AARON M. MILBRAT, Employee, v. THE MARKETPLACE, INC., and SECURA INS. COS., Employer-Insurer/Appellants, and BLUE CROSS AND BLUE SHIELD OF MINN. & BLUE PLUS, ADVANCED SPINE ASSOCS., CORE PHYSICAL THERAPY, MUSCULOSKELETAL PAIN, NORTH METRO MRI, STATE FARM MUT. AUTO INS. CO., and ALLINA/BUFFALO HOSPITAL, Intervenors.

WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 22, 2012

No. WC12-5448

ARISING OUT OF & IN THE COURSE OF - COMPENSABLE CONSEQUENCES.  Substantial evidence supported the compensation judge’s conclusion that the employee’s automobile accident occurred when she was on her way from her doctor’s office to obtain prescription medication related to her original work injury, and, under these circumstances, the compensation judge did not err in concluding that the injuries the employee sustained in the automobile accident were a compensable consequence of her work injury.

Affirmed in part and vacated in part.

Determined by:  Wilson, J., Hall, J., and Johnson, J.
Compensation Judge:  Bradley J. Behr

Attorneys:  Jerry W. Sisk, Law Office of Thomas D. Mottaz, Coon Rapids, MN, for the Respondent.  William G. Laak and Jeffrey R. Homuth, McCollum, Crowley, Moschet, Miller & Laak, Minneapolis, MN, for the Appellants.

 

OPINION

DEBRA A. WILSON, Judge

The employer and insurer appeal from the compensation judge’s conclusion that the injuries the employee sustained during a trip to obtain medication were a compensable consequence of the employee’s original work injury.  We affirm in part and vacate in part.

BACKGROUND

On September 14, 2008, the employee slipped and fell while working in the bakery department of the MarketPlace, Inc. [the employer], landing on her buttocks and possibly also striking her head on a table.  In the days following the incident, she was seen on two occasions in the emergency room of the Buffalo Hospital, complaining initially of tailbone and then also low back and mid back pain.

The employee was subsequently treated or evaluated by several other providers, including Dr. Garry Banks.  Treatment included physical therapy and medications, including narcotic medication for pain, and medial branch blocks.  Diagnostic studies included lumbar and thoracic MRI scans.  The lumbar studies were viewed as essentially normal, but the thoracic scan showed degenerative changes or herniations at T5-6 and T6-7.  Despite the unremarkable lumbar MRI, the employee’s physical therapist suspected a herniated lumbar disc.

In May of 2009, the employee was referred to Dr. Sherif Roushdy for ongoing pain management. Dr. Roushdy treated the employee for cervical, thoracic, and lumbar symptoms, administering epidural steroid injections, facet blocks, and radiofrequency ablations.  He also prescribed medication, including Dilaudid, a narcotic, Tizanidine, a muscle relaxant, and gabapentin, a medication for relieving neuropathic pain.  The employee could only refill these medications every thirty days, she had to have been seen within that period by Dr. Roushdy to obtain the refills, and she had to pick up the prescription slips from Dr. Roushdy’s clinic.[1]

In late 2009, the employee and the employer and insurer entered into a stipulation for settlement, settling all claims relating to the September 14, 2008, work injury, except for certain future treatment expenses.  In the agreement, the employer and insurer admitted liability for a lumbar injury, but they retained all available defenses to future low back treatment claims.  The employer and insurer also specifically denied that the employee had injured her thoracic spine in the September 14, 2008, incident, but the settlement agreement allowed the employee to claim future limited treatment for her alleged thoracic injury, again subject to “all defenses available” to the employer and insurer in the event of such a claim.  An award on stipulation was issued on December 18, 2009.

The employee continued to be seen at Dr. Roushdy’s office about once a month for a recheck of her back and to get her prescriptions refilled.  The employee testified that she would drive from her home in St. Michael to Dr. Roushdy’s office in Spring Lake Park and then bring her prescriptions to the Target store in Monticello to have them filled.  The distance from Dr. Roushdy’s office to the Monticello Target is apparently more than 30 miles, but the employee chose to obtain her medications at that Target because she did much of her other shopping there.  The employer and insurer never advised the employee to use a different pharmacy.  On occasion, the employee would not pick up her prescription from Target until the day after her appointment with Dr. Roushdy.  The employee was also seen at Dr. Roushdy’s clinic for treatment of a nonwork-related knee condition.

On January 10, 2011, the employee drove from her home to Dr. Roushdy’s clinic in Spring Lake Park, where she received an injection for her knee condition from a physician assistant.  The employee also saw Dr. Roushdy, who examined her back and renewed her prescriptions.  On leaving the clinic, the employee traveled west on Interstate 94.  She did not take the exit for her home but continued on the freeway and was ultimately involved in an automobile accident.  The employee was transported by ambulance to the hospital emergency room in Monticello, where she was examined and then discharged.  That same day, one of the employee’s family members or friends had the employee’s prescriptions from Dr. Roushdy refilled at the Monticello Target.  Subsequent to the accident, the employee continued to receive treatment from Dr. Roushdy for neck and back pain with radiculopathy.

The employee claimed that her need for treatment after her motor vehicle accident was a compensable consequence of her September 2008 injury.  The employer and insurer denied liability, and the matter proceeded to hearing before a compensation judge.  At hearing, the employee framed the issue as whether the treatment expenses incurred following the January 10, 2011, motor vehicle accident were “causally related, A) to the work injury of September 14, 2008, or B) a direct result of  a consequential injury sustained as a result of the motor vehicle accident on January 10, 2011.”  The employee contended that the 2008 work injury involved the employee’s thoracic spine, as well as her lumbar spine, and that the 2011 automobile accident had caused injuries to the employee’s cervical spine as well as aggravations of her thoracic and lumbar conditions.  The employer and insurer disputed the employee’s claim as to the circumstances of her motor vehicle accident and maintained that, in any event, the employee’s post accident need for treatment was not a compensable consequence of the 2008 work injury.  Evidence included the employee’s medical records and testimony and reports from Dr. Lon Lutz, the employer and insurer’s independent examiner.  The compensation judge left the record open to allow the employer and insurer to obtain an updated report from Dr. Lutz as to whether the employee’s medications were reasonable, necessary, and causally related to the 2008 work injury.

In a decision issued on May 4, 2012, the compensation judge concluded that the injuries the employee sustained in the 2011 motor vehicle accident were compensable.  The employer and insurer appeal.

STANDARD OF REVIEW

In reviewing cases 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 (2012).  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, “[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, “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.”  Id.

DECISION

The compensation judge concluded that the employee’s need for treatment following her 2011 automobile accident was a compensable consequence of her 2008 work injury.  Two underlying factual determinations led him to that result:  1) that the employee was traveling from Dr. Roushdy’s office to the Monticello Target to fill her prescriptions when the automobile accident occurred; and 2) that the prescriptions in question were reasonable, necessary, and causally related to the 2008 work injury.

The employer and insurer challenge the judge’s factual conclusions on several bases.  Preliminarily, the employer and insurer contend that the judge erred by beginning his analysis with the erroneous assumption that the employer and insurer had admitted liability for a thoracic injury, as opposed to a lumbar injury alone.  We acknowledge that the employer and insurer had denied liability for the employee’s thoracic condition and reserved their defenses to such claims in the parties’ stipulation for settlement.  We also acknowledge that the compensation judge appears to have believed that a thoracic injury had been admitted, despite the employer and insurer’s statement to the contrary in their post-trial brief.  However, the judge’s apparent confusion on this point is almost certainly due in part to the following exchange with the employer and insurer’s counsel at hearing:

It’s my understanding, counsel, and certainly correct me if I misstate any of this, but that the parties stipulate that the employee sustained an injury arising out of and in the course of her employment with the employer involving her lumbar spine.  Is there a dispute about thoracic spine, Mr. Laak?
MR. LAAK:  Judge, the nature of the 2008 injury is not at issue today and so we do stipulate, and there was a prior Stipulation for Settlement that the employee sustained an injury back in 2008, and I believe it did involve the lower back but I don’t recall the verbiage of the Stipulation.
THE COURT:  And that injury arose out of and in the course of her employment, we can agree to that.
MR. LAAK:  Correct.

More importantly, there is no medical evidence, whatsoever, to suggest that the prescriptions denied by the employer and insurer - - the Dilaudid and the Tizanidine - - were prescribed to treat the effects of the employee’s disputed thoracic condition as opposed to the employee’s admitted low back injury.  From his records, it is clear that Dr. Roushdy was treating the employee for both thoracic and lumbar symptoms, and there is nothing in those records to support the conclusion that one of the medications was intended to relieve the employee’s low back symptoms, while the other was for mid-back pain.[2]  Interestingly, Dr. Lutz, the employer and insurer’s examiner, reported that the employee had sustained a work-related thoracic injury, contrary to the employer and insurer’s litigation position, and he appears to have viewed the Dilaudid prescription as unrelated to the employee’s work injury because he assumed that the employee was taking that drug for lumbar and knee pain.[3]  As previously indicated, the employer and insurer have admitted liability for a low back injury.

In summary, the record as a whole establishes that the medications prescribed by Dr. Roushdy were intended, at least in part, to treat the employee’s 2008 admitted lumbar injury.  As such, the judge’s apparent misunderstanding as to liability for the employee’s thoracic condition requires no correction for purposes of the treatment claim at issue in this proceeding.  However, to avoid any issues as to the employer and insurer’s future liability for the employee’s thoracic condition, we vacate the judge’s finding that the employee’s alleged thoracic injury was admitted.

The employer and insurer further contend that there is “no evidence that . . . a trip to the Monticello Target was in any way necessitated by the work injury,” asserting that the employee had not run out of any of her medications.  The employer and insurer also suggest that the employee was very likely going to Monticello for other reasons, such as personal shopping.  However, the employee testified that she was on her way from Dr. Roushdy’s office to the Monticello Target to fill her prescriptions, and the judge accepted her testimony to that effect.  Decisions as to credibility are for the compensation judge.  See Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).  In addition, the employee’s testimony is supported by the evidence as to her history of refilling her medication and by the fact that the prescriptions written by Dr. Roushdy were filled shortly after the employee’s automobile accident.  The fact that the employee may not have been completely out of her medication at the time of the accident is beside the point.

The record as a whole adequately supports the compensation judge’s conclusion that the employee’s motor vehicle accident occurred as the employee was traveling from her doctor’s office to her usual pharmacy to obtain medications prescribed to treat the effects of the 2008 work injury.  The more complicated issue here is whether, under Minnesota law, the injuries the employee sustained while traveling to obtain medication were a compensable consequence of her 2008 work injury. [4]

In certain circumstances, compensation may be payable for an injury that has only a nonmedical causal connection to the employee’s original personal injury.[5]  In Minnesota, injuries occurring during travel to or from a doctor for treatment of a work injury are generally compensable.  See, e.g., Pedersen v. Maple Island, Inc., 256 Minn. 21, 97 N.W.2d 285, 20 W.C.D. 434 (1959); Fitzgibbons v. Clarke, 205 Minn. 235, 285 N.W. 528, 18 W.C.D. 380 (1939).  The Minnesota Supreme Court has characterized such cases as compensable under the “special errand” doctrine.  Hendrickson v. George Madsen Constr. Co., 281 N.W.2d 672, 31 W.C.D. 608 (Minn. 1979).  Compensation has been denied, however, for injuries occurring on a trip home from retraining,[6] during travel to attend an independent medical examination,[7] and for a heart attack precipitated by the stress of a hearing on the employee’s workers’ compensation claim.[8]  The employer and insurer in the present case argue that Pedersen and the other cases dealing with travel for medical care are not strictly applicable because, in those cases, the injuries occurred between the doctor’s office and the employee’s home, whereas the employee here was not going home after treatment but was instead traveling to obtain her medication.  Noting that the supreme court has expressed reluctance to expand the range of compensable consequences,[9] the employer and insurer argue that this court should decline to extend coverage to cases such as this one.

We are unaware of any Minnesota cases specifically dealing with injuries occurring during travel to obtain medication for a work injury.  However, after considering the rationale of this line of cases, we conclude that coverage should be granted.  As the supreme court has explained,

[T]he usual rationale advanced for allowing compensation for injuries which occur during trips to or from a doctor is that the employer has an obligation to provide medical treatment and the employee has an obligation to receive such treatment and thereby avoid further medical complications.  Id. at 674-75.  In Fitzgibbons the court reasoned that proper treatment of an employee’s injury was in the interests of both employee and employer.  205 Minn. at 236, 285 N.W. at 528.

Schander, 320 N.W.2d at 85, 33 W.C.D. at 696.  This rationale would appear to be equally applicable to cases in which an employee is traveling to obtain medication prescribed to cure and relieve him or her from the effects of the work injury.  We would also note that an employer and insurer may designate the pharmacy an employee uses to obtain such medication, subject to certain specifications.  Minn. Stat. § 176.135, subd. 1(g).  Although the employer and insurer did not exercise this authority here, the statutory right to control the pharmacy choice provides an additional connection between the trip to the pharmacy and the employment relationship.

We need not determine just how far our holding may extend - - if, for example, travel to obtain nonprescription treatment items is also a covered activity.[10]  The employee in the present case was required to see her doctor to get prescription slips for medication prescribed to treat her work-related injury.  She sustained injuries in an automobile accident on her way from her doctor’s office to her usual pharmacy, where she intended to obtain the prescribed drugs.  Pursuant to the rationale of Pedersen, the injuries the employee sustained in the motor vehicle accident on January 10, 2011, are compensable.  The judge’s finding on this issue is therefore affirmed.



[1] Apparently, prescriptions for narcotics cannot be telephoned in or sent by fax but must be written out and manually carried to the pharmacy for refill.

[2] The employee testified that she took the medications for thoracic symptoms, but she acknowledged that Dr. Roushdy also treated her low back.  In fact, Dr. Roushdy’s treatment note from January 10, 2011, discusses a modification of the employee’s gabapentin dosage due to side effects, and the employer and insurer have expressly admitted that this drug is reasonable and necessary to treat the employee’s admitted low back injury.  In addition, Dr. Roushdy described how the employee then rated her “low back” pain overall, and his diagnosis that day included “intermittent lumbar radiculopathy increased with ambulation” and “workers’ comp-related low back and mid back-related pain.”

[3] Dr. Lutz observed that the employee had “[p]ersistent thoracic axial pain secondary to work-related injury.”  (Emphasis added).  He found “no objective signs of any injury to the lumbar spine.”  As to the employee’s use of Dilaudid, “which [the employee] describes as being for treatment of low back and bilateral knee pain,” Dr. Lutz found no causal relation to the employee’s work injury, presumably based on his finding that no lumbar injury had occurred.

[4] The employer and insurer also contend that the compensation judge erred in determining the nature of the injuries the employee sustained in the automobile accident, in that such a determination was not contemplated or necessitated by the employee’s treatment claim.  We find the record ambiguous on this point and therefore decline to vacate the judge’s finding.

[5] Professor Larson indicates that qualifying injuries in this category arise in the “quasi-course” of the employee’s employment, explaining,

By this expression is meant activities undertaken by the employee following upon his or her injury which, although they take place outside the time and space limits of the employment, and would not be considered employment activities for usual purposes, are nevertheless related to the employment in the sense that they are necessary or reasonable activities that would not have been undertaken but for the compensable injury.  “Reasonable” at this point relates not to the method used, but to the category of activity itself . . . .  Quasi-course activities in this sense would include, for example, making a trip to the doctor’s office and reaching for aspirin in the medicine cabinet.  The concept of quasi-course would not, however, include playing ice hockey or engaging in a boxing match.
Once we recognize that we are dealing with a dual rather than a single problem, we are ready to go on to the next task, which is to identify an appropriate rule on range of consequence separately for each of the two categories of [subsequent] activity.
It is submitted that an appropriate pair of principles would be as follows:
When the injury following the initial compensable injury arises out of a quasi-course activity, such as a trip to the doctor’s office, the chain of causation should not be deemed broken by merenegligence [sic] in the performance of that activity, but only by intentional conduct which may be regarded as expressly or impliedly prohibited by the employer.
When, however, the injury following the initial compensable injury does not arise out of a quasi-course activity, as when a claimant with an injured hand engages in a boxing match, the chain of causation may be deemed broken by either intentional or negligent claimant misconduct.

1A. Larson and L.K. Larson, Larson’s Workers’ Compensation Law § 10.05 (2007).  (Footnote omitted.)

[6] Schander v. Northern States Power Co., 320 N.W.2d 84, 34 W.C.D. 695 (Minn. 1982).

[7] Robinson v. Honeywell, Inc., slip op. (W.C.C.A. Apr. 12, 1991).

[8] Hendrickson, 281 N.W.2d 672, 31 W.C.D. 608.

[9] See, e.g., Hendrickson, 281 N.W.2d at 675, 31 W.C.D. at 613.

[10] Also, according to Larson, the distance travelled may have a bearing on compensability.  See 1A. Larson and L.K. Larson, Larson’s Workers’ Compensation Law  § 10.07.