ROBERT WOLFERT, Employee/Appellant, v. METROPOLITAN WASTE CONTROL COMM=N and EMPLOYERS INS. CO. OF WAUSAU, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 7, 2008

 

No. WC08-105

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - CHANGE OF PHYSICIAN; RULES CONSTRUED - MINN. R. 5221.0430, SUBP. 4.  Where the employee sought a change in treating physician to one who was 148 miles from the employee=s home, and where the employee agreed to waive or prorate his claim for medical mileage and travel expenses, the employee has established that Minn. R. 5221.0430, subp. 4.D., does not apply to support a denial of his request.  The compensation judge=s denial of the employee=s request was not supported by the evidence in the record, and therefore is reversed.

 

Reversed.

 

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

Compensation Judge: James F. Cannon

 

Attorneys: Michael G. Schultz, Sommerer & Schultz, Minneapolis, MN, for the Appellant.  Joseph G. Twomey, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.

 

 

MAJORITY OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals the compensation judge=s denial of his request to change physicians.  We reverse.

 

BACKGROUND

 

On March 29, 1989, Robert Wolfert, the employee, sustained a work-related low back injury when he fell off a loading dock while working as a field service technician for the Metropolitan Waste Control Commission, the employer.  The employer was insured for workers= compensation liability by Employers Insurance Company of Wausau.  The employer and insurer admitted liability and paid various workers= compensation benefits.  After his injury, the employee treated at Group Health and then with chiropractor Dr. Brian Kroll.  The employee continued to have low back and left leg pain, and was referred to Dr. Ronald Tarrel, neurologist, at the Noran Neurological Clinic.  An MRI of the employee=s lumbar spine indicated disc pathology at L4-5.  Dr. Tarrel referred the employee to Dr. Edward Hames, neurosurgeon, for surgical evaluation.  On February 2, 1995, Dr. Hames performed an L4-5 lumbar discectomy on the employee.  After the surgery, the employee underwent physical therapy but continued to have pain in his low back and left leg.

 

In 1995, the employee moved to La Crosse, Wisconsin.  He began treating with Dr. Erik Gundersen at Gundersen Lutheran in La Crosse, who referred the employee to Dr. H.G.  Sullivan, a neurosurgeon at the same clinic.  Dr. Sullivan diagnosed recurrent disc herniation at L4-5 and recommended surgery.  On May 10, 2002, the employee underwent another lumbar discectomy and foraminotomy at L4-5.  As a result of a laceration of the employee=s dura during surgery, the employee experienced post-surgical complications including heartburn and loss of bladder control.  The employee eventually underwent a post-surgical consultation with Dr. Sullivan on July 3, 2002.  On August 27, 2003, at his next consultation with Dr. Sullivan for his low back condition, the employee reported residual symptoms.  Dr. Sullivan advised him that those were permanent, long-term sequelae of his sciatica and that he Asimply needs to adjust to these situations.@  Dr. Sullivan advised that surgery did not need to be addressed, and that he would see the employee on an as-needed basis.

 

There is no record of any additional treatment or appointments with physicians at the Gundersen Clinic until June 26, 2006, when the employee consulted with Dr. Gundersen, reporting increased radicular symptoms in his left leg, difficulty sitting longer than ten minutes, and difficulty getting out of bed in the mornings.  Dr. Gundersen recommended an MRI scan of his lumbar spine, referred the employee for a consultation with a physician in the clinic=s physical medicine and rehabilitation department, and asked the employee to recheck with him in one to three months.  An MRI scan, performed on July 18, 2006, showed degenerative disc disease primarily at the L4-5 and L5-S1 levels, with a possible recurrent disc protrusion at the L4-5 level, and moderate to severe right foraminal narrowing and degenerative facet disease at the L5-S1 level.

 

On August 9, 2006, the employee was evaluated by Dr. Joseph Binegar, in the Gundersen Clinic=s physical medicine and rehabilitation department.  He reported progressively worsening low back and left leg pain.  Dr. Binegar discussed various options with the employee, including physical therapy, epidural injections and medications.  He also discussed with the employee the possibility that he consult a neuropsychologist for chronic pain management or a neurosurgeon for additional surgical evaluation; Dr. Binegar=s chart note states that the employee did not wish to pursue Aanything interventional at this time.@  Dr. Binegar did not refer the employee to specific doctors, but did refer him to a physical therapist.  Dr. Binegar scheduled no specific follow-up appointment, but advised that the employee was welcome to return on an as-needed basis to discuss options or to pursue options already discussed.

 

The employee attended an appointment on August 25, 2006, with a physical therapist, who, according to the employee=s testimony, provided him with recommendations for home exercises and conditioning, and recommended that the employee consult a physician for treatment of his hip, including potentially a hip replacement.

 

The employee testified that he was concerned about returning to Dr. Sullivan in view of the complications associated with his May 2002 surgery and the poor results from that surgery.  The employee conducted his own research on other options, including injections or surgical options such as disc replacement procedures.  He testified that he hoped he could obtain some resolution of his pain through disc replacement since his discectomy surgeries had been unsuccessful.  He ultimately chose to consult with Dr. Richard Salib, orthopedic surgeon at the Institute for Neck and Low Back Care in Bloomington, Minnesota, since he did not locate any other physicians who offered alternative treatments such as disc replacement closer to his home.  The employee also received a referral to Dr. Salib through his attorney.  Dr. Salib=s office is approximately 148 miles from the employee=s home in La Crosse, Wisconsin.

 

On May 23, 2007, the employee filed a medical request for consultation and/or treatment with Dr. Salib.  The employee was evaluated by Dr. Salib on June 11, 2007.  Dr. Salib diagnosed a post laminectomy pain syndrome and lumbar degenerative disc disease at L4-5 and L5-S1.  He recommended obtaining AP and lateral x-rays of the lumbar spine and a new MRI of the lumbar spine.  Dr. Salib advised that he would consider a medial branch block at L4, L5 and S1 on the left side after reviewing the updated radiographic results.  Following the medial branch block, the therapeutic plan and recommendations would be discussed.

 

The employer and insurer objected to the employee=s medical request, and the dispute was certified by the Department of Labor and Industry.  A medical conference was held on August 10, 2007, and the employee=s request was denied.  The employee filed a request for formal hearing; an evidentiary hearing was held on November 8, 2007.  At the hearing, the employee argued that he had requested a consultation and treatment with Dr. Salib solely for the purpose of obtaining further evaluation and treatment of his ongoing back and left lower extremity complaints.  He testified that he had received little or no improvement from his two low back surgeries, had increasing low back and left lower extremity symptoms, had recently experienced a left foot drop, and was interested in exploring options, including possibly disc replacement surgery.  To the extent that Dr. Salib might ultimately conclude that he is not a viable candidate for disc replacement surgery, the employee advised that he would be willing to return for treatment to the La Crosse area.

 

The compensation judge denied the employee=s request, primarily on the basis that the travel distance to obtain treatment was an unnecessary expense and also on the basis the same care would be available at a location closer to the employee=s residence.  The employee appeals.

 

STANDARD OF REVIEW

 

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 (2008).  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, 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 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 the employee=s request to change treating physicians is not reasonable and appropriate under Minn. R. 5221.0430, subp. 4.D.  Minn. R. 5221.0430, subp. 4, provides:

 

Subp. 4.  Change of primary provider not approved.  After the first 60 days following initiation of medical treatment for the injury, or after the employee has exercised the employee=s right to change doctors once, the department, a certified managed care organization, or a compensation judge shall not approve a party=s request to change primary providers, where:

 

A.  a significant reason underlying the request is an attempt to block reasonable treatment or to avoid acting on the provider=s opinion concerning the employee=s ability to return to work.

B.  the change is to develop litigation strategy rather than to pursue appropriate diagnosis and treatment;

C.  the provider lacks the expertise to treat the employee for the injury;

D.  the travel distance to obtain treatment is an unnecessary expense and the same care is available at a more reasonable location;

E.  at the time of the employee=s request, no further treatment is needed; or

F.  for another reason, the request is not in the best interest of the employee and the employer.

 

Whether a change of physicians should be permitted is a question of reasonableness under the circumstances in each case.  Hernandez v. Heartland Foods, 53 W.C.D. 372, 378 (W.C.C.A. 1995).  In his memorandum, the compensation judge referred to three bases presented by the employer and insurer for their denial of the employee=s request to change his treating physician to Dr. Salib: (1) that the travel distance results in unnecessary time and expense, referred to in Minn. R. 5221.0430, subp. 4.D.; (2) that the same or similar care is available at a location closer to the employee=s home, also referred to in Subpart 4.D.; and (3) that the employee was requesting a change, at least in part, to develop a litigation strategy rather than to pursue an appropriate diagnosis and treatment, as precluded by Minn. R. 5221.0430, subp. 4.B.

 

The compensation judge concluded that there was insufficient evidence to establish that the reason for the employee=s request was to develop litigation strategy, rather than to pursue appropriate diagnosis and treatment, and concluded that the employee=s request was not in violation of that portion of the rule.  However, the compensation judge found that the request to change treating physicians to Dr. Salib was not reasonable and appropriate, pursuant to Minn. R. 5221.0430, subp. 4.D., concluding that the distance between the employee=s residence and Dr. Salib=s office Ain and of itself makes the time and expense for the employee to travel to and from this distance for medical treatment unnecessary.@  (Memo. at 3-4; emphasis in original.)  The compensation judge also commented, in his memorandum, that the employer and insurer had provided evidence there are many appropriate specialists within the La Crosse area, including neurosurgeons and orthopedists, who could provide alternative treatment options for the employee, even though those options may or may not include disc replacement procedures that the employee was considering as a viable treatment.

 

AThe factors of distance and the existence of other similar types of physicians are but two factors which may be used by a compensation judge in determining whether a change of physicians may be approved.@  Hernandez, 53 W.C.D. at 377.  In this case, one of the bases for the compensation judge=s denial of the employee=s request was the location of Dr. Salib=s clinic, approximately 148 miles from the employee=s residence.  As this court noted in Hernandez, however, the travel distance provision in Minn. R. 5221.0430, subp. 4.D., should not be applied mechanically:

 

whether the travel expense is Aunreasonable@ and whether the Asame care is available at a more reasonable location@ is a fact question involving numerous possible considerations, including the qualifications and special skills of the physician being proposed by the employee as compared with those that may be located closer to the employee; the facilities and resources available to the physicians, including availability of other specialists in a group practice, physical therapy capabilities, etc.; the employee=s prior experience with or knowledge of the proposed physician as compared with the closer physicians; recommendations to the employee by trusted advisers; and other reasons unique to the circumstances of the employee=s situation, such as the greater availability of transportation to the more distant physician.

 

Id. at 378 (emphases in original).

 

In view of this court=s analysis in Hernandez, the location of Dr. Salib=s clinic cannot serve as the sole basis for the judge=s denial of the request to change treating physicians.  And, germane to this issue, the employee argues that he is willing to waive or prorate any mileage claim for consulting  Dr. Salib, and would coordinate his medical appointments with either family visits or travel for his work.  In addition, the employee testified that if he were allowed to consult with Dr. Salib, and if Dr. Salib recommended conservative treatment such as physical therapy, he would be willing to undergo that treatment in the La Crosse area.

 

As to whether there are physicians in the La Crosse area who could provide the same type of treatment that is being sought by the employee through Dr. Salib, that issue is intertwined with the concern over the travel distance.  The employee contends that there are no physicians in his locale who could provide disc replacement surgery or the alternative treatment that he seeks.  The employer and insurer contend that there are the same types of medical specialists in the La Crosse area that Dr. Gundersen and Dr. Binegar earlier suggested the employee consult.  We also note that Dr. Salib=s preliminary  recommendations do not yet include  disc replacement surgery considered by the employee to be an optional treatment.  Nor has any other doctor yet recommended disc replacement surgery, so it is unknown whether the employee will ever be determined a candidate for that type or surgery.  But it is also evident from the employee=s testimony that he sought Dr. Salib=s  opinion on alternative treatment, with disc replacement being one option, because his earlier lumbar spine surgeries were unsuccessful and his symptoms persist.

 

As this court noted in Hernandez,

 

The test under subpart 4 is still a question of reasonableness under the circumstances of each case.  For example, a distance that may be so unreasonable as to make the cost of travel an Aunnecessary@ expense in one case may be reasonable in another case.  Whether one physician can provide the Asame care@ at a more reasonable location is one of fact governed by the standard of reasonableness, as determined by a compensation judge in each case.  Certainly relative distances and generic-type medical specialties are two factors, but they are not the only factors that are relevant in making the determination under the rule.

 

Id.

 

The bases for the compensation judge=s denial are the location of the requested physician and the availability of other physicians in the employee=s locale.  Whether there are other physicians in the employee=s home area is intertwined with the concern about the distance between the employee=s home and Dr. Salib=s office.  Other than distance, no other basis for a denial of the employee=s request was listed by the compensation judge, nor was any other reason, as listed in the  Rules, presented by the employer and insurer for their denial of the employee=s request.^[1]

 

For example, the employer and insurer did not contend that the chosen provider, Dr. Salib, lacks the expertise to treat the employee for his injury, nor did they contend that the employee requires no further treatment.  Nor have they articulated any other reason that the request is not in the best interest of the employee and the employer, other than the distance between the employee=s residence and Dr. Salib=s office.  See Minn. R. 5221.0430, subp. 4.

 

The employee has refuted the employer and insurer=s arguments concerning the travel distance to Dr. Salib=s office by agreeing to waive or prorate his claim for medical mileage and travel expenses.  With respect to the rule, therefore, the employee has established that the rule does not apply to support a denial of his request.  Because the portion of the rule that applies to travel expenses does not apply to these circumstances and this request, the compensation judge improperly relied on that factor as a basis for his denial.  Accordingly, we reverse the denial of the employee=s request to change treating physicians.

 

 

DISSENTING OPINION

 

WILLIAM R. PEDERSON, Judge

 

I respectfully dissent from the majority=s reversal of the compensation judge=s decision in this case.  If, as determined by the majority, Minn. R. 5221.0430, subp. 4.D., does not apply to the circumstances of this case, that determination only eliminates that provision as a ground for not approving the employee=s requested change of doctors.  The burden of proof remains with the employee to establish that a change of physicians to Dr. Salib is appropriate in this case.  Because the judge=s decision was based entirely on subpart 4.D., I would remand the matter to the judge for reconsideration of the reasonableness of the employee=s request.