The employee appeals from the compensation judge’s determination that the medication, BuSpar, which the employee has been taking under a prescription from Dr. Curran with Primary Behavioral Health Clinic, is not reasonable, necessary, and causally related to the employee’s work-related injury of August 21, 2003.  We affirm.

The employer and insurer cross-appeal from the compensation judge’s determination that the mental health treatment at issue, which was provided by Primary Behavioral Health Clinic, was reasonable, necessary, and causally related to the employee’s work-related injury of August 21, 2003.  We affirm.

The employee, Martin T. Moore, sustained three separate injuries while working for the employer herein, which the Office of Administrative Hearings and the parties have referred to as Owner Operator Resources d/b/a Premier Resources or Big Timber Wood throughout the proceedings.  The employer has been insured through the Minnesota Assigned Risk Plan, with claims administered by Berkley Risk Administrators Company, LLC.  The injuries occurred on July 21, 2003, August 21, 2003, and January 16, 2004.  Although the pleadings identify the three injury dates listed above, the employee testified at hearing that the August 2003 injury was the significant injury contributing to his mental health issues.

On August 21, 2003, while working for the employer, the employee was staining wood on the second floor of a building.  He fell through a trap door and landed approximately 16 feet below.  As a result of the fall, the employee sustained multiple injuries, including a low back fracture, depressed skull fracture, left rib fracture, broken left shoulder, and head laceration.  The employee struck his head on either an air compressor or the trap door, and in an unappealed finding, the compensation judge noted that the employee “momentarily lost consciousness.”

The employer and insurer initially admitted the August 2003 injury.  The employee subsequently claimed that he sustained a consequential psychological injury as a result of the August 2003 injury.  The current litigation involves treatment the employee has received at Primary Behavioral Health Clinic, Inc., and whether that treatment was reasonable, necessary, and causally related to the employee’s work-related injuries.^[1]

The employee treated with his family physician, Dr. Alden Tetlie, in 2002 and 2003 for problems with stress and an inability to focus relating to both his job and his family situation.  In December 2002, Dr. Tetlie prescribed 40mg of Celexa for the employee.  Dr. Tetlie noted that the employee’s symptoms at that time were consistent with symptoms of depression.  The employee continued taking Celexa up to the August 2003 injury, and he continued to take Celexa after the injury.

The employee has been treating with a psychologist, John Cronin, at Primary Behavioral Health Clinic, Inc., consistently since 2005.  In a report, dated October 12, 2006, Dr. Cronin opined that the employee had a diagnosis of pain disorder associated with both a psychological factor and a general medical condition and cognitive disorder “NOS.”  Dr. Cronin noted that the employee had no significant ongoing headaches, neck, or back pain before the August 2003 work injury.

The employee has also been treating with a psychiatrist, Dr. John Curran, at Primary Behavioral Health.  The employee has essentially seen Dr. Curran twice a year for evaluation, a brief mental status exam, and evaluations regarding renewal of prescription medications, including Celexa and BuSpar.  Dr. Curran first prescribed the BuSpar on May 15, 2007, noting that the employee was anxious, irritable, and having obsessive thoughts.  Although he has tried some other medications and there have been some adjustments to his prescription and dosage, the employee has continued to take Celexa since his injury date.

At the request of the employer and insurer, the employee was seen by board certified psychiatrist Dr. Thomas Gratzer on two occasions:  June 6, 2007, and December 14, 2011.  As a part of these examinations, Dr. Gratzer also had MMPI tests administered.  Dr. Gratzer primarily diagnosed the employee with generalized anxiety disorder based, in part, on the employee’s description of his history, his examination and testing, and on Dr. Gratzer’s review of the records provided to him.  Dr. Gratzer also noted that Celexa is effective in treating generalized anxiety disorder and that the employee had been taking Celexa prior to the August 2003 work injury.

Dr. Gratzer gave a deposition on March 23, 2012.  He explained that the employee’s MMPI testing was suggestive of exaggerated somatic complaints.  Ultimately, Dr. Gratzer concluded that the employee’s work injury was not a substantial contributing factor in the employee’s mental health problems, which included generalized anxiety disorder and psychosomatic complaints.

The employee continued to treat with Primary Behavior Health.  Since 2005, the employee had undergone “nine tests in the course of a chronic pain evaluation.”  Dr. Cronin issued a report, dated February 16, 2012, in which he agreed that the employee suffered from anxiety.  However, Dr. Cronin believed that the employee’s problems were more pervasive than Dr. Gratzer had opined.  Specifically, Dr. Cronin opined that the employee had chronic pain syndrome with depression and anxiety, all of which were causally related to his work-related injury of August 21, 2003.

The case came on for hearing on March 30, 2012.  After receipt of written post-hearing briefs from both parties, the record closed on April 20, 2012.  The compensation judge also reviewed the medical records presented, including the reports from Dr. Gratzer and Dr. Cronin.  He also heard testimony from the employee.  The compensation judge determined that the employee testified credibly that he experienced pain on a daily basis due to his August 2003 work injury and that the treatment through Primary Behavioral Health helped him deal with chronic pain and depression associated with his August 2003 injury.  The compensation judge noted that the mental health treatment at Primary Behavioral Health Clinic had two components:  psychological counseling with Dr. Cronin and medication management with Dr. Curran.

The compensation judge concluded that both the medication management and psychological counseling were reasonable and necessary to cure or relieve the employee’s mental health condition.  Therefore, the compensation judge determined that the treatment provided at Primary Behavioral Health Clinic had been reasonable, necessary, and causally related to the employee’s work-related injury of August 21, 2003.

However, the compensation judge denied payment for the BuSpar prescription.  He based the denial on Dr. Gratzer’s opinion that although treatment with the prescription medication BuSpar, which is marketed toward treating anxiety, may have been reasonable and appropriate, it was not necessary because of the employee’s stability on Celexa.  In addition, the compensation judge noted that Dr. Cronin, in his February 2012 report, had deferred his opinion on the employee’s medications to the treating psychiatrist and physicians.  As such, the employee had not submitted any medical support for the BuSpar prescription.

The employee filed the initial appeal in this matter, contesting the compensation judge’s denial of the BuSpar prescription.  The employer and insurer filed a cross-appeal arguing that the compensation judge erroneously shifted the burden of proof to the employer and insurer, essentially requiring them to “disprove” the employee’s entitlement to medical treatment.

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.

“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.”  Krovchuk v. Koch Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

In his appeal, the employee argues that the employer and insurer never formally raised a dispute about the prescription for BuSpar.  As such, the employee argues that the compensation judge erred in denying payment for BuSpar as it was beyond the scope of the issues presented at hearing, and the compensation judge’s denial of that prescription deprived the employee of his right to properly litigate that issue.

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).  In conducting a hearing, “the compensation judge is bound neither by the common law or statutory rules of evidence nor by technical or formal rules of pleading or procedure.”  Minn. Stat. § 176.411, subd. 1; Bey v. Oxford Properties, Inc., 481 N.W.2d 40, 42, 46 W.C.D. 198, 201 (Minn. 1992).  Fundamental fairness requires that parties be afforded reasonable notice and an opportunity to be heard before decisions concerning entitlements to benefits can be made.  Kulenkamp v. TimeSavers, Inc., 420 N.W.2d 891, 894, 40 W.C.D. 869, 872 (Minn. 1988).

The medical treatment at issue in this case changed and evolved during the course of this litigation.  In his initial medical request, the employee was seeking payment for a prescription relating to low testosterone and payment for mental health counseling at Primary Behavioral Health.  No mental health prescriptions were listed in the medical request.

By the time the employee filed his pretrial statement, he listed the following issue:  “Reasonableness and necessity of the treatment provided by Family Health Services, Primary Behavioral Health Clinic, and the treatment recommended by these providers.”

Dr. Gratzer did issue opinions on the reasonableness and necessity of the BuSpar prescription.  For example, during his deposition, which took place shortly before the hearing, Dr. Gratzer responded to questions about BuSpar.  He opined that it would likely be ineffective to control the employee’s anxiety, and he did not feel that the BuSpar was necessary given the fact that the employee’s anxiety was well-managed with Celexa.  There were no objections to this line of questioning or Dr. Gratzer’s discussion of BuSpar.

Furthermore, counsel for the employee specifically asked Dr. Cronin to address Dr. Gratzer’s opinion that the treatment with BuSpar was reasonable and appropriate but not necessary given his stability on Celexa.  In his February 16, 2012 report, Dr. Cronin indicated that he would defer opinions regarding the employee’s medication regime to the employee’s psychiatrist or other physicians.

At hearing, counsel for the employer and insurer indicated that the “primary issue is that of liability for the alleged psychological or mental health injury that the employee claims in this case.”  Counsel for the employer and insurer went on to state:

The employee testified that he was suffering from chronic pain related primarily to the injury of August 21, 2003.  Counsel for the employee argued that the August 2003 injury was “the main driving force behind the treatment that’s in issue here.”  Counsel for the employee also stated that Dr. Curran “decides if he’s going to renew [the employee’s] medications which are not only Celexa there’s other ones as well which are not in issue today apparently.”  The compensation judge asked if the employee was claiming that there were other medical bills to be paid other than those at Primary Behavioral Health Clinic, and counsel for the employee responded, “no.”

Following the hearing, the parties also submitted written closing arguments.  In their closing argument, the employer and insurer argued that BuSpar was not reasonable or necessary given Dr. Gratzer’s opinions.  Counsel for the employee did not object to or respond to the discussion of BuSpar in the closing arguments.

In his findings and order, the compensation judge gave the following summary of the issues:

Again, the compensation judge is not bound by the rules of evidence or formal pleading, which is why the medical issues in this case continued to evolve over time.  See Minn. Stat. § 176.411, subd. 1.  In fact, by the time of the hearing, the only issue that had been formally pled by the employee was his general claim for treatment provided by the Primary Behavioral Health Clinic.  He did not list any specific mental health prescriptions in his medical request or pretrial statement.  The employer and insurer denied all treatment through Primary Behavioral Health.  Therefore, as indicated by the compensation judge’s summary of the issues, he was considering all of the treatment provided through Primary Behavioral Health Clinic.  If that general issue included the prescriptions for Celexa, as the employee argues, it also should have included the prescriptions for BuSpar.

In his brief, the employee references Fast v. L.E. Meyers Co., slip op. (W.C.C.A. Aug. 12, 1996) to support of his argument that the compensation judge should not have addressed the BuSpar prescription.  However, the Fast case is distinguishable.  In Fast, the employee was seeking only those penalties for untimely payment pursuant to Minn. Stat. § 176.225, subds. 1 and 5.  The compensation judge awarded those penalties to the employee.  However, he imposed additional penalties payable to the Assigned Risk Safety Account, pursuant to Minn. Stat. § 176.221, subd. 3, and the judge amended the caption of the case to include the Commissioner of the Department of Commerce and the Commissioner of the Department of Labor and Industry as “Parties in Interest.”  On appeal, this court reversed the penalties payable to the Assigned Risk Account because the only penalty claim before the compensation judge was the employee’s claim for penalties, and neither the employee nor anyone else at the hearing, including the judge himself, raised the possibility of a penalty payable to any other entity.  In other words, the compensation judge spontaneously awarded penalties that had never been addressed by any of the parties to the case.  Here, by contrast, the compensation judge was asked to determine, in general, the employer and insurer’s liability for treatment provided by Primary Behavioral Health Clinic.  The prescriptions fall within that general issue.

The employee also argues that he did not have an opportunity to present evidence regarding the reasonableness and necessity of BuSpar, including a report from his treating physicians.  However, he did not present any evidence in support of the reasonableness and necessity of Celexa either.  He only presented Dr. Cronin’s report in support of the relatedness of the employee’s mental health condition to the work injury, in general, but Dr. Cronin actually deferred any opinion on the employee’s medications.

Based on the circumstances of this case and the information presented to the compensation judge, including the overall dispute regarding treatment provided by Primary Behavioral Health Clinic (which would have included BuSpar prescriptions), Dr. Gratzer’s opinions, the pretrial statements, the discussions of the issues at hearing, and the closing arguments, it was reasonable for the compensation judge to determine that the BuSpar prescription was at issue as a part of the treatment provided by Primary Behavioral Health Clinic.  Therefore, we affirm.

In their cross-appeal, the employer and insurer argue that the compensation judge’s statement that “Dr. Gratzer’s IME medical opinions provide insufficient medical support for the denial of the employee’s claims” imposed a burden on the employer and insurer to provide sufficient medical support in order to deny the employee’s claims.  They further argue that the compensation judge’s discussion of “insufficient medical support” suggests that the compensation judge found Dr. Gratzer’s opinions to be lacking in foundation.

The employee bears the burden of proving by a preponderance of the evidence that he is entitled to workers’ compensation benefits.  See, e.g., Fisher v. Saga Corp., 463 N.W.2d 501, 501, 43 W.C.D. 559, 560 (Minn. 1990).  The employee also bears the burden of proving that his work injury and pain are contributing factors to his mental health condition and that the treatment at issue is reasonably required to cure and relieve the effects of the injury.  See Wright v. Kimro, Inc., 34 W.C.D. 702 (W.C.C.A. 1982).

The employer and insurer rely heavily on Henchal v. Federal Express, Corp., No. WC07-212 (W.C.C.A. Jan. 30, 2008) for their proposition that this court is “reluctant to affirm” where it appears that the compensation judge applied an improper burden of proof.  While that may be true, Henchal is distinguishable from the present case.  In Henchal, the compensation judge’s memorandum suggested that she may have applied a causation standard applicable to cases asserting work stress as the cause of a heart attack, although the injury in Henchal did not involve a heart attack.  In addition, the compensation judge appeared to have applied that causation standard in concluding that the treating doctor’s opinions could not support legal causation, which led this court to conclude that the compensation judge had apparently “failed even to consider” the treating doctor’s opinions.

Here, by contrast, the compensation judge carefully considered Dr. Gratzer’s opinions.  In fact, the judge credited those opinions in denying the BuSpar prescription.  As such, the compensation judge’s discussion of the sufficiency of the medical opinions here goes more toward the weight the compensation judge chose to give to those medical opinions, which is a question left to the compensation judge.  See Henchal, No. WC07-212.  In addition, the compensation judge correctly considered a preponderance of the evidence and whether the employee’s injury was a substantial contributing factor in his mental health condition.

The employer and insurer also argue that the compensation judge seemed to disregard Dr. Gratzer’s opinions because of a lack of foundation.  We disagree.  Rather, the compensation judge compared the medical opinions presented.  He discussed, at length, the portions of Dr. Cronin’s opinions he found persuasive, including Dr. Cronin’s discussions of the employee’s pain, his diagnosis of chronic pain syndrome with depression and anxiety, and the testing he performed.  The compensation also judge noted that Dr. Gratzer did not necessarily disagree with Dr. Cronin’s testing and that the employee testified that Dr. Gratzer had not asked him about his chronic pain.  While the compensation judge did mention the fact that Dr. Gratzer had only seen the employee twice, this discussion took place in the context of comparing the two opinions, and this factor related to the weight given to the opinions.^[2]  In addition, the compensation judge credited and relied on Dr. Gratzer’s opinions in some respects, including the denial of the BuSpar prescription.  Thus, it is apparent that the compensation judge’s discussion of Dr. Gratzer’s opinion took place in the context of weighing that opinion against Dr. Cronin’s.

Furthermore, the compensation judge based his decision, in part, on the employee’s testimony regarding his ongoing symptoms and the efficacy of the treatment with Primary Behavioral Health.  The compensation judge found this testimony to be credible, and credibility assessments are the unique function of a compensation judge as the trier of fact.  See Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225-26 (Minn. 1989).  The existence of a personal injury may be established based on an employee’s subjective complaints coupled with the opinion of a medical expert.  Brown v. Minnesota Dep’t of Transp. 54 W.C.D. 60, 68 (W.C.C.A. 1996).  The compensation judge chose to credit the employee’s testimony and Dr. Cronin’s opinions, and he found that a preponderance of the evidence established that the employee’s August 2003 injury was a substantial contributing factor in his mental health condition.  Therefore, we are not persuaded that the compensation judge improperly disregarded Dr. Gratzer’s opinion, as in the Henchal case, nor are we persuaded that the compensation judge applied an incorrect burden of proof, and we affirm.