PETER L. DAHL, Employee/Appellant, v. RICE COUNTY and MINN. COUNTIES INTERGOV’T TRUST., INC., Employer-Insurer, and RICE COUNTY DIST. ONE HOSP., PRIMARY BEHAVIORAL HEALTH, and INJURED WORKERS PHARMACY, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 2, 2013
No. WC13-5572
HEADNOTES
MEDICAL TREATMENT & EXPENSE - DIAGNOSTIC TESTING. Where the purpose of the requested diagnostic testing was to explore possible causes of the employee’s alleged cognitive dysfunction, substantial evidence supports the compensation judge’s denial of the request where the cognitive dysfunction was not shown to be a symptom of his work injuries.
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Substantial evidence, including medical records, lay testimony, and expert medical opinion, supports the compensation judge’s denial of further psychotherapy sessions.
Affirmed.
Determined by: Stofferahn, J., Wilson, J., and Cervantes, J.
Compensation Judge: Gary P. Mesna
Attorneys: Jerry W. Sisk, Law Office of Thomas D. Mottaz, Coon Rapids, MN, for the Appellant. Timothy P. Jung, Lind, Jensen, Sullivan & Petersen, Minneapolis, MN, for the Respondents.
OPINION
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s denial of his claims for neuropsychological testing and psychotherapy treatment. We affirm.
BACKGROUND
Peter Dahl began working for the employer, Rice County, in 1992 as a deputy sheriff, and continued to work for the employer in that capacity until 2005. During his employment, the employee sustained four admitted work injuries. The employer and insurer have also admitted liability for chronic pain syndrome associated with the physical injuries.
The first injury occurred on June 23, 1996, when the employee twisted his back reaching into his squad car to retrieve files and experienced immediate low back pain. He subsequently had an L5-S1 discectomy and partial hemilaminectomy on October 11, 1996, but was able to return to work without restrictions.
His second injury was on June 24, 1999, when the employee was responding to an emergency call. He was travelling at high speed when he lost control of his squad car and went into a ditch. The vehicle rolled over but he was able to crawl out of the vehicle. The employee was taken by ambulance to the Rice County Hospital, where he reported that he struck his head on a side window and was knocked out very briefly. He was diagnosed with closed head trauma with loss of consciousness and probable mild concussion, dislocation of the left shoulder, and soft tissue trauma and abrasions. He was noted to be neurologically intact and well-oriented. He was kept overnight for observation and then discharged the following morning after a head CT failed to show any abnormalities.
At the hearing, the employee testified that after the 1999 injury he had memory problems and was frequently unable to remember phone numbers, his address, peoples’ names, and scheduled tasks. He said that while some of these issues improved over time, he never fully returned to his pre-injury functional level. He learned to compensate for memory issues by writing things down in notebooks that he kept with him.
After the 1999 injury, the employee’s low back symptoms worsened. He was treated with physical therapy and epidural steroid injections. He also had arthroscopic surgery of the left shoulder on October 8, 1999. He was returned to work without restrictions relating to his lower back on February 24, 2000.
In a chart note dated July 1, 1999, the employee’s family physician, Dr. Reed A. Johnson, noted that the employee appeared neurologically intact and “mentally ok.” The employee, however, told Dr. Johnson that his short term memory was “not very good” and that he had trouble “remembering certain things.” Dr. Johnson’s diagnostic impressions included “post concussion, memory loss.” He talked with the employee about the signs of post traumatic stress and depression, and advised him that if he developed any problems along those lines, anti-anxiety medications could be considered.
A chart note from the Allina clinic on December 13, 2001, when he had a physical, states that the employee has “no major concerns” and had recently been promoted. He continued to have “significant back pain.” The employee was seen a number of times after that for his low back pain, but there is no mention of any memory or cognitive problems in his medical records before March 2007.
The third work injury was on April 16, 2002, when the employee was part of a team executing a warrant at the home of a homicide suspect. A flash-bang grenade was thrown into the house to distract the occupants. As the employee entered, he saw that the grenade had landed near a young child present in the home. To protect the child, he grabbed her and rolled with her away from the grenade, which then went off near his head. The employee sustained moderate but permanent hearing loss in his right ear from this incident.
The employee’s low back pain continued to worsen and he began to have radiating pain into his legs. He was treated with facet injections and pain medications, but continued working at his usual job for the employer. On January 4, 2005, the employee was seen at the Noran Clinic. He reported that his pain was continuing to worsen and that physical therapy had not helped. He was noted to appear somewhat depressed.
The fourth work injury took place on August 22, 2005, when the employee was called in to the county sheriff’s office and verbally reprimanded by the sheriff over a work issue. According to the employee’s testimony, the sheriff became enraged at him and struck him in the chest, knocking him off balance. The employee fell backwards into a chair and experienced sharp pain in his low back.
The employee was seen at the Allina Medical Clinic in Faribault by Dr. Johnson the following day. He was diagnosed with an exacerbation of his degenerative disc disease and was prescribed Vicodin for pain and Lorazepam for muscle spasm. The employee was taken off work. Dr. Johnson noted that the employee was anxious and distraught about the situation with the sheriff and he was given a prescription for Lexapro.
On August 26, 2005, the employee was seen by Larry Lodermeier, a psychologist at Mental Health Professionals, for symptoms of anxiety and depression. Mr. Lodermeier initiated a program of continuing therapy sessions and saw the employee on numerous occasions until January 2011, primarily for anxiety and depression. He was also evaluated for possible post-traumatic stress disorder, resulting from what he described as the assault by the sheriff. The employee was provided prescriptions for amitriptyline and Cymbalta.
During 2005 the employee’s low back pain continued to worsen and he was treated with facet nerve blocks and physical therapy. In July 2006, Dr. Johnson saw the employee for his persistent low back pain and noted that the employee might need a pain clinic for long-term management of his pain and narcotic medications.
The employee began treating with Dr. Manuel Pinto at the Twin Cities Spine Center on September 7, 2006. A discogram confirmed lumbar disc derangement at L4-5 and L5-S1 and, on December 6, 2006, the employee underwent an anterior discectomy and fusion at L4-5 and L5-S1 with insertion of cages and bone grafting.
On March 17, 2007, at a therapy session with Mr. Lodermeier, the employee reported that he continued to be troubled by recurring images and memories relating to the assault by the sheriff in 2005. He was under financial stress and continued to experience severe depression. The employee also told Mr. Lodermeier that he had “a long history of problems on tasks requiring sustained attention which had affected him both academically and vocationally,” that he stated went back to his years in secondary school. The employee stated that his problems with concentration, memory, and other aspects of executive functioning worsened after a “near fatal MVA in which he sustained severe injuries and required 10 to 11 months to recuperate” about eight years ago. The employee had previously advised Mr. Lodermeier that he had been hospitalized three days in “ICU” as the result of the 1999 incident. Mr. Lodermeier recommended an assessment for ADHD. The assessment was interpreted as showing difficulties with attention and memory, and problems with over activity and self-concept. The employee was started on Strattera as an ADHD medication, and later given Vyvanse instead.
Sometime in 2007, the employee moved to Pennsylvania in order to start a job as a regional manager for Glock, working with law enforcement and commercial accounts, but left the job about a year later and returned to Minnesota. The employee then first started a job with Evans Group and was later employed as a regional manager by Black Hawk, a manufacturer of military and law enforcement equipment.
On his return to Minnesota, the employee also resumed treatment with Dr. Pinto. The employee told Dr. Pinto that he had recently had a recurrence of back pain. An MRI of the lumbar spine on September 5, 2008, showed a large disc herniation at L3-4. On April 13, 2009, Dr. Pinto performed a fusion at L3-4 with lumbar laminotomy, decompression and foraminotomies at the same level.
The employee’s back and leg symptoms worsened during 2010. Dr. Tetzloff, his family doctor, recommended that the employee attend a chronic pain program and referred him to Dr. Matthew Monsein at the Phoenix Chronic Pain Center for an evaluation in January 2011. During the evaluation, the employee told Dr. Monsein that he was being treated for depression and anxiety, and was taking Adderall for attention deficit disorder. He also advised Dr. Monsein that he had been diagnosed with a traumatic brain injury (TBI) as a result of the 1999 motor vehicle accident. Dr. Monsein’s impression was: “1. Chronic pain patient. 2. Chronic pain syndrome. 3. Chronic opioid use. 4. Situational depression. 5. History of traumatic brain injury.” Dr. Monsein recommended participation in the pain program for the employee with goals of reducing the use of narcotic medication, involving the employee in a structured exercise and conditioning program, and using behavioral and other cognitive approaches to help the employee handle his pain.
The employee attended the pain program from February 28, 2011, through March 18, 2011. In a letter to Dr. Tetzloff, Dr. Monsein stated that the employee had been “transitioned” from OxyContin to Suboxone and expressed an intention of tapering the employee’s use of that medication as well. Dr. Monsein also referred the employee to “our psychiatrist” to evaluate the employee’s traumatic brain injury and attention deficit disorder. After his completion of the pain clinic, the employee continued to treat at the clinic on an outpatient basis.
On September 16, 2011, the employee returned to see Dr. Tetzloff for a follow up on workers’ compensation issues. The chart notes recite a history of a motor vehicle accident in 1999 which resulted in left shoulder surgery and two back fusions, as well as a concussion “with transient loss of consciousness.” The employee stated that he “has not been cognitively the same since the accident. . . [h]e has poor concentration and his ability to learn new tasks is diminished . . . he was an honor student previously and never had problems with concentration.” Dr. Tetzloff diagnosed a post-concussion syndrome, speculating that “there may very well be a relationship between his decreased concentration and his injury.” The employee wanted to proceed with the neuropsychological evaluation that had been previously recommended by Dr. Monsein, but noted that it had been denied by the employer and insurer. Dr. Tetzloff advised the employee to arrange the evaluation through his private insurance.
In a letter dated January 15, 2012, Dr. Monsein noted his review of medical records which had been provided by the employee’s attorney, and summarized his own treatment of the employee. He opined that the employee’s depression and chronic pain syndrome were related to the work injuries, but did not consider the employee’s ADHD diagnosis or medication to be related to the work injuries. He deferred to a neuropsychologist the question of whether the employee’s memory difficulties and concentration problems might be related to a traumatic brain injury. He continued to recommend a formal neuropsychological evaluation.
The employee was evaluated on behalf of the employer and insurer by psychologist Dr. Paul Arbisi on December 29, 2011, and again on March 8, 2012, when the employee was given a battery of psychological tests. In his report, dated April 6, 2012, Dr. Arbisi diagnosed the employee as having a persecutory delusional disorder and an adjustment disorder with mixed emotional features. He also diagnosed a pain disorder due partly to psychological factors and partly to the employee’s general medical condition as well as a personality disorder with antisocial impulsive features.
Dr. Arbisi concluded that the onset of the employee’s current psychiatric conditions took place after the 2005 work incident involving the altercation with the sheriff. He offered the opinion that, from a psychological standpoint, the June 24, 1999, motor vehicle accident would have resulted only in a temporary exacerbation of the employee’s pain disorder, from which the employee would have reached maximum medical improvement upon his return to work. He did not think that the employee had developed any cognitive impairment due either to the motor vehicle accident in 1999 or to the flash-bang grenade incident in 2002. He concluded that treatment for the employee’s psychiatric conditions was unrelated to the work injuries. Dr. Arbisi did not consider the proposed neuropsychological evaluation reasonable or necessary. He also did not find the employee’s reports of problems with attention and concentration to be consistent with an attention deficit disorder.
The employee had six visits for chronic pain evaluation and neuropsychological evaluation from January 26, 2012 through March 27, 2012, with Dr. John Patrick Cronin, a psychologist at the Primary Behavioral Health Clinic. Dr. Cronin summarized his findings in his narrative reports dated April 1, 2012 and May 31, 2012, as well as in his deposition testimony taken on December 5, 2012. The neuropsychological testing was essentially normal other than showing a mild deficit in delayed memory. However, Dr. Cronin concluded that this deficit was the result of a traumatic brain injury. He associated this causally with one or another of the employee’s work injuries, although he was unwilling to offer an opinion as to which specific injury or combination of injuries might have been responsible. He further opined that the employee’s work injuries were a substantial contributing cause of the employee’s psychiatric/psychological condition, which included chronic pain, anxiety, depression and intermittent post-traumatic stress. He felt that both Lexapro and Adderall were reasonable and necessary medications in the treatment of that condition. He also recommended a further course of treatment in the form of individual psychotherapy.
Dr. Arbisi’s deposition was taken on January 14, 2013. In it, he reiterated and expanded on the opinions set out in his written report. He stated that he had extensive experience with traumatic brain injury cases in his primary job as staff psychologist at the Minneapolis Veterans’ Administration Medical Center. In Dr. Arbisi’s view, only a severe traumatic brain injury, not present in this case, would cause the kind of memory and concentration problems the employee was claiming. Here, the employee had reported only a few moments of unconsciousness after the 1999 work injury and the records from the emergency room at the hospital stated that he was neurologically intact when seen at that time. A CT scan of the employee’s head done the following day showed no significant findings. Dr. Arbisi noted that there was no unconsciousness associated with the 2002 work injury, and the 2005 work injury did not involve any injury to the head.
Dr. Arbisi opined that the 1999 and 2002 work injuries would have caused only mild concussion or mild brain trauma that would have resolved within four to six weeks, at which time the employee’s cognitive functions would have returned to their pre-injury baseline. Given the length of time that had elapsed since the 1999 and 2002 injuries, he considered the employee’s neuropsychological testing unwarranted as a diagnostic tool with respect to his work injuries. He also did not believe that the employee met the criteria for a diagnosis of a major depression or for an anxiety disorder. Dr. Arbisi concluded that further psychological or psychiatric treatment could be beneficial for the employee, but would be unrelated to the employee’s work injuries.
On January 16, 2013, Dr. Monsein saw the employee to review his current status. Dr. Monsein noted that the employee continued to complain of memory and concentration problems. Dr. Monsein diagnosed a chronic pain syndrome with situational depression and anxiety. He also considered the employee’s clinical findings potentially consistent with either post traumatic stress disorder or traumatic brain injury. However, he noted that “I cannot state within a reasonable degree of medical certainty whether Mr. Dahl’s current mental health issues, specifically his problems with concentration, memory and depression, are due to a traumatic brain injury, a posterior stress disorder, or due to depression associated with his chronic pain or a combination of factors.” Nonetheless, he opined that these problems were in any event related to the employee’s work injuries. He recommended that the employee be reevaluated for these issues at the VA Hospital in Minneapolis, because of their extensive experience with such issues.
Dr. Monsein felt that the employee’s use of Lexapro was reasonable and necessary treatment for his depression. He was unable to state whether the prescription for Adderall was related to his work injuries. He recommended that the employee pursue psychological treatment with a specialist in cognitive behavioral therapy, to consist of 10 to 15 psychotherapy sessions focused on helping the employee develop coping mechanisms to deal more effectively with his psychological stress.
A hearing was held before a compensation judge of the Office of Administrative Hearings on January 22, 2013. The primary issue before the judge was whether the employee had sustained a consequential psychological injury resulting from his work injuries. The employee also sought reimbursement for prescription drugs, including Lexapro and Adderall, for unpaid expenses for psychological treatment provided by Mental Health Professionals, and for the neuropsychological testing by Dr. Cronin. Finally, the employee sought approval for 10 to 15 additional psychotherapy sessions.
In his Findings and Order, issued March 14, 2013, the compensation judge determined that the employee had sustained a consequential psychological injury in the form of depression resulting from chronic pain syndrome associated with his work injuries. The prescription for Lexapro was held to be reasonable and necessary treatment for the employee’s depression. The judge also found that the preponderance of the evidence failed to support a finding that the employee’s attention deficit or memory problems were causally related to the work injuries and reimbursement for medication related to these conditions was denied. The judge further found that the preponderance of the evidence failed to support a finding of a significant traumatic brain injury, and that the neuropsychological testing with Dr. Cronin was not reasonable or necessary for treatment or diagnosis of the effects of the employee’s work injuries. Finally, the compensation judge found that the additional psychotherapy sessions requested by the employee were not reasonable or necessary treatment for the work injuries.
The employee appeals from the denial of his claims for neuropsychological testing and additional psychotherapy.
DECISION
1. Neuropsychological evaluation expenses
The employee appeals from the compensation judge’s denial of his claim for reimbursement of the expenses associated with the evaluation and testing done by Dr. Cronin from January through March 2012. The employee argues that the “overwhelming evidence” in this case establishes that he had cognitive problems, i.e. memory and concentration problems, ever since the 1999 injury and that evaluation was necessary to determine the cause and effect of those problems. We are not persuaded.
The evaluation and testing at issue here were done at the recommendation of Dr. Monsein as set out in his letter to the employee’s lawyer on January 15, 2012. Dr. Monsein concluded in his letter that the employee had a chronic pain problem manifested by depression but he also stated that the employee’s claimed ADD was not related to the injuries. He went on to say, “However, I would state if it is felt by the neuropsychologist that his memory difficulties and concentration problems are related to a traumatic brain injury rather than to some type of developmental issue, then my opinion would change. More specifically, the need for Adderall would be related to the diagnosis of a postconcussive syndrome.” Dr. Monsein also expressed concern about the possibility of PTSD.
In his first meeting with the employee, Dr. Monsein was given a history by the employee that he had been diagnosed with TBI after the 1999 injury. That same history was repeated in the January 2012 report written by Dr. Monsein. It is apparent that the existence of a work-related TBI was the primary factor in Dr. Monsein’s recommendation of neuropsychological testing. In fact, the employee was not diagnosed with TBI after the 1999 injury, was not told he had a TBI, but had been told he had sustained a mild concussion. As the compensation judge noted in his memorandum on this point, there is no mention in any of the employee’s medical records from 1999 until March 2007 of any type of memory or attention issues. During this time, the employee received extensive medical care for his right shoulder and low back and treated with numerous physicians. No note was made of any cognitive problems. The employee continued to be employed in his usual job as a deputy sheriff until August 2005 and received a promotion in December 2001.
Finally, the compensation judge found that his determination was supported by the expert medical opinion of Dr. Arbisi that the employee had never had TBI and did not have any cognitive difficulties as the result of his work injuries. The compensation judge expressly considered Dr. Arbisi’s opinion “the most logical and well-supported of the physician opinions.” (Memorandum at 15.) As a general rule, a finding based on the compensation judge’s choice among the experts’ opinions relating to that issue will be affirmed by this court if the opinion relied upon has adequate foundation. Smith v. Quebecor Printing, 63 W.C.D. 566 (W.C.C.A. 2003); Nerud v. Dunninck Bros. Co., 67 W.C.D. 456 (W.C.C.A. 2007). No argument has been made that Dr. Arbisi lacked foundation for his opinion.
The employee, however, argues that even if the purpose of the testing was to assess a potential non-work-related condition, it was still compensable where it would have assisted the employee’s treating doctors in their treatment of the employee’s work injury by ruling out an alternative explanation for some of the employee’s reported symptoms.
Diagnostic testing to “rule out” other possible causes for an employee’s apparently work-related symptoms may be a reasonable medical expense to be covered by workers’ compensation. Abdelrazig v. American Bottling Co., No. WC06-166 (W.C.C.A. Nov. 16, 2006). Here, however, the apparent connection between the symptoms to be explored and the work injury was provided by an incorrect assumption on the part of the medical provider making the recommendation for further testing, specifically an assumption that the employee had been diagnosed with TBI. Whether the purpose of diagnostic testing is to rule out other causes of work-related symptoms or, instead, is only to help diagnose a non-work condition is a question of fact for the compensation judge. Stolp v. Cardinal Drywall, Inc., slip op., (W.C.C.A. July 19, 1994).
The compensation judge’s denial of the claim for reimbursement of neuropsychological testing and evaluation has substantial support in the record, and we affirm.
2. Additional psychotherapy expenses
The compensation judge denied the employee’s claim for 10 to 15 psychotherapy sessions as recommended by Drs. Cronin and Monsein. Dr. Monsein made this recommendation in his report of January 16, 2013, where he stated that with regard to the memory issues that required treatment “whether his memory issues are due to a traumatic brain injury or to PTSD or to his depression or to a combination of these factors.” Dr. Monsein advised that the employee treat with a psychologist “who has expertise in cognitive behavioral therapy” to help the employee learn coping mechanisms “to deal more effectively with the psychological distress that he is currently experiencing.”
In his memorandum, the compensation judge discussed his reasoning on this issue. He noted that while both Dr. Cronin and Dr. Monsein had recommended additional therapy, it was unclear whether both were recommending the same form and duration of therapy. He noted also that much of the stated basis for the treatment was for the employee’s claimed cognitive difficulties, difficulties that he had found not to be related to the work injuries. He stated also that “the goal for additional psychotherapy sessions is unclear.”
The employee argues, however, that the recommended further psychological treatment was not limited to addressing the traumatic brain injury and ADHD conditions denied by the compensation judge, nor was it clearly limited only to treatment of cognitive issues. Rather, he contends it was “multifactorial,” intended to treat interrelated psychological and cognitive issues associated with several conditions, including the admitted chronic pain syndrome and the employee’s depression. The employee further argues that the goals of the treatment being recommended were sufficiently clear. He points to language in the physician’s reports noting that additional psychotherapy could help him learn “coping mechanisms” to assist him in dealing with his psychological stress.
We do not see that the compensation judge denied the proposed treatment from a misreading of the recommendations. Instead, the judge found the specific recommendations too unclear to establish the employee’s claim for reasonable and necessary treatment.
In his reports and deposition testimony, Dr. Cronin referred to “continuing” the therapy modalities the employee had already been receiving, including the pain clinic treatment with Dr. Monsein, while Dr. Monsein specifically recommended what appears to be a new treatment modality with a specialist in cognitive behavioral therapy. The compensation judge reasonably saw these recommendations lacking in clarity as to the specific treatment being proposed. The judge also factored into his consideration the lack of a clear explanation of the causation between the work injuries and the employee’s various accepted and rejected conditions, as well as the expert opinion of Dr. Arbisi, who opined that the employee needed further psychological treatment for essentially the same complex of symptoms, but that such treatment was entirely unrelated to the work injuries. The compensation judge also noted that the employee had previously completed an in-patient pain clinic program and there was no explanation as to why this recommended program’s goal of teaching the employee “coping skills” had not already been accomplished in that program. Taking the evidence as a whole, we cannot say that the judge clearly erred in finding that the employee had failed to prove that additional psychological treatment was reasonable and necessary at this time.
The compensation judge’s decision is affirmed.