisions of the treatment parameters. The appellants contend the compensation judge failed to consider the applicable treatment parameters and failed to analyze the departure rules.[2] Accordingly, they assert the compensation judge=s decision is legally erroneous and must be reversed. We disagree.
In Martin v. Xerox Corp., 59 W.C.D. 509 (W.C.C.A. 1999), this court stated an award under the rare case exception Ashould not be considered unless the judge first determines that the proposed treatment is otherwise reasonable and necessary under case law and that the treatment is not consistent with any treatment parameters raised by the parties, including the departure parameters.@ In this case, however, the employee conceded the requested scan was barred by the parameters and did not qualify for a departure under Minn. R. 5221.6050, subp. 8. Rather, the employee contended the scan was reasonable and necessary and qualified for a departure under the so-called Arare case@ exception of Jacka v. Coca Cola Bottling Co., 580 N.W.2d 27, 58 W.C.D. 395 (Minn. 1998). (T. 30.) The compensation judge found the requested MRI scan was Abeyond the treatment prescribed by the medical treatment parameters.@ (Finding 6.) Since the applicability of the parameters was not an issue at the hearing, we cannot conclude the compensation judge=s failure to apply the treatment parameters was legally incorrect.
2. Rare Case Exception
In Jacka, the supreme court held the permanent treatment parameters, Minn. R. 5221.6010, et. seq. (1995), have Athe force and effect of law.@ Jacka, at 35, 58 W.C.D. at 408. AHowever, in recognition of the fact that the treatment parameters cannot anticipate every exceptional circumstance, a compensation judge may depart from the rules in those rare cases in which departure is necessary to obtain proper treatment.@ Id. The compensation judge found this was such a rare case justifying a departure from the treatment parameters. The appellant contends, however, the judge failed to make findings supporting a conclusion that this is a rare case. Further, they contend substantial evidence fails to support that conclusion. Accordingly, they ask the judge=s award be reversed.
The compensation judge found the employee Acontinues to have low back symptoms in spite of a variety of treatment modalities, including physical therapy, massage, home exercise, chiropractic treatment, and injections. Although she is able to work, she continues to experience symptoms and is unable to do activities that she used to do. She currently is on medication, including Darvocet and Lor-tabs.@ (Finding 1.) In her memorandum, the judge noted the employee has Aa long history of back complaints and a variety of treatments have been tried, with little success, to relieve her symptoms.@ (Mem. at 4.) The judge further stated that to deny the requested MRI scan would put the employee in the position of being unable to see the neurosurgeon to whom she was referred by her treating doctor in accordance with Judge Johnson=s November 2001 decision. While the compensation judge might have made more specific and detailed factual findings, between the judge=s findings and the memorandum, we find a sufficient factual basis for this court to perform its review function. In the Martin case, this court held we would review the rare case exception disputes under Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984). Thus, the question on appeal is whether the compensation judge=s decision is clearly erroneous and unsupported by substantial evidence in view of the entire record. See id.
The employee testified to continuing low back and right leg symptoms since her 1990 injury. She stated her pain has increased over the last three years and has interfered with her work and leisure activities. She further testified the prescribed pain medication is no longer effective. The medical records corroborate the employee=s complaints and document consistent objective findings on examinations. Dr. LeMaster recommended a neurosurgical consultation which was ordered by a compensation judge. Dr. Donley will not examine the employee without a current MRI scan. Thus, without an MRI scan, the employee will be unable to obtain the treatment ordered by a compensation judge. Based upon these facts, we conclude the judge=s award of an MRI scan under the rare case exception is supported by substantial evidence. While this may be a close case, we have not been Aleft with a definite and firm conviction that a mistake has been committed.@ Northern States Power v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Accordingly, the compensation judge=s decision must be affirmed.