WILLIAM VICARI, Employee, v. NATIONAL STEEL PELLET CO., Employer, and MINNESOTA SELF-INSURED SEC. FUND/SEDGWICK CLAIMS MGMT. SERVS., Insurer/Appellant, and NORIDIAN/MEDICARE, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 2, 2005
No. WC04-294
HEADNOTES
MEDICAL TREATMENT & EXPENSE; SETTLEMENTS - INTERPRETATION. Where the parties= stipulation for settlement twenty years earlier had left open Aall@ reasonable and necessary future medical benefits, a specific provision of the stipulation that limited chiropractic care did not limit any other treatment modality, and the compensation judge=s award of acupuncture therapy did not constitute an improper substitution of or other intrusion on the terms of the stipulation for settlement.
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS. Where the compensation judge, having observed the live testimony of the injured employee, was effusive in reiterating that Athe employee=s intense, debilitating pain . . . was almost miraculously relieved by the acupuncture treatments,@ and where the recommendation of continued acupuncture therapy was clearly and affirmatively endorsed by the employee=s treating doctor and neurosurgeon, the compensation judge=s conclusion that the employee=s case was the sort of Arare case@ such as would qualify for departure from the treatment parameters under the Supreme Court=s decision in Jacka v. Coca Cola Bottling Company was not clearly erroneous and unsupported by substantial evidence.
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Where, on review, the acupuncture therapy awarded by the compensation judge easily stood the test of the factors for assessment of chiropractic treatment that are articulated in Horst v. Perkins Restaurant, the compensation judge=s conclusion that the acupuncture therapy was reasonable and necessary treatment for the employee=s work injury was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the judge did not expressly reference the Horst decision or any other case law standard.
Affirmed.
Determined by: Pederson, J., Johnson, C.J., and Rykken, J.
Compensation Judge: Gregory A. Bonovetz
Attorneys: Thomas R. Longfellow, Attorney at Law, St. Paul, MN, for the Respondent. T. Michael Kilbury, Peterson, Logren, & Kilbury, St. Paul, MN, for the Appellants.
OPINION
WILLIAM R. PEDERSON, Judge
The Minnesota Self-Insured Security Fund and its third party administrator appeal from the compensation judge's award of certain acupuncture expenses. We affirm as modified.
BACKGROUND
On several different dates between September 1978 and January 1992, William Vicari sustained several different and very complex admitted injuries to his spine and shoulders in the course of his employment with National Steel Pellet Company. Eventually, by November 1, 1994, Mr. Vicari [the employee] and National Steel Pellet Company [National Steel] executed a stipulation for full, final, and complete settlement of all workers= compensation claims by the employee against National Steel, excepting claims for future reasonable and necessary treatment expenses. Regarding the latter, the stipulation provided in part at Paragraph V expressly that A[t]he employee=s claims against the named self-insured employer for payment or reimbursement of future non-chiropractic medical expenses or costs incurred for the reasonable and necessary treatment, cure, and relief of the claimed dates of injury shall remain open and unaffected by the terms and conditions of this settlement.@ The stipulation also provided, in that same paragraph, that the Aemployer agrees to provide and authorizes the employee to seek and obtain 12 chiropractic visits per year@ and that Athe employee accepts this limitation on chiropractic care in full, final, and complete satisfaction of any past, present, or future claims which he has or may have against the self-insured employer for the provision of chiropractic care.@ On November 8, 1994, an Award was filed on this stipulation for settlement, and for several years thereafter the employee apparently did receive chiropractic care as authorized.
By January of 1995, the employee=s left shoulder problems had flared up, and on January 4, 1995, he underwent a left shoulder MRI scan, findings of which were read to be consistent with a partial rotator cuff tear, in addition to some inferior spurring of the distal clavicle that was causing some mild impingement of the supraspinatus muscle and tendon. On February 9, 1995, the employee=s treating physician, Dr. Michael Heck, referred the employee for an open subacromial decompression and possible repair of the supraspinatus tendon, which was performed on February 15, 1995, with apparently good results.
By November of 2000, the employee=s low back was also apparently troubling him again, and early in 2001 he began also to experience numbness in his right leg and shooting pain in his left hip. He underwent a comprehensive examination with Dr. Heck, who referred him for evaluation by neurosurgeon Dr. Robert Donley. Dr. Donley concluded that conservative, chiropractic management was still the best option, but, beginning in about 2002, the employee ceased getting any relief from his chiropractic and other previously effective treatment modalities. In July of that year the employee advised Dr. Heck that his previously intermittent sciatica had gotten acutely worse, to where his pain was now steady and significant and daily. Medication alone seemed to help dull the pain, and the employee sought some other treatment modality.
On July 19, 2002, the employee saw acupuncturist Dr. Ryan Kelly, M.D., who diagnosed chronic right sciatica due to degenerative joint disease in the low back. The employee discussed with Dr. Ryan the efficacy of acupuncture, and he ultimately agreed to try at least four treatments. The therapy was eventually approved by the employer, and on August 13, 2002, the employee underwent an initial acupuncture treatment with Dr. Kelly. On August 19, 2002, Dr. Kelly noted that the employee had had an Aexceptionally good response and is almost pain free now, probably 80 or 90 percent reduction in his pain, so a very livable level. So he is understandably quite pleased.@ The employee continued to report excellent results from his acupuncture throughout August and September of 2002, and by his ninth treatment on September 10, 2002, Dr. Kelly noted him to be Anot having any pain in his right leg any more after having had it chronically for months.@ On September 12, 2002, the employee and Dr. Kelly concluded, after only ten treatments, that, Abecause he has had such an excellent response@ to the therapy, the final two authorized treatments were unnecessary.
The relief that the employee experienced as a result of his acupuncture therapy evidently lasted about six months, permitting the employee to be much more physically active than he had been for a long time. At the end of that period, however, the employee=s right leg pain gradually returned, compelling reduction of activities again, and on May 1, 2003, he returned to Dr. Donley. On the basis of the employee=s past very successful experience, Dr. Donley recommended that the employee recommence acupuncture therapy with Dr. Kelly. Dr. Heck concurred in that recommendation on May 19, 2003, and on May 27, 2003, the employee recommenced his acupuncture therapy with Dr. Kelly.
In that same month, May of 2003, National Steel was apparently sold to U. S. Steel, and the following month, in June of 2003, National Steel and its parent corporation, National Steel Corporation, apparently informed National Steel=s former employees and the state of Minnesota that neither National Steel nor National Steel Corporation would any longer be honoring workers= compensation claims against them. With National Steel thus in default, the Minnesota Self-Insured Security Fund, together with its third party administrator, Sedgwick Claims Management Services [jointly, SISF], assumed responsibility for National Steel=s workers= compensation obligations.
The employee=s health insurance apparently ran out in that same month, June of 2003, and the employee=s acupuncture therapy was terminated on June 12, 2003, after six treatments. Though less dramatically than it had in 2002, the therapy resulted in marked diminution in the employee=s symptomatology and a marked increase in his ability to function, and that relief evidently lasted for several months. The employee=s pain apparently returned eventually, however, and on December 4, 2003, Dr. Donley wrote a letter ATo Whom It May Concern,@ asserting that the employee=s Alumbar spondylosis with associated chronic low back pain with leg sciatica responds very well to acupuncture and massage therapy,@ recommending Athat both of these be pursued to help alleviate his pain and discomfort@ because A[t]his is the least invasive way to give [the employee] pain control without addictive medications.@ On December 16, 2003, the employee saw Dr. Heck again, who reported that the employee=s low back pain was getting worse, was radiating into his right hip and leg, and was restricting his ability to walk. Dr. Heck increased the employee=s medication and once again recommended resumption of physical therapy and acupuncture treatment, concluding again that the employee was not a candidate for a laminectomy.
The employee=s pain apparently became intolerable by February of 2004, and on February 27, 2004, the employee filed a medical request, alleging entitlement to acupuncture and massage therapy consequent to his work injury with National Steel on April 23, 1984. In its medical response filed March 19, 2004, SISF disputed the employee=s need for and entitlement to acupuncture and massage therapy on grounds that he had retired from the employer in 1994, that the requested treatment was unnecessary, unreasonable, and unrelated to his work injuries, that the initial twelve-week period during which passive care is authorized under the treatment parameters of the Minnesota Rules[1] had long since expired, that no basis for deviation from or extension of those parameters had been substantiated, and that the employee had not been certified for Achronic management@ under Minnesota Rule 5221.6600. On March 24, 2004, the employee filed an amended medical request, alleging entitlement also to payment for the acupuncture treatment and massage therapy that he had received in the summer of 2003. As grounds, the employee cited Dr. Donley=s opinion of December 4, 2003, that the employee=s lumbar spondylosis with associated chronic low back pain with leg sciatica Aresponds very well to acupuncture and massage therapy@ and that those therapies were Athe least invasive way to give him pain control without addictive medication.@
By letter to Dr. Kelly dated April 26, 2004, SISF again denied the request, and the matter came on for a medical conference on May 19, 2004. By a decision and order issued May 21, 2004, the employee=s request for acupuncture and massage therapy was denied on grounds that the acupuncture treatments already received by the employee exceeded the durational guidelines of the treatment parameters, that there had been no request to depart from or extend those treatment parameters, and that A[t]his does not appear to be one of those rare cases in which departure from the parameters is necessary to obtain proper treatment.@ On June 4, 2004, the employee filed a request for formal hearing.
On July 29, 2004, the employee was examined for SISF by orthopedic surgeon Dr. Charles Hartz. After examination of the employee and review of his medical history, Dr. Hartz diagnosed (1) chronic impingement syndrome in the right shoulder with rotator cuff tear status post two surgical procedures, (2) chronic impingement syndrome in the left shoulder with rotator cuff tear status post subacromial decompression and rotator cuff repair, and (3) chronic degenerative disc and degenerative joint disease of the lumbosacral spine. It was Dr. Hartz=s conclusion in part that all of the employee=s conditions were permanent, that further chiropractic care would not offer any hope of relief, that the employee had reached maximum medical improvement from his shoulder and low back injuries, that he was currently capable only of sedentary to light duty work, and that the employee=s case presented no basis for deviation from the treatment parameters.
The matter came on for formal hearing on September 15, 2004. Issues at hearing included (1) whether SISF is liable for the acupuncture therapy provided to the employee on six dates in May and June of 2003, (2) whether acupuncture therapy on a periodic basis is reasonable and necessary to cure or relieve the effects of the employee=s various work injuries, and (3) whether the employee=s medical condition and the positive effect of acupuncture therapy are such as to warrant a departure from the treatment parameters. At the hearing, the employee testified that he has refrained from further acupuncture therapy although intensely desiring it and although his functional condition has deteriorated substantially since his last treatments in 2003. He testified also that he is now dependent on a cane and that at times the pain in his right leg becomes so intense that it forces him to his knees to massage the leg to release the grip of the pain. He testified also that, since the return of the pain in early 2004, he has markedly reduced his physical activities, is able to walk only very short distances, and cannot participate in previously recommended exercise regimens.
By findings and order filed September 20, 2004, the compensation judge concluded in part that the employee=s acupuncture therapy in May and June of 2003 had been reasonable and necessary to cure or relieve the effects of his work injury, that SISF was liable for that therapy, and that the employee was entitled to up to twelve sessions per year of ongoing acupuncture care and treatment for his work injury Aso long as his condition may warrant it.@ At unappealed Finding 18, the judge supported that conclusion by finding that,
[w]ith the employee having earlier been determined not to be a surgical candidate, with the employee attempting to refrain from an increased dependence on pain medication and with the employee obtaining little if any relief from the chiropractic treatment authorized under the terms of the October 1995 Stipulation for Settlement, the employee=s only hope for some relief from the ongoing intense chronic pain is by way of acupuncture therapy.
The judge found further, at Finding 19, that, A[a]lthough under the treatment parameters the employee is ostensibly not permitted to make use of the highly effective acupuncture therapy, under the facts of the present case the Court specifically finds that this in fact is a case that is rare enough to justify complete departure from the parameters.@ SISF 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.
DECISION
In his memorandum, the compensation judge concluded that the employee=s acupuncture therapy in May and June of 2003 had been remarkably effective in Aalmost miraculously@ relieving Athe intensely debilitating symptomatology from which the employee suffers,@ that A[i]f ever there was a >rare case= as envisioned by Jacka[ v. Coca Cola Bottling Co., 580 N.W.2d 27, 58 W.C.D. 395 (1998),] this is it,@ and that A[t]o deny the employee this most effective treatment would not only place form over substance but would be most cruel.@ On appeal, SISF contends (1) that, in deciding the case as he did, the compensation judge erred as a matter of law by modifying substantive terms of the parties= 1994 stipulation for settlement, (2) that the medical evidence in this case was insufficient to qualify it as the sort of Arare case@ that is envisioned under the Jacka decision to permit exception to the treatment parameters, and (3) that the judge erred in not overtly addressing the factors of reasonableness and necessity that factfinders are supposed to apply, under precedent case law, in determining the compensability of any medical treatment.
1. Settlement Terms
As indicated above, the original parties agreed, at Paragraph V of their 1994 stipulation for settlement, that the employee was authorized Ato seek and obtain 12 chiropractic visits per year from the date of this Stipulation forward@ and that the employee Aaccepts this limitation on chiropractic care in full, final, and complete satisfaction of any past, present, or future claims which he has or may have against the self-insured employer for the provision of chiropractic care or treatment.@ At Finding 21 of his findings and order, the compensation judge concluded as follows:
Because the acupuncture therapy in both 2002 and 2003 provided substantial relief from the extremely debilitating pain and discomfort emanating from the work injuries and because the parties in the past had mutually agreed to passive-type treatment in the nature of 12 chiropractic sessions per year, the Court specifically finds that the employee is entitled to ongoing acupuncture care and treatment designed to relieve the employee from the ongoing effects of the work injury up to 12 acupuncture sessions per year so long as his condition may warrant it.
SISF contends that A[t]he compensation judge=s Order unequivocally invaded and modified the terms and conditions of a prior settlement.@ It argues that A[t]he compensation judge has substituted an unaddressed treatment modality (acupuncture) for a negotiated settlement of a known, claimed, and disputed treatment modality (chiropractic).@ It argues that an award on stipulation is a statutory award and as such may be modified or set aside only by this court, not by a compensation judge. We are not persuaded that the compensation judge exceeded his authority.
All of SISF=s arguments vis a vis the original parties= settlement are premised on a presumption that the compensation judge=s award of acupuncture treatment necessarily must be construed as a substitution for chiropractic care under the settlement. The parties= stipulation for settlement, however, left open Aall@ reasonable and necessary future medical benefits, and there is no basis for presuming that any limit that the stipulation arguably imposed on chiropractic treatment should be construed to be a limit on any other treatment modality. Nor is it in any way dispositive here that the judge considered by analogy the original parties= agreement on chiropractic treatment in the process of reaching his decision on acupuncture treatment. We conclude that the judge=s award of acupuncture treatment did not in any way invade or modify the terms of the employee=s 1994 stipulation for settlement as alleged by SISF.
2. ARare Case@ Exception
The treatment parameters in the Minnesota Rules establish various limits on various treatment modalities, including acupuncture.[2] The rules themselves provide for departure from any parameter limiting duration or type of treatment in specific circumstances,[3] and, in Jacka v. Coca Cola Bottling Co., the supreme court indicated that even those requirements for departure may not necessarily apply Ain those rare instances in which departure is necessary to obtain proper treatment.@ Jacka, 580 N.W.2d at 35-36, 58 W.C.D. at 408. In his memorandum, the compensation judge explained his award in part as follows:
Because of the unique facts of this case, because of the intensely debilitating symptomatology from which the employee suffers, because no other treatment options have benefit[t]ed the employee and because the acupuncture therapy has had a near-miraculous effect on the employee=s condition, the Court is compelled to authorize this most effective treatment modality. In a case such as this, such obviously positive, beneficial results cannot be stymied by bureaucratic treatment parameters. If ever there was a Arare case@ as envisioned by Jacka this is it.
SISF contends that Athere is insufficient evidence in the record as a whole to substantiate the judge=s deviation from the parameters.@ Without reference to any particular standard, they argue that the employee was not a surgical candidate at the time of his award on settlement, that he remains a nonsurgical candidate, and that his Acondition has not materially changed@ except for his right leg pain. They argue further that there has been no change in the employee=s diagnosis and that A[h]ence, there is clearly no misdiagnosis or mistreatment of the injury or condition present here.@ Finally, and perhaps with most relevance, they argue that A[t]he acupuncture reports themselves are equivocal on the nature and extent of the employee=s improvement,@ particularly the reports of the employee=s final treatments between May 27 and June 12, 2003, which actually document some increase in the employee=s symptoms after Asome heavy digging@ and when Afishing and climbing up and down a steep bank.@ We are not persuaded.
The less than positive acupuncture reports in 2003 were related to final treatments before the employee ran out apparently suddenly of insurance coverage, and we cannot conclude from those few that it was unreasonable for the compensation judge to classify this as a Arare case,@ given the employee=s dramatic improvement earlier, his medical record in general, and his testimony and appearance at hearing. The compensation judge, whose unique function it is to assess the credibility of witnesses, see Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988), was effusive in his memorandum in reiterating that Athe employee=s intense, debilitating pain - - pain which drastically affected his ability to function - - was almost miraculously relieved by the acupuncture treatments.@ In support of that conclusion, the judge quoted Dr. Kelly=s repeated findings, particularly with regard to the 2002 regiment of treatments, of Aexceptionally good response@ and Avery good response@ to the therapy and virtual disappearance of the pain, albeit for only six months or so at a time. Given our deference to the factfinder=s unique position with regard to the employee=s credibility, Id., including his perspective in observing the employee=s currently untreated condition in comparison, and given also the clear and intentional endorsement of the acupuncture treatments by Medical Doctors Heck and Donley, the latter a neurosurgeon, we cannot find unreasonable the judge=s conclusion that this is the sort of Arare case@ of dramatically needed treatment such as would qualify for departure from the treatment parameters under the supreme court=s decision in Jacka. On that basis we affirm that conclusion of the compensation judge. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
3. Reasonableness and Necessity
Implicit in the compensation judge=s award of the past and continuing acupuncture therapy here at issue is a conclusion that that therapy is reasonable and necessary to cure or relieve the effects of the employee=s work injury. See Minn. R. 5221.6040, subp. 10 (all treatment received by an injured employee must be Amedically necessary treatment,@ which Ameans those health services for a compensable injury that are reasonable and necessary for the diagnosis and cure or significant relief of a condition@). SISF contends that the compensation judge did not base, and should have based, his decision on criteria established in case law for evaluation of the compensability of particular passive care regimens. In particular, SISF cites the cases of Buda v. Pillsbury and Wright v. Kimro, Inc., for the premise that the cost of treatment must be weighed against the amount and duration of relief obtained by it. See Buda v. Pillsbury, 38 W.C.D. 516, 518 (W.C.C.A. 1986); Wright v. Kimro, Inc., 34 W.C.D. 702, 705-06 (W.C.C.A. 1992). Further, SISF cites Horst v. Perkins Restaurant as establishing the following ten factors as a standard for assessing the compensability of disputed treatment: (1) the possibility that other, undiscovered, conditions might be causing the employee=s problem; (2) the length of the treatment; (3) the frequency of the treatment; (4) the regularity, as opposed to need-basis, of the scheduling of the treatment; (5) the duration of the relief; (6) the existence of alternative providers in the event of continuing pain; (7) the employee=s overall activities; (8) the ability of the employee to continue working; (9) the employee=s ability to lead an active life without the treatment; and (10) the potential for psychological dependency upon the treatment. See Horst v. Perkins Restaurant, 45 W.C.D. 9, 11 (W.C.C.A. 1991).
SISF argues that the compensation judge, in his findings and order, addresses only Athe subjective reports of improvement in symptomology,@ without considering the Adocumented improvement in any objective condition@or any other factor relevant to the reasonableness and necessity of the treatment at issue. More specifically, SISF argues the following, most of which appear to be referable to the factors recommended in Horst: that A[t]here is no mention of the duration of any relief@; that Athere is no evidence substantiating either an absence of symptoms or presence of symptoms during gaps in the documented acupuncture treatments@; that Athere is no documentation in the record evincing a clear plan, goal, or method by which progress toward the plan or goal may be measured@; that A[t]here is no reference whatsoever in the [judge=s decision] of the cost of the acupuncture treatment@; that A[e]vidence in the record would refute the impact of treatment on the employee=s capacity for work@; that the only evidence that the employee=s life activity is affected by the treatment is his testimony that he could walk up to a mile in a stretch immediately after the treatment but only half a mile before it, though his household activities remain vigorous apparently with or without it; that there is no evidence that the employee=s recreational activities are importantly affected by the treatment; and that it appears that the duration and frequency of acupuncture regimens are always controlled by the doctor. We are not persuaded.
With regard to the factors suggested in Horst, we would note, beginning with the first, that none of the employee=s physicians, medical or otherwise, over the course of his long treatment history, has been in any way puzzled as to the causes of the employee=s radicular low back pain. The employee=s acupuncture treatment regimens appear to have been swift and relatively brief in the context of his whole life, the ten-treatment 2002 regimen lasting only about a month and being even abbreviated two treatments short of the plan, in acknowledgment of its remarkable success, and the otherwise abbreviated six-treatment 2003 regimen lasting only about two weeks. Contrary to the suggestion of SISF, the duration of the relief enjoyed by the employee is clearly evident not only in the very timing of his doctors= recommendations but also in the compensation judge=s unappealed findings themselves. There was no appeal from Finding 9, in which the judge concluded as follows:
After approximately 6 months of relief from the [September 2002] acupuncture, relief which permitted the employee to be much more physically active than he had been in a substantial period of time, the employee noted a gradual return and increase in the right leg pain and discomfort. With the increase in pain and discomfort[,] the employee, of necessity, was forced to reduce his physical activities. By May 2003 the right leg pain and discomfort had returned with such intensity [that], as the employee described it at the hearing of September 15, 2004, Ait just hurts something fierce.@
Similarly, in unappealed Finding 13, the compensation judge noted, AAs had been the case in the past, the acupuncture treatments in the early Summer of 2003 provided substantial relief from the chronic pain and discomfort to at least February 2004. At that time the debilitating pain and discomfort in the right leg returned.@ Clearly, the duration of the employee=s relief from his 2002 regimen of treatments was about six months, and the duration of his relief from his 2003 regiment of treatments was about eight months. Nor is there any reason to suppose that any alternative treatment provider could serve the employee better than have Drs. Heck, Donley, and Kelly, or that his relief as a result of the acupuncture treatments has not resulted for him in the difference between a functional lifestyle and a physically dysfunctional one. Nor, finally, has the employee displayed any potential for psychological dependency on acupuncture treatment, capable as he has proven to be of functioning for months on end without the treatments, the longest span being, at the time of the hearing, about fifteen months, even with substantial pain. The compensation judge=s decision does not seem to us to be at all noncompliant with the factors for assessment articulated in Horst.
Although he may not have mentioned Buda, Wright, or Horst specifically, it is evident to us that the compensation judge examined carefully not only the employee=s treatment schedule and symptom fluctuation but also the equities and cost-benefit ratio of the acupuncture treatments. The very fact that the judge acknowledged the original parties= willingness to Alock in@ long term chiropractic care indicates to us that both the judge and the original parties were well aware that the employee=s unique case called at least as much for the Arelief@ of the employee=s condition as it hoped for any Acure.@ Nor do we see any reason to conclude that the awarded acupuncture treatment, at $81.00 or $87.00 a session, is unreasonably costly in light of its positive effect or, for that matter, importantly more costly than the chiropractic treatment of which the employee was presumed reasonably needful under his settlement. We do have some concern, however, regarding the compensation judge=s award of twelve treatments annually Aso long as the employee=s condition warrants.@ The parties addressed at hearing the problematic nature of any prospective award of passive treatment, and the judge=s award in this case was certainly not entirely unreasonable. However, we feel compelled to modify that award to ensure that the parties understand it to entitle the employee, by analogy with Minnesota Rule 5221.6200, subpart 3B(1), to only one annual regimen of twelve sessions at a time, with any succeeding annual regimen being subject either to approval by SISF or to reproof of its reasonableness and necessity at a medical conference. Cf. Asti v. Northwest Airlines, 588 N.W.2d 737, 741, 59 W.C.D. 59, 64 (Minn. 1999) (the employee=s health club membership was affirmed for only one year, Asubject to continuation based on the continuing necessity of the membership@).
In light of the entire record before us, and notwithstanding the fact that the compensation judge did not expressly reference case law that he might have applied as guidance, we cannot conclude that it was unreasonable for the compensation judge to find that the treatment at issue was reasonable and necessary treatment for the employee=s work injury. Therefore, modified as indicated just above, we affirm the judge=s findings and order to that effect. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239. Having also concluded that the judge=s decision in this case did not violate terms of the original parties= 1994 stipulation for settlement and that substantial evidence supports the judge=s conclusion that this case qualifies as a Arare case@ under the supreme court=s decision in Jacka v. Coca Cola Bottling Co., 580 N.W.2d 27, 58 W.C.D. 395 (1998), we affirm the compensation judge=s decision in its entirety.