The employer and insurer appeal from the compensation judge’s decision ordering them to continue to provide/pay for the prescribed medications on behalf of the employee so long as her condition may warrant.  The order is vacated.

Lorrai Wiirre, the employee, sustained a low back injury on July 25, 1998, while working as a nurse for Health Personnel Options, the employer, then insured by the Minnesota Workers’ Compensation Assigned Risk Plan with claims administered by Wausau Insurance Company.  The employer and insurer admitted liability for the employee’s personal injury.  In an April 2004 Findings and Order, a compensation judge found the employee’s personal injury caused significant ongoing chronic low back pain and a chronic depressive disorder.  The judge found the employee sustained a 15 percent whole body permanent disability for the depression and found the employee had been permanently and totally disabled since the date of her injury.

The employee has obtained medical treatment from a number of providers since her 1998 injury.  In 2002, the employee commenced treatment with Dr. William L. Wilson at the Chisholm Medical Clinic.  Over time, Dr. Wilson prescribed a number of different pain medications to manage the employee’s chronic pain including Oxycodone, a Duragesic patch and Actiq lozenges.  Both the Duragesic and the Actiq contain Fentanyl, a narcotic, the first of which is slow release and the second provides fast relief.  By report dated October 25, 2005, Dr. Wilson stated his current treatment plan for the employee was a gradual reduction in her dose of narcotic medication.

Dr. Donald Starzinski, a neurology consultant, examined the employee in October 2005 at the request of the employer and insurer.  The doctor diagnosed chronic low back pain, degenerative osteoarthritis, suboptimal if not counterproductive pharmacological management, and underlying psychosocial factors.  Dr. Starzinski opined the Actiq was redundant since the employee was taking Duragesic, but recommended both be discontinued.

The employee filed a medical request seeking payment for the Actiq medication.  In a findings and order, Judge Bonovetz found the Actiq lozenges were reasonable and necessary medical treatment and ordered the employer and insurer to pay the intervenor, Injury Workers Pharmacy, for the prescriptions, subject to the fee schedule.  The employer and insurer do not appeal this award.  The compensation judge further ordered that the employer and insurer “shall continue to provide/pay for the properly prescribed medications on behalf of the employee so long as her condition may warrant.”  (F & O, order 3)  The employer and insurer appeal this order.

The employer and insurer appeal that portion of the judge’s decision that orders them to continue to pay or provide the employee with properly prescribed medications so long as her condition may warrant.  They contend this order is beyond the jurisdiction of the compensation judge.  In response, the employee asserts the judge’s order was based on substantial evidence that supports the decision that the Actiq medication is a reasonable and necessary course of treatment.  At some time in the future, the employee argues, the employer may have an arguable claim based upon medical evidence that this prescription is no longer necessary.  Until that time, however, the employee contends the employer and insurer must continue to pay for her medications into the future.

We acknowledge that in some cases, compensation judges award benefits to the date of hearing and continuing “as provided by law” and/or “as warranted by the employee’s condition.”  In Donnahue v. Glory Shine Cleaning, Inc., slip op. (W.C.C.A. June 13, 1996), this court held such language is not equivalent to an order to pay continuing benefits after the date of the hearing because such an order would be prospective and beyond the jurisdiction of a compensation judge.  See also Keiser v. Meret HVAC, slip op. (W.C.C.A. Feb. 1, 1995); Lacey v. Arrowhead Tree Servs., slip op. (W.C.C.A. Oct. 14, 1994).  Since the compensation judge had no authority to make findings of a prospective effect, order 3 must be vacated.