AVISHOOV ROBERTS, Employee/Appellant, v. SUPERVALU, INC., and KEMPER INS. COS., Employer-Insurer.

 

    WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 9, 2003

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE – TREATMENT PARAMETERS; PRACTICE & PROCEDURE - REMAND.  Where the compensation judge did not determine whether the treatment parameter criteria were met, or whether circumstances warranted a departure from the treatment parameter rules, the compensation judge=s finding that the proposed surgery was not reasonable and necessary does not address the determinative issue as presented by the parties, and the matter is remanded for consideration of whether the treatment parameter criteria were met, and if so, whether circumstances warranted a departure from the treatment parameter rules.

 

Vacated and remanded.

 

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

Compensation Judge: William R. Johnson.

 

       OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals the compensation judge=s finding that a proposed low back fusion surgery was not reasonable and necessary medical treatment.  We vacate and remand for determination of whether the applicable treatment parameter criteria were met and whether a departure was warranted.

 

BACKGROUND

 

On April 21, 2000, Avishoov Roberts, the employee, sustained a work-related low back injury while working as an order selector at a warehouse for SUPERVALU, the employer, which was insured for workers= compensation liability by Kemper Insurance Company, the insurer.  The employee treated at an emergency room, where he was advised to take a few days off from work.  The employee did so, then took vacation time between April 24 and May 11, 2000, to help care for his newborn son.  The employee returned to work on May 11 with no assigned restrictions.  Shortly thereafter, the employee experienced an aggravation of his low back symptoms; Dr. Horozaniecki, at Occupational Medicine Consultants, prescribed physical therapy and assigned work restrictions.  The employee eventually returned to work as an order selector and continued to work at his regular duties.

 

On October 28, 2000, the employee sustained a second work-related low back injury.  He treated with Dr. Richard Hirt, also at Occupational Medicine Consultants, who recommended medication, work hardening, and physical therapy.  The employee returned to work for two hours per day, but had difficulty working and experienced continued symptoms.  Dr. Hirt referred the employee to Dr. John Sherman for a surgical evaluation, who diagnosed a lumbar strain and recommended a rehabilitation program.  In early December 2000, Dr. Hirt released the employee to work for one hour per day.  On December 7, 2000, the employee was evaluated by Dr.  Eduardo Yutangco, who also released the employee to work one hour per day.  On December 9, 2000, the employee underwent an MRI, which indicated early disc dehydration at L4-5 and L5-S1, a small midline protrusion at L5-S1, degenerative changes at L5-S1, and a small Schmorl=s node at T11-12.  On December 14, 2000, Dr. Hirt reviewed the MRI, opined that the employee was not a surgical candidate, and recommended light-duty work for two weeks.  The employee continued with a work-hardening program from October 2000 through February 2001, when he stopped working.  The employee testified that he stopped working because he was in pain and because his medication affected his ability to drive to work.

 

On February 20, 2001, the employee was examined by Dr. Theodore Choma from Dr. Manuel Pinto=s office, who recommended continuation of the work hardening program and a possible discography.  He restricted the employee from work through March 31, 2001.  On March 9, 2001, the employee was evaluated by Dr. Scott O=Connor at the employer and insurer=s request.  Dr. O=Connor opined that the employee had no objective findings and would not benefit from surgical treatment, and recommended physical therapy.  On April 3, 2001, the employee treated with Dr. Pinto, who recommended a lumbar discogram, and stated that if Athe discograms are inconclusive . . . then I would recommend for the patient to undergo a work-hardening program and return to work within the restrictions of the work-hardening.@  (Joint Exh. 1.)  The employee underwent the discogram on April 10, 2001, which indicated abnormal morphology at L5-S1 and L4-5, but normal morphology at L3-4; as well as concordant pain at L5-S1 and L4-5 and nonconcordant pressure at L3-4 and L2-3.  Dr. Pinto reviewed the findings, recognized the nonconcordant findings at L2-3 and L3-4,^[1] but still opined that the employee was a reasonable surgical candidate and disabled the employee from work as of April 26, 2001.

 

On May 23, 2001, Dr. Sherman, who had evaluated the employee in November 2000 at Dr. Hirt=s referral, again examined the employee to provide a second surgical opinion.  After reviewing the employee=s MRI and discogram results, Dr. Sherman concluded that the employee=s diagnostic findings did not warrant fusion surgery, and that the most appropriate treatment was an aggressive rehabilitation program.  At deposition, Dr. Sherman testified that he questioned the validity of the discogram results, stating that, as a result, the discogram may not help identify the cause of the employee=s pain nor lead to surgery that would result in Asignificant and reliable resolution of the [employee=s] symptoms . . . .@

 

On November 7, 2001, the employee requested approval of a two-level lumbar fusion surgery recommended by Dr. Pinto.  The employer and insurer refused to pay for the surgery, alleging that the employee had no objective findings on examination, was not a surgical candidate, and would not benefit from surgical treatment.  A hearing was held before Compensation Judge William R. Johnson on February 7, 2002.  The issue at the hearing was approval of a two-level fusion surgery for treatment of the employee=s admitted low back injury.  The employee claimed that the surgery was appropriate under the treatment parameters, specifically relying upon Minn. R. 5221.6500, subp. 2C(1)(d)i.  The compensation judge did not address the employee=s treatment parameter argument, and found that the proposed low back fusion surgery was not reasonable and necessary.  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.

 

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers' Compensation Court of Appeals may consider de novo.  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff'd (Minn. June 3, 1993).

 

DECISION

 

Minn. Stat. ' 176.135, subd. 1(a), states that an employer is to furnish Aany medical, psychological, chiropractic, podiatric, surgical and hospital treatment . . . as may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury.@  Under legislation enacted with the objective of controlling medical costs in the workers= compensation system, the Minnesota Department of Labor and Industry promulgated treatment parameter rules for health care provider treatment.  Hirsch v. Bartley-Lindsay Co., 537 N.W.2d 480, 483, 53 W.C.D. 144, 148 (Minn. 1995).  The requirement that treatment must be reasonable and necessary in order to be reimbursable is contained in the general treatment parameters in Minn. R. 5221.6050, subp. 1A, which states that A[a]ll treatment must be medically necessary treatment, as defined in part 5221.6040, subp. 10.@  AMedically necessary treatment@ is defined in Minn. R. 5221.6040, subp. 10, as Athose health services for a compensable injury that are reasonable and necessary for the diagnosis and cure or significant relief of a condition consistent with any applicable treatment parameter in parts 5221.6050 to 5221.6600.@   The applicable parameter in this case, Minn. R. 5221.6500, subp. 2C(1)(d), provides that lumbar arthrodesis surgery is reasonably required if the employee has incapacitating low back pain for more than three months and degenerative back disease with a positive discogram at one or two levels of the spine.^[2]  The employee claims that his medical condition satisfies the requirements for surgery as set forth in that section of the treatment parameters, specifically, that the employee had experienced incapacitating low back pain for longer than three months and had positive findings on discogram.

 

The compensation judge found that the proposed surgery was not reasonable and necessary, but did not address the applicability of the treatment parameters.  In Pelowski v. K-Mart Corp., 627 N.W.2d 89, 61 W.C.D. 276 (Minn. 2001), the Minnesota Supreme Court addressed the issue of the applicability of the treatment parameters where the criteria have been met.  The court noted the treatment parameter rules Aprovide the yardstick by which the treatment offered by the health care provider is measured@ and aid the trier of fact Ain identifying reasonable and appropriate medical treatment.@  Pelowski, 627 N.W.2d at 92-93, 61 N.W.2d at 279 (quoting Jacka v. Coca-Cola Bottling Co., 580 N.W.2d 27, 35, 58 W.C.D. 395, 407 (Minn. 1998)).  In addition, the court emphasized that the rules endeavor to provide Aa large measure of uniformity and certainty as to compensable treatment.@  Id. at 93, 61 N.W.2d at 279 (quoting Jacka, 580 N.W.2d at 35, 58 W.C.D. at 408).  The court stated that:

 

With the exception of the Arare case,@ when the treatment parameter criteria have been satisfied, a claim for such treatment ought not to be defeated by the opinion of an expert who generally does not accept the treatment parameter criteria.  In the absence of circumstances warranting a departure from treatment parameter rules, treatment in compliance with the parameter rules should be compensable. 

 

Id. at 93, 61 W.C.D. at 281.  In this case, the compensation judge did not determine whether the treatment parameter criteria were met, or whether circumstances warranted a departure from the  treatment parameter rules.  As such, the compensation judge did not address the determinative issue as presented by the parties.  Therefore, we vacate the compensation judge=s findings and order and remand for consideration of whether the treatment parameter criteria were met, and if so, whether circumstances warranted a departure from the treatment parameter rules.