GAIL KOZLAK, Employee, v. MINNEGASCO and TRAVELERS PROPERTY AND CASUALTY, Employer-Insurer/Appellants, and MINNEGASCO, SELF-INSURED, Employer.

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 17, 2004

No. WC04-171

HEADNOTE

MEDICAL TREATMENT & EXPENSE - RARE CASE EXCEPTION. Substantial evidence in the record did not support the judge=s decision to approve the employee=s request for physical therapy and a lumbar epidural injection under the Arare case@ exception to the treatment parameters, where there was simply nothing in the record to differentiate the case from any other case in which the recommend treatment exceeded the limits established by the rules.

Affirmed in part and reversed in part.

Determined by Wilson, J., Rykken, J., and Johnson, C.J.

Compensation Judge: Danny P. Kelly

Attorneys:  R.W. Schmidt, Cousineau, McGuire & Anderson, Minneapolis, MN, Appellants.  M.G. Olive, Sieben, Grose, Von Holtum & Carey, Minneapolis, MN, for the Respondent.  

OPINION

DEBRA A. WILSON, Judge

The employer and Travelers Property and Casualty appeal from the compensation judge=s decision granting the employee=s request for approval of recommended physical therapy, a cervical epidural injection, and a lumbar epidural injection.  We reverse the judge=s decision that the treatment at issue qualifies under the Arare case@ exception to the limits imposed by the medical treatment parameters, and we therefore reverse the judge=s approval of the recommended physical therapy and lumbar epidural injection.  However, because the recommended cervical epidural injection is allowable under the treatment parameters, we affirm the judge=s approval of that particular treatment.

BACKGROUND

Between August of 1981 and January of 2000, the employee sustained a number of work-related injuries, including several injuries to her neck and low back, while employed by Minnegasco [the employer].  The last injury at issue occurred on January 20, 2000.  As a substantial result of her work injuries, the employee has multilevel degenerative changes in both her cervical spine and her lumbar spine, and she has received treatment for neck, low back, and related symptoms, including left arm and left leg pain, from Dr. Anne Brutlag, a physiatrist at Park Nicollet Clinic, since 1987 or 1988.  Treatment prescribed by Dr. Brutlag has included medication, multiple courses of physical therapy, multiple courses of therapeutic massage, numerous lumbar epidural steroid injections, trigger point injections, and two cervical epidural steroid injections.

In 2000, Dr. Brutlag referred the employee to Dr. Andrew Smith to see if the employee was a candidate for surgery for treatment of persistent cervical radicular symptoms.  In conjunction with this referral, the employee was evaluated for a suspected bleeding disorder.  Blood tests did not disclose the cause of prior reported bleeding problems, but it was recommended that certain protocols be observed if the employee were to undergo cervical spine surgery.  Ultimately, in September of 2000, the surgeon, Dr. Smith, concluded that the employee had  Aa mild and partially resolving C6 radiculopathy.@  No recommendation was made for surgery, possibly at least in part because the employee=s cervical symptoms had by then improved, following a cervical epidural injection performed in April of 2000.

The employee continued to receive treatment from Dr. Brutlag, including additional epidural injections and physical therapy, over the next two years.  Pain diagrams completed by the employee in conjunction with her visits to Dr. Brutlag indicated that the employee=s pain level typically ranged between a 6 and an 8, on a scale of 0 to 10, with 0 being no pain and 10 being unbearable pain.  Dr. Brutlag=s records also indicate that the employee typically reported difficulty sleeping and performing housework, yard work, sports, and recreational activities.

In January of 2002, the parties entered into a stipulation for settlement covering the employee=s various work injuries.  In addition to other claims, certain medical expense claims, such as claims for therapeutic massage, were closed out, but the employee=s right to seek payment for physical therapy and epidural injections was not affected by the settlement.  As part of the settlement,  the employee resigned from her employment with the employer, and she has not worked since. 

In April of 2003, Dr. Brutlag recommended another round of physical therapy to treat an apparent exacerbation of the employee=s neck and back pain.  The employer and Travelers declined to approve the prescribed care.  Later that summer, in August of 2003, Dr. Brutlag again recommended additional physical therapy as well as an epidural injection at C6 and an epidural injection at L5-S1.  The employer and Travelers again refused to approve the recommended treatment.

In January of 2004, the employee was examined by Dr. Paul Yellin, the employer and Travelers= independent examiner.  Dr. Yellin noted that the employee had longstanding degenerative changes in both her cervical spine and her lumbar spine and that she would likely have continued complaints related to those conditions into the future.  He concluded, however, that Acontinued use of cervical and lumbar epidural injections is excessive,@ that the employee was not a surgical candidate, and that, other than a home exercise program, no further treatment was warranted.

On February 27, 2004, the matter came on before a compensation judge for resolution of the dispute over the physical therapy and lumbar and cervical epidural injections recommended  by Dr. Brutlag.  In a decision issued on March 29, 2004, the compensation judge concluded that the recommended cervical epidural injection did not exceed the maximum limit allowed by the treatment parameters but that both the recommended physical therapy and the lumbar epidural injection exceeded the limits on such treatment established by the rules.  The judge also concluded that the employee had not proven that the criteria for a departure from the parameters had been met.  However, further concluding that the recommended treatment was reasonable and necessary and that this was a Arare case@ requiring deviation from the rules, the compensation judge nevertheless ordered the employer and Travelers to pay for all of the recommended treatment.  The employer and Travelers appeal.^[1]

STANDARD OF REVIEW

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 (2004).  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, 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

DECISION

Minn. R. 5221.6200, subd. 5A(5), the medical treatment parameter covering epidural injections, reads as follows:

(5) Epidural injections:

(a) time for treatment response, within one week;

(b) maximum treatment frequency, once every two weeks if a positive response to the first injection.  If subsequent injections demonstrate diminishing control of symptoms or fail to facilitate objective functional gains, then injections should be discontinued.  Only one injection is reimbursable per patient visit; and

(c) maximum treatment, three injections.

It is undisputed that the employee has only had two epidural injections relative to her cervical spine injury, meaning that the recommended cervical epidural injection does not exceed the three-injection maximum established by the rule.  Although it is a close issue, the employee=s treatment records also provide minimally adequate evidence of improvement following the initial two injections^[2] to substantially satisfy the remaining requirements of the rule.  While Dr. Yellin reported that additional epidural injections would be Aexcessive,@ his report is insufficient to rise to the level of showing Acircumstances warranting a departure from the treatment parameter rules.@  Pelowski v. K-Mart Corp., 627 N.W.2d 89, 93, 61 W.C.D. 276, 281 (Minn. 2001).  Because the recommended cervical epidural is not inconsistent with the parameters, that treatment is compensable, and we affirm the judge=s award as to this expense.  See  id.

The analysis differs with regard to the recommended physical therapy and lumbar epidural injection.  Following her last work injury on January 20, 2000, the employee underwent at least four courses of physical therapy to treat both neck and low back symptoms.^[3]  Pursuant to Minn. R. 5221.6200, subp. 3(B)2, additional physical therapy is permissible in this case only if there is Adocumentation in the medical record of the effectiveness of further passive treatment in maintaining functional status.@  The compensation judge specifically determined that this requirement had not been satisfied, a finding not disputed on appeal.  With regard to the prescribed lumbar epidural, the employee concedes that she has already received nine such injections after her last work injury.^[4]  Therefore, the employee has already gone well over the three-injection limit set by Minn. R. 5221.6200, subp. 5A(5).

Because the recommended physical therapy and lumbar epidural injection exceed the  general limits established by the treatment parameters, the question then becomes whether that treatment qualifies for a departure from the parameters as provided by Minn. 5221.6050, subd. 8.  In analyzing this issue, the compensation judge made the following findings:

21.  The evidentiary record fails to establish that the employee receives significant and long-standing relief from physical therapy . . . . and lumbar steroid injections.  The medical records fail to document objective gains from the use of these modalities.

22.  The evidentiary record fails to document a medical condition warranting departure from the medical treatment parameters.

23.  The medical records fail to document that the employee=s subjective complaints of pain are progressively improving as a result of physical therapy and epidural injections.

24.  The medical records fail to document that the employee=s objective clinical findings are progressively improving as a result of physical therapy and epidural injections.

25.  The medical records fail to document that the employee=s functional status is objectively improving as the result of physical therapy and epidural injections.

26.  The employee has failed to establish by a preponderance of the evidence that she has had an incapacitating exacerbation of her condition.

27.  The employee has failed to establish by a preponderance of the evidence that she meets the criteria for an exception to the treatment parameters for the recommended physical therapy and epidural injections.

These findings are also undisputed on appeal.  However, while concluding that the recommended treatment was not consistent with applicable treatment parameters and that it did not qualify for a departure from the parameters as contemplated by the departure rule, the compensation judge nevertheless determined that the recommended treatment was compensable under the Arare case@ exception established in Jacka v. Coca Cola Bottling Co., 580 N.W.2d 27, 58 W.C.D. 395 (Minn. 1998), and applied in Asti v. Northwest Airlines, 588 N.W.2d 737, 59 W.C.D. 59 (Minn. 1999).

In Jacka, the Minnesota Supreme Court recognized Athe fact that the treatment parameters cannot anticipate every exceptional circumstance@ and held that Aa compensation judge may depart from the rules in those rare instances in which departure is necessary to obtain proper treatment.@  Jacka, 580 N.W.2d at 35, 58 W.C.D. at 408.  Subsequently, in Asti, the supreme court invoked the Arare case@ exception to allow a health club membership for an employee who, without the prescribed program, would not have been able to continue his employment.  Whether the Arare case@ exception to the treatment parameters is applicable is generally a fact question, subject to review on appeal under the standard enunciated in Hengemuhle, and, as with all factual determinations, we are extremely hesitant to overturn a judge=s decision on this issue.  See Martin v. Xerox Corp., 59 W.C.D. 509 (W.C.C.A. 1999).  However, after close review of the record as a whole, we are compelled to conclude that the judge=s decision applying the Arare case@ exception in the present matter is clearly erroneous and unsupported by substantial evidence.

We note initially that the judge=s findings relative to the criteria for a departure under Minn. R. 5221.6050, subd. 8, would seem to undercut his conclusion that the recommended treatment is generally reasonable and necessary, much less that it qualifies for the Arare case@ exception to the parameters.  That is, the judge specifically found that the treatment provided no significant long-term pain relief or progressive objective or even subjective improvement in the employee=s condition.  Moreover, while the employee has permanent cervical and lumbar injuries that may require additional care, nothing in the record indicates that this case is medically complicated or otherwise unusual.^[5]  Compare Stevens v. Hennepin County, slip op. (W.C.C.A. Dec. 15, 1999).  We also note that neither Dr. Brutlag nor any other medical provider has offered any real explanation as to why the recommended treatment should be approved despite the fact that it is inconsistent with parameters, or why this treatment should qualify for the Arare case@ exception.  And, finally, we would note that, because the employee is not employed, the recommended treatment has no bearing on the employee=s ability either to return to work or continue working.  Compare Asti, 588 N.W.2d 737, 59 W.C.D. 59.

The employee has undergone multiple courses of physical therapy over the past 15 years and first began receiving epidural injections in the early 1990s.  It is evident from his findings that the compensation judge approved the disputed treatment at least in part because the employee believes that it helps her,^[6] allowing her to sleep better and participate more fully in daily activities.  However, we have emphasized in the past that Athe rare case exception is just that,@ Martin, 59 W.C.D. at 517, and there is simply nothing in this record to differentiate this case from any other case where recommended treatment exceeds the limits established by the treatment parameters.  In fact, it seems to us that it is just this kind of case that the treatment parameters were designed to address.  If we were to affirm the judge=s decision that the proposed treatment here qualifies for the Arare case@ exception, it would be difficult to conceive of proposed treatment that would not qualify, and the parameters would be rendered meaningless.  This could not have been the supreme court=s intent in establishing the Arare case@ exception to the rules.

Because the record will not support the compensation judge=s conclusion that the employee is entitled to physical therapy and a lumbar epidural injection under the Arare case@ exception to the treatment parameters, we reverse his decision on this issue.