TERRY J. MELSNESS, Employee, v. OVERHEAD DOOR CO. and CINCINNATI INS. CO., Employer-Insurer/Appellants, and INJURED WORKERS PHARMACY, Intervenor.

JULY 17, 2015

No. WC15-5793


MEDICAL TREATMENT & EXPENSE - MEDICATIONS. The medical records of the employee since his injury, his testimony as to the relief he has obtained from his use of the medication and the opinion of the employee’s treating physician provide substantial evidence to support the compensation judge’s finding that the employee’s prescription for Viagra was reasonable, necessary and related to the work injury.


Determined by:  Stofferahn, J., Hall J., and Sundquist, J.
Compensation Judge:  Stacy P. Bouman

Attorneys:  Raymond R. Peterson, McCoy, Peterson, and Jorstad, Ltd., Minneapolis, MN for the Respondent. Timothy S. Crom, Jardine, Logan, and O’Brien, P.L.L.P., Lake Elmo, MN for the Appellants.




The employer and insurer have appealed the compensation judge’s finding that the employee’s use of Viagra as a vasodilator to treat his work-related reflex sympathetic dystrophy (RSD) was reasonable and necessary. We affirm.


Terry Melsness was employed by Overhead Door Company when he was injured on the job on August 18, 1997.  Mr. Melsness fell from a sixteen foot step ladder, falling eight feet and sustaining a comminuted fracture of the right tibial plafond.  The employer and its insurer, Cincinnati Insurance Company, accepted liability for the injury.

The employee’s immediate medical care for his injury was at Sioux Valley Hospital in Sioux Falls, SD, where an open reduction and internal fixation was performed.  The severe pain the employee had been experiencing since his injury was not relieved by this procedure.  By March 1998, a diagnosis of RSD to the right leg and foot as a consequence of the work injury had been made.

In 2003, the parties entered into a settlement in which it was agreed that the employee was permanently totally disabled.  It was also agreed that the employee’s work injury was in the nature of a severe fracture to the right ankle with consequential development of RSD.

The medical records in evidence disclose that from March 1998 through the most recent hearing in November 2014, the employee has consulted with or been evaluated by or treated by at least eighteen different physicians or therapists.  He has had epidural nerve blocks, acupuncture, and has received over 100 physical therapy sessions.  None of these treatment modalities have significantly relieved his symptoms.

The employee has also been treated extensively with prescription medicine.  In 1998, he was prescribed Neurontin and amitriptyline.[1]  When these medications were not helpful, he was prescribed Naprosyn, Nisoldipine (a calcium channel blocker), and nitroglycerin ointment (a vasodilator).  In 2001, Norvasc (a calcium channel blocker) was tried and in 2002 Prazosin (an alpha blocker) was given.  Since 2002, the employee has been taking OxyContin and oxycodone.  Mr. Melsness testified that, prior to taking Viagra, the only pain relief that he experienced was from the use of the opioids.

Beginning in 2002, the employee began treating at Southwestern Mental Center for depression and anxiety related to his work injury where he came under the care of Dr. William Fuller, a psychiatrist.  In July 2011, the employee was prescribed verapamil (a calcium channel blocker) to address the employee’s hypertension and tachycardia.  In 2013, the parties disputed the reasonableness, necessity and causation of the employee’s continued use of OxyContin and oxycodone as well as a number of medications prescribed by Dr. Fuller for treatment of the employee’s psychological condition.

Mr. Melsness was seen for an independent medical examination by Dr. Teresa Gurin, a physical medicine and rehabilitation specialist, in May 2013. Dr. Gurin concluded the employee no longer had RSD but instead had osteoarthritis in his right ankle.  She made a number of treatment suggestions, including tapering off OxyContin and oxycodone and replacing them with Tylenol and Neurontin.

A hearing was held in 2013 on the medical dispute and the findings and order of the compensation judge was issued August 13, 2013.  The compensation judge determined that the employee continued to have RSD arising out of the work injury through the date of hearing, the work injury was a substantial contributing cause of the employee’s depression and anxiety, and the prescribed medications, including OxyContin and oxycodone, were reasonable, necessary, and related to the work injury.  No appeal was taken from the compensation judge’s decision.

In October 2013, Dr. Fuller recommended that the employee begin using Viagra to address his pain from RSD.  Dr. Fuller stated in his deposition that he was aware Viagra was a vasodilator that would help increase blood circulation and reduce the feeling of coldness associated with RSD as well as reducing pain.  He stated he had other patients with similar conditions who had been helped by the use of Viagra.  In a chart note dated March 14, 2014, Dr. Fuller recorded that the employee was “extremely happy about his progress . . . has not had relief like this for a lengthy period of time.”  In November 2014, Dr. Fuller testified that the employee’s condition had improved since he began using Viagra and as a result of the improvement in his physical condition, the employee’s depression had improved as well.

Mr. Melsness was evaluated again by Dr. Gurin on November 14, 2014.  It was her opinion that the employee’s use of Viagra was not warranted.  She stated in her report that the medical records did not show any evidence of a reduction in his pain and that there were possible adverse side effects with the use of Viagra.  Dr. Gurin instead advised that the employee should follow “common sense” approaches such as to dress more warmly and stop smoking.  She also reiterated her opinion that the employee no longer had RSD and should discontinue the use of opioids.  Dr. Gurin reiterated this approach in a supplemental report provided on December 3, 2014.  After lifestyle changes, Dr. Gurin listed alternative primary medications as calcium channel blockers, secondary medications as alpha blockers, and tertiary medications as vasodilators, including Viagra.

The employee testified at the hearing as to his condition before he began using Viagra.  His right foot was extremely sensitive and felt very cold.  He likened the coldness he experienced to putting his foot in the water under the ice of a frozen lake.  His activity consisted primarily of sitting because of the increased pain he had with any increased activity.  After he began using Viagra, he was able to engage in more activity around the house and described going in the basement of his house to fix a ceiling fan.  He said before he began using Viagra he avoided going into the basement because the cold floor aggravated the coldness and pain in his foot.  Mr. Melsness testified that with regard to his use of oxycodone since taking Viagra, “I’ve been able to eliminate it.”

The employer and insurer disallowed the employee’s prescription expenses for Viagra.  The employee filed a medical request which ultimately led to a hearing on the issue on November 20, 2014.  On January 2, 2015, the compensation judge issued her decision in which she found the prescription for Viagra to be reasonable, necessary and causally related to the employee’s work injury.  The employer and insurer have appealed the compensation judge’s decision.[2]


An employer is obligated to provide an injured worker with medical care that may “reasonably be required” to cure and relieve from the effects of the work injury.  Minn. Stat. § 176.135.  The issue of whether specific medical treatment is reasonable and necessary is a question of fact for the compensation judge to determine.  Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993); Richardson v. Hot Shot Prods., 72 W.C.D. 113 (W.C.C.A. 2012).  The question for this court is whether the decision of the compensation judge on this issue is supported by substantial evidence. If so, the decision is to be affirmed.  Minn. Stat. § 176.421, subd. 1; Hengemuhle v Long Prairies Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).

The employer and insurer argue on appeal that the compensation judge erred in awarding the cost of the employee’s prescription for Viagra in that substantial evidence does not support the compensation judge’s decision.  Specifically, the employer and insurer focus on the cost of the prescription, noting that the cost for this medication is approximately $1,000 per month.  They contend that the compensation judge erred in failing to require the employee to prove that there was no cheaper alternative to the prescription.  As authority for this argument, the appellants point to general requirements of the statute that they read as requiring a balance between cost to the employer of the treatment and benefit to the employee.  They cite to two decisions from this court: Peterson v. Kandi Kourts, 45 W.C.D. 528 (W.C.C.A. 1991), summarily aff’d (Minn. Dec. 16, 1991) and Olson v. Control Data Corp., slip op. (W.C.C.A. Aug. 8, 1991).

In Olson this court reversed the compensation judge’s award of the cost of an exercise bicycle where there was evidence of less expensive models than the one chosen by the employee and no evidence as to particular benefit from use of the requested model.  In Peterson the court affirmed a compensation judge’s denial of the cost of a Nordic Track based on the compensation judge’s finding that use of a Nordic Track was not reasonable or necessary treatment for the employee’s injury.  Neither of these decisions provide a general holding that would provide a basis for reversing the compensation judge in the present case.  Instead, the decisions were made on the basis of facts which were very specific to each case and which have no connection to the present matter.  Further, as to the question of balancing cost and benefit in considering requested medical expenses, we consider that question to be inherent in the statute’s requirement that medical care be reasonable and necessary.

The compensation judge set out in her memorandum her rationale for finding the Viagra prescription to be reasonable and necessary.  She noted first the unappealed finding from the 2013 hearing that cold exacerbated the employee’s RSD.  She also referred to evidence that the use of Viagra reduced the employee’s sensation of cold and his symptoms, that the use of Viagra allowed the employee to be more functional, and that it has reduced the employee’s depression.  To those considerations, we would add that, at this time, the employee’s injury is almost 18 years old.  He has seen numerous providers and has received, and cooperated with, numerous treatment modalities.  Many of these treatment modalities are calcium channel blockers, alpha blockers, and vasodilators which are the alternative medication categories proposed by Dr. Gurin.  None of those treatments provided the employee any relief except for his use of opioids until Dr. Fuller prescribed Viagra.  Further, we note, as did the compensation judge, that the employee’s use of Viagra has allowed him to reduce his dependence on opioids.

The employer and insurer’s appeal focused on the $1,000 per month cost of the Viagra, arguing that alternative and less expensive medication should have been tried first.  There may have been other arguments which could have been advanced in opposition to the employee’s claim but with the arguments and evidence presented at the hearing as well as the previous decision in 2013, we must conclude that the decision of the compensation judge is supported by substantial evidence.

The medication at issue here, Viagra, is not typically prescribed to address the usual conditions that arise from work injuries.  However, the compensation judge applied the standards of reasonableness and necessity that apply to any medication claimed as compensable.  This decision does not set a new standard of compensability for medication and is not an endorsement of any specific medication or any specific treatment for the symptoms of RSD.  The compensation judge carefully considered the unique evidence in this case and reached a conclusion which is supported by substantial evidence. The decision of the compensation judge is affirmed.

[1] The employee’s medical records identify his medications at times by brand name and at other times by the generic name.  This opinion will refer to the medications by the name used in the records.

[2] The employer and insurer initially identified the compensation judge’s refusal to allow a further supplemental report or deposition of the IME physician as an issue on appeal.  As no mention was made of this issue in the Appellant’s brief, this issue is deemed waived and not decided pursuant to Minn. Rule 9800.0900, subp. 1.