JANUARY 22, 2014

No. WC13-5617


MEDICAL TREATMENT & EXPENSE - EXCESSIVE CHARGE.  Where the compensation judge did not specify the basis for his determination that 20% of a prescription medication expense claim was excessive, we remand for reconsideration and for an explanation of medications considered excessive.

Vacated in part and remanded in part.

Determined by:  Milun, C.J., Hall, J., and Cervantes, J.
Compensation Judge:  James F. Cannon

Attorneys: Michael L. Garbow, Law Offices of Mark Rodgers, Bemidji, MN, for the Employee.  Timothy J. Manahan, David D. Carlson, Brown & Carlson, Minneapolis, MN, for the Employer-Respondent.  Michael G. Schultz, Sommerer & Schultz, Minneapolis, MN, for the Appellant.




Injured Workers’ Pharmacy, an intervenor, appeals the compensation judge’s partial denial of the claimed prescription medication expenses.  We vacate the partial denial of the claimed expenses and remand.


On March 17, 2010, Melissa K. Hillstad, the employee, sustained a work-related low back injury while working as a certified nurse assistant at Havenwood Care Center, the employer, which was self-insured for workers’ compensation liability with claims administered by Meadowbrook Insurance Group.  The employee was diagnosed with an L4-5 disc herniation by Dr. Sunny Kim in June 2011.  Dr. Kim recommended restrictions and a right L4-5 lumbar microdiscectomy.  The employee’s primary treating physician, Dr. Steven Quamme, agreed with Dr. Kim’s recommendations and prescribed medications.  The employer denied the request for surgery, and a hearing on this and other issues was held on November 9, 2011.  In Findings and Order served and filed January 17, 2012, the compensation judge found that the recommended surgery was reasonable, necessary, and causally related to the employee’s work injury.  The judge also determined that the employee was not eligible for the approved surgery until there was medical documentation that the employee had stopped smoking cigarettes for at least three months.

The employee was able to stop smoking cigarettes, but used nicotine lozenges and electronic cigarettes on an ongoing basis.  Dr. Quamme opined that the employee had stopped smoking as of January 18, 2012.  The employee sought surgical treatment in June 2013, but changed her surgery claim to a request for a fusion surgery as then recommended by Dr. Kim.  The employee also claimed medical mileage and prescription medication expenses totaling $19,123.51 from January 31, 2011, through September 17, 2012.  The prescriptions were filled by Injured Workers’ Pharmacy, an intervenor in this matter.  The employer again denied the employee’s surgery request, contending that the requested surgery was not reasonable, necessary, or causally related to the employee’s work injury and also claiming that the employee’s use of nicotine products invalidated her smoking cessation.  The employer also denied payment for the employee’s medical mileage and prescription medication expense claims.  By the time of the hearing, the employee was not requesting fusion surgery since it was no longer recommended by Dr. Kim at that time, and was instead requesting the same surgery which had been approved in the January 17, 2012, Findings and Order.

During this litigation, the employee underwent independent medical examinations with Dr. Rick Davis and Dr. Nolan Segal.  Both doctors addressed the employee’s use of long-term prescription medication.  Dr. Davis opined that the employee’s prescription medication treatment was reasonable and necessary for eight weeks after the injury.  Dr. Segal opined that narcotic analgesics would only be reasonable for two to three weeks after an acute injury, and that a TENS unit would be recommended for pain control after that time.  Dr. Segal also opined that some of the medication that had been prescribed was contraindicated for long-term use because of a high risk of complications, that such use was ill-advised, and that her prescriptions were resulting in an excessive intake of acetaminophen.  Dr. Quamme opined that the prescription medication was used to treat the employee’s work-related back injury.

After the hearing on June 5, 2013, the compensation judge determined that the employee had stopped smoking in January 2012, that she was in compliance with the condition from the January 17, 2012, Findings and Order for approval of the recommended surgery, and that she was therefore entitled to the surgery.  The judge found that the employee’s prescription medication treatment provided substantial relief of the employee’s work-related back symptoms and that a substantial portion of the medications provided by the intervenor was reasonable and necessary.  The judge also determined that a portion was excessive and that 20% of the intervention claim for the employee’s prescription medication expenses constituted medical treatment that was unreasonable and unnecessary.  The judge accordingly awarded 80% of the intervention claim.  The intervenor, Injured Workers’ Pharmacy, appealed the judge’s denial of 20% of the intervention claim.


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.[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.[2]  Fact findings are clearly erroneous if the reviewing court, looking at the entire evidence, is left with a definite and firm conviction that a mistake has been committed.[3]  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.”[4]  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.[5]


The compensation judge found “that a substantial portion of the Injured Workers’ Pharmacy’s intervention claim for the employee’s prescription medical expenses, including narcotic medications, constitutes medical treatment that is reasonable and necessary due to, and causally related to, the employee’s work-related back injury of March 17, 2010.”[6]  The judge also found that a portion of the prescription medication claim was excessive and determined that it was reasonable to deduct 20% of the total prescription medications from the intervention claim as “an excessive amount of prescription medication for such a relatively short period of time.”[7]  The compensation judge therefore awarded 80% of the intervention claim for prescription medical expenses.[8]

A charge for a health service or medical service is excessive under Minn. Stat. § 176.136, subd. 2, if it “is for a service provided at a level, duration, or frequency that is excessive, based upon accepted medical standards for quality health care and accepted rehabilitation standards.”[9]  The intervenor, hereinafter the appellant, argues that the compensation judge should have awarded 100% of the intervention claim since the judge found the employee’s use of prescription medication was related to her work injury and resulted in substantial relief of her back and leg symptoms.  By contrast, the self-insured employer maintains there is substantial evidentiary support in the record to support the judge’s determination.

The employer points to the medical opinions from the independent medical examiners, Drs. Segal and Davis, to clarify the judge’s determination that some portion of the medications was excessive.  Dr. Segal noted “there is nothing on the radiologic studies, nor on physical exam, either at the time of my exams nor in the medical records, that would warrant long-term use of narcotic analgesics.”[10]  Dr. Segal was also of the opinion that the employee was ingesting excessive amounts of acetaminophen with the combination of the medications prescribed.  The appellant argues that the compensation judge rejected both IME opinions and in the absence of those opinions there is no evidence to support less than the total amount of the intervention claim.  We note that nothing in the findings and order suggest the judge rejected the IME doctors’ opinions in their entirety.  Further, their reports include evidence that the prescribed medication was medically contraindicated, ill-advised, excessive, and prescribed for too long of a time period, which could provide a basis for the compensation judge to find some portion of the medications excessive.[11]  The record may be sufficient for the fact finder to analyze the evidence and give the relevant evidence the appropriate degree of weight in order to reach a legal conclusion that the prescription medical treatment was excessive and that the appellant is entitled to less than 100% reimbursement of the intervention claim.

The compensation judge, however, failed to cite any particular medication expense or drug which was excessive or unreasonable, nor did the judge adopt any medical opinion or articulate any rationale for denying 20% across the board of the total cost of all prescription medications for all of the employee’s conditions.  The judge did not discuss the evidence that certain prescriptions may be excessive by combined use or continued use after a certain period of time.  In any event, we are unclear as to the rationale for the 20% deduction of the intervention claim.  We therefore vacate the compensation judge’s findings related to the 20% deduction of the intervention claim, and remand for reconsideration and an explanation of which prescription medications the judge determines to be excessive between January 31, 2011, and September 17, 2012.

[1] Minn. Stat. § 176.421, subd. 1.

[2] Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).

[3] Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

[4] Id.

[5] Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

[6] Finding 22.

[7] Finding 23 (emphasis in original).

[8] The medications acknowledged by Dr. Quamme as prescribed since January 31, 2011, included at a minimum Tizanidine, Lidoderm, Lyrica, Amitriptyline, Cymbalta, Hydrocodone-Acetaminophen, Gabapentin, MAPAP, Morphine Sulfate, Ketorlac, and Venlafaxine.  (Employee’s Ex. G.)  The compensation judge denied 20% of all prescription expenses claimed.

[9] Minn. Stat. § 176.136, subd. 2, provides in part:

A charge for a health service or medical service is excessive if it:
(1)  exceeds the maximum permissible charge pursuant to subdivision 1, 1a, 1b, or 1c;
(2)  is for a service provided at a level, duration, or frequency that is excessive, based upon accepted medical standards for quality health care and accepted rehabilitation standards;
(3)  is for a service that is outside the scope of practice of the particular provider or is not generally recognized within the particular profession of the provider as of therapeutic value for the specific injury or condition treated; or
(4)  is otherwise deemed excessive or inappropriate pursuant to rules adopted pursuant to this chapter.

[10] Employer’s Ex. 1, May 24, 2013, report, p. 8.

[11] Employer’s Ex. 1 and 2.