MICHAEL NEWCOMBE, Employee, v. TWIN CITY DIE CASTINGS and CNA INS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 1, 2005

 

No. WC05-131

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Substantial evidence supports the findings and order of reasonableness and necessity of certain prescriptions for treatment of the employee=s carpal tunnel syndrome during the pertinent period.

 

Affirmed.

 

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

Compensation Judge:  Harold W. Schultz, II

 

Attorneys:  Norbert Cuellar, Minneapolis, MN, for the Respondent.  Mark A. Kleinschmidt, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer and insurer appeal from the compensation judge=s finding that the employee=s prescription medications were reasonable and necessary for the treatment of his work-related carpal tunnel syndrome.  We affirm.

 

BACKGROUND

 

The employee, Michael Newcombe, began working for the employer, Twin City Die Casting, in 1971.  His job duties involved die casting and the trimming of parts and required repetitive movements of both hands.  The employee sustained an admitted bilateral carpal tunnel injury culminating on June 25, 2000.  The employee underwent right carpal tunnel release surgery on June 26, 2000 and left carpal tunnel release surgery on August 18, 2000, both performed by Dr. Melissa Barton.  The employee testified that the surgeries did not provide significant relief and his hands continued to be painful, with throbbing and spasm.

 

The employee continued to treat with Dr. Barton until January 2001, after which treatment was taken over by Dr. Gloria Garcia, the employee=s family practitioner.  In late 2001 the employee attempted a return to work with restrictions.  However, the employer could not accommodate his restrictions and the employee was unable to continue in his job after January 21, 2002.  He subsequently qualified for social security disability and has not worked since that time.

 

In January 2003, the employee, the employer, its insurers, and other involved parties entered into a stipulation for settlement covering both the employee=s bilateral carpal tunnel claims and various other claims, not here at issue, associated with alleged injuries to the employee=s shoulders and neck and an alleged consequential psychological injury.  Under the terms of the stipulation, the employee agreed to accept a lump sum payment in return for a full, final and complete settlement of all claims arising out of any date of injury through January 22, 2002, except for reasonable and necessary treatment for bilateral carpal tunnel syndrome pursuant to the Minnesota workers= compensation treatment parameters and fee schedule.  The medical treatment left open was, however, subject to the further exclusion of durable medical attention, pain clinics, counseling, health clubs, and attendant mileage or attorney fees.  The stipulation was approved by a compensation judge, and an award on stipulation was served and filed on January 10, 2003.

 

Subsequent to the stipulation, the employee continued to experience numbness and throbbing in his hands, surging pain from his palms to his fingertips, and spasm in the hands when trying to hold objects.  Dr. Garcia prescribed medications to the employee for these problems, consisting of Neurontin, Ultracet and Chlorzoxazone.  The employee testified specifically at the hearing as to how each of these medications helped with his symptoms, relieved severe pain, and allowed him greater functional use of his hands.  He further testified that he had attempted to go without the medications for short periods of time but that he then had a return of extreme pain.

 

The employee was seen by Dr. John Dowdle on behalf of the employer and insurer on September 13, 2004.  Dr. Dowdle noted that he had previously conducted an examination of the employee for the employer and insurer in May 2002.  In 2002, the employee had complained of neck, shoulder, elbow and hand pain.  He had since improved in all areas except his hands.  Dr. Dowdle noted some decrease in the intrinsic muscles of the employee=s left hand, decreased grip strength bilaterally, and numbness into the palm and the index, middle and ring fingers of both hands.  The employee had a mild Tinel=s sign and a positive Phalen=s sign.  Dr. Dowdle noted that the employee had a carpal tunnel syndrome which had undergone surgical treatment.  He concluded that the employee=s medications were not ones which were customarily used for carpal tunnel syndrome subsequent to a surgical repair, and opined that none of them were reasonable or necessary for treatment of the employee=s carpal tunnel syndrome.

 

The employer and insurer denied the employee=s request that he be reimbursed for the costs of his prescriptions.  The matter was heard before Compensation Judge Harold Schultz on December 14, 2004.  In his Findings and Order, the compensation judge found that the medications were reasonable and necessary treatment to relieve the employee from the effects of the bilateral carpal tunnel injury and awarded reimbursement to the employee.  The employer and insurer appeal.

 

DECISION

 

The compensation judge found that the medications prescribed by Dr. Garcia from January 2003 through the date of hearing were reasonable and necessary treatment for the employee=s work injury and were permitted by the applicable treatment parameters.  The employer and insurer contend that the judge=s findings were clearly erroneous, arguing that the use of these medications is inappropriate under the treatment parameters and that no justification exists for a departure from those provisions.

 

In their brief to this court, the employer and insurer  argue that use of the medications in question exceeds the medical treatment parameters set forth in Minn.R. 5221.6300, subp. 10.^[1]  We note, however, that this provision applies only to medications scheduled in Minn. Stat. ' 152.02 and there is no evidence in the record that the medications in question constitute controlled substances within the meaning of the statute.  The brief of the employer and insurer does not address this issue.  Even if we were to conclude that the cited rule was applicable, it does not expressly prohibit the prescription of controlled substances, so long as the prescribing physician Adocument[s] the rationale@ for their use.  Dr. Garcia explained her rationale for prescribing the medications at issue at some length in a letter dated August 17, 2004, and the compensation judge could reasonably conclude that its provisions were met.  As we conclude that the compensation judge did not clearly err in finding that the employee=s medications were not contrary to the treatment parameter relied on by the appellants, we do not reach their further arguments regarding the propriety of a departure from the parameters.

 

The compensation judge, in his findings and order, as well as in his memorandum, found the medications to have been medically reasonable and necessary.  The determination by the compensation judge as to whether the medical treatment in issue is reasonable and necessary is a question of fact.  See Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993).  The employee testified that these medications have been the only effective means by which he has obtained relief from his otherwise unrelenting bilateral hand pain and spasm, and that they help him in his daily activities.  The employee=s treating physician, Dr. Garcia, offered a supporting opinion.  While the employer and insurer=s examiner, Dr.Dowdle, offered a contrary opinion, this court must affirm a compensation judge=s choice between differing expert opinions unless the opinion relied upon was without adequate foundation.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).   Substantial evidence supports the compensation judge=s findings and we affirm.