The employee appeals the judge’s findings that care and treatment provided to the employee from May 22, 2012 through September 13, 2012 in the form of medial branch blocks (hereinafter referred to as “injections”) and radio frequency neurotomy (hereinafter referred to as “RFN”)^[1] procedures were not reasonable or necessary to cure or relieve the employee from the effects of her work-related injuries of April 18, 2006, October 14, 2007, and/or May 28, 2008.  Moreover, the treatment was not administered in conjunction with the Treatment Parameter Guidelines contained in Minn. R. 5221.6205 and Minn. R. 5221.6200, which require that a patient be participating in active treatment modalities.  We affirm.

The employee, Patrice Bennetts, worked as a registered nurse for the self-insured employer, United Hospital (employer), since 1989 where she sustained admitted work injuries to her lumbar and cervical spine on April 18, 2006, and admitted re-injuries to her cervical spine on October 14, 2007, and on May 28, 2008.  Following the last injury, the employee’s treating physician permitted her to return to work with restrictions.  On February 8, 2009, she commenced full-time work with restrictions at the Minneapolis Heart Institute at Abbott Northwestern Hospital, where she is currently employed.

The dispute before us is whether the injections and RFN procedures that were performed in 2012 by Dr. David Spight, the employee’s spine specialist at the Institute for Low Back and Neck Care (ILBNC) were reasonable and necessary to cure or relieve the employee from the effects of the work-related injuries.

On July 10, 2013, the matter was heard by a judge at the Office of Administrative Hearings.  The judge denied the treatment at issue, and the employee appealed.  The Workers’ Compensation Court of Appeals remanded the matter to the judge to make additional findings of fact addressing issues raised and argued by the parties.  In her subsequent findings and order on remand, the judge reiterated the denial of the 2012 ILBNC treatment and the employee’s claim for payment of medical expenses for the treatment.  The employee appeals.

The employee has undergone significant medical treatment since her work injuries.  A cervical MRI scan on November 3, 2008, revealed mild facet arthropathy at C3-4 on the left.  There was minimal bulging and spondylolisthesis at C4-5 with moderate left-sided facet arthropathy and mild narrowing of the neural foramen on the left without definite neural impingement.  Annular bulging was noted at C5-6 and C6-7.  Facet arthropathy was also noted at C7-T1, on the left greater than the right.

A lumbar MRI scan, performed on November 25, 2008, revealed mild to moderate thoracolumbar spondylosis with Scheuermann’s-like endplate changes.  There was mild nuclear dehydration but no annular tears or herniation at L3-4 through T11-12.  At L4-5, there was a broad-based disc herniation closely approximating the L5 nerve root sleeves, on the right greater than on the left.  There was minimal annular bulging at L5-S1, with no central foraminal stenosis, but with chronic bilateral L5 spondylolysis and a trace of spondylolisthesis of L5 on S1.

On March 3, 2009, the employee’s treating physician released her to return to light-duty outpatient work that included patient contact by telephone and computer recordkeeping.  The employee was given permanent restrictions that included sedentary work with positional changes; no frequent carrying or level-lifting over 20 pounds; bending and lifting up to five pounds; and pushing or pulling up to 20 pounds, without bending, and up to 50 pounds on wheels.

The employee underwent cervical injections in March 2009, followed by cervical RFNs in September 2009.  In July 2010 and July 2011, the employee underwent lumbar injections, followed by lumbar RFNs in August 2010 and May 2011, respectively.

On April 4, 2011, Dr. Spight ordered physical therapy for treatment of mechanical lumbar pain and an initial evaluation was conducted on June 7, 2011 at Physical Therapy Orthopedic Specialists (PTOS).  A plan was established for rehabilitative therapy for ten sessions over a two-month duration.  The employee summarized that she had submitted to cervical and lumbar facet injections in the past but the relief was temporary.  She had good relief on the 2009 right cervical RFN procedures.  In 2010, she had RFNs on the right and left with some relief on the right, but not on the left.  The employee reported that she had physical therapy previously but had fallen off being consistent with her home exercise program.^[2]

The employee attended nine physical therapy sessions between June 7 and August 4, 2011.  On August 4, 2011, the employee reported to her physical therapist that she was “doing okay” and that her back had “been pretty good lately.”  The employee was instructed to continue with her home exercise program and apply lifting techniques.  The therapist indicated that the employee could return if needed.  The employee did not return to physical therapy after August 4, 2011.  She was discharged from the program on January 3, 2012.^[3]

On June 24, 2011, about four weeks after her 2011 RFN procedures, the employee told Dr. Spight that she was doing well and that she had “essentially complete resolution of her symptomatology” in her lower back.  Dr. Spight discussed the fact that the facet joints may become reinnervated over time and that the employee could have recurrent symptomatology.  She was instructed to continue with her home exercises and to follow up with him on an as-needed basis.

On September 14, 2011, the employee visited Dr. Spight again.  She complained of lower thoracic and lumbar pain after experiencing a flare up on August 22, 2011.  At that time, the employee had been cleaning her mother’s refrigerator, and she developed lower thoracic and lumbar pain.  The employee’s symptoms had improved over the prior week, which she attributed to chiropractic treatments and massages.  The doctor indicated that if the employee did not improve over the next two or three weeks, or if there were an exacerbation, he would recommend diagnostic right L3 through L5 injections to see if she had symptomatic reinnervation of the right L4-5 and L5-S1 facet joints.^[4]

On November 21, 2011, the employee saw Dr. Spight again.  At that time, she complained of recurrent right cervical pain.  The employee had been doing well with her cervical pain since the RFN procedures in 2009.  However, she indicated that “around Labor Day of this year [2011] and since that time, her symptoms of right neck pain had become progressively worse.”  The employee indicated that by the middle of her work week, she would be in considerable pain, but with rest and modifying her activity over the weekend, the pain subsided but she was never pain free.  The employee was seeing her chiropractor once a week because of right cervical pain.^[5]

Dr. Spight assessed the employee with recurrent right cervical pain and probable symptomatic reinnervation of the right C5-6 and C6-7 facet joints.  The doctor indicated that they would seek authorization from the workers’ compensation carrier to move forward with repeat right C5 through C7 RFNs without going through the diagnostic injections because her symptoms were “exactly the same as they were prior to the previous RF procedure.”^[6]

The employee next saw Dr. Spight on January 23, 2012.  Dr. Spight indicated that any authorization to move forward with the recommended treatments, including RFN procedures, had been placed on hold until the employee submitted to an independent medical examination with Dr. James Allen.  Dr. Spight stated that with regard to both the cervical and lumbar spine, “I feel she is a candidate to continue with these procedures as long as she can derive sustained benefit from them.”  Dr. Spight indicated that the employee had been essentially pain free for more than a year following the previous RFN procedures for both the cervical and lumbar spine.  The next consultation Dr. Spight had with the employee was subsequent to the disputed procedures, nine months later on September 13, 2012.

On February 20, 2012, the employee saw Dr. Allen at the request of the employer.  Dr. Allen had conducted a previous independent medical examination on December 1, 2008.  At that time, he assessed the employee with a long history of chronic cervical and back complaints associated with multi-level degenerative disc disease as well as flare ups from various lifting and slip-and-fall-type injuries.  Dr. Allen noted that the employee had a recent slip and fall injury while leaving work on January 27, 2012.  However, upon examination the employee did not show any residual back problems stemming from that injury.  Dr. Allen believed that the employee had made a complete recovery from that incident.  Dr. Allen went on to note that the employee did not appear to be in any acute physical distress and that her neurologic/musculoskeletal examination was “unremarkable and within normal limits for someone her age.”

According to Dr. Allen, a review of various imaging studies indicated that there was nothing out of the ordinary in the employee’s spine or elsewhere beyond usual degenerative changes.  He indicated that there had “perhaps been an overemphasis on injections and a rather insufficient emphasis on reduction in the long list of medications.”  He was of the opinion that the employee exhibited mild to moderate degenerative changes of the spine consistent with her age and that “instead of long-term ‘passive therapy’ such as chiropractic adjustment, injections, physical therapy, medications, etc., it would be far better for her to undergo an ‘active therapy’ program of stretching and strengthening the muscles along her spine and elsewhere.”  Dr. Allen noted that this plan would provide the employee with a chance of improving overall health and conditioning rather than covering up any pain she might experience from inactivity.  Dr. Allen did not think it was reasonable or necessary to continue with injections or RFNs of the neck or back.  Based on Dr. Allen’s opinion, the employer denied approval of any further injection and RFN treatments.

The employee proceeded with the disputed injections and RFN procedures.  The lumbar treatments occurred between May 22, 2012 and August 21, 2012.  The employee underwent cervical treatments from May 24, 2012 through July 24, 2012.

The employee followed up with a certified nurse practitioner (hereinafter referred to as “CNP”) in Dr. Spight’s office on September 13, 2012.  She indicated that following her procedures, she attained 95 percent relief from lumbar pain and 75 percent relief from cervical pain.  In a subsequent visit to Dr. Spight on April 22, 2013, he indicated that overall the employee was experiencing at least 75 percent relief of cervical and lumbar symptoms.  Dr. Spight further indicated that the employee was to continue to perform the exercises that she previously learned in physical therapy for cervical and lumbar complaints to lessen the chance of her having recurring symptoms when the RFN-treated cervical and lumbar facet joints are reinnervated.^[7]

The employee also saw other physicians for treatment of other chronic medical conditions.  On January 6, 2012, the employee saw Dr. Maja Visekruna at HealthEast.  On this date, she complained of lumbar pain and weakness in her legs specifically and general fatigue of her entire body.  The doctor prescribed her medication for pain.  On the employee’s next visit to Dr. Visekruna on April 4, 2012, the employee reported that her leg weakness and fatigue was much improved and that she started exercising.^[8]  On September 13, 2012, the employee visited Dr. Christine Simonelli at HealthEast for an osteoporosis discussion and examination.  The chart note indicates that the employee reported that she had no regular exercise program but that she stretched regularly, and because she is a nurse, she is active during her work day.^[9]

The judge found that the employee did not obtain significant relief from any of the lumbar or cervical injections and RFN procedures, including the disputed 2012 treatments.  The judge noted that the employee had undergone numerous other forms of passive care and treatment for the lumbar and cervical spine, including chiropractic care and the use of numerous medications.  The judge noted that the employee had obtained, at most, temporary relief of some of her lumbar and cervical pain and problems from the aforementioned treatment modalities.  The judge noted that the employee continued to receive chiropractic care at the same frequency both before and after the injection and RFN procedures, she continued to receive the same prescription medications at the same doses both before and after the multiple treatments, and her ability to work continued the same since her release to work in 2009.  The judge, therefore, concluded that the treatment procedures at issue were not reasonable or necessary to cure or relieve the employee from the effects of her work injuries.

The judge also found that the injections and RFN procedures performed in 2012 “were not given in conjunction with active treatment modalities directed to the employee’s neck and/or low back.”  Specifically, the judge found that the treatments provided from May 22, 2012 through September 13, 2012 were not consistent with the Treatment Parameter Guidelines relying on Minn. R. 5221.6020, subp. 2; Minn. R. 5221.6040, subp. 10; Minn. R. 5221.6200, subps. 4 and 5A and B; Minn. R. 5221.6205, subps. 4 and 5A and B.

The judge indicated that the employee had not undergone any formal active treatment of any kind relating to her cervical or lumbar injuries since August 2011.  Moreover, she was not performing any exercise program on a regular basis, as recommended by her physical therapist, throughout the time she was undergoing the disputed treatment.  The judge also concluded that the employee’s treating physicians provided no reasonable explanation for recommending the disputed lumbar and cervical injections and RFNs in 2012.  Finally, the judge declined to depart from the Treatment Parameter Guidelines.

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, 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 evidence or not reasonably supported by the evidence as a whole.”  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

A judge’s choice between conflicting expert opinions is generally upheld, unless the expert opinion, as chosen, assumes facts that are not supported by substantial evidence.  Nord v. City of Cook, 360 N.W.2d 337, 342 W.C.D. 364, 372-73 (Minn. 1985).

The judge determined that the disputed treatment was not reasonable or necessary to cure or relieve the effects of the employee’s injuries and she denied the employee’s claim for payment of medical expenses for the treatment.  She also determined that the treatment was “not consistent” with the guidelines from the treatment parameters contained in Minn. R. 5221.6020, subp. 2; Minn. R. 5221.6040, subp. 10; Minn. R. 5221.6200, subps. 4A and B and 5A and B; and Minn. R. 5221.6205, subps. 4A and B and 5A and B.  We affirm.^[10]

On appeal, the employee specifically challenged three of the judge’s factual findings in her brief, to wit, that:  1) there was insufficient evidence of lumbar pain following the employee’s visit with Dr. Spight in September 2011, or thereafter, to warrant additional injections and RFNs; 2) Dr. Spight did not provide a documented treatment plan for the lumbar spine in September 2011 or thereafter; and 3) the employee did not experience significant relief following the disputed 2012 treatments.

A review of the relevant medical evidence indicates that on April 18, 2011, Dr. Spight read an MRI that showed multilevel disc degeneration.  On May 3, 2011, Dr. Spight performed lumbar RFNs at L4, L5, and S1.  In a follow-up visit on June 24, 2011, the employee reported complete resolution of her lumbar pain.  The employee commenced physical therapy on June 7.  Dr. Spight noted that the employee was doing her exercises as instructed by her therapist and was to continue with her home exercise program.  Dr. Spight makes no further reference to the employee’s compliance with exercise hereafter.  On September 14, 2011, the employee reported to Dr. Spight that she had exacerbated her mid-thoracic and lower back while cleaning her mother’s refrigerator on August 22, 2011.  By the time of the September 14 visit, her symptoms had improved.  Dr. Spight re-prescribed Percocet as needed for pain.  No further intervention was necessary at that time.  On November 11, 2011, the employee complained of progressively worsening cervical pain.  Dr. Spight suggested cervical RFNs if the employee did not improve.  Dr. Spight indicated that they would seek the workers’ compensation approval for the recommended RFN procedures.^[11]  The employee saw Dr. Spight one additional time on January 23, 2012 before submitting to the disputed procedures.  There is nothing in Dr. Spight’s notes about lumbar complaints.  She appeared in November 2011 and on January 23 because of recurrent right neck pain.  As apparent support for the prospective lumbar treatments, in tandem with the recommended cervical procedures, the only reference to the lumbar spine was Dr. Spight’s contention that the employee had obtained sustained benefit from past RFNs.^[12]

It appears that Dr. Spight had basically made up his mind that since he was going to treat what he believed to be medically indicated cervical procedures, that he would also perform the same treatments on the lumbar spine.  He did not consult with the employee again until April 22, 2013, fifteen months after the employee’s last consultation and eight months after the disputed 2012 lumbar and cervical procedures.

The judge concluded that,

To refute these findings, the employee refers to other evidence to support her claim of ongoing low back pain.  In particular, she cites the January 3, 2012 Discharge Summary from the PTOS claiming it indicates that the employee was only able to sit for 15 minutes without upper and lower back pain.  The employee is mistaken.  A thorough review of the PTOS documents reveal that upon intake on June 7, 2011, the physical therapist and the employee established a plan of care.  The plan addressed three problem areas.  Problem 3 was employee’s difficulty in sitting at her work desk.  The long term goal was to address the employee’s ability to sit at her desk in excess of 15 minutes without low back (LBP) or upper back pain.  This goal was to be achieved by July 19, 2011.^[14]  Under Problem 3 of the Discharge Summary, it reads, “Good Progress.  At last visit [August 4, 2011].  Functional Improvements In: Pt. able to sit > 15 mins (sic) without LBP or upper back pain.” (Emphasis in original.)^[15]  This evidence makes clear that the goal of sitting at her work desk in excess of 15 minutes was achieved as of August 4, 2011.

Next, the employee asserts that in January 2012, she complained to another of her treating physicians of lumbar pain and weakness in her legs.  On January 6, 2012, the employee saw Dr. Maja Visekruna at HealthEast, to address her chronic medical issues.  This was approximately eight months after the employee’s May 2011 lumbar injections and RFNs.  She complained of lumbar pain and weakness in her legs specifically and general fatigue of her entire body.  Upon examination, the doctor noted no signs of acute distress.  The employee made no reference to thoracic or cervical discomfort.  On January 17, 2012, Dr. Visekruna performed a full physical, including a musculoskeletal exam of the employee.  Again, the doctor noted no signs of acute distress.  The doctor found the employee to have normal range of motion and found that her neck was normal.

During a following visit to Dr. Visekruna on April 4, 2012, the employee reported that her leg weakness and fatigue was much improved and that she started exercising.  While the above evidence lends some support for employee’s claim of lumbar discomfort in January 2012, it appears that it was temporary and was resolved by April.  By the same token, this evidence undercuts Dr. Spight’s claim that the employee had obtained sustained benefit in excess of a year from past RFNs.  In this instance, the employee complained of lumbar pain eight months after the 2011 lumbar RFNs.

Based on the entire record, there is substantial evidence for the judge to conclude that Dr. Spight did not provide a documented treatment plan for the lumbar spine, that the 2011 and prior RFN treatments, at most, provided only temporary relief of some of her low back and neck pain, and there was insufficient evidence of lumbar pain to warrant additional injections and RFNs.

The judge also found that Dr. Spight’s contention that the employee had been essentially pain free for more than a year because of prior RFNs is not borne out by the medical record.  Relative to the 2009 cervical RFNs, the medical record indicates that the employee reported some improvement to her cervical spine but not complete relief of pain.  It was difficult to determine the exact amount of relief because the employee had a difficult time holding her head up.^[16]  The employee’s report on intake to her physical therapist in June 2011 is also telling.  She said that prior cervical and lumbar facet injections resulted in temporary relief.  She had good relief in 2009 relative to a right cervical RFN procedures, and in 2010, she had lumbar RFNs on the right and left with some relief on the right, but not on the left.^[17]  In addition, in September 2011, approximately four months from the 2011 RFNs, the employee complained about low back and neck pain.

Based on this evidence, the judge concluded that the medical evidence contradicted Dr. Spight’s assessment that the employee was essentially pain free for more than a year and found that the previous RFNs provided only temporary relief.  The substantial evidence of record supports these findings.

In addition, the judge expressly relied on Dr. Allen’s medical conclusion that the disputed medical procedures were not reasonable and necessary.  On February 20, 2012, Dr. Allen re-examined the employee at the request of the employer and issued his independent medical report on the same date.^[18]  The employer requested that Dr. Allen address employee’s current treatment, including the reasonableness and necessity of the RFN treatments, among other issues.  On this date, the employee reported pain in the low back and neck.  The doctor’s impressions were as follows:  the employee was not in any acute distress and her neurologic/musculoskeletal examination was unremarkable and within normal limits for a person her age.  A review of her imaging studies revealed nothing out of the ordinary in her spine beyond usual degenerative changes.^[19]  Dr. Allen noted that she was prescribed a very long list of medications, which carry their own side effects, but little effort had been put forth to try to reduce these.

Relative to the work-related medical conditions, Dr. Allen was of the opinion that they appeared to be sprain/strain injuries that would be expected to improve over time.  The doctor recommended a good stretching and strengthening exercise program, with weigh loss.  He believed there was an overemphasis on medications and an insufficient emphasis on stretching and strengthening exercises of the spine.  He observed that obesity is a major factor in low back pain and degeneration of the lower spine.  He was of the opinion that increased exercising and weight loss would greatly lessen the employee’s symptoms and make her a much healthier individual.

Dr. Allen concluded that it was not reasonable or necessary to continue with RFNs or injections of the neck or low back.  He wrote,

The judge expressly relied on the medical opinion of Dr. Allen who recommended an active therapy program of stretching and strengthening of the spine along with weight loss, instead of injections or RFNs.  A judge’s choice between conflicting expert opinions is generally upheld, unless the expert opinion, as chosen, assumes facts that are not supported by substantial evidence. Nord v. City of Cook, 360 N.W.2d 337, 342 W.C.D. 364, 372-73 (Minn. 1985).  There is substantial evidence to support the judge’s choice of medical expert.

The judge’s third factual finding addressed by the employee was that the employee did not experience significant relief following the disputed 2012 treatments.  In response, the employee argues that the disputed treatments were effective in relieving the employee’s cervical and lumbar symptoms.  The employee asserts that she has a permanent injury as a result of the work injuries, and as such, will never be completely cured, but the disputed injections and RFNs are reasonable and necessary to relief her from the effects of the work-related injuries.

In support of her decision, the judge noted that the employee had undergone numerous forms of passive care and treatment for the lumbar and cervical spine, including chiropractic care and the use of numerous medications.  The judge found that the employee had obtained, “at most temporary relief of some of her lumbar and cervical pain and problems from the aforementioned treatment modalities.”  The judge noted that the employee continued to receive chiropractic care at the same frequency both before and after the disputed procedures, she continued to receive the same prescription medications at the same doses both before and after the disputed treatment, and there was no change in her ability to work since 2009.  The judge therefore concluded that the treatment procedures at issue were not reasonable or necessary because employee’s medical status relative to her other treatments remained unchanged.  By inference, one would expect that if the disputed treatments were effective, the employee’s passive treatments and/or medications would be reduced.

On April 22, 2013, the employee reported to Dr. Spight that she was experiencing at least a 75 percent relief of her spinal symptoms.  On the other hand, the medical evidence from Dr. Spight also supports the judge’s findings that the disputed injections and RFNs by their nature are temporary.  In several of Dr. Spight’s chart notes, he refers to symptomatic reinnervation which basically means that the RFN treated nerves are restored to their pre-treatment symptomatic state.^[20]

The judge adopted Dr. Allen’s conclusion that the injections and RFNs were not reasonable and necessary and, as stated previously, her choice of expert medical opinion should be upheld.  Nord v. City of Cook, id.

Lastly, the judge found that the injections and RFN procedures performed in 2012 “were not given in conjunction with active treatment modalities directed to the employee’s neck and/or low back.”  Specifically, the judge found that the employee had not undergone any formal active treatment since August 2011 and was not performing a home exercise program as recommended by Dr. Spight and her physical therapist. The relevant treatment parameters are Minn. R. 5221.6020, subp. 2; Minn. R. 5221.6040, subps. 2 and 10; Minn. R. 5221.6200, subps. 4A, B, and D and subps. 5A, B, and D; and Minn. R. 5221.6205, subps. 4A, and B, and subps. 5A and B.^[21]

The employee disputes this finding and contends that she was engaged in active treatment modalities and it was erroneous to conclude that the disputed procedures were unreasonable and unnecessary due to a lack of requisite and appropriate exercise.  The employee acknowledges that the treatment parameter guidelines are applicable and require active treatment modalities in conjunction with the disputed procedures, but she argues that the record indicates that she was participating as required, including physical therapy.

A review of the medical records relating to exercise and stretching is as follows:  at the physical therapy session on June 7, 2011, the employee reported that she had physical therapy previously but had fallen off being consistent with her home exercise program.  On June 24, 2011, in a follow-up visit to the 2011 lumbar injections and RFNs, Dr. Spight’s chart entry reads the employee was to continue with her home exercise program.  On April 11, 2012, the employee reported to Dr. Visekruna that the leg weakness and fatigue was much improved and that she started exercising more.  On September 13, 2012, as a follow-up visit subsequent to the disputed procedures, the employee reported to the CNP in Dr. Spight’s office that she continued to do her home exercises.  On the same date, September 13, 2012, the employee visited Dr. Simonelli at HealthEast for an osteoporosis examination.  She reported to Dr. Simonelli that she had no regular exercise program but that she stretched regularly and, because she is a nurse, was active during her work day.

At the hearing, the employee acknowledged that she stretched occasionally in 2012 and 2013 but did not do aerobic or strengthening exercises “because my pain level was way too high and it would cause it to go even higher.^[22]  Following the completion of her therapy in August 2011, there was no monitoring of the employee’s home exercise program by her therapist or Dr. Spight.  Dr. Spight did not order supervised or unsupervised exercise.^[23]  In fact, Dr. Spight makes no reference at all to the treatment parameter guidelines in any chart note.

Minn. R. 5221.6200, subps. 5B, and Minn. R. 5221.6205, subp. 5B, require that RFNs can only be given in conjunction with active treatment modalities directed to the low back and neck, respectively.

Minn. R. 5221.6200, subp. 4D, and Minn. R. 5221.6205, subp. 4D state that, exercise, which is important to the success of an initial nonsurgical treatment program and a return to normal activity, must include active patient participation in activities designed to increase flexibility, strength, endurance, or muscle relaxation.

The employer argues that the employee did not undergo any active treatment modalities since August 4, 2011, was not following the recommendations that she perform her home exercise program, and ultimately, the judge did not accept the employee’s testimony regarding her home exercise program.  In further support, the employer argues that the employee admitted at the hearing that she was not doing strengthening exercises for extended periods of time.^[24]  Lastly, the employer argues the assessment of witness credibility is left to the trier of fact.

The facts are clear that the employee was not in physical therapy since August of 2011, contrary to her assertion.  In August 2011, the employee sustained an exacerbation to her thoracic and low back.  The employee saw Dr. Spight again in November 2011 for recurrent cervical pain.  In January 2012, the employee saw Dr. Visekruna for muscle pain and weakness in the legs.  The doctor prescribed her medication for pain and it appears that the symptoms resolved by a following visit in April 2012.  At the hearing, the employee admitted that she was unable to follow her home exercise program because she was in pain leading up to the disputed procedures.  From the above evidence, the judge could find that the employee was not performing her home exercise program and conclude the injections and RFN procedures performed in 2012 were not given in conjunction with active treatment modalities directed to the employee’s neck and/or low back.

Although the WCCA is required to look at all the evidence in performing its review function, it must give due weight to the compensation judge’s opportunity to judge the credibility of witnesses and must uphold the findings based on conflicting evidence or evidence from which more than one inference may be drawn.  Even v. Kraft, Inc., 445 N.W.2d 831, 834-35, 42 W.C.D. 220, 225-26 (Minn. 1989) (citing Hengemuhle, 358 N.W.2d 54, 37 W.C.D. 235 and Gibberd by Gibberd v. Control Data Corp., 424 N.W.2d 776, 40 W.C.D. 1040, 1047 (Minn. 1988)).

The judge made no specific findings relative to credibility of the employee, but to the extent there were factual inconsistencies in the evidence, including the employee’s reports to her physicians on September 13, 2012, it is within the discretion of the judge to determine how much weight will be given to the evidence in light of all evidence on an issue.

In conclusion, there is substantial evidence of record to support the various findings made by the judge sufficient to conclude that the disputed 2012 procedures were not reasonable and necessary and that the disputed treatment was not administered consistent with the Minnesota’s treatment parameters.  We affirm.