The employer and insurer appeal from the compensation judge’s determination that a recommended Med-X program is reasonable and necessary “in the attempt” to cure and relieve the employee from the effects of her work injury, and that the Med-X program in question is a justifiable rare exception to the Minnesota treatment parameters.  We affirm.

This case has a complicated procedural history and has been the subject of substantial prior litigation, including a previous appeal to this court.  (See Wald v. Walgreens Corp., No. WC06-188 (W.C.C.A. Nov. 8, 2006) for a full discussion of the procedural history and background of this case.)  In summary, the employee, Vicki Wald, sustained an admitted injury to her cervical spine on March 1, 2002, as a result of her work activities for the employer herein, Walgreens.  As a result of her March 2002 injury, the employee underwent two cervical spine surgeries in 2003 and 2004.  The employee testified that before her surgeries, she experienced a steady aching pain in her neck, which became more and more painful and ran down into her left arm.  She also experienced dizziness and a sensation of pins and needles running down her neck and spine as well as vertigo before the prior surgeries.

Following the surgeries, the employee continued to experience pain in her neck.  In 2009, the employee’s treating physician, Dr. Masood Ghazali, prescribed a Med-X program for the employee through Physicians’ Diagnostics and Rehabilitation (PDR).  The employee completed the entire Med-X program in 2009.  Although she did experience some relief with the Med-X program, she did not return to work upon completion of the program, and she has not worked since.  The employee also received training in the form of a home exercise program that she could continue after the formal Med-X program ended in 2009.  The employee testified that she continued with the home exercise program for a while, but she eventually stopped performing those exercises.

After the employee completed her Med-X program in 2009, her therapist suggested that she continue with a maintenance program with PDR, which would cost about $300.  The employer and insurer denied the maintenance program.

On April 8, 2010, the employee returned to see Dr. Ghazali.  The doctor noted that he had not seen the employee since June 2009.  Dr. Ghazali also noted that the employee had not been compliant with the in-home exercise program, but she had to give that up because of constant dizziness.  The employee had been to the emergency room in March 2010 for headaches and dizziness.

By May 2010, the employee was informing Dr. Ghazali of constant dizziness and neck muscle tension.

In December 2011, the employee received treatment following a vertigo attack.  Dr. Ghazali then conducted a detailed re-examination of the employee on February 8, 2012.  He reported that the employee was experiencing worsening of her chronic myofascial pain syndrome with a new onset of acute peripheral vertigo.  The doctor proposed that the employee return for “a limited Med-X program” that would allow her to increase strength and decrease pain responses.  The employee believed that the Med-X program was also the best modality to help regain her strength because regular physical therapy made her pain worse.  There was a reference that the employee underwent a cervical MRI on April 12, 2012, but the records were not presented to the compensation judge.  The employee testified that she was told that the MRI showed no changes.

On April 17, 2012, Dr. Mark Larkins performed an independent medical re-evaluation of the employee, and he issued a report in June 2012.  Dr. Larkins concluded that no further medical care or treatment would be reasonable or necessary as a result of the employee’s March 2002 work injury, including the Med-X program as proposed.  Dr. Larkins stated, “Ms. Wald has pre-existing medical problems and it is my opinion that her fibromyalgia is a major, chronic pain issue that is a substantial contributing factor to her need for medical treatment.  Again, it is my opinion that the vertigo has been limiting her recovery.”  Dr. Larkins opined that the past treatment rendered to the employee was reasonable and necessary, but not due to the personal injury.  If she did need additional treatment, it would not be due to the employee’s cervical spine injury.

On August 1, 2012, Dr. Ghazali issued a report indicating that the employee “needs the Med-X program.  This will help the pain related to the work injury and I recommend this program.”

At the time of the hearing, the employee remained off work.  In her appeal brief, she concedes that “there is no indication that she will be able to return to work.”

The case came on for hearing before the compensation judge on September 13, 2012.  The compensation judge was asked to determine the following:

The employer and insurer argued that the Med-X program was barred by the treatment parameters, pursuant to Minn. R. 5221.6205, subp. 3, and that the Med-X program was not reasonable and necessary.  The employee argued that the Med-X program was reasonable and necessary under the circumstances here and, as such, the treatment parameters did not bar an award of the Med-X program as recommended by Dr. Ghazali.

The compensation judge discussed the medical records and opinions presented, including those from Dr. Larkins and Dr. Ghazali, and he found that “the preponderance of the evidence is that the recommended Med-X program is reasonable and necessary in the attempt to cure and relieve the employee from the effects of the personal injury.”  In his memorandum, the compensation judge indicated that he “accepts the opinions of the treating physician, Dr. Ghazali,” over the opinions of Dr. Larkins.  The compensation judge felt it was reasonable for Dr. Ghazali to recommend that the employee attend a Med-X program, whether on a partial or complete basis.  The compensation judge also found that the employee testified credibly about her ongoing symptoms and need for medical attention.  He felt the Med-X program was “cost effective and appropriately priced for the care to be rendered.”  The compensation judge noted that the employee “may not need the full program” and that “the employee has received minimal treatment for the effects of the March 1, 2002, personal injury in the last couple of years.”

Ultimately, the compensation judge concluded that “under the circumstances, [the employee] attending the Med-X program is a justifiable rare exception to the Minnesota treatment parameters.”  He awarded the Med-X program “pursuant to the criteria contained in Minn. R. 5221.6205, subp. 3, and the rationale provided in Jacka v. Coca-Cola Bottling Co., 58 W.C.D. 395, 580 N.W.2d 27 (Minn. 1998).”

The employer and insurer appeal, arguing that the proposed Med-X program is barred by the treatment parameters contained in Minn. R. 5221.6205, subd. 3.  They further argue that this case does not constitute a rare case exception pursuant to Jacka.  The employee argues that substantial evidence exists to support the compensation judge’s determination that the Med-X program is reasonable and necessary, including the compensation judge’s choice between expert opinions.  In addition, the employee argues that the Med-X program at issue meets the requirements for a departure from the treatment parameters.

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 Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

The employer and insurer argue, initially, that the recommended Med-X program is barred by the medical treatment parameters, as outlined in Minn. R. 5221.6205, subp. 3.^[1]  The compensation judge found, however, that the Med-X program is reasonable and necessary and that it would constitute “a justifiable rare exception to the Minnesota treatment parameters,” including Minn. R. 5221.6205, subp. 3.  Therefore, the compensation judge implicitly agreed that the second Med-X program would be barred, initially, by the treatment parameters.^[2]

In Jacka v. Coca Cola Bottling Co., 580 N.W.2d 27, 58 W.C.D. 395 (Minn. 1998), the Minnesota Supreme Court authorized compensation judges to depart from the treatment parameters even aside from the departures permitted under the rules themselves, “in those rare cases in which departure is necessary to obtain proper treatment.”  Id. at 35-36, 58 W.C.D. at 408.  The Court stated that the parameters were to be used by compensation judges as a flexible guide to determine what treatment is reasonable according to medical standards.  Id. at 36, 58 W.C.D. at 409-10. ^[3]

A compensation judge’s conclusion as to whether or not an employee’s condition qualifies as a “rare case exception” to the treatment parameters is to be reviewed pursuant to “the Hengemuhle substantial evidence” standard.  Amunrud  v. Advance United Expressway, 64 W.C.D. 204, 217 (W.C.C.A. 2004), summarily aff’d (Minn. May 27,  2004) (citing Pawlitschek v. Dundee Steel, Inc., slip op. (W.C.C.A. Sept. 7, 1999)).  Moreover, any treatment that would be compensable under a “rare case exception” must be reasonable and necessary treatment.  Id.

Here, the medical records from Physician’s Diagnostic Rehabilitation show that the 2009 Med-X program did result in measurable improvement for the employee, both objectively and subjectively.  The discharge evaluation from October 2009 indicated that the employee was reporting “marked improvement” in her neck function and a reduced degree of dizziness, although she did have some ongoing occurrences of both.  Objectively, the employee’s effort had been “excellent,” and the employee had “consistent improvement in strength and range of motion.”

As the compensation judge noted, the employee did not need a great deal of treatment between the completion of the Med-X program in 2009 and the hearing in 2012.  However, Dr. Ghazali’s records show that by early 2012, the employee’s neck pain was worsening, and she was experiencing other symptoms, including dizziness.  The employee testified that she had experienced similar symptoms before her fusion surgeries.  Dr. Ghazali noted, in his February 2012 report, that the employee had an “excellent response” to the prior Med-X program in 2009.  The employee had reported difficulty with “regular physiotherapy,” and both the employee and Dr. Ghazali believed that a limited form of the Med-X program would be “the best modality to regain her strength.”  As indicated in his memorandum, the compensation judge also found the employee’s testimony credible with regard to the progression of her symptoms.^[4]

The compensation judge awarded a limited Med-X program based, in part, on the medical records from PDR and Dr. Ghazali, Dr. Ghazali’s recommendations and opinions, and the employee’s testimony.  We conclude that these medical records and evidence provide substantial support for the compensation judge’s determination that a departure from the treatment parameters is appropriate under the circumstances of this case.

The employer and insurer argue that a departure from the treatment parameters was inappropriate here because the employee did not return to work, there is no specific indication that the employee would be able to return to work after the Med-X program, and that she was able to “maintain her functional status for three years by performing her home exercises” and that she only experienced increased symptoms after she stopped doing those exercises.  We acknowledge that a return to work or continued workability has been a factor in a number of cases, including the Amunrud and Stevens v. Hennepin County, slip op. (W.C.C.A. Dec. 15, 1990) cases cited by the employer and insurer.  However, as Jacka indicates, the treatment parameters allow for flexible analysis of a number of other factors as well, including the employee’s functional status, whether employed or not, and whether the treatment will assist in improving the employee’s condition.  See Jacka, 580 N.W.2d at 33, 58 W.C.D. at 403-04.

The employer and insurer do not dispute that the 2009 Med-X program did significantly improve the employee’s functional status for a period of two or three years, but they argue that the employee essentially lost her functional improvement when she stopped doing her home exercises.  Whether or not that is the case, the Med-X program has improved the employee’s functional status in the past, and the compensation judge determined that it will do so again based on the records, opinions, and testimony presented.  As indicated above, substantial evidence supports that determination, and we will not disturb it on appeal.

Furthermore, substantial evidence supports the compensation judge’s determination that the Med-X program is reasonable and necessary.  Medical treatment expenses are not reimbursable unless the treatment rendered is reasonably required at the time of injury or any time thereafter to cure or relieve the effects of the injury.  Minn. Stat. § 176.135.  “Regardless of whether it is governed by the treatment parameters or analyzed under Minn. Stat. § 176.135 and long-standing case law principles, the reasonableness and necessity of any given medical treatment is a question of fact for the compensation judge.”  Amunrud, 64 W.C.D. at 218 (citing Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993)).  Medical expenses are not to be assumed to be reasonable and necessary merely because they were rendered.  Wright v. Kimro, 34 W.C.D. 702, 705-06 (W.C.C.A. 1982).  Instead, “treatment should be scrutinized carefully in order to determine if a particular treatment rendered is warranted and reasonable.”  Id. at 705.

There are a number of factors that may be considered when determining whether certain medical services are reasonable and necessary, including the employee’s opinion as to the relief obtained in terms of extent, frequency, and duration of treatment, documentation of the details of treatment, duration of treatment, and the cost of treatment in light of the relief provided.  See Amunrud 64 W.C.D. at 218 (applying the factors delineated in Field-Seifert v. Goodhue Co., slip op. (W.C.C.A. Mar. 5, 1990), and Horst v. Perkins Restaurant, 45 W.C.D. 9 (W.C.C.A. 1991) to analyze the physical therapy at issue in Amunrud); see also Fuller v. Naegele/Shivers Trading, slip op. (W.C.C.A. Apr. 14, 1993).  This court has also held that the factors that should be considered “will vary from case to case, depending upon the unique circumstances of each situation.”  See Fuller, slip op.

The compensation judge considered a number of the relevant factors in reaching his conclusion that the Med-X program is reasonable and necessary.  For example, he noted that the program had been effective in limiting the employee’s need for treatment, that the employee may not need the full program, and that it would be cost effective.  The medical records, including Dr. Ghazali’s opinions, and the employee’s testimony support the compensation judge’s determination that the Med-X program was reasonable and necessary, and we will not disturb that determination on appeal.  See Hengemuhle, 358 N.W.2d at 59-60, 37 W.C.D. at 239-240.

Ultimately, the compensation judge chose to accept Dr. Ghazali’s recommendation of the limited Med-X program.^[5]  He found that program to be reasonable and necessary, and he determined that the employee’s case warranted a departure from the treatment parameters, given the circumstances here.  Because substantial evidence supports the compensation judge’s determinations, including the employee’s testimony and medical records from Dr. Ghazali and Physicians Diagnostic Rehabilitation, we affirm.