CINDY RUSHMEYER, Employee, v. LYNGBLOMSTEN CARE CTR. and BERKLEY RISK  ADM=RS CO., Employer-Insurer/Appellants, and MEDICARE BY NORIDIAN, ALLINA MED. CLINIC, and THIRD PARTY SOLUTIONS, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 20, 2006

 

No. WC06-177

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Where there was medical evidence that the medications at issue were reasonable and necessary, where the judge expressly found credible the employee=s testimony that the medications had been helpful in managing her low back and leg pain, and where there was expert medical opinion that the employee was not abusing the medication, the compensation judge=s conclusion that the medications at issue were reasonable and necessary in treatment of the employee=s work injury was not clearly erroneous and unsupported by substantial evidence.

 

MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS.  Where the employee=s medication regimen, including her use of Vicodin, was reasonable and necessary, where the employee was credibly experiencing intractable pain, where the medication treatment at issue was not invasive, was carefully monitored, was not being abused, and allowed the employee to function somewhat normally, and where the Vicodin use at issue represented a minimal portion of the total medication charges in the case, the compensation judge did not improperly conclude that the employee=s Vicodin use qualified as a Arare case@ exception so as to relieve the employee from strict adherence to the medical treatment parameters with regard to her use of medication, notwithstanding the fact that the judge appeared not to follow the progressive analysis set forth in Martin v. Xerox Corp., 59 W.C.D. 509, 515 (W.C.C.A. 1999).

 

EVIDENCE - BURDEN OF PROOF; MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS.  Where, as a factor in deliberating whether or not to apply the rare case exception, the judge was entitled to consider whether other treatment was more appropriate or available to the employee, and where the court viewed the judge=s comment as a rejection of the employer=s position that withdrawing all pain medication was reasonable, the WCCA declined to reverse the compensation judge=s finding of a rare case exception under the treatment parameters on grounds that the judge improperly shifted the burden of proof to the employer when she noted in a finding that there was no alternate treatment for the employee=s intractable pain being proposed that the employer and insurer were willing to pay for.

 

Affirmed.

 

Determined By: Pederson, J., Rykken, J., and Johnson, C.J.

Compensation Judge: Nancy Olson

 

Attorneys: Gregg B. Nelson, Nelson Law Offices, Inver Grove Heights, MN, for the Respondent.  Mark A. Kleinschmidt, Cousineau McGuire, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The self-insured employer appeals from the compensation judge=s award of payment for the employee=s prescription medications and from the judge=s finding that the employee=s circumstances constituted a Arare case@ exception under the medical treatment parameters, permitting the employee=s use of a scheduled medication beyond the term permitted under the parameters.  We affirm.

 

BACKGROUND

 

Cindy Rushmeyer [the employee] sustained work-related injuries to her low back on January 6 and June 13, 1987, while employed as a nursing assistant by Lyngblomsten Care Center [the employer].  In June 1989, the employee and the employer entered into a full, final, and complete settlement of the employee=s claims for workers= compensation benefits, exclusive of reasonable and necessary medical treatment.  An award on that stipulation was issued by a compensation judge on August 2, 1989.

 

Following settlement, the employee continued to obtain medical and chiropractic treatment for her low back injury.  In 2001, she sought a surgical opinion from Dr. Manuel Pinto of the Twin Cities Spine Center, who opined that surgical treatment was a reasonable option.  The employer disputed liability for the proposed treatment, and the matter was heard by a compensation judge.  In a decision issued July 30, 2001, the judge found that the proposed surgery was reasonable, necessary, and causally related to the employee=s work injuries.  On April 17, 2002, this court affirmed that decision of the trial judge.  See Rushmeyer v. Lyngblomsten Care Center, slip op. (W.C.C.A. Apr. 17, 2002).

 

On August 7, 2002, Dr. Pinto performed a laminectomy at L5-S1, with bilateral foramenotomies and a posterior spinal fusion with bone graft and pedicle screws at L5-S1.  The employee=s back and leg symptoms improved following surgery, but only for a short while, and, by the end of 2002, the employee was again complaining of persistent back and leg symptoms.

 

During 2003, the employee complained to Dr. Pinto primarily of recurrent low back and right lower extremity pain.  Dr. Pinto determined that the employee=s fusion was solid, administered a trigger point injection over the right donor bone graft area, and treated the employee=s chronic pain with a series of medications, including Vicodin, Neurontin, Celebrex, Quinine, and Elavil.  When medication was prescribed, Dr. Pinto=s office evidently provided the employee with information regarding each drug and its side effects.^[1]

 

On January 16, 2004, the employee was examined on behalf of the employer by orthopedist Dr. David Boxall, to whom the employee complained of Aright buttock and leg pain into all of the toes, and numbness in the medial aspect of her right foot,@ together with weakness in the entire right leg and occasional weakness in the left leg from the knee on down.  Dr. Boxall noted that the employee was currently taking Quinine, Elavil, Neurontin, Celebrex, and one or two Vicodin per week, and he diagnosed multilevel degenerative disc disease, status post posterior spinal fusion instrumentation at L5-S1 with bilateral foramenotomy and laminectomy, and chronic pain syndrome.

 

Because she resided in Hinckley, Minnesota, the employee also obtained follow-up care for her back and leg symptoms at the Allina Clinic in Hinckley.  On March 26, 2004, she was seen there by Dr. Ashref Jeeva for a follow-up on her medications.  She reported to Dr. Jeeva that she had had back surgery in August 2002 but had continued to have spasms in her right leg, along with Asome chronic numbness in her foot as well as extending up her leg.@  Dr. Jeeva noted that the employee had been taking Quinine, Celebrex, and Neurontin, and he provided her with a six month refill of those medications.  He also substituted Paxil for her Elavil prescription, noting in his records that the employee felt better on Paxil - - that she was sleeping better, that her mood and concentration were better, and that she had less anxiety.

 

On November 9, 2004, the employee returned to see Dr. Pinto with complaints of persistent low back and bilateral lower extremity pain.  She reported that she had low back pain when sitting and standing as well as when walking and that her best position was lying down.  Dr. Pinto noted that the employee=s symptoms had increased over the past year and seemed to indicate a combination of discogenic and stenotic problems.  He recommended a lumbar discography from T12 to L5 and an MRI of the lumbar spine to address the possible progression of the lumbar spinal stenosis.

 

The employee underwent the discogram and MRI on November 29, 2004, and returned to Dr. Pinto for follow-up on February 8, 2005.  Dr. Pinto reviewed the discogram and noted that the employee had concordant low back pain and abnormal disc morphology from L1-2 to L4-5.  Although noting that the employee had degenerated significantly above the fusion, Dr. Pinto did not recommend additional surgery.  Instead, he prescribed a lumbar brace and substituted Feldene for the employee=s Celebrex prescription.  He recommended also that the employee obtain any refills of Paxil from her family doctor.

 

On March 3, 2005, the employee returned to see Dr. Jeeva regarding her low back symptoms and symptoms of depression.  She noted that she had become more irritable, was sleeping poorly, and was crying more frequently, and she requested that she be placed back on Paxil.  Noting that she had been on that medication in the past, had had no side effects, and had benefitted from it, and diagnosing chronic degenerative disc disease and depression secondary to chronic back pain, Dr. Jeeva put the employee back on Paxil, refilled her Feldene prescription, and added a prescription for Protonix, to treat for stomach upset related to the use of Feldene.  About a month later, on March 31, 2005, the employee returned to see Dr. Jeeva, reporting to him that she had continued radicular pain going down both legs, together with symptoms of cramping and spasm in the lower extremities that increased about the time of her menstrual periods.  Noting that the employee was taking Neurontin, Paxil, and Feldene, as well as Vicodin as needed, the doctor assessed continued radicular pain and recommended increasing the employee=s dosage of Neurontin, also prescribing Norflex in an effort to relieve the employee=s cramping.  When she saw Dr. Jeeva again on April 28, 2005, the employee reported that she had no present symptoms but that her symptoms seemed to worsen during cold weather and her menstrual periods.  Dr. Jeeva noted that the employee was currently taking Vicodin but was very reasonable with her use of it.  On examination, he noted that the employee had some lower back pain to palpation and some radicular symptoms going down her right leg to her toes.  He diagnosed chronic back pain and radiculopathy, increased the employee=s dosage of Neurontin, and refilled her prescription for Protonix.

 

On September 1, 2005, Dr. Boxall examined the employee again at the request of the employer.  He obtained an interim history, reviewed the employee=s medical records, and performed a physical examination.  The employee told Dr. Boxall that she had low back pain on a daily basis, that she had pain and numbness down her left leg into her toes every other day, that she had similar symptoms in her right leg constantly, and that she also had weakness in her right leg.  Noting that the employee=s medications now included Quinine, Feldene, Neurontin, Paxil, Prevacid, Vicodin, and Norflex, Dr. Boxall reiterated his 2004 diagnosis and added Achronic use of narcotics.@  The doctor had no suggestions for further treatment, and he did not believe that the employee was a surgical candidate.  He considered the employee=s response to her discograms to indicate diffuse global nonspecific low back pain that would not be amenable to surgical treatment and was indicative of an emotional or psychological component.

 

Dr. Jeeva left the practice, and the employee=s case was transferred within the Allina Clinic to Dr. Brian Niskanen.  On September 6, 2005, the employee again reported that she experienced chronic back pain that significantly worsened around the time of her menses.  Dr. Niskanen noted that A[a]t that time, she does use some Vicodin.  Otherwise, she does not need Vicodin to manage the pain.@  Dr. Niskanen=s assessment was chronic back pain, and his treatment plan was for the employee to continue on her medication regimen, Awhich includes Neurontin, Quinine, Piroxicam, Protonix, Paxil, Vicodin, and Orphenadrine.@

 

On October 7, 2005, the employee was seen for a psychiatric evaluation by Dr. Scott Yarosh on behalf of the employer.  Dr. Yarosh reviewed the employee=s medical records, obtained an MMPI-2, and performed an examination.  In a report dated November 4, 2005, Dr. Yarosh indicated that the employee was taking Vicodin several times a day and had been doing so for the greater part of the past fifteen or twenty years.  He believed that she had incurred a physiological opioid dependency and that her medical records were highly suggestive of Aa significant unappreciated psychological component to the perpetuation of [her] symptoms.@  He stated that her Abasic mindset and coping styles need to be addressed with psychological treatments before any significant progress can be made toward improvements in her symptoms.@  Dr. Yarosh concluded that the employee=s mental status examination, coupled with the psychological testing,@ suggests that [she] is a higher risk for symptom magnification.@  He attributed the perpetuation of the employee=s pain syndrome to her chronic use of narcotic medications and to her underlying personality style.

 

On November 7, 2005, the employee filed a Medical Request, seeking payment of medical bills at Twin Cities Spine Center and Allina Medical Clinic and payment of prescription drug expenses.  The employer filed a response on November 16, 2005, denying liability and contending that the medications at issue represented Achronic use of narcotic medications@ and were contraindicated.

 

The employee returned to see Dr. Pinto on November 10, 2005.  On that date, her chief complaint was residual low back pain.  Dr. Pinto noted that she continued to be symptomatic enough to justify continued conservative care with medications.  He indicated that he had contacted the claims adjuster and had talked with her about having the employee refill her prescriptions with Allina in Hinckley rather than with his office.  Dr. Pinto also refilled the employee=s prescriptions for Feldene, Neurontin, Vicodin, Norflex, Quinine, and Protonix.

 

The employee was seen for her chronic back pain by Dr. Niskanen again on December 5, 2005.  The doctor reported that Athe [employee] notes that her back pain is continued to be managed with the use of p.r.n. Vicodin@ and that she seemed to be relatively stable in her medication program.

 

In a letter to the employee=s counsel on February 16, 2006, Dr. Niskanen set forth his rationale for the employee=s Vicodin use and the effectiveness of her other medications.  With regard to the Vicodin, Dr. Niskanen reported as follows:

 

The [employee] uses this on a p.r.n. basis.  Per the record that I have,  she has been using less than 30 Vicodin tablets a month.  There has been some concern that she is addicted to narcotics.  Per her report, she typically uses the Vicodin around the time of her menses.  Otherwise, she typically will have two to three weeks where she does not use it at all.  The likelihood that she could be addicted to opiates with this usage is exceedingly small.  She certainly has not [been] demonstrating any abusive or addictive behaviors with this clinic (i.e., increasing her dose, asking for early refills, trying to get stronger opiates, etc.).

 

Dr. Niskanen concluded that the employee=s medication regimen had been stable, afforded good pain control, and was Areally quite reasonable, especially in light of the limited use of narcotics.@

 

The employee=s Medical Request and Request for Formal Hearing came before a compensation judge on March 2, 2006.  Issues at hearing included the following: (1) whether it was reasonable for Allina Clinic Hinckley to manage the employee=s medications; (2) whether the medications Neurontin, Quinine, Piroxicam (Feldene), Protonix (now switching to Prilosec), Paxil, Vicodin, and Orphendrine (Norflex) were reasonable and necessary treatment for the employee=s work-related injuries to the low back; (3) whether the employee=s use of Paxil was causally related to her work injuries; (4) whether the employee=s use of the above-named prescription medications was beyond that allowed under the treatment parameters, specifically Minnesota Rules 5221.6200, subpart 10; and, (5) if her use of these medications was beyond the treatment recommended under the treatment parameters, was this a case where it was reasonable to depart from the treatment parameters.

 

By findings and order issued May 4, 2006, the compensation judge found that it was reasonable to have the employee=s medication monitored and adjusted by her family doctors at Allina and that her Paxil prescription was causally related to her work injuries.  The judge also found that the employee=s listed medications were reasonable and necessary treatment for her work-related low back injuries and that, although the employee=s use of the narcotic Vicodin was beyond that allowed by the treatment parameters, a departure from the parameters was necessary, as a Arare case@ exception, for the employee to obtain proper treatment.  The employer appeals.

 

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

 

The compensation judge found that all of the medications here at issue were reasonable and necessary to cure and relieve the effects of the employee=s work injuries.  She also found that the employee=s use of Vicodin was beyond that allowed under Minnesota Rules 5221.6200, subpart 10.^[2]  She nevertheless found the employee=s Vicodin prescriptions compensable as a Arare case@ exception to the treatment parameters, and she concluded that it was appropriate to depart from the parameters under Minnesota Rules 5221.6050, subpart 8A.  The judge explained in her finding,

 

This is a case where despite fusion surgery the employee continued to have intractable pain and has had this pain for many years.   The employee is not a candidate for further surgery at this time.  The employee=s use of narcotics is closely monitored by her treating physicians.  There is no evidence of abuse of narcotics.  There is no alternate treatment for the employee=s intractable pain being proposed at this time that the employer and insurer are willing to pay for.

 

On appeal, the employer contends that the judge=s finding that the employee=s medication regimen is reasonable and necessary is unsupported by substantial evidence in the record as a whole.  It contends further that substantial evidence does not support the judge=s finding of a rare case exception for the employee=s use of opioid medication and that the judge erred as a matter of law by construing the treatment parameters to impose a requirement on the employer that it should have affirmatively offered a form of treatment to replace the treatment that was determined to be in excess of the treatment parameters.  We conclude that substantial evidence in the record supports the judge=s award in this case.

 

a.  Reasonableness and Necessity.

 

An employer and insurer are required to furnish medical treatment as may reasonably be required at the time of the injury and at any time thereafter to cure and/or relieve the employee from the effects of the work-related injury.  Minn. Stat. ' 176.135, subd. 1a.  The employee has the burden of proving that medical expenses were reasonable, necessary, and causally related to the work injury.  See Adkins v. University Health Care Ctr., 405 N.W.2d 233, 39 W.C.D. 898 (Minn. 1987).  Generally, the reasonableness and necessity of medical treatment is a question of fact for the compensation judge.  See Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993).

 

The employer contends that the employee=s current regimen of medications is neither reasonable nor necessary.  It asserts that there is no evidence in the clinic notes of Dr. Pinto or Dr. Niskanen of a treatment plan regarding the employee=s medications, the goals of her medication use, and what action will be taken if the medications do not meet the stated goals.  It argues that the employee=s prescription medications are simply a Amaintenance plan,@ that alternative treatments have not been considered, that the issue of opiate addiction diagnosed by Dr. Yarosh has not been addressed, and that no effort has been made to wean the employee from Vicodin.  Additionally, the employer contends that substantial evidence does not support the judge=s conclusion that the employee=s Paxil prescription is causally related to her work injuries.  We are not persuaded by these arguments.

 

At Finding 3, the compensation judge accepted the opinions of Dr. Niskanen and Dr. Pinto that the employee=s use of the medications at issue was reasonable and necessary to cure and relieve the effects of her injuries.  She also accepted Dr. Niskanen=s opinion that the employee=s Paxil prescription is reasonable treatment for the employee=s chronic pain related to her work injuries.  Contrary to the employer=s argument, Dr. Pinto=s records and the records from Allina support the judge=s conclusion that the employee=s medication regimen has been carefully monitored and adjusted.  Dr. Pinto=s office routinely provided the employee with information regarding her medication and its side effects.  Both doctors were aware of the employee=s p.r.n. usage of Vicodin, and typically that medication was prescribed on a no-refill basis.  In his report of February 16, 2006, Dr. Niskanen reviewed each of the employee=s medications and their indications for usage in this case.  He squarely addressed the issue of opiate addiction, and found such addiction unlikely in light of the employee=s use of Vicodin on an as-needed basis.  Nor did he find any evidence of abusive or addictive behavior on the employee=s part.  He concluded that the employee=s current pain medication regimen allowed her good pain control and was quite reasonable, especially in light of the limited use of narcotics.

 

In addition to introducing medical evidence showing that the medications were reasonable and necessary, the employee testified that the prescribed medications had been helpful in managing her low back and leg pain.  She also testified that she experienced increased pain if she didn=t take them and that they allowed her to be somewhat comfortable on a daily basis.  The compensation judge specifically found the employee=s testimony to be credible.  Based on the medical records of Drs. Pinto and Niskanen, the employee=s testimony regarding her symptoms and the relief obtained with the use of the medications, and the overall evidence regarding abuse or addiction, we find that substantial evidence in the record supports the compensation judge=s findings that the prescription expenses at issue were reasonable and necessary to cure and relieve the effects of the employee=s work injuries.

 

 

b.  Rare Case Exception

 

In Jacka v. Coca Cola Bottling Company, the supreme court held that the treatment parameters, Minnesota  Rules 5221.6010, et. seq. (1995), have Athe force and effect of law.@  Jacka v. Coca Cola Bottling Co., 580 N.W.2d 27, 35, 58 W.C.D. 395, 408 (Minn. 1998).  AHowever,@ the court went on, Ain recognition of the fact that the treatment parameters cannot anticipate every exceptional circumstance, a compensation judge may depart from the rules in those rare instances in which departure is necessary to obtain proper treatment.@  Id.  The employer argues that the judge=s finding of a rare case exception in the present case is clearly erroneous and unsupported by substantial evidence.  The employer argues essentially that there is nothing in the facts of this case that is so rare or unique as to justify the application of the rare case exception, that the employee is simply seeking treatment beyond what is provided for in the treatment parameters.  The parameter at issue, Minnesota Rules 5221.6200, subpart 10, allows the use of scheduled narcotics in the treatment of severe acute pain but only during the first two weeks of treatment.  The medical records, the employer contends, demonstrate that the employee has continued to take opioid medication at least since August 2002 without any change in the character of her pain.  Nor have the records shown that the employee presents evidence of severe acute pain.  Application of a rare case exception under these facts, the employer contends, eviscerates the very purpose of the exception and renders the treatment parameters meaningless.  We are not persuaded.

 

The compensation judge found that the medications here at issue were reasonable and necessary to cure and relieve the effects of the employee=s injuries.  Only the employee=s Vicodin prescriptions were found to be inconsistent with the treatment parameters.  After finding that they were, however, the judge concluded that a departure from the rules was appropriate in order to obtain proper treatment for the employee and that this case represented a JackaArare case@ exception.

 

In Martin v. Xerox Corporation, this court held that Arare case@ medical treatment cases will be reviewed under the standards set forth in Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984), and Minnesota Statutes ' 176.421, subdivision  1(3).  Martin v. Xerox Corp., 59 W.C.D. 509, 515 (W.C.C.A. 1999).  We also held in Martin, however, that an award under the rare case exception should not be considered Aunless the judge first determines that the proposed treatment is otherwise reasonable and necessary under case law criteria and that the treatment is not consistent with any treatment parameters raised by the parties, including the departure parameters.@  Id. at 517.  Here, the judge found that the proposed treatment was reasonable and necessary, but she did not explain why she found the Vicodin prescriptions inconsistent with the parameters,^[3] and she did not analyze whether the employee qualified for a departure under Minnesota Rules 5221.6050, subpart 8.^[4]

 

We have carefully reviewed the record in this case and have already affirmed the judge=s finding that the employee=s regimen of prescription medication, including her use of Vicodin on an as-needed basis, was reasonable and necessary.  While we might agree that the facts of this case are not particularly rare or unique, the compensation judge was clearly persuaded that the employee is experiencing intractable pain.  We note also that the disputed treatment is not invasive, is carefully monitored by the employee=s physicians, is not being abused, and allows the employee to function somewhat normally.  It is evident also that a cost/benefit analysis supports the judge=s decision.  In reviewing the evidence, we note that the Vicodin charges appear to represent a very minimal portion of the medication charges in this case.^[5]  While it is apparent that the judge did not follow the progressive analysis set forth in Martin, we nevertheless conclude that the judge=s ultimate decision, to depart from the parameters to allow the employee to obtain proper medical treatment, is supported by substantial evidence in the record.  Accordingly, under the facts presented here, especially the minimal cost involved, the judge=s finding of a rare case exception to the treatment parameters is affirmed.

 

c.  Burden of Proof

 

In Finding 4, the compensation judge, after setting forth several reasons why the employee=s Vicodin use should be considered a rare instance in which a departure from the parameters is appropriate, concluded by stating Athere is no alternate treatment for the employee=s intractable pain being proposed at this time that the employer and insurer are willing to pay for.@  The employer contends that this statement reflects a legally erroneous construction of the treatment parameters to impose an affirmative obligation on the employer to provide an alternative to treatment determined to be in excess of the treatment parameters.  This construction by the judge, the employer argues, improperly shifts the burden of proof to the employer.  We are not persuaded.

 

We agree that the employer has no obligation to propose alternative forms of treatment for the employee, but we do not read the judge=s statement as implying even an invitation to the employer to affirmatively propose any treatment, only to pay for it when it=s deemed necessary.  Even were such an invitation to be inferred, however, we conclude that the judge was entitled to consider, as a factor in deliberating whether or not to apply the rare case exception, whether other treatment was more appropriate or available to the employee.  Moreover, we also view the judge=s comment as a rejection of the position of the employer that withdrawing all pain medication was reasonable.  Here, where there is other substantial evidence in the record supportive of the judge=s decision, we decline to reverse the judge=s finding of a rare case exception on grounds that she improperly shifted the burden of proof to the employer.