CINDY LEIDENFROST, Employee, v. WALMART STORES, INC., and PENNSYLVANIA/AIG, adm=d by CLAIMS MGMT., INC., Employer-Insurer/Appellants, and INSTITUTE FOR LOW BACK & NECK CARE, and ABBOTT NORTHWESTERN HOSP., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 26, 2005

 

No. WC05-140

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS.  Where the parties have stipulated that the surgery performed was causally related and reasonable and necessary, the failure of the health care provider to provide prior notification of the procedure to the employer and insurer did not bar the provider from receiving payment for the surgery.

 

Affirmed.

 

Determined by: Stofferahn, J., Wilson, J., and Pederson, J.

Compensation Judge: William R. Johnson

 

Attorneys: Christopher E. Sandquist, Gislason & Hunter, Mankato, MN, for the Appellants.  Carl J. Sommerer, Sommerer & Schultz, Minneapolis, MN, for the Respondent.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer and insurer appeal from the compensation judge=s determination that the failure of a health care provider to obtain prior approval for the employee=s surgery did not bar the provider from payment.  We affirm.

 

BACKGROUND[1]

 

Cindy Leidenfrost sustained an injury to her low back on March 23, 2000, which she attributed to her work activity with Walmart.  The employer and its insurer denied liability and the employee=s claims proceeded to litigation.  While litigation was pending, the parties entered into a settlement which was the subject of an award on stipulation, served and filed July 26, 2002.  In the settlement, the employer and insurer accepted liability for a work-related low back injury on March 23, 2000.  The employee closed out all claims for her low back on a full, final and complete basis except for related medical expenses.

 

The employee had her first lumbar surgery on November 13, 2000, when she underwent a left outside-in foraminal decompression with micro discectomy at L5-S1.  The parties have stipulated that this procedure was related to the 2000 injury and was reasonable and necessary.  Her second surgery was on June 30, 2001, when Dr. Richard Salib performed an anterior lumbar interbody fusion L5-S1, retroperitoneal dissection and mobilization of the great vessels.  The parties have stipulated that the 2000 injury was a significant contributing factor toward the need for this surgery and have stipulated that the surgery was reasonable and necessary.

 

The employee=s third surgery is at the center of the present dispute.  On September 18, 2002, the employee had a revision of the anterior lumbar interbody fusion L5-S1 with pedicle screw fixation unilaterally.  The procedure was done by Dr. Salib and was done at Abbott Northwestern Hospital.  The parties have agreed that the surgery was related to the work injury and that, based on the relevant standards of medical care, the treatment was reasonable and necessary.

 

A representative of Abbott Northwestern Hospital contacted a claims adjuster for the insurer on September 19, 2002, the day after the surgery, and advised the adjuster of the surgery.  This was the first notice the insurer had of the surgery.  The insurer denied payment of the charges for the surgery.  The employer and insurer did not obtain an independent medical examination after the surgery.  The issue presented to the compensation judge for determination was whether failure by a health care provider to provide prior notification of surgery under Minn. R. 5221.6050, subp. 9, relieved the employer and insurer from its obligation to pay for reasonable and necessary medical care related to the employee=s work injury.

 

In his Findings and Order, served and filed February 7, 2005, the compensation judge determined that failure to comply with the prior notification provisions of the rules did not bar a provider from being paid for services where there was no showing of prejudice to the employer and insurer.  The compensation judge ordered the employer and insurer to pay medical expenses related to the September 2002 surgery.  The employer and insurer appeal.

 

DECISION

 

The obligation of the employer and insurer to provide medical care to the employee under the Workers= Compensation Law is limited to services which are related to the work injury and which are reasonable and necessary.  Minn. Stat. § 176.135.  To assist in the process of determining whether medical care provided to the employee is reasonable and necessary, the Department of Labor and Industry was given authority to establish treatment standards.  Minn. Stat. § 176.83, subd. 5.  The resulting rules, commonly referred to as the treatment parameters, include the rule at issue here, Minn. R. 5221.6050, subp. 9.

 

Minn. R. 5221.6050, subp. 9, is captioned Aprior notification; health care provider and insurer responsibilities.@  This rule provides, in relevant part:

 

A.  The health care provider must notify the insurer of proposed treatment in subitems (1) to (4) at least seven working days before the treatment is initiated . . .

 

     (3) for any non-emergency inpatient hospitalization or non-emergency inpatient surgery. . .

 

The form of notice is described in Subsection B.  Subsection C (6) provides that in cases where prior notification of surgery is required, the employer and insurer may choose to have the employee evaluated by their doctor under Minn. Stat. ' 176.155.  Forty-five days after the insurer has opted to have an IME, the provider may choose to proceed with surgery even if the employer and insurer=s expert disagreed with the need for surgery, Asubject to a determination of compensability by the commissioner or compensation judge.@

 

Clearly, the purpose of the prior notification rule is to provide an opportunity for the employer and insurer to obtain an opinion from a doctor of their choice as to whether or not the proposed surgery is reasonable or necessary.  The employee may proceed to surgery despite a contrary opinion from the employer and insurer=s expert, but bears the risk that the surgery may subsequently be found non compensable by a compensation judge under the usual standards of reasonable and necessary medical treatment.

 

In light of this purpose, the question is - what consequences should follow from the failure of a health care provider to give the advance notice called for in the rule?  The employer and insurer argue that a provider who fails to provide advance notice should be barred from receiving payment as a matter of law.  Essentially, the position of the employer and insurer is that, even if the surgery is medically appropriate, the health care provider=s bill is not paid because the insurer did not have the opportunity to have an IME before the surgery.  We disagree with this result for a number of reasons.

 

First, we find no language in the rules or the statute which would allow for nonpayment of the charges in circumstances such as these.  Other treatment parameters set forth guidelines about the appropriateness of particular treatment for various conditions, including low back surgery, and the employer and insurer cite a few decisions from this court interpreting the application of those parameters to the determination whether treatment itself was reasonable, but those rules are not at issue here, as the parties have stipulated that the treatment itself was reasonable.  Thus, we do not find the cases cited by the employer and insurer to be authoritative or persuasive in this present matter.

 

The facts in this case are most similar to those in Hernandez v. Bergerson Caswell, Inc., 63 W.C.D. 147 (W.C.C.A. 2002).  There, although the employee=s health care provider gave the advance notice to the insurer of surgery, the provider and the employee proceeded to surgery before the employer and insurer=s second opinion evaluation took place.  This court concluded that the same rule here at issue, Minn. R. 5221.6050, subp. 9, did not bar payment for the surgery under those circumstances.  We noted that the plain language of Minn. Stat. ' 176.135, subd. 1a, provides that Afailure to obtain a second surgical opinion shall not be reason for nonpayment of the charges for the surgery.  The employer is required to pay the reasonable value of the surgery unless the commissioner or compensation judge determines that the surgery is not reasonably required.@

 

We conclude that our reasoning in Hernandez applies to this case as well, as any potential harm to the employer and insurer is identical in both cases.  Here, as in Hernandez, the noncompliance with the rule similarly merely prevented the employer and insurer from obtaining a second medical opinion, prior to surgery, about whether that surgery was reasonable and necessary. 

 

We emphasize that proceeding to surgery does not guarantee payment to the provider.  Had the insurer in Hernandez, or the insurer here, proven by way of a post-surgery IME or other evidence that surgery was not appropriate, payment for the surgery could have been denied by a compensation judge.

 

Even were we to conclude that denial of payment might, in some instances, be an appropriate sanction for failure to strictly follow the rule, such a remedy is wholly inappropriate here. The compensation judge found, and we agree, that there has been no prejudice in this case to the employer and insurer in this matter from the lack of advance notice of the surgery.  The employer and insurer did not even seek a post-surgery IME, nor did they show that a post-surgical evaluation was not a feasible alternative in this case.  In fact, the employer and insurer stipulated that the surgery in this case was medically appropriate.

 

Given these facts, we conclude the compensation judge did not err in his determination in this matter.  The compensation judge=s decision is affirmed.

 

 


[1] The parties submitted this matter to the compensation judge on stipulated facts.