The employee appeals from the compensation judge’s decision denying the employee’s claims for various medical benefits arising after Dr. Brian Konowalchuk’s November 23, 2010, report, including prescription co-pays, medical mileage, and a referral to Dr. Elizabeth Weinman.  We affirm.

This case has a long and complicated procedural history.  For a complete discussion of the prior litigation history, see this court’s previous decisions in Jaynes v. Golden Crest Nursing Home, No. WC05-153 (W.C.C.A. Oct. 13, 2005) and Jaynes v. Golden Crest Nursing Home, No. WC06-190 (W.C.C.A. Dec. 13, 2006).

The employee, Hannah Jaynes, worked as a licensed practical nurse for the employer, Golden Crest Nursing Home.  On December 20, 2003, the employee sustained an injury to her right shoulder when she attempted to catch a falling patient in the course of her work for the employer.  The injury was initially admitted.

Before her injury on December 20, 2003, the employee had experienced previous right shoulder issues.  She underwent a right shoulder surgery on October 20, 2000, in the nature of a right shoulder diagnostic arthroscopy and arthrotomy, with excision of the lateral clavicle, acromioplasty, and exploration of the rotator cuff.  The compensation judge found that, other than some intermittent pain, the employee’s right shoulder had not given her any problems leading up to the injury on December 20, 2003.

Since the injury on December 20, 2003, the employee has treated, primarily, for her right shoulder with her family physician, Dr. Mitch Cardwell.  The employee has undergone numerous diagnostic scans of the right shoulder.  She also underwent a right shoulder surgery on May 11, 2004, which included a diagnostic arthroscopy of the right shoulder joint and glenohumeral joint, along with subacromial decompression.  However, as the compensation judge found, the employee’s right shoulder condition failed to improve.  The employee underwent another right shoulder surgery on January 10, 2006, which included arthroscopy of the glenohumeral joint, subacromial decompression, and excision of bursa scar tissue and a large piece of anterior acromion.

Following the second surgery, the employee continued to have ongoing complaints of pain.  In June 2006, Dr. Cardwell placed the employee under an agreement to control the employee’s prescription medications, which then included Percocet and Zanaflex.

In the spring of 2007, the parties entered into a full, final, and complete settlement of the employee’s claims.  The settlement closed out all benefits, with the exception of certain future medical treatment related to the employee’s work injury.  The closed medical treatment included “inpatient chronic pain treatment expenses” and “treatment with the MAPS Clinic.”

The employee continued to treat with Dr. Cardwell for right shoulder pain.  In January 2008, Dr. Cardwell told the employee that she was going to have to live with some crepitation in her shoulder.  He believed that surgery would not improve the employee’s clicking and popping sensations, which she was having at that time.

In February 2008, the employer and insurer requested that Dr. Cardwell issue information regarding the employee’s status, and he noted a belief that the employee was “redosing herself” with her medication and having “dose response” pain.  The employee was taking Percocet at that time, and Dr. Cardwell mentioned a possibility of changing the employee’s medication to Lyrica or Neurontin.  The employee had an allergy to Ocycodone, so she was started on Oxycontin as of March 2, 2008.

In June 2008, Dr. Cardwell referred the employee for a visit with physical medicine and rehabilitation specialists Dr. Daniel Wallerstein and Dr. Elizabeth Weinman.  The employee was still complaining of right shoulder pain, and she wanted an increase in her pain medications at that time.  The employee saw Dr. Weinman on August 19, 2008.  The employee was given a corticosteroid injection into the right AC joint and referred for physical therapy.  The employee began physical therapy at Hibbing Family Medical Clinic in September 2008.  After visits on September 17, 2008, September 19, 2008, and September 24, 2008, the employee was a no-show for her next visits.  When contacted by her therapist on October 6, 2008, the employee said she felt her shoulder pain had increased with therapy, and she did not wish to proceed with any additional physical therapy.

The employee continued treating with Dr. Cardwell.  The treatment included ongoing prescriptions for Oxycontin.  As of February 4, 2009, Dr. Cardwell wanted the employee to see a joint specialist.  If nothing further could be done to improve her condition, Dr. Cardwell would find the employee at MMI.  He continued to refill the employee’s prescription medications.

The employer and insurer approved a second opinion with Dr. Daniel Buss, a sports medicine and shoulder specialist.  The employee saw Dr. Buss on April 30, 2009.  He diagnosed the employee with right shoulder pain and a deltoid defect secondary to two prior surgical interventions.  He recommended no further surgical intervention, but he did recommend home-based physical therapy, and he referred the employee back to Dr. Cardwell for pain management.  Dr. Cardwell then referred the employee to Dr. Wallerstein to assess the employee’s functional capacity.  As of June 18, 2009, Dr. Wallerstein released the employee to work with gradually increasing activity aimed at returning the employee to her regular shift.  He agreed with Dr. Buss’s recommendations, and instead of multiple physical therapy visits, Dr. Wallerstein discussed an exercise program that the employee could use.  Dr. Wallerstein agreed that the employee should use a Lidoderm patch.  He also recommended ongoing Oxycontin, but only twice daily, and Zanaflex two or three times daily.

On June 26, 2009, the employee returned to Dr. Cardwell for refills of her medications.  In follow up on August 7, 2009, Dr. Cardwell advised the employee that she was taking a high dosage of narcotics, and he was concerned that they would have to start treating addiction.  Nonetheless, the employee continued to treat with Dr. Cardwell and complain of ongoing shoulder pain.  As of April 7, 2010, the employee’s prescriptions included Neurontin, Oxycontin, Oxycodone, Zanaflex, and Lidoderm patches.  Dr. Cardwell indicated that he would plan on setting up an appointment with Dr. Weinman for a possible Botox injection.

On June 28, 2010, the employee saw Dr. Brian Konowalchuk, M.D., M.P.H., for an independent medical examination at the request of the employer and insurer.  The compensation judge described Dr. Konowalchuk as an occupational and rehabilitation specialist.  The employee reported that she was not involved with any specific exercise program because she could not exercise.  Dr. Konowalchuk obtained a history from the employee and reviewed her extensive medical records, which dated back to 1970, and he conducted a physical examination of the employee.  Dr. Konowalchuk opined that the employee’s medication use was attributable to chronic pain issues that predated her December 2003 injury.  Therefore, the employee’s use of pain medication was not attributable to the work injury.  Dr. Konowalchuk indicated that the employee’s chronic pain could be treated through a chronic pain clinic and a psychologist, but all of this treatment would not be related to the employee’s December 2003 injury.  Dr. Konowalchuk also recommended continued home exercise for shoulder strength and motion.

The employee continued to treat with Dr. Cardwell, and on November 8, 2010, Dr. Cardwell noted a belief that he would have to monitor the situation closely, and he did not want to keep escalating the employee’s medication usage.  He informed the employee that he would set up an appointment with Dr. Weinman to try something such as non-narcotic treatment for the employee’s right shoulder pain.

Dr. Konowalchuk issued a supplemental report dated November 23, 2010.  He again indicated that the employee’s narcotic medications and other medications were not reasonable or necessary and were not causally related to the employee’s December 2003 work injury.  He further opined that the employee suffered from multiple lifetime pain disorders that were unrelated to her work injury.  Regardless, Dr. Konowalchuck opined that the employee “would benefit from discontinuation of narcotic medication” and, if anything, she should consider some type of pain program.

On December 10, 2010, the employee saw Dr. Cardwell to request a refill of pain medication.  She also requested a letter to her insurance company responding to Dr. Konowalchuk’s report.  Dr. Cardwell issued a letter dated December 18, 2010.  He disagreed with Dr. Konowalchuk’s conclusions and opinions, except for an indication that the employee would benefit from chronic pain management at a pain management center.

The employee returned to see Dr. Weinman on December 28, 2010.  Following a history and examination, Dr. Weinman encouraged the employee to resume range-of-motion exercises, which the employee had not been doing.  The employee was referred for physical therapy.  Dr. Weinman also prescribed Cymbalta with relation to diagnosis of depression.  The employee underwent a corticosteroid injection into the right shoulder as well.

The employer and insurer later denied the employee’s December 28, 2010 request for physical therapy, referencing Dr. Konowalchuk’s November 2010 report.

The employee continued treating with Dr. Cardwell.  This included ongoing prescription medications.  Dr. Cardwell continued refilling the employee’s medications through the date of hearing.  Dr. Cardwell also issued letters in August and September 2011.  Dr. Cardwell responded to questions from the employee’s attorney, stating that the employee’s prescriptions were related to the employee’s injury of December 20, 2003.

The current dispute and litigation center on a medical request that was initially filed on May 5, 2011.  The medical request sought payment of medical bills at St. Luke’s Physical Medicine and Rehabilitation Associates, and for Dr. Mitch Cardwell, the employee’s primary physician, at Hibbing Family Medical Clinic.  The employee was also requesting ongoing treatment expenses with Dr. Cardwell, prescription medical expenses, and out-of-pocket expenses for prescription medications and mileage for trips to clinics and pharmacies.  The medical request also sought a “referral to Dr. Weinman for pain management per Dr. Cardwell’s recommendation.”  The employee amended the medical request in August 2011 and March 2012, and her claims included a request for payment for prescription medications, including Neurontin, Trazadone, Oxycodone, Oxycontin, Baclofen, and Lidoderm patches.

The employer and insurer have denied the employee’s medical requests arguing, in part, that the employee’s requested treatment was not reasonable or necessary and that it exceeded the Minnesota treatment parameters.  The employer and insurer based their argument, in part, on the independent medical reports of Dr. Brian Konowalchuk.

The matter came on for hearing on May 18, 2012.  In his findings and order, the compensation judge listed the following statement of issues:

The compensation judge was presented with numerous medical records and reports, including reports from Dr. Konowalchuk, and he heard testimony from the employee at hearing.  At hearing, the employee objected to foundation for Dr. Konowalchuk’s reports.  In particular, counsel for the employee stated that Dr. Konowalchuk “is not a psychological or psychiatric care provider, therefore there is no foundation for his opinion which is psychological in nature.”  The compensation judge overruled the objection to foundation.

In findings 62, 63, and 64, the compensation judge found that the employee failed to show that the co-pays sought from December 10, 2010, and after, medical mileage after November 2010, and a referral to Dr. Weinman were “reasonable or necessary to treat the employee from the effects of her December 20, 2003 work injury.”  Thus, the requested medical expenses were denied.

In his memorandum, the compensation judge indicated that he had adopted Dr. Konowalchuk’s findings and opinions, primarily from his report of November 23, 2010.  The compensation judge also indicated that he had found the employee’s testimony to be non-credible, and he referenced concerns about the number of Oxycontin the employee was taking per month.  The compensation judge also noted “Dr. Konowalchuk’s opinions on the unreasonableness of employee being prescribed the pain medications.”  The judge felt that the medical records supported Dr. Konowalchuk’s view that the employee’s chronic pain, for which she was being prescribed pain medications, was unrelated to the December 2003 injury.  In addition, the compensation judge noted that the referral to Dr. Weinman, which was based upon Dr. Cardwell’s belief that the employee could benefit from a chronic pain program, had been closed out in the employee’s prior settlement.

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.  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 Foods 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.

The employee argues that Dr. Konowalchuk’s opinions lacked foundation to the extent that he diagnosed the employee with any type of chronic pain condition.  The employee raised objections to the foundation for Dr. Konowalchuk’s opinions at the hearing, arguing that because Dr. Konowalchuk is not a psychologist or psychiatrist, he should not have issued a diagnosis regarding any type of chronic pain condition.  The compensation judge overruled the employee’s objections with regard to foundation.  On appeal, the employee argues that a chronic pain condition would be a complex medical or psychological/psychiatric condition that Dr. Konowalchuk was not qualified to address.

Foundation goes to the competency of a witness to provide an expert opinion, which is dependent on the witness’s scientific knowledge and practical experience with the subject matter of the offered testimony.  Drews v. Kohl’s, 55 W.C.D. 33, 37-38 (W.C.C.A. 1996), summarily aff’d (Minn. July 11, 1996) (citing Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983)).  Inclusion or exclusion of expert testimony lies within the discretion of the trial judge.  Reinhardt, 337 N.W.2d at 93 (citations omitted).  Dr. Konowalchuk obtained a history from the employee, reviewed her medical records, dating back to the 1970s, and conducted a physical examination of the employee.  This level of knowledge is sufficient to afford foundation for the opinions of a medical expert.  See, e.g., Caizzo v. McDonald’s, 65 W.C.D. 378 (W.C.C.A. 2005).

The employee’s arguments regarding Dr. Konowalchuk’s qualifications go to the weight of the evidence, and not the foundation for his opinions.  See Ruether v. State, Mankato State Univ., 455 N.W.2d 475, 477, 42 W.C.D. 1118, 1121 (Minn. 1990) (stating that questions regarding the qualifications of an expert do not usually go to the admissibility of the expert’s opinion but merely to its weight).  It is within the compensation judge’s discretion to assess the weight and sufficiency of a medical expert’s opinion.  Id. at 477-78, 42 W.C.D. at 1121-22.

The employee made her objections to Dr. Konowalchuk’s qualifications known with regard to a possible chronic pain diagnosis.  Those arguments concern the weight to be given to Dr. Konowalchuk’s opinions.  Because Dr. Konowalchuk’s opinions had sufficient foundation, we will not disturb the compensation judge’s decision with regard to the weight he chose to assign to Dr. Konowalchuk’s opinion.

The employee further argues that the compensation judge impermissibly expanded the issues to include causation by adopting Dr. Konowalchuk’s IME opinions, especially to the extent that Dr. Konowalchuk diagnosed the employee with a chronic pain condition or related ongoing treatment to a pre-existing condition.

A “compensation judge’s decision shall include a determination of all contested issues of fact and law” but may not resolve matters that are not at issue.  See Minn. Stat. § 176.371; Carroll v. Honeywell, Inc., slip op. (W.C.C.A. Mar. 31, 1992).  It is well settled that the employee has the burden of proving that any claimed medical expenses were reasonable, necessary, and causally related to the work injury.  See, e.g., Kroells v. Cemstone, Inc., No. WC06-212 (W.C.C.A. Mar., 23, 2007) (citing Adkins v. University Health Care Ctr., 405 N.W.2d 231, 39 W.C.D. 898 (Minn. 1987)).  The reasonableness and necessity of medical treatment or expenses under Minn. Stat. § 176.135 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).

It is the function of the compensation judge to resolve conflicts in expert medical testimony, and his or her choice of expert opinion is usually upheld unless the facts assumed by the expert in rendering the opinion are not supported by the evidence.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are upheld.  See Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).

Dr. Konowalchuk noted the employee’s extensive history of treatment both before and after the 2003 injury and opined that “any current medical treatments, including multiple pain medications, are more related to her longstanding difficulties with pain tolerance and control.”  His ultimate opinion was that the employee’s ongoing medical treatment and expenses, including the prescription and narcotic medications, were “not reasonable and necessary and causally related to the . . . injury on December 20, 2003.”

We conclude that the compensation judge did not impermissibly expand the issues to include causation or a pre-existing, complex condition by crediting Dr. Konowalchuk’s opinions.  The compensation judge did not make a finding regarding the causation of the injury itself.  In fact, his key findings, 62, 63, and 64, do not reference causation.  Rather, the compensation judge found that the treatment at issue was not reasonable and necessary with relation to the employee’s injury.  As the employee concedes in her brief, Dr. Cardwell’s “medical records repeatedly express his concern about the employee’s narcotic medication use.”  Furthermore, regardless of Dr. Konowalchuk’s opinions involving causation, to the extent that they do involve causation, it is clear that Dr. Konowalchuk found that continued use of the medications at issue to be unreasonable and necessary, and he repeatedly recommends weaning off the medication regimen at issue here.  Therefore, his opinions provide adequate support for the compensation judge’s determination that the medications at issue were no longer reasonable and necessary with relation to the December 2003 injury.

The employee also argues, essentially, that the requested referral to Dr. Weinman was not a referral for treatment in a chronic pain program.  She argues that Dr. Cardwell was referring the employee “to Dr. Weinman to see if there were additional treatment options other than the narcotic and non-narcotic management.”  However, the employee had already been to multiple prior consultations with Dr. Weinman, and those visits had not changed the employee’s treatment regime significantly, especially with regard to her medication usage.  In addition, as noted by the compensation judge, Dr. Cardwell had indicated that he was referring the employee to Dr. Weinman for consideration of a pain program, and this type of treatment is likely closed out by the stipulation for settlement.^[1]  As such, the compensation judge’s conclusion that an additional referral to Dr. Weinman was not reasonable and necessary with relation to the December 2003 injury is supported by substantial evidence.

The employee bears the burden of showing that treatment is not only reasonable and necessary but related to the injury as well.  Here, the compensation judge found that the ongoing treatment at issue, including the ongoing medication regimen, was not reasonable and necessary with relation to the December 2003 injury, and his consideration of that issue inherently involved a consideration of whether the treatment is related to the injury or not.  Because the compensation judge’s decision is supported by substantial evidence, including Dr. Konowalchuk’s well-founded opinion, we affirm.

The employee focuses a great deal of her arguments, including her challenges to the substantial evidence supporting the compensation judge’s findings, on pharmacy records that were not submitted to the compensation judge at the hearing.  For example, the employee argues that certain pharmacy records would provide the “best evidence” of the number of Oxycontin the employee was taking per month, and, as such, the compensation judge erred in finding that the employee was taking 180 Oxycontin per month and in finding that the employee was not credible.  The employer and insurer have moved to strike consideration of these pharmacy records on appeal because they were not submitted before the compensation judge.

This court’s function is to review the record created at the hearing before the compensation judge and to determine whether substantial evidence supports the compensation judge’s decision.  In reviewing cases on appeal, this court is limited to examination of the transcript of the hearing and evidence submitted to and considered by the compensation judge.  See Minn. Stat. § 176.421, subd. 1.  On appeal, this court may not consider evidence that is not contained in the record below.  Gollop v. Shale H. Gollop, D.D.S., 389 N.W.2d 202, 203, 38 W.C.D. 757, 758 (Minn. 1986); Glasgow v. Franciscan Health Cmty., No. WC04-334 (W.C.C.A. May 2, 2005).  On occasion, this court may reopen proceedings in light of newly discovered evidence, pursuant to Minn. Stat. § 176.461.  However, the employee has not petitioned this court to set aside the compensation judge’s decision as required by Minn. Stat. § 176.461.  In addition, newly discovered evidence is evidence that was in existence at the time of the award but was not discoverable through the exercise of due diligence.  See Sorenson v. Nelson County Mkt., slip op. (W.C.C.A. Oct. 23, 1991).

The pharmacy records in question were presumably available to the employee at the time of the hearing, and she does not argue to the contrary, but those records were not presented to the compensation judge.  As such, we deny the employee’s request to consider evidence not introduced at hearing before the compensation judge.^[2]

Furthermore, it is not the role of this court to assess credibility or draw a different inference from the evidence than the compensation judge has done.  See Perez v. Arby’s Restaurant Group, No. WC11-5273 (W.C.C.A. Sept. 12, 2011) (citation omitted).  The medical records do show that the employee received ongoing prescriptions from Dr. Cardwell, although he continued noting concerns about ongoing usage.  Furthermore, the compensation judge primarily relied on Dr. Konowalchuk’s November 2010 report indicating that the employee would benefit from discontinuing her narcotic medications and that any ongoing prescription medication usage was not reasonable or necessary with relation to the December 2003 injury.  As such, neither the employee’s credibility nor the amount of Oxycontin she was taking was the deciding factor in the compensation judge’s decision.