STEPHANIE (HOLDEN) MOE, Employee/Cross-Appellant, v. NORTH COUNTRY HOSP., SELF-INSURED/RSKCO, Employer/Appellant, and MEDICARE, BLUE CROSS/BLUE SHIELD/BLUE PLUS, ST. CLOUD SURGICAL CTR., and MERITCARE MED. GROUP, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 6, 2005
No. WC04-237
HEADNOTES
SETTLEMENTS - INTERPRETATION. Given the language of the settlement agreement and the circumstances of the case, the compensation judge properly concluded that various medical expense claims did not relate to Achronic pain treatment@ closed out by the settlement.
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Substantial evidence, including the opinion of the employer=s own independent examiner, supported the compensation judge=s decision that certain medical treatment was reasonable and necessary to cure or relieve the employee from the effects of her work injury.
Affirmed.
Determined by: Wilson, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Nancy Olson
Attorneys: Mark L. Rodgers, Hazelton & Rogers, Bemidji, MN, for the Cross-Appellant. Amy L. Borgeson, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Appellant.
OPINION
DEBRA A. WILSON, Judge
The self-insured employer appeals from the compensation judge=s interpretation of a stipulation for settlement and from findings that certain treatment was reasonable and necessary to cure or relieve the employee from the effects of her work injury. The employee cross-appeals from the judge=s denial of payment for physical therapy treatments. We affirm.
BACKGROUND
The employee sustained a work-related injury to her low back on December 6, 1999, while employed by the self-insured employer as a licensed practical nurse. A week later, on December 13, 1999, the employee was seen by her family practice doctor, Howard Hoody, who ordered an MRI scan. That scan, performed on December 15, 1999, revealed mild disc space narrowing of L4-5 with degenerative dehydration. Dr. Hoody treated the employee with medications and physical therapy.
The employee was examined by Dr. John Lonstein of the Twin Cities Spine Center on February 14, 2000. He diagnosed degenerative disc disease at L4-5 with low back pain.
On April 13, 2000, the employee was examined by independent medical examiner Dr. Robert Hartman. In his report dated April 17, 2000, Dr. Hartman opined that the employee had preexisting degenerative disc disease at L4-5 and L5-S1 that had been temporarily aggravated by the work injury but that the employee had reached maximum medical improvement by March 6, 2000.
When seen at the Twin Cities Spine Center again on May 5, 2000, the employee was complaining of numbness in the right leg. A repeat MRI was ordered, and the employee continued to receive physical therapy. The MRI of May 15, 2000, revealed no change at the L4-5 level but was interpreted as showing a new tear at the L3-4 level. Dr. Joseph Perra opined that annular tears generally will Ago on to have healing@ but can be quite painful and inflammatory in the meantime. On May 16, 2000, the employee was taken to the emergency room after being unable to get off the table during a physical therapy session. She was admitted with incapacitating pain, and physical therapy, different medications, and a TENS unit were utilized during that hospitalization. The employee was discharged on May 25, 2000, with a TENS unit and directions to attend physical therapy three times a week.
On June 7, 2000, the employee was given an epidural steroid injection, which reportedly produced no pain relief. Shortly thereafter, on June 14, 2000, the employee began seeing Claire Rafferty, LICSW, for an adjustment reaction with mixed depression and anxiety. She also continued with physical therapy.
When the employee returned to see Dr. Perra in July of 2000, the doctor discussed treatment options. It was his opinion that surgical removal of the disc would have only a 40-50% chance of success; however, Aconsideration of discogenic source of pain with discography and fusion could be considered.@ Dr. Perra also discussed an epidural steroid injection to try to settle down the employee=s symptoms. The employee elected to proceed with an epidural injection, which was performed on July 27, 2000. The employee continued to complain of back pain and continued to receive physical therapy treatments throughout the year 2000. By January of 2001, Dr. Hoody had concluded that the employee was suffering from chronic back pain secondary to lumbar strain.
On February 1, 2001, the employee was evaluated by Dr. James Ogilvie, at Fairview-University Medical Center. His impression was degenerative disc disease at L4-5 and possibly L3-4, resulting in discogenic back pain and he recommended an intradiscal steroid injection, which was performed on February 15, 2001. The employee=s symptoms improved for several weeks but gradually increased again. On March 29, 2001, Dr. Ogilvie recommended that the employee return to see Dr. Perra for discussion of an IDET procedure.
On May 25, 2001, Dr. Perra ordered a discogram to evaluate whether the employee would be an IDET candidate. The discogram revealed concordant pain at L4-5, L3-4, and L2-3. Due to the presence of concordant pain at more than two levels, Dr. Perra recommended against an IDET procedure. On July 26, 2001, Dr. Ogilvie encouraged the employee to seek consultation with a comprehensive pain management clinic.
A chronic pain consultation was performed on December 6, 2001, by Dr. Matthew Monsein at the Sister Kenny Institute. It was his impression that the employee would be an excellent candidate for his pain rehabilitation program.
The employee received additional physical therapy in December of 2001 and January, February, March, and April of 2002. On April 23, 2002, the employee entered the Sister Kenny Pain Clinic. While in the pain clinic program, the employee participated in exercise classes, pool therapy, therapeutic recreation, psychotherapy, nutrition counseling, rehabilitation counseling, and chronic pain rehabilitation counseling. According to the May 10, 2005, discharge summary, the focus of the pain program was to have the employee Alearn coping and pain management skills with acceptance of pain and improve self image.@ In a letter of that same date, Dr. Monsein reiterated that Athe focus of the pain program is not so much to treat people=s pain, but to try and help them learn some skills to cope more effectively with their pain experience.@ The employee was given a prescription for a membership to a pool upon discharge and resumed physical therapy on May 15, 2002.
In the fall of 2002, the employee entered into a stipulation for settlement with the employer and numerous intervenors. At the time of the stipulation, the employee was contending that, as a result of her work injury, she had suffered a permanent reduction in earning capacity and was entitled to various workers= compensation benefits, including temporary total and/or permanent total disability benefits, temporary partial disability benefits, permanent partial disability benefits, rehabilitation benefits, and payment of all medical bills that were outstanding at the time of a mediated settlement, which had taken place on April 18, 2002. The employer denied that the employee had sustained any type of injury to her low back arising out of her employment with the employer, or, in the alternative, that if an injury did occur on December 6, 1999, that injury was at most a temporary aggravation of a preexisting condition, which had resolved no later than March 6, 2000. Under the terms of the stipulation, the employee was paid $50,000, less attorney fees and reimbursement to the Minnesota Department of Human Services, for a full, final, and complete settlement of all past, present, and future claims for various benefits, including Apsychological/psychiatric care, chronic pain treatment or counseling, massage therapy, acupuncture, health club membership, family provided nursing services, reflexology.@ The stipulation further provided, A[i]t is understood that with the exception of those specific medical benefits outlined above, that future reasonable and necessary medical, hospital and other health care expenses relating to the alleged personal injury of December 6, 1999, shall remain open subject to any defenses of the Self-Insured Employer.@ An award on stipulation was filed on December 2, 2002.
Following the award on stipulation, the employee continued to receive regular physical therapy treatments. She also treated with Dr. Hoody on December 20, 2002, at which time he advised the employee to continue her medications, continue physical therapy, and return to see him in six months.
On March 9, 2003, the employee was admitted to North County Hospital for an acute exacerbation of low back pain. While in the hospital, the employee was seen in consultation by Dr. Dicks, whose note of March 13, 2003, reflects that the employee=s first statement was, Amy settlement won=t pay for any pain-related things.@ Dr. Dicks changed the employee=s medication and noted that the employee needed to get moving, to lose weight, and to revise her beliefs about her pain and pain perception. On March 14, 2003, Dr. Hoody opined that the employee should continue to see Dr. Dicks because he Ahas expertise in managing chronic pain.@ The employee was discharged from the hospital on March 16, 2003, with directions to follow up with Dr. Dicks and Dr. Samir Elghor.
On March 22, 2003, Dr. Elghor recommended a lumbar epidural steroid injection, which was performed on March 28, 2003. By April 4, 2003, the employee was noting significant improvement in her symptoms, but she continued to undergo regularly-scheduled physical therapy. When the employee returned to see Dr. Elghor on May 7, 2003, she reported marked improvement in her pain but noted that her right hip muscles felt tight, and Dr. Elghor performed a right trochanteric bursa injection. Dr. Elghor also performed bilateral lower lumbar facet joint medial branch blocks on January 13, 2004, and a lumbar epidural steroid injection at L4-5 on January 20, 2004.
The employee was seen by Dr. Hoody on July 16, 2003, for follow up of her chronic back pain. He reviewed medications with her and issued a refill for one of those medications. The employee returned to Dr. Hoody on November 14, 2003, requesting another referral to Dr. Elghor and a handicapped parking sticker because of her inability to walk any distance. On February 9, 2004, the employee was seen by Dr. Hoody in follow up and asked about steroid injections and the possible effect on her liver. Dr. Hoody ordered a lab test. Two months later, on April 16, 2004, the employee was seen by Dr. Bruce Wilson, a doctor in Dr. Hoody=s office. Dr. Wilson noted that Dr. Hoody was Abacking off on his patient load@ and had asked Dr. Wilson to take over the employee=s care. Treatment notes indicate that Dr. Wilson and the employee discussed progression from physical therapy to an independent exercise program.
Dr. Hoody issued a report on April 7, 2004, wherein he stated that the employee=s present chronic back pain problems Aclearly relate to her injury in December 1999.@ He also opined that the employee=s problems would not dissipate and that she would be dealing with this for the remainder of her life.
At some point, the employee apparently filed a medical request, seeking payment of various medical bills, including bills for physical therapy and treatment with Drs. Dicks, Elghor, and Hoody. When the matter proceeded to an administrative conference, the employee=s claim was denied because the judge found that the employee had failed to prove a causal relationship between the treatment and the work injury. The employee then filed a request for formal hearing.
The employee was reexamined by Dr. Hartman on December 8, 2003. In a letter dated December 15, 2003, Dr. Hartman diagnosed chronic multi-level degenerative disc disease and chronic low back pain secondary to that condition. It was his opinion that none of the treatment rendered subsequent to April 13, 2000, was causally related to the December 6, 1999, injury. However, he did state that the treatment had been reasonable and necessary to treat the employee=s multi-level degenerative disc disease. On May 20, 2004, after reviewing additional medical records, Dr. Hartman issued another report, stating that ongoing physical therapy from December of 2002 had been completely unreasonable. He went on to comment that the employee had Ahad in excess of 300 visits to a physical therapist. This is excessive and outrageous.@ He also stated that individuals who suffer from degenerative disc disease often require medical management and medications; however, in the employee=s case, it was his opinion that the employee=s chronic use of medications was related to the preexisting degenerative disc disease and not the temporary aggravation of December 6, 1999. Dr. Hartman further stated that ongoing scheduled care with Dr. Hoody was not necessary but that treatment for flare-ups would be. Finally, Dr. Hartman opined that the injections performed by Dr. Elghor were reasonable and necessary to treat the employee=s preexisting spinal disease but were not necessitated by the work injury.
The employee=s request for formal hearing came before a compensation judge on April 22, 2004. At the time of trial, issues included whether the employee=s work injury was temporary or permanent, whether the employee=s medical expense claims were barred by language in the 2002 stipulation for settlement, and whether the claimed treatment was reasonable, necessary, and causally related to the work injury. In findings and order filed on June 25, 2004, the compensation judge found in relevant part that the work injury constituted a permanent aggravation of the employee=s underlying degenerative condition, that the close-out of Achronic pain treatment or counseling@ in the stipulation for settlement referred to the type of program that the employee had attended at Sister Kenny, that claims for Dr. Elghor=s treatments were not precluded by the stipulation, that Dr. Elghor=s treatment had been reasonable and necessary, that the employee=s treatment with Dr. Hoody had been reasonable and necessary, and that the employee=s physical therapy treatments, three to five times per week over several years, had not been reasonable and necessary. Both parties appeal.
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).
"[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
1. Interpretation of the Stipulation for Settlement
The employer contends that the compensation judge erred Ain making the unnecessarily broad and expansive finding@ that the language concerning close-out of Achronic pain treatment or counseling,@ in the stipulation for settlement, referred to the type of pain clinic program that the employee had attended at Sister Kenny. It is the employer=s position that the judge Asimply should have determined whether or not the treatment [at issue] was provided to treat chronic pain and, if so, denied the treatment.@ The employer also contends that the judge erred in concluding that claims for the treatment provided by Drs. Hoody, Dicks, and Elghor were not precluded by the stipulation. We are not persuaded.
The employee=s diagnosis since the time of the award on stipulation has been chronic pain as a result of degenerative disc disease. That is, the employee has long-standing pain - - chronic pain - - caused by her work-related low back condition. Taking the employer=s argument to its logical extreme would mean that the stipulation for settlement would have to be interpreted as closing out all medical treatment related to the work injury. Clearly that was not the intention of the stipulation for settlement, which provides on page 6,
with the exception of those specific medical benefits outlined above, that future reasonable and necessary medical, hospital and other health care expenses relating to the alleged personal injury of December 6, 1999, shall remain open subject to all defenses of the Self-Insured Employer.
Given this language, it is obvious that the term Achronic pain treatment@ was intended to mean something other than simply all treatment directed at relieving the employee=s pain, and, given the typical use of the term in the workers= compensation field, as well as the fact that the employee in the present case had already participated in the Sister Kenny chronic pain program, it was reasonable for the judge to conclude that the phrase at issue should be construed as applying to treatment of the kind the employee received at Sister Kenny. As for the employer=s argument that the judge=s decision was over broad, we conclude that the judge was simply trying to explain her decision as to why the treatment at issue did not fall under the close-out language in the settlement agreement. We find no error in this regard.
We also see no basis to deny Dr. Elghor=s treatment solely because he worked at the Center for Pain Management. Certainly, that fact might support the inference that this was closed-out medical care, but it does not necessarily dictate such an inference. There was no medical opinion that any of the treatment at issue was treatment specifically for chronic pain. As such, the compensation judge had a secondary basis for awarding reimbursement of the disputed medical bills. In fact, in his report of December 13, 2002, independent medical examiner Dr. Hartman stated that he had reviewed medical records from the Center for Pain Management, North Country Regional Hospital, and MeritCare Clinic, the providers whose treatment is at issue on appeal. He stated on page five of that report that Athe treatment has been reasonable and necessary on the basis of her multi-level degenerative disc disease.@ (Emphasis added). Therefore, substantial evidence also supports the judge=s findings that the treatment at issue was not in fact Achronic pain treatment@ under the stipulation.
2. Reasonableness and Necessity of Treatment
The employer has not appealed from the judge=s finding that the 1999 work injury permanently aggravated the employee=s underlying degenerative disc disease, and, in his report of May 20, 2004, Dr. Hartman specifically stated that Athe epidural steroid injections performed by Dr. Elghor were reasonable and necessary on the basis of Ms. Moe=s pre-existing spinal disease.@ As such, the opinion of the independent medical examiner supports the conclusion that the treatments by Dr. Elghor were compensable. The employer contends that there is no evidence that the injections provided any relief to the employee. We disagree. The records of Dr. Elghor reflect Asignificant improvement@ from the injections, and the records of Dr. Hoody also document relief.
Dr. Hartman also opined that A[i]ndividuals like Ms. Moe, who suffer from degenerative disc disease, often require medical management.@ Dr. Hoody=s records reflect that the employee=s office visits have included medication review, at times resulting in a change in medication, renewal of prescriptions, or lab tests concerning medication issues. The employee has also seen Dr. Hoody for flare-ups of her condition. As the visits to Dr. Hoody have addressed medication issues, and Dr. Hartman opined that A[i]t is reasonable that Ms. Moe see Dr. Hoody occasionally, for flare-ups,@ substantial evidence supports the judge=s finding that treatment with Dr. Hoody was reasonable and necessary.
The only other medical bill specifically raised in the employer=s brief on appeal relates to treatment rendered by Dr. Dicks. The judge did not make a specific finding with regard to Dr. Dicks. At hearing, the employer=s attorney suggested that Dr. Dicks was associated with the Center for Pain Management, but we were unable to locate a medical record that would identify Dr. Dicks= area of expertise. The extensive medical records indicate that Dr. Dicks met with the employee on only one occasion, while she was hospitalized at North Country Hospital. The employee testified that she thought Dr. Dicks was a family practice doctor and that he never provided any specific treatment but rather did a consultation at Dr. Hoody=s request. In any event, in his December 15, 2003, report, Dr. Hartman stated that all treatment rendered to the employee subsequent to April 13, 2000, was reasonable and necessary on the basis of her multi-level degenerative disc disease, and, while he clarified that statement, in part, in his May 20, 2004, report, he did not specifically exclude or otherwise address the treatment rendered by Dr. Dicks. Therefore, Dr. Hartman=s opinion provides substantial evidence to support the judge=s findings with regard to the reasonableness and necessity of all the medical bills disputed by the employer on appeal. See Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993) (the reasonableness and necessity of treatment is a fact issue).
3. Employee=s Cross-Appeal
The employee cross-appealed from the judge=s finding that the physical therapy treatments at issue were not reasonable and necessary to cure or relieve the employee from the effects of the work injury. However, in the employee=s appeal brief, employee=s counsel clarified that consideration of the cross-appeal would be necessary only if we were to reverse the compensation judge=s findings regarding the effect of the stipulation for settlement or the compensability of treatment rendered by Drs. Hoody, Dicks, or Elghor. As we have affirmed the judge=s findings on all other issues, we need not address the cross-appeal.