DIANA CAYO, Employee, v. PRECISION, INC., and SFM MUT. INS. CO., Employer-Insurer/ Appellants, and INJURED WORKERS PHARMACY and HUMANA, Intervenors.

JANUARY 3, 2014

No. WC13-5586


CAUSATION - MEDICAL TREATMENT.  Substantial evidence, including the well-founded opinion of the employee’s treating physician, supports the compensation judge’s finding that the employee’s prescription for oxycodone was reasonable, necessary, and causally related to the employee’s January 1997 work injury.


Determined by:  Cervantes, J., Stofferahn, J. and Hall, J.
Compensation Judge:  James Kohl

Attorneys:  Katherine A. Brown Holmen, Dudley and Smith, St. Paul, MN, for the Respondent.  Steven T. Scharfenberg, Lynn, Scharfenberg & Assocs., Minneapolis, MN, for the Appellants.




The employer and insurer appeal from the compensation judge’s finding that the employee’s prescription for oxycodone was causally related to her 1997 work-related injury.  We affirm.


Diana Cayo, the employee, sustained an admitted work-related injury to the low back on January 23, 1997, while employed by Precision, Inc., the employer.  An MRI scan revealed a large herniated disc at L5-S1 impinging upon the left S1 nerve root, and on February 15, 1997, the employee underwent surgery consisting of an L5-S1 discectomy and laminectomy.  Although the employee improved post-surgery, she experienced persistent lumbosacral pain and spasm into the buttocks and the legs, particularly on the left.  Over the next several years, the employee received treatment through North Clinic, Robbinsdale, including osteopathic manipulation, physical therapy, and lumbar epidural injections, without significant long-term relief.  At some point in time, not clear in the record,[1] the employee’s physician, Dr. Bryant Beehler, began prescribing OxyContin[2] for extended pain control and oxycodone[3] for breakthrough pain.

In early 2001, the employee was referred to Medical Advanced Pain Specialists (MAPS) for management of her narcotic pain medications.  It was noted the employee’s pain and symptoms seemed to be increasing over time, and the providers at MAPS continued to prescribe OxyContin and oxycodone for pain control.  In July 2001, the attending certified nurse practitioner (C-NP) recommended switching to methadone in the hopes it might help to reduce the employee’s back symptoms.

The methadone treatment proved ineffective and in March 2002, the employee returned to North Clinic where she was seen by Dr. Kurt Patoll.  Dr. Patoll diagnosed chronic low back pain and lumbar radicular pain related to failed back syndrome.  The doctor restarted the employee on OxyContin, but elected not to restart oxycodone, recommending instead that she try osteopathic or chiropractic manipulation to control her symptoms.  In September 2003, noting the employee was requiring breakthrough relief on a daily basis, Dr. Patoll increased the OxyContin dosage.  On February 23, 2004, Dr. Patoll noted the employee was experiencing increased low back discomfort with increased activity, but that pain control was otherwise stable on the current dose of OxyContin.

On May 2, 2004, the employee was injured in a non-work-related motor vehicle accident involving her low back, mid-back, shoulders, and neck.  The employee initially sought treatment with a chiropractor who referred the employee to Dr. Robert Jacoby at the Noran Neurological Clinic.  On May 11, 2004, a lumbar MRI scan revealed a laminectomy defect on the left at L5-S1 with degenerative changes and diffuse circumferential disc bulging, likely post-surgical granulation/fibrosis.  At the employee’s first visit with Dr. Jacoby on June 8, 2004, the doctor noted the employee’s medical history was significant for back surgery in 1997, and that her medications included OxyContin 20 mg twice daily.

The employee met again with Dr. Jacoby on August 3, 2004.  The doctor noted the employee had a prior history of low back problems, but after the accident, she reported a significant increase in low back pain, neck pain, and headaches.  The employee described back spasms going from the low back into the leg, with moderate to severe pain.  She stated the OxyContin she was getting from Dr. Patoll at North Clinic was helpful.  Dr. Jacoby prescribed Lamictal to see if it would reduce some of the low back nerve pain and prescribed oxycodone as needed for flare-ups of severe pain.

The employee returned to North Clinic on August 12, 2004, reporting a recent car accident with increased low back pain and neck pain.  The employee’s prescription for OxyContin was refilled.  On August 31, 2004, the employee returned to Dr. Jacoby.  The chart note states: “When I saw her last on September 8, 2003, I wanted to try her on some Lamictal.  I also gave her some Oxycodone to see if that would help with the severe pain.”  (Ex. D.)  The employee stated the Lamictal was of no help at all, but the oxycodone was beneficial.  Persistent spasm was noted in the low back into her legs, left greater than right, that preexisted the accident, but the employee stated she had not had the severity of headaches, neck pain, and low back pain that she now had.  There was no change in her prescriptions.

The employee saw Dr. Jacoby several more times between August 2004 and January 2005.  On January 12, 2005, the doctor indicated the employee had reached a plateau.  She continued to take OxyContin on a regular basis and oxycodone for occasional flare-up pain.

On April 12, 2005, the employee reported a significant flare-up of her pain about two weeks previously.  In light of her prior surgical history, Dr. Jacoby thought it prudent to do an MRI scan of the lumbar spine.  The April 13, 2005, study revealed a small central disc herniation at L4-5, not previously seen on the May 2004 scan.  There were also findings consistent with degenerative disc disease at the L4-5 and L5-S1 levels.  In light of the new disc herniation, Dr. Jacoby recommended an epidural steroid injection at the L4-5 level which did help to decrease some of her low back and leg pain.  Dr. Jacoby attributed the L4-5 disc herniation to the 1997 work injury.

The employee returned to North Clinic on July 18, 2005.  The doctor noted the OxyContin was effective in stabilizing her pain, although she continued to use additional therapies, including periodic chiropractic care to control her symptoms.  It was noted that she had been in a motor vehicle approximately one year previously that seemed to exacerbate her pain to some degree.  The doctor’s impression was failed back syndrome with chromic low back pain, inadequately controlled by OxyContin.

The employee returned to see Dr. Jacoby on July 25, 2005.  The doctor observed the employee was maintaining on OxyContin and oxycodone.  He noted the employee had been on OxyContin since the 1997 work injury, but had not been taking oxycodone, which had been added after the May 2, 2004, motor vehicle accident.  The employee felt the accident flared-up her low back pain, and that her leg pain was from the 1997 work injury.  She stated she was about 30 to 40 percent back to where she was prior to the accident with regard to the intensity of the pain in her neck and low back area.  At the employee’s request, Dr. Jacoby agreed to take over managing her OxyContin prescription.

In a letter report to the employee’s no-fault attorney on that same date, Dr. Jacoby stated the employee had chronic neck, left shoulder, and low back pain.  He noted the employee had a prior workers’ compensation injury in 1997.  He stated she had had chronic low back pain since that time, but it had gotten significantly better, and that the accident caused a significant flare-up of her low back pain which had not resolved.  The doctor opined the care provided at Noran Clinic was reasonable and necessary and pertained to the evaluation and management of injuries arising from the accident.

The employee continued to treat periodically with Dr. Jacoby.  In May 2009, Dr. Jacoby noted the employee had a history of lumbar surgery with persistent lumbar radiculopathy and significant low back pain.  The employee stated the oxycodone made a difference, allowing her to work by decreasing her pain level to a point at which she could function.  The doctor continued to prescribe OxyContin and oxycodone.

On December 30, 2009, the employee was involved in a second motor vehicle accident.  The employee was treated for this accident by the Dobson Pain Clinic.  Dr. Dobson’s impression was cervical and lumbar sprain/strain with myofascitis of the lumbar paraspinous muscles bilaterally, and left hip bursitis.  The employee was treated conservatively.  The employee was continued on the OxyContin and oxycodone.  The Dobson Pain Clinic added additional medications.[4]

The employee continued to see Dr. Jacoby on a periodic basis through 2010 and 2011.  In May 2011, Dr. Jacoby indicated that the employee’s condition had been fairly stable.  She continued to have difficulty with low back pain and pain going down into the left leg.  In a December 9, 2011, note, Dr. Jacoby stated he had been following the employee for evaluation and treatment of her chronic low back pain for the 1997 workers’ compensation injury as well as, most recently, a motor vehicle accident that occurred about a year previously.  The doctor stated “[t]he main reason I have seen her for most of this past decade has been the result of the work comp injury.”  (Ex. D.)  He indicated he had reviewed his records from June 8, 2004, when she was on OxyContin 20 mg twice daily, which he then took over prescribing for continuity of care.  Dr. Jacoby continued to prescribe OxyContin and oxycodone for the employee.

On April 17, 2012, Dr. Daniel Randa examined the employee at the request of the employer and insurer.  The doctor performed a physical examination and conducted a thorough review of the employee’s medical records.  Dr. Randa’s impression was status post L5-S1 laminectomy and discectomy February 1997; status post motor vehicle accident of May 2, 2004, with cervical and thoracic pain and aggravation of underlying lumbosacral pain extending into the left lower extremity; and low back pain radiating to the left leg consistent with L5-S1 nerve root irritation.  He believed the employee’s symptoms were exaggerated relative to the objective findings.  Dr. Randa opined the employee was likely physically and psychologically dependent on the narcotic OxyContin and oxycodone medications.

Dr. Randa concluded the medical care and treatment provided by Noran Clinic was reasonable and necessary, but the use of narcotic medications was not the optimal treatment strategy under the circumstances.  Dr. Randa stated, that in his judgment, the January 1997 work injury “is not reasonably considered the basis for the ongoing use of OxyContin/oxycodone.”  (Ex. 4, p. 26.)  He recommended conservative management and an attempt to slowly and cautiously wean the employee off the medications.

In an August 20, 2012, note, Dr. Jacoby stated the employee had chronic low back pain as the result of the 1997 workers’ compensation injury for which she had been maintained on OxyContin.  The doctor stated he had reviewed Dr. Randa’s report, and agreed the narcotic medication regimen was not ideal, but that multiple modalities had been tried for pain control and the narcotic medications allowed the employee to keep more active and to be able to work.  In a noted dated January 18, 2013, Dr. Jacoby again observed the employee’s chronic low back pain had been present for many years, since the 1997 injury.  He observed that Dr. Randa was “not exactly thrilled” with the OxyContin/oxycodone combination, nor was he, but it was really the only thing that had worked for the employee.  (Ex. D.)  He further observed the employee continued to experience significant low back pain, radiating into both hips and into the thighs bilaterally, the left worse than the right.  By letter dated April 5, 2013, Dr. Jacoby specifically stated that, in his professional opinion, the oxycodone prescription was causally related to the employee’s worker’s compensation injury of January 23, 1997.[5]

A hearing was held before a compensation judge on April 10, 2013.  The sole issue before the compensation judge was the reasonableness, necessity, and causal relationship of the employee’s prescription for oxycodone.  The compensation judge found for the employee and ordered the employer and insurer to pay for the employee’s oxycodone prescriptions.  The employer and insurer appeal.


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 (2012).  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).


The issue in this case is narrow.  Specifically, whether the prescription for oxycodone is reasonable, necessary, and casually related to the employee’s 1997 work-related injury.  The employer and insurer contend the compensation judge’s finding that the employee’s prescription for oxycodone is causally related to the 1997 work injury is clearly erroneous and unsupported by substantial evidence in the record as a whole.  We disagree.

It is undisputed that the employee sustained a significant work-related low back injury in 1997.  The employee underwent surgery, with a poor result, and has never been pain-free since the surgery, as acknowledged by the employer and insurer.  The records reveal chronic low back and leg spasms and pain, with nerve root damage and degenerative disc disease secondary to failed back syndrome.  The employee has been treated continuously for her chronic low back and leg pain since the work injury.  The only question is whether the oxycodone was prescribed to cure and relieve the employee’s symptoms resulting from this injury.

In finding that the prescription for oxycodone was causally related to the employee’s work injury, the compensation judge rejected the opinion of Dr. Randa and adopted the opinion of Dr. Jacoby, finding Dr. Jacoby’s opinion more persuasive.  The employer and insurer argue the compensation judge’s adoption of Dr. Jacoby’s causation opinion is based on a clearly erroneous finding and is not, therefore, supported by substantial evidence.  In finding 6, the compensation judge repeated the apparent error in the August 31, 2004, chart note in which Dr. Jacoby indicated he had seen the employee “last on September 8, 2003.”  The appellants contend the compensation judge clearly relied upon this particular office note, concluding that Dr. Jacoby had prescribed oxycodone going back to 2003, prior to the 2004 motor vehicle accident, and that this assumption affected the judge’s ultimate conclusion, that is, that the oxycodone prescription was causally related to the work injury.

This argument essentially goes to the foundation for Dr. Jacoby’s opinion.  Foundation refers to an expert’s qualifications to render an opinion.  “The competency of a witness to provide expert medical testimony depends upon both the degree of the witness’ scientific knowledge and the extent of the witness’ practical experience with the matter which is the subject of the offered testimony.  Drews v. Kohl’s, 55 W.C.D. 33, 37-38 (W.C.C.A. 1996) (quoting Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983)).

Dr. Jacoby has been the employee’s treating physician since June 2004 to the present.  The doctor was familiar with the employee’s 1997 work injury and work-related low back condition, as well as her treatment and care following the motor vehicle accidents of 2004 and 2009, and coordinated the employee’s care with other providers throughout the course of approximately nine years of treatment.  (Finding 8.)  In his memorandum. the judge additionally noted that Dr. Jacoby had reviewed and considered the report of Dr. Randa which included a thorough review of the employee’s medical treatment from 1997 through 2012.  As a general rule, this level of knowledge establishes a doctor’s competence to render an expert opinion.  See Grunst v. Immanuel-St. Joseph Hospital, 424 N.W.2d 66, 68, 40 W.C.D. 1130. 1132-33 (Minn. 1988).  Although the August  31, 2004, chart note contains what appears to be a typographical error, the error, in our view, is not material to Dr. Jacoby’s opinion nor does it demonstrate an inadequate factual foundation for his opinion on causation.  This court will generally affirm the decision of a compensation judge based on the choice between expert opinions, “so long as the accepted opinion has adequate foundation.”  Smith v. Quebecor, 63 W.C.D. 566 (W.C.C.A. 2003) (citing Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985)).

The employer and insurer also contend that the compensation judge erred in concluding, in his memorandum, that the employee “consistently required both Oxyco[n]tin and Oxycodone since 2001.”  (Mem. at 4.)  The judge further states, however, that “[f]urther, these medical records clearly indicate that the employee had been prescribed and used Oxycodone for breakthrough pain prior to the motor vehicle accident[] of May 5 [sic], 2004 . . . .”  There is no dispute that at some point subsequent to the 1997 work injury, the employee was prescribed OxyContin and oxycodone and continued to treat under this modality until July 2001 when she was switched to methadone.  When she returned to North Clinic in March 2002, the doctor restarted the employee on OxyContin, but did not restart the oxycodone, electing instead to try other means of controlling breakthrough pain, including osteopathic or chiropractic therapy.  The records indicate the employee continued to have difficulty with breakthrough pain, but pain control was otherwise stable on a somewhat increased dose of OxyContin by late 2003.  In August 2004, Dr. Jacoby restarted oxycodone, as needed, in combination with the employee’s ongoing OxyContin, for pain control, including pain and spasms in the lower back and legs which had been aggravated by the May 2, 2004, accident.  In a note dated December 9, 2011, Dr. Jacoby stated that the main reason he had been seeing the employee for most of the past decade was the result of the 1997 workers’ compensation injury.  On January 18, 2013, Dr. Jacoby again noted the employee’s chronic low back pain had been going on for many years since the injury in 1997.

As noted by the compensation judge, the issue is not whether the work injury was the sole cause of the employee’s ongoing need for oxycodone, but rather whether the work injury was a substantial contributing factor to the ongoing use of the medication.  Roman v. Minneapolis St. Ry. Co., 268 Minn. 367, 129 N.W.2d 550, 23 W.C.D. 573 (1964).  It would not be unreasonable to conclude that the 2004 accident combined with the employee’s underlying low back condition resulting from the 1997 work injury to aggravate or accelerate her condition, causing the employee’s ongoing need for oxycodone.  Dr. Jacoby specifically opined that the oxycodone prescription was causally related to the employee’s January 23, 1997 work injury, and the compensation judge accepted this opinion.

Finally, the employer and insurer argue that Dr. Jacoby’s one-sentence causation report of April 15, 2013, is legally insufficient, as it lacks any explanation of how the oxycodone is related to the work injury.  While a detailed explanation of the basis for a doctor’s opinion may be helpful in evaluating the respective merits of divergent medical opinions, it is not a prerequisite for the adoption of an expert opinion by the compensation judge.  Henschal v. Federal Express Corp., No.WC07-212 (W.C.C.A. Jan 30, 2008); Vandenbosch v. Waste Mgmt of the Twin Cities, No. WC08-258 (W.C.C.A. July 9, 2009).  In this case, the compensation judge had the extensive treatment records of Dr. Jacoby which provide an adequate factual foundation for the doctor’s ultimate causation opinion.

Substantial evidence supports the compensation judge’s finding that the oxycodone prescription was reasonable, necessary, and casually related to the employee’s work injury.  We, accordingly, affirm.

[1] The earliest medical record submitted at the hearing was a North Clinic note dated December 15, 2000, which states that the employee had been seeing Dr. Beehler who had been prescribing OxyContin 10 mg twice daily and OxyIR 5 mg for breakthrough pain, but the doctor had since left the clinic and was no longer able to prescribe medication for the employee.  The clinic continued to provide refills of the employee’s prescriptions for OxyContin and oxycodone until the referral to MAPS.

[2] OxyContin is the brand name for a controlled, extended time-release formulation of oxycodone used to treat chronic moderate to severe pain.

[3] Also referred to in the medical records as “OxyIR” (immediate release).  Oxycodone is the generic name for an opiod analgesic used to manage breakthrough or acute flare-ups in pain in patients who are being treated for chronic pain.

[4] The employee dropped her Dobson medication reimbursement claim against the employer and insurer during the course of the hearing before the compensation judge.

[5] The employer and insurer stipulated at the hearing that they were not contesting the OxyContin prescription.