MIA A. FORRESTAL a/k/a JENNIE M. FORRESTAL, Employee/Respondent, v. MILLER DWAN MED. CTR./ESSENTIA HEALTH, SELF-INSURED/BERKLEY RISK ADM’RS CO., Employer/Appellant, and UNITED HOSP. and UNITED HEALTHCARE SERVS., Intervenors.

The employer appeals the judge’s findings that the 11 office and hospital visits to obtain narcotic medication after the employee’s narcotics contract was breached were reasonable and necessary. Where the record as a whole supports a follow-up visit on an ergonomically provided desk, the hospital visit following narcotic withdrawal, and a hospital visit for injections offered as reasonable and necessary, and where the employee declined alternative treatment offered at the remaining eight office visits following the breach of the narcotics contract, the compensation judge’s findings are affirmed in part and reversed in part.

Mia Forrestal, the employee, worked as a behavioral health technician in the mental health unit for the employer Miller Dwan Medical Center. On June 25, 2008, she was called to restrain a mental health patient. In the process of restraining the patient, she fell landing on a co-worker’s bent knee which caused low back and left hip pain.^[1] She sought immediate treatment at St. Mary’s Medical Emergency Department where she received a prescription for Lortab, a narcotic drug. The employer admitted liability for the low back injury, denied liability for the left hip injury, and paid workers’ compensation benefits to the employee.

Over the next four years, the employee underwent x-rays and MRIs of the low back, thoracic spine, and hip, which were normal. She underwent a number of treatment alternatives. After the employee attended four physical therapy (PT) appointments in July 2008, Dr. Lynn E. Quenemoen temporarily placed PT on hold in August 2008 and initiated chiropractic treatment. The employee restarted what appears to be PT again, attending one session, but was a “no show” for several sessions. The physical therapist noted on January 8, 2009, that the patient’s attendance and participation were not sufficient to achieve her goals. The employee underwent chiropractic treatment from September 10, 2008, to January 14, 2009, which did not appear to help her pain. In November 2008, Dr. Quenemoen reported that the employee’s low back pain had essentially resolved, but that she continued to have left sided pelvic pain. A medical membership for 90 days was also available to her early on in her treatment and “strongly” recommended by her treating doctor. The record is unclear as to whether the employee partook in active exercise. The employee also treated with a TENS unit, massage, Lidocaine patches, and acupuncture.^[2] Dr. Quenemoen “did not recommend using any narcotic pain medications for regular use or for flare-ups,” but provided the employee with Tramadol.^[3]

The employee continued with narcotic medications in the form of Tramadol in December 2010. Dr. Lucas Hintermeister told the employee that he did not “want her to use chronic pain medications” and that “we have to find alternative ways to help her pain.” After prescribing Tramadol for the employee, Dr. Hintermeister reported that “she refuses to do PT [etc.] until the Work Comp issue is settled and requests bridging the pain until then.”^[4]

On a referral by Dr. Quenemoen to Dr. Timothy M. Morton, a physical medicine and rehabilitation specialist, the employee was diagnosed with chronic pain on August 2, 2011. Dr. Morton indicated that she would benefit from a chronic pain program to learn relaxation techniques and to address life with chronic pain. He did not believe physical therapy would benefit the employee. He also indicated that if the injections were ineffective, she may need to continue with chronic pain medications.

Between 2008 and 2012, the employee was intermittently prescribed medication in the form of Hydrocodone, Lortab, and/or Tramadol.^[5]

In May 2012, the parties, who were all represented by counsel, settled the workers’ compensation claim. The terms of the settlement included a close out of the employee’s benefits with some medical expenses left open in exchange for $25,000.00. There was no close out of physical therapy, injections, pain medication, including narcotics medications, or surgery, but all medical expenses which remained open were subject to defenses of liability and reasonableness and necessity. The stipulation close-out left no treatment options available at pain clinic programs, for psychiatric or psychological treatment, chemical dependency treatment, or chiropractic care.^[6]

When the employee signed the stipulation for settlement in 2012, she was on a drug regimen which included the narcotic drug, Lortab. Following the award on stipulation, the expectation was that she would continue to receive Lortab for her chronic pain condition. The employee testified that she signed a narcotics agreement with Dr. George Jennings at Essentia Health Hermantown in May 2011. The record reflects that she signed narcotics agreements on October 11, 2011, and again on August 27, 2012.^[7] The contract included language which would stop the prescription and use of narcotics if violated or breached.^[8] According to Dr. Darcy S. Murphy who practiced in the same clinic as Dr. Jennings, the contract read in part as follows:

1.   I will take my medications as prescribed. My doctor will be included in any decision to change the amount of medicine I take. I will not ask for early refills.
2.   Refills and/or changes in my opioid medications will only be made during scheduled visits with my doctor, nurse practitioner, or physician assistant about my pain. Refills and or changes will not be made over the phone, during unscheduled visits, or during visits for other problems (unless the doctor has enough time to do so).
3.   Lost or stolen medicines will not be replaced. As a result, I may go through withdrawal if I do not have the medicine. Therefore, I will keep my medicines safe. I will not store my medicines above the sink or toilet. I will keep them out of reach of children, pets, and others.
4.   I will not use inappropriate, threatening or abusive language or behavior when I talk with my care providers either in person or on the telephone. This includes doctors, nurse practitioners, physician assistants, nurses, and any other staff at my doctor’s office or any Essentia Health facility, or at any pharmacy.
5.   I understand that I may also be called by my doctor’s office, at any time, to bring in my medications to be counted to make sure that I am using my medications as prescribed. I also understand that if I do not bring in my medications within 24 hours of being asked that I may be considered in violation of my opioid agreement.^[9]

On July 3, 2013, the employee was unable to see Dr. Jennings at the Essentia Hermantown Clinic as he was on a leave of absence.^[10] Instead, she saw Dr. Murphy. The employee reported significantly worsened low back and hip pain since she was carrying her 20pound son. She requested a reduction in Lortab from 7.5 mg to 5 mg, and increase of the dose from 3 times to 4 times per day. Dr. Murphy filled a three-month prescription of Lortab in 3 separate scripts, one for each month. Dr. Murphy also highly recommended that the employee undergo PT. Up to this point, the employee testified that she was able to treat with Dr. Jennings’ office and obtain Lortab.^[11]

In a letter dated August, 5, 2013, to the employee, Dr. Murphy described the next events.^[12] She wrote that on July 24, 2013, the employee called the Hermantown Clinic and left a message asking to switch back to the usual dosage of Lortab of 7.5 mg 3 times daily. The clinic documented that the employee reported she still had some medication remaining. Dr. Murphy wrote that she agreed to make the switch if the employee brought in her remaining Lortab 5 mg pills and prescriptions for August 2, 2013, and September 2, 2013. Dr. Murphy reported that when staff from the Hermantown Clinic called the employee to discuss the plan, the employee was abusive in the interaction, swearing at the nurse, and demanding to talk with Dr. Murphy. Dr.Murphy wrote that the employee said that she no longer had any Lortab pills remaining to return. Dr. Murphy wrote that she offered an appointment to the employee to come in and discuss the situation in detail as the policy is not to make changes in narcotic medications over the phone. After the interaction, Dr. Murphy noted that the employee had called the clinic pharmacy several times in an attempt to get an early refill of Lortab. Dr. Murphy wrote that two days later, on July26, 2013, she called the employee and told her that the narcotics agreement had been violated and she would not be prescribing any further narcotic medication. At that time, Dr. Murphy also explained alternative treatment known to be effective for the treatment of chronic back and hip pain. (Exhibit. 5).

The employee saw it differently. She testified that while speaking to staff at Hermantown over the phone, she “apparently said a swear word and that was . . . not allowed in the opioid agreement and therefore it was terminated.”^[13] She further testified that she disagreed with Dr. Murphy’s statement that she attempted to call the clinic pharmacy several times.^[14] The employee’s testimony confirmed that she knew of the contract violation two days after she had spoken to the nurse when Dr. Murphy called her.^[15]

What happened next is the subject of the present litigation. The employee attempted to obtain Lortab from several providers, most of whom were in the Essentia health network. In each case, the providers refused to prescribe narcotic medications and in each case the provider offered an alternative treatment. At each subsequent visit, the employee declined alternative treatment and left.

The employee first saw Dr. Robert B. Pierpont at Essentia/St. Mary’s Superior Clinic on July 29, 2013. He wrote that he was concerned about the recent interaction with the employee’s providers at Hermantown Clinic. He explained to the employee that he was not willing to reinstate opioid therapy and reported that the employee had no interest in any alternative approaches.^[16]

Six days later, on August 5, 2013, the employee was admitted to the emergency department at Essentia’s St. Mary’s Hospital for opiate withdrawal and was seen by Dr. Melissa L. Rosas. Dr. Rosas reported that the employee had her last Lortab pill 4 days ago^[17] and requested a tapered dose of narcotics for her withdrawal symptoms. Dr. Rosa offered symptom control medication. The employee reported that she was told her contract was violated and the narcotics were declined. Dr. Rosas recommended “abstinence from opioids.”^[18] The employee was discharged in “good condition.”

On August 6, 2013, a day after the emergency room visit, the employee sought treatment at Essentia/St. Mary’s Superior Clinic with Dr. Jean E. Hoyer. The chart notes reflect that the employee told Dr. Hoyer that according to the settlement “this clinic was obliged to give her narcotics, and that no other treatment was allowed.” The medical notes establish that the employee was “surprised and did not think her contract was broken and asks why it was broken.” She told Dr. Hoyer that she had never seen the narcotics contract. Dr. Hoyer reported that the employee declined all of her recommendations and repeatedly asked for narcotic refills. Dr. Hoyer wrote, “I did tell her that the contract has bearing on all providers within this system, as we all utilize the same contractual terms.” Dr. Hoyer declined narcotics whereupon the employee told Dr. Hoyer that “she needed nothing further from [her] and walked out of the office.”^[19]

Two days later, on August 8, 2013, the employee saw Dr. Igwe C. Livingston, again at an Essentia clinic, Lakeside Clinic. Dr. Livingston wrote that the “patient would like to sign an opioid contract with me. She reports contacting multiple providers in the system who have declined providing her with opioid refills. I declined her request . . . . I discussed alternative pain control modalities, just like were offered to her by multiple providers. Patient does not appear interested in any other ways of managing her pain outside of using opioids.”

Dr. Joseph E. McClean at St. Luke’s reported that the employee was seen at the urgent care at Symmes Hospital on August 7, 2013. On August 12, 2013, the employee saw Dr.McClean requesting a shot of morphine. Dr. McClean explained to her that he could not take responsibility for refilling chronic medications. He reported that the employee left voicing understanding of what he had told her.^[20]

The employee next saw Dr. Theresa E. Weerts at Essentia/St. Mary’s Superior Clinic on August 15, 2013, as a follow-up for chronic pain. Dr. Weerts wrote “no narcotic medications will be provided by me.” She further indicated that an opioid agreement is contraindicated for this patient because she violated the agreement with another provider in the system. Although Dr. Weerts declined narcotic medications, she wrote a prescription for the employee for an ergonomically correct desk.^[21]

On August 26, 2013, the employee sought care outside the Essentia system at First Light in Mora, Minnesota, reporting depression and low back pain. She was depressed because she was in the middle of a divorce and living with her parents. Dr. Matthew G. Allen reported that the employee had chronic pain since 2008 and had been taking Lortab and Ultram for pain. He wrote that “she has been out of pain prescription for the past month. She is requesting narcotic pain medication.” Dr. Allen described their interaction, writing that “we had a very long discussion about chronic pain and chronic opiate use. I discussed that opiates taken long-term cause more harm than good. Patients on chronic opiates have worse depression, worse pain, worse functional scores . . . . She needs to go to physical therapy and see a spine specialist.” He prescribed Tramadol and warned her to use it sparingly and to try to get by without it.^[22]

The employee sought to establish care outside of the Essentia system again on September 18, 2013, when she saw Dr. Jessica K. Lavan Woodward at Raiter Clinic.^[23] Dr.Woodward wrote, “We talked about the troubles with chronic narcotics and that I would not recommend that she be on them long-term. I would prefer to use other means to control her pain.” Dr. Woodward recommended an exercise program and counseling/therapy.

Returning to the Essentia/Hermantown Clinic on September 19, 2013, the employee saw Dr. Sean T. Kempke.^[24] Dr. Kempke wrote that “alternative treatment would be offered, but no narcotics. I cannot prescribe narcotics, we agree that there are several things we can do to improve this situation.” He recommended adjusting her anti-depressant and anti-anxiety medication with the goal of getting her off all controlled substances including “benzos.” The employee was open to a psychological evaluation and pain management programs. Dr. Kempke was optimistic that counseling and medication management may help her cope and begin to deal with her stressors and pain more effectively.

Seven months passed and the employee saw Dr. Daniel M. Palmquist at the Raiter Clinic on April 15, 2014.^[25] Dr. Palmquist reported that the employee appeared “somewhat groggy and inattentive and sometimes slight slurring of her speech, but was orient x3.” He wrote that “we had a lengthy discussion about treatment of chronic pain in young people. I have no doubt that she would have short-term pain relief with narcotic therapy but would quickly develop tolerance and could also experience worsening of her mental health situation. I strongly encouraged her to try again gabapentin or Lyrica and she declined. She may be a candidate for nerve injection or spinal block.”

The employee next saw Dr. Paul J. Vollmar at the Community Memorial Pain Clinic on April 23, 2014.^[26] Dr. Vollmar assessed her with chronic low back pain syndrome, as well as neck pain syndrome and cervical radiculopathy,^[27] and scheduled injections pending workers’ compensation approval.

The employee sought treatment as a new patient at St. Luke’s with Dr. Christopher L. Baumbach on May 27, 2014. She requested to be placed on an opioid contract.^[28] The notes reflect that the employee reported she last had an opioid prescription in July 2013, physical therapy did not work, and that she was “doctor shopping” to find a physician who agreed with her. Dr.Baumbach wrote, “At this time, I am unwilling to start her on narcotic prescriptions for back pain when there is no true diagnoses for her back pain. Patient will need to start physical therapy, spine-X prior to initiation of any narcotic prescription and even if she does start this I have a difficult time initiating therapy. Patient became upset that I would be unwilling to prescribe narcotics prescription to her and she left the clinic.”

Finally, the employee sought treatment with Dr. Deborah Dryer at Northlakes Community Health Center on June 19, 2014.^[29] Dr. Dryer wrote that the employee’s condition was mechanical in nature and that the employee was not interested in physical therapy or chiropractic at this time. The employee told Dr. Dryer, that the only thing that helped her chronic pain was the narcotic Lortab. Dr. Dryer told the employee that she did not think chronic narcotics are indicated.

The employee’s testimony, that she declined the alternative treatments offered because nothing helped her, was also noted in the medical records. The employee testified that physical therapy, injections, chiropractic and other medications were tried, and were not effective in controlling her pain. The employee claimed that only the narcotic drug, Lortab, was effective. She further testified that she had closed out in the stipulation for settlement some of the alternative treatments offered.^[30]

The employee admitted to drug seeking because she believed the Lortab worked for her. She ultimately was able to obtain narcotics from Dr. Hess of the United Pain Clinic in St. Paul in 2014 or 2015. The bills and medical records for treatment at United Pain were not part of the record nor an issue in the litigation below.

Two medical expert narrative reports were submitted on behalf of the parties. Both reports were dated at least two years before the medical bills in question. The employee’s medical expert, Dr. Jennings’ narrative report of July 19, 2011, outlined the causal connection between his treatment and the employee’s drug regimen. He opined that “these medications are reasonable approaches to pain management at this point in time.”^[31] One month later on August 26, 2011, Dr.Jennings recommended that the employee should wean off narcotic medications. On June 29, 2012, Dr. Jennings wrote that the employee, who was post-partum at the time and depressed, should have a goal of being weaned off her Lortab medication over time.^[32]

The employer’s medical expert Dr. Nolan Segal’s narrative report of December 15, 2010, outlined a causal connection that was temporary in nature and one which had cleared up by November 25, 2008, when the employee reported to her doctor that she no longer had low back pain.^[33] Dr. Segal opined that the employee had a long history of anxiety, psychological problems, and symptom magnification. Finding that the employee required no additional medical treatment, he concluded that the employee had evidence of symptom exaggeration and that her subjective complaints of pain were unsupported by objective findings. He did not specifically address the issue of whether long term narcotic use was reasonable and necessary.

The employee sought payment of 11 medical bills totaling $1,519.97 as reasonable and necessary medical expenses for the period from July 29, 2013, to June 19, 2014. The employer denied payment of the bills because there was no connection between the injury and the employee’s medical treatment. They argued that the x-rays and MRI scans were normal and the employee’s subjective pain complaints were not supported by objective findings. They further argued the claimed office visit bills were incurred because the employee was drug seeking and refused all alternative treatment offered by the doctors which did include treatment not closed out under the stipulation for settlement. Because the employee had previously closed out pain clinic treatment in the stipulation for settlement, they argued that the bill for the Community Memorial Hospital Pain Clinic could not be paid pursuant to the Award on Stipulation.

The compensation judge awarded payment of all 11 visits as reasonable and necessary medical treatment.^[34] In his findings, he reiterated that each of the 11 visits “represented a reasonable effort by the employee to obtain medical treatment for her injury residuals.” (Emphasis added.) In the memorandum, he appears to have relied on evidence which was excluded, stating that given the employer’s denial of all treatment for her condition, the visits represented reasonable attempts to secure reasonable and necessary medical treatment to relieve the employee from the effects of her June 25, 2008, work injury residuals. The employer appeals.

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(3). 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, 37W.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 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), summarily aff’d (Minn. June 3, 1993).

On appeal, the employer requests a reversal based on two issues. First, they argue that the compensation judge’s decision regarding both causation and compensability of the treatment was clearly erroneous and manifestly contrary to the evidence. Second, they argue that the judge erred by relying on excluded evidence in determining that no alternative treatment was available to the employee. In response, the employee argues that the decision was supported by substantial evidence and should be affirmed.

As a matter of law, we first consider whether the compensation judge used the proper legal standard for awarding all 11 office visits. Next we address whether the compensation judge’s decision is clearly erroneous and manifestly contrary to the weight of the evidence. Last, we address whether the compensation judge’s apparent reliance on excluded evidence should result in a reversal.

When this court reviews a compensation judge’s decision on a question of law, it need give no deference to conclusions of the compensation judge and reviews those conclusions de novo. Varda v. Northwest Airline Corp., 692 N.W.2d 440, 65 W.C.D. 92 (Minn. 2005).

The compensation judge repeatedly states in the findings that each of the 11 medical visits “represented a reasonable effort by the employee to obtain medical treatment for her work injury residuals.”^[35] This is not the language by which medical treatment is awarded pursuant to statute. The statutory language provides that “an employer must pay for an employee’s medical treatment that is reasonable and necessary to cure or relieve the effects of a personal injury arising out of and in the course of employment, but is not required to pay for medical treatment that is not ‘reasonably required for the cure or relief of the effects of a compensable injury.’ Minn. R. 5221.0500, subp. 1.F. (2013); see also Minn. Stat. § 176.135, subd. 1.” Gamble v. Twin Cities Concrete Prods., 852 N.W.2d 245, 74 W.C.D. 775 (Minn. 2014).^[36] In other words, it is not enough to “make a reasonable effort to obtain” treatment, the treatment sought itself must be reasonable and necessary in order to be compensable. The evidence reflects that the employee received the Lortab medication on and off for several years until July 29, 2013. At that point, the employer stopped paying because Dr. Murphy found that the employee breached the opioid contract, and by its terms, narcotic dispensation was no longer permitted.^[37] In none of the 11 office visit notes is there any indication that opioids or narcotics would be a “reasonable” or “necessary” treatment to cure or relieve the effects of the injury. To the contrary, each doctor refused to prescribe them as contraindicated due to the opioid contract breach or contraindicated for causing more harm than good.

Based on Dr. Murphy’s accounting of the employee’s behavior, the record reflects that the employee may have violated at least three and possibly four of the opioid contract’s terms. First, Dr. Murphy states that the employee called the clinic pharmacy several times to get an early refill of Lortab thereby violating the term of the contract which prohibited the employee from seeking early refills. Second, by requesting a change in narcotics over the phone, the employee may have violated the terms that an in-person visit was necessary to make changes to the prescription. Third, Dr. Murphy’s office told the employee to bring in her remaining Lortab and make an appointment to discuss a change in the prescription. Under the terms of the contract, if the employee failed to bring in the remaining pills within 24 hours, it may result in a breach of the contract. According to Dr. Murphy, at one point the employee told her staff that she had Lortab pills remaining, but disclosed to Dr. Murphy that she had none remaining. Fourth, the employee admitted she used inappropriate language with the staff at Essentia, thereby, violating another term of the opioid contract that she was not to use “inappropriate, threatening or abusive language.”

By affirming the compensation judge’s findings, we would, in effect, nullify the intent of the opioid contract. If we agree with the employee that the narcotics contract was a minor breach, then we would in effect usurp the opinion of the 11 medical professionals who consistently agreed that narcotics would not be appropriate. This court is not in a position to substitute its opinion for that of the medical care providers. This is precisely what the compensation judge did by failing to directly address the effect of the opioid contract in his analysis. Interfering with the doctor-patient relationship by attempting to go around the opioid contract should be avoided. Six doctors at Essentia would not provide opioid drugs to the employee because she breached the opioid contract. Each time, alternative treatment options were offered. Five doctors outside of Essentia also did not recommend opioids because they were contraindicated or would cause more harm than good. Each time, alternative treatment options were offered. And each time, the employee declined the treatment.

Had the employee accepted the alternative treatment offered, we may not have reached the same conclusion. Because the employee breached the opioid contract, attempted to get more opioids/narcotics, and declined other forms of treatment, the record as a whole fails to support the compensation judge’s findings that these visits “represented reasonable attempts to secure” medical treatment.

The dissent argues that the compensation judge ultimately used the proper legal standard in Finding 36. We question how the 11 office visits to obtain opioids which the providers refused to prescribe met the legal standard of curing or relieving the effects of the work injury.

The dissenting opinion also criticizes the majority as “making findings of fact” that the contract was breached or violated instead of choosing the judge’s words which were “a dispute arose between the employee and Dr. Murphy’s office resulting in employee’s opioid contract being cancelled and the employee being unable to obtain a renewal of her Lortab prescription.”^[38] While this court has the power to “substitute for the findings of fact made by the compensation judge based on the total evidence,”^[39] we have not done so here. It is not important whether we use the word “breach” or “violated” or “cancelled.” What the dissent misses is that the record as a whole, including the employee’s testimony, supports the fact that the both the doctors and the employee were aware that the employee’s behavior resulted in a determination by the doctors that opioid drugs would no longer be prescribed to the employee. Yet the employee persisted in seeking opiates, incurring additional expenses, and arriving at the same result, of no further opiate prescriptions.

The employer maintains that substantial evidence failed to establish that the 11 office/hospital visits were causally related to the work injury because the employee previously told her treating doctors a few months post-injury that her low back pain had resolved, and there was no objective evidence supporting the ongoing nature of the injury. They claim that the employee’s life-style choices including a pregnancy and carrying a new born child were likely causing the increased pain she experienced. We disagree. The record amply supports the finding that the employee suffered from pain complaints since the date of injury and her chronic pain was a substantial contributing factor for her continued complaints. Furthermore, other than Dr. Segal’s opinion, overwhelming medical opinion and history supports the compensation judge’s finding that the employee’s 2008 injury was a causal factor in the development of post-injury chronic pain.

The employer argues that substantial evidence fails to support the compensation judge’s findings that the 11 office and hospital visits in which the employee sought narcotic medication after July 26, 2013,^[40] were reasonable and necessary medical treatment to cure or relieve the effects of the injury. Minn. Stat. § 176.135, subd.1.a. With respect to the visit to Essentia’s St. Mary’s hospital on August 5, 2013 for symptoms of opioid withdrawal, substantial evidence supports the compensation judge’s findings and order. The hospital assisted the employee in opioid withdrawal, providing a safe place for her to recover. Even the treatment parameters, which represent reasonable and necessary medical treatment, offer treatment protocol for the cessation of narcotic drugs to prevent withdrawal symptoms. Minn. R. 5221.6110, subp. 6.M. The hospital treatment was both reasonable and necessary to cure or relieve the employee of the effects of the injury. We affirm the compensation judge’s award of payment to Essentia’s St.Mary’s hospital (Finding 23 and Order 1), because the employee actually received treatment, unlike on the other occasions where the employee declined treatment when she was denied opiate treatment.

The employee also sought treatment for ongoing low back pain at Community Memorial Hospital where the treatment plan within the “pain clinic” there called for injections. The employer argues that pain clinic attendance was closed out by the stipulation for settlement and therefore, because the plan for injections originated at a “pain clinic,” the employer cannot be ordered to make this payment. The employee argues that “a one-time office visit and evaluation cannot by any stretch of the imagination be considered a ‘clinic,’ pain or otherwise.” Citing Moe v. North Country Hosp., slip op. (W.C.C.A. Apr. 6, 2005) and Adamich v. Lauri Koski, Inc., 67 W.C.D. 674 (W.C.C.A. 2007), the employee explains that simply because the medical procedure takes place in a portion of a hospital that includes “pain clinic” in its title does not mean it is part of a “pain program.” We agree. In Moe, as here, we have seen no basis to deny injections solely because the employee received it through a pain clinic. In Adamich, this court rejected the notion that physical therapy treatments constituted a “pain clinic or pain management program.” Here, what was offered at the Community Memorial Hospital was an injection to relieve the employee’s pain. It was the kind of injection provided at any clinic and not treatment that we contemplate as associated with pain clinic treatment. “While the term “pain clinic” is not defined in the statute or rules, the term is generally understood to describe a formal out-patient or in-patient program involving multiple disciplines.” Id. at 681. We decline to stretch the commonly understood meaning of “pain clinic” to include injections and affirm Findings 30 and 31 and we order payment of the employee’s visit to the Community Memorial Hospital’s Pain Clinic on April 23, 2014.

The employee’s visit with Dr. Weerts at Essentia/St. Mary’s Superior Clinic on August 15, 2013, is also reasonable and necessary. Although Dr. Weerts refused narcotic medications, she prescribed an ergonomic desk for the employee. We affirm Finding 26 because the employee was simply seeking assistance with her chronic pain and Dr. Weerts agreed that an ergonomic desk was reasonable.

With respect to the remaining office visits, substantial evidence fails to support the compensation judge’s findings. In all, sixteen physicians^[41] did not recommend ongoing narcotic drugs for the employee’s chronic pain.^[42] In awarding the office visits, the judge relied on an old report from Dr. Jennings dated two years before the office visits at issue. In that report, Dr. Jennings opined that “these medications are reasonable approaches to pain management at this point in time.” However, one month later, in August 2011, Dr. Jennings recommended that the employee should wean off narcotic medication. And again in June 2012, Dr. Jennings wrote that the employee, who was post-partum at the time and depressed, should have a goal of being weaned off her Lortab medication over time. We disagree with the dissent’s characterization of Dr. Jennings’ opinion. Dr. Jennings’ opinion does not support the ongoing use of narcotic medications. Furthermore, Dr. Jennings was absent from the employee’s case during the disputed treatment dates. Dr. Murphy at Essentia became the employee’s doctor because Dr. Jennings was on medical leave.

In support of its position, the dissent references “undisputed evidence” that the employee currently gets narcotics from a “Dr. Champagne.” In reviewing the record, we found no medical records confirming the existence of “Dr. Champagne.” The only reference to Dr. Champagne is in the employee’s testimony. (Transcript 68-72). That testimony makes it patently unclear whether Champagne is even a doctor. Furthermore, the treatment at United Pain was not an issue before the judge and therefore beyond the scope of the issues at trial and here.

The dissent fails to offer proof in the record as to how the evidence supports the judge’s findings, while ignoring the overwhelming record that does not support it. We reverse the compensation judge’s order requiring the employer to pay the remaining visits.

As a sub-issue to reasonableness and necessity of medical treatment, the employee maintained that she had no other treatment options available to her and was therefore compelled to seek narcotics. The compensation judge appears to have found this argument convincing because in the memorandum, he concluded that “following the employee’s settlement agreement the employer and insurer’s apparently denied all treatment sought by the employee for her symptoms.” If there was any doubt about the rationale for his decision, the compensation judge found the treatment reasonable, “given employer/insurer’s denial of all treatment for her condition.” (Emphasis added).

It should be noted that there was no finding on the issue of whether the employee had no treatment options available to her because the employer denied them. The record is ambiguous. The employee testified that she received Lortab pills and attended office visits to obtain Lortab until July 2013 when the narcotics contract was violated. Although the employee testified that the employer and insurer paid “none” of her bills, the employer disputes her testimony indicating that there was no evidence that they denied any of the employee’s treatment up to the time of the narcotics contract breach. That the only bills in question at hearing were bills for treatment after the contract breach further supports the employer’s claim.

What is particularly disconcerting is that it appears the judge based his conclusions on an exhibit which was excluded from evidence. Finding that the 11 office/hospital visits were reasonable and necessary treatment, the compensation judge analyzed this issue based on the “Employee’s Deposition Exhibit 2” which was excluded from evidence. In the memorandum, the compensation judge writes:

The dissent argues that the judge’s reliance on the excluded evidence was harmless error. We maintain that his reliance on the excluded deposition was material to his determination that the treatments sought by the employee were reasonable “given the employer/insurer’s denial of all her treatment.” It is within the discretion of the compensation judge to make rulings to admit or exclude evidence. Here, the compensation judge excluded Exhibit 2, the deposition, which foreclosed that evidence from consideration by the parties. Because he excluded the evidence, the parties were not allowed to use the evidence in support of their positions or argument. Yet, the judge used the excluded evidence as the basis for his decision and documented his reliance on it in the memorandum. This was improper.

Minn. Stat. § 176.411, subd. 1, provides that “findings of fact must be based upon relevant and material evidence, only . . . .” Minn. Stat. § 176.021, subd. 1, provides that all disputed issues of fact shall be determined by a preponderance of the evidence which means “evidence produced in substantiation of a fact which when weighed against the evidence opposing the fact has more convincing force and greater probability of truth.” Because the compensation judge used excluded evidence to form a conclusion that alternative treatment was not available to the employee, we reverse Findings 22, 24, 25, 27, 28, 29, 32, 33, 35, and 36.

The dissent concludes that the result of the majority decision is “absurd” because the providers who met with the employee will not be paid for their time by the employer. We hold that the employer is not required to pay for medical treatment that is not reasonably required for the cure or relief of the effects of a compensable injury. The employee sought narcotic drugs through 11 different providers none of whom characterized the opioid treatment sought as reasonable and necessary. Would 15 providers have also been reasonable? What about 30? How many more times would the employer be ordered to pay for similar consultations under the facts of this case?

We take exception in the dissent’s characterization of our analysis as “personal” in nature. To the contrary, we have relied on the record as a whole in affirming, in part, and reversing, in part, the compensation judge’s decision.

We hold that where the compensation judge applied an incorrect legal standard, relied on evidence that was excluded from the record, and where the record as a whole does not support the judge’s findings, the employer is not required to pay for the office visits outlined herein.

I agree with the majority that the long-term use of opiates to treat chronic pain is an important issue in our society today. The case before us, however, does not present the question of whether the long-term use of opioid medication is reasonable and necessary. The question before the compensation judge and on appeal is whether consultations in which the employee was seeking to reestablish treatment for her work injury were reasonable and necessary. The majority’s framing of the issue and its analysis stray from the appropriate standard of appellate review under the law. The majority misstates the issue of reasonableness and necessity of treatment as a question of law. However, our supreme court has indicated that the determination of whether medical treatment is reasonable and necessary is a question of fact to be determined by a compensation judge. Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1984). The Workers’ Compensation Court of Appeals must affirm the findings of fact of a compensation judge unless the findings are clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.^[43] Although we review all the evidence, we “must give due weight to the compensation judge’s opportunity to evaluate the credibility of the witnesses and must uphold findings based on conflicting evidence or evidence from which more than one inference might reasonably be drawn.”^[44] After reviewing the compensation judge’s decision, the briefs of counsel and the entire record in this case, I conclude there is no clear error of law. I also conclude there is substantial evidence to support the compensation judge’s decision; therefore, the judge’s decision must be affirmed, not merely in part, but in its entirety.

The majority, in its account of the case, sets out in much detail those portions of the evidence that support their own interpretation, while dismissing, and for the most part, not even discussing, those parts of the evidence that support the compensation judge’s findings. Where there is evidence supporting the compensation judge’s interpretation, the majority does not set out that evidence in similar detail, instead, the majority often merely characterizes the record as “unclear.” Relying variously on sweeping generalizations, misinterpretations of the evidence, and quotations taken out of context, the majority seeks to paint a picture of the employee as someone with a long-standing dependency on narcotic medication who wantonly failed to complete physical therapy, spurned both recommendations to wean off medications, and to pursue other forms of treatment.^[45] Having taken the view of the evidence most favorable to the appellants, the majority then concludes that the compensation judge’s findings should be reversed. I believe that this case, like any case in which this court reviews a judge’s factual findings requires that this court assess whether the compensation judge’s interpretation of the record is supported by substantial evidence, rather than supplanting the judge’s interpretation with the appellants’ view of the record.

In addition to applying an incorrect standard for review of the factual record, the majority has also framed an issue for decision that was not present on appeal. This case is very simply about whether physician office visits by the employee were substantially supported by the evidence as reasonable necessary medical treatment. Despite the majority’s seemingly concerted attempt to frame the case in such a way as to cure the ills of drug seeking behavior, this case only indirectly involves opioid medication.

Viewing the record as a whole, including evidence omitted by the majority in its factual background, I conclude that the compensation judge could reasonably see the employee and her seeking medical treatment in the form of a doctor’s visit for the use of pain medication in a far different light than is suggested by the majority’s portrayal. In fact, although I do not believe that it is necessarily determinative in the outcome of this case, there is considerable evidence indicating that the employee had at all times responsibly used the pain medication prescribed.^[46]

The result reached by the compensation judge logically rested on the following findings. First, the judge found that the employee’s pain and other symptoms were causally related to the work injury. The majority concedes that this finding is supported by substantial evidence. Second, the judge found that the medication regimen provided to the employee by Dr. Jennings and then by Dr. Murphy, to treat that pain, remained reasonable and necessary as of the date that Dr. Murphy discontinued providing that treatment. By contrast, the majority substitutes its own findings that the pain medications being prescribed were not reasonable and necessary treatment by the time Dr. Murphy invoked Essentia’s agreement for opioid treatment and discontinued treatment, alleging breach of the agreement by the employee. The majority contends that “substantial evidence fails to support the compensation judge’s findings” because 11 physicians (including six who were all employed by Essentia, the employer in this case) either decided to enforce the opioid agreement or did not agree to prescribe opioid medications. In Ruether v. State, Mankato State Univ., 455 N.W.2d 475, 42 W.C.D. 1118 (Minn. 1990), the Minnesota Supreme Court stated that “it is axiomatic that a conflict in the opinions of expert medical witnesses is to be resolved by the trier of fact.” Where the opinion relied on by a compensation judge has adequate foundation, a comparison of the number of experts whose opinions are on either side of the issue has never been a basis for reversal. Here, the compensation judge could reasonably rely on the records of Dr. Jennings, together with the undisputed evidence indicating that Dr. Champagne, with whom the employee was treating as of the date of the hearing, had placed the employee under a new opioid agreement and was prescribing Lortab, in finding that this form of treatment remained reasonable and necessary. In dismissing the compensation judge’s partial reliance on Dr. Jenning’s records, the majority selectively quotes two out of context statements from Dr. Jenning’s record, in which the doctor suggests that at some point in the future it might be advisable for the employee to wean off her pain medications. The majority then imputes from these statements that the compensation judge erred in relying on Dr. Jennings in finding the medications to be reasonable and necessary treatment. This analysis ignores the inferences reasonably drawn from the fact that Dr. Jennings continued to prescribe the medications. The compensation judge could reasonably interpret Dr. Jennings’ records as indicating that the employee’s treatment had not yet reached the point where Dr. Jennings felt it would be advisable to wean her off the medications. The compensation judge could also consider the fact that Dr. Murphy also continued the employee on pain medications following the only appointment the employee had with her to be an indication that the treatment remained reasonable and necessary through the date of the dispute over the opioid agreement. The judge could reasonably have found the opinions of many of the 11 physicians whose charges were in dispute less persuasive in light of the fact that no treatment relationship was established with most of them and many did no further examination of the employee than to take her vital signs, height and weight.

While it may conflict with the personal opinions of the reviewing court, the compensation judge reasonably found that the treatment regimen that had been provided by the employee's primary care physician had been, and remained, reasonable and necessary. The judge also accepted the employee’s testimony that she was trying to find a physician who was willing to continue that treatment regimen. The judge found that the employee’s attempts to reinitiate her treatment regimen constituted reasonable and necessary medical expenses. These findings are clearly supported by substantial evidence in the record; and therefore, notwithstanding any personal concerns about the use of opioid medications generally, I would affirm. But the majority does not and therefore, I dissent.

The record is replete with evidence supporting the compensation judge’s findings. That evidence includes the medical opinion of Dr. Jennings, material portions of the medical records, and the employee's testimony. Also, following the disputed consultations, the employee was able to initiate treatment with Dr. Nathan Champagne at the United Pain Center, where she is again receiving Lortab under an opioid agreement as well as other treatment, including injections. While the parties reserved the issues of the charges for that treatment and the compensability of the treatment was not before the compensation judge, the judge could reasonably take into account the resumption of the employee’s treatment by a pain specialist in the context of whether or not the treatment had remained reasonable and necessary after the date the treatment relationship between the employee and Dr. Murphy had broken down.

The employee saw 11 different physicians before finding a clinic that would resume her medication plan. The majority suggests that affirming the judge’s findings would expose employers to the hypothetical possibility of being ordered to pay for even 30 or more such consultations. The factual circumstances of this case were unusual, and the evidence could support a variety of outcomes. Certainly the compensation judge could reasonably have found that after a certain point short of 11 consultations, further consultations became unreasonable. Based on his weighing the evidence in the record and the assessment of witness credibility, he did not do so under the unique facts of this case.

We are charged with determining whether the outcome chosen by the compensation judge is supported by substantial evidence, not whether we would have preferred some other possible result. Each case proceeds on its own facts, and an affirmance on substantial evidence grounds does not set a precedent that any specific number of consultations seeking to reinstitute treatment are essentially reasonable and necessary. The majority, holds, however, contrary to the well-supported findings of the compensation judge, that not even one such consultation seeking to reinstitute treatment was reasonable and necessary. Their desired result is far more problematic than continuing to entrust similar questions that may arise under the specific facts of future cases to the reasoned judgment of the fact finder.

The judge could also reasonably have taken into account that most alternative forms of pain treatment were foreclosed by the parties’ stipulation or had been ineffective in the past, thereby limiting her options.^[47] The judge did not accept the appellants’ argument that medical consultations should be deemed non-compensable whenever the employee did not pursue the physician’s suggestions about possible alternative forms of treatment. There is no case law that imposes such a requirement.^[48]

The majority does not provide a clear explanation of why it concludes that the evidence on which the compensation judge relied fails to provide substantial support for the judge’s findings. Indeed, the majority fails even to mention much of the evidence favorable to the compensation judge’s decision in this case. 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, 37W.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 Food 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.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). The majority disregards the law and in doing so disregards the compensation judge’s resolution of the disputed parts of the evidence and substitutes its own findings and inferences for those of the compensation judge. This is contrary to our standard of review under the law. Therefore, I dissent.

The majority's reversal rests principally on its conclusion that the employee’s medication “was reasonable and necessary until the employee breached the narcotics contract.” I disagree on two separate grounds.

First, I take issue with the majority's apparent view that a violation or any breach of an agreement for opioid treatment is, as a matter of law, determinative of the issue of whether the medication itself is reasonable and necessary treatment within the meaning of the workers' compensation act.^[49] There is no statute, rule or case law which makes compliance with a provider’s internal guidelines for the doctor-patient relationship an absolute prerequisite to a finding that certain treatment is reasonable and necessary. The question of whether treatment is reasonable and necessary is one committed to the finder of fact for determination after considering all the evidence. In my view, while the nature and extent of any violation of such an agreement is certainly evidence which a compensation judge may consider, the weight to be given to it, as to any evidence, is entrusted to the compensation judge. Here, the compensation judge did not find the question of a breach of that contract dispositive.^[50]

In addition, the judge could also reasonably have taken into account evidence in the medical records documenting that the employee had at all times prior to the dispute used the medication responsibly. The same evidence also permits the interpretation that any breach of the agreement was not material in terms of the contract's presumed underlying purpose of forestalling an employee from misusing the medications.^[51] Therefore, under the substantial evidence rule, I would affirm.

Second, I would note that the compensation judge made no finding regarding a breach of the contract. The judge found only that “a dispute arose between the employee and Dr. Murphy’s office resulting in employee’s opioid contract being cancelled and the employee being unable to obtain a renewal of her Lortab prescription.”^[52] The majority concedes that the evidence provides conflicting accounts of the timing and specifics of the events leading up to Dr. Murphy’s decision to declare the employee in breach of Essentia's medication contract, which largely foreclosed any further possibility of prescriptions being issued for the employee's pain medications by physicians in the Essentia system. As stated previously, if the majority deems the factual question of a breach of the Essentia agreement for opioid treatment pivotal to the result in this case, that issue should have been remanded to the compensation judge for factual findings, particularly as its resolution requires a determination of the credibility of witness testimony. Instead, the majority simply proceeds to make its own factual findings, dismissing the employee's testimony in its entirety and asserting that a letter written by Dr. Murphy “establishes” both the doctor’s version of the contested events and the contents of the employee’s opioid agreement, an agreement which is nowhere in the record. It is inappropriate for this court to act as a finder of fact or to substitute findings contrary to those which the compensation judge made. Therefore, I dissent.

The majority asserts that the compensation judge “applied an incorrect legal standard,” but this argument is not found in the appellants’ brief or notice of appeal. To support this claim, the majority points to recurring language in the separate findings about each specific clinic visit, in which the judge found that each such visit was “ a reasonable effort by the employee to obtain medical treatment for work injury residuals.” The majority notes that this wording does not track the statutory language under which “treatment that is reasonable and necessary to cure or relieve the effects of the effects of a personal injury “is compensable. But the majority fails to mention that the judge’s ultimate determination as to whether the visits represented reasonable and necessary treatment is set forth in finding 36, which states “[t]he treatment at issue herein as set forth in Employee’s Exhibit K represented reasonable and necessary treatment to relieve the employee from the effects of her work injury.” This finding unambiguously applies the correct legal standard. There is no basis in the findings or memorandum on which to conclude that the compensation judge applied a wrong legal standard.

The appellant also argued that the judge committed an error of law in that the judge’s decision relied on evidence that was excluded from the record. The appellant points to language in the judge’s memorandum in which he states: “Following the employee’s settlement agreement the employer/insurer apparently denied all treatment sought by the employee for her symptoms. (See Employee’s Deposition – Employer’s Exhibit 2).”^[53] (Emphasis added.) The compensation judge did not receive that exhibit into evidence.^[54]

The majority adopts this argument as a further basis for its reversal. The majority maintains that this comment by the compensation judge constitutes an error of law so egregious as to require a full reversal of nine separate and distinct findings, each holding a specific medical consultation reasonable and necessary. None of these findings even discuss the question addressed by the judge’s comment that of payment for other treatments not at issue. In my view the judge’s statement in his memorandum constitutes, at most, harmless error and does not require reversal.

First, the judge’s discussion of this point was addressed only in his memorandum, not in his findings of fact, and in using the term “apparently,” it was not expressed in terms of certainty. The observation made by the judge does not even rise to the level of a finding^[55] . There is no clear basis to assume that this observation, on what was at most a secondary issue, formed a material part of the judge’s analysis in this case.

Second, the compensation judge, in conducting a hearing “is bound neither by the common law or statutory rules of evidence nor by technical or formal rules of pleading or procedure.”^[56] It hardly makes a compelling case of prejudice where the appellants complain that the compensation judge may have consulted an exhibit they themselves offered but failed to get into evidence.

Most importantly, however, if an issue of the employer and insurer denying payment from the date of the stipulation through the date of hearing had been material to the judge’s decision, ample evidence admitted into the record essentially duplicates the employee’s deposition testimony.^[57] The deposition testimony would have been, at most, cumulative. As substantial evidence in the record is otherwise present to support the judge’s statement on this point, consideration of the excluded deposition testimony is harmless error. In Turek v. Northfield Freezings,^[58] the Minnesota Supreme Court observed that even “inconsistent or inaccurate statements in a memorandum attached to a decision of the factfinder need not require a reversal where findings are adequate and clear and the record supports otherwise justifiable findings.” Here, the compensation judge’s comment was neither inconsistent with the record nor demonstrably inaccurate. As the comment is amply supported by evidence in the record, it clearly does not constitute a basis for reversal.

This case presents the question of whether physician charges incurred as a result of the employee’s efforts to resume treatment for her work injury should be assessed against the employer and insurer or become unpaid charges absorbed by these physicians. This was only indirectly a case about opioid medication, as the parties limited the issue before the judge to charges only of the physicians who did not prescribe them. The result reached by the majority holds that a provider who enforces an opioid agreement in a work-related injury risks not being paid for a medical consultation. This seems to me an absurd result.

The majority states that its conclusion is supported by three elements: an incorrect legal standard, a reliance on excluded evidence, and insufficient supporting evidence. I conclude that the compensation judge’s findings are fully supported by substantial evidence. I further conclude that the judge did not commit an error of law that would warrant a reversal. Where none of three grounds for reversal asserted by the majority is independently sustainable, adding them up together does not give them any greater validity as a basis for reversal. Accordingly, while I concur in affirming those findings affirmed by the majority, I respectfully dissent as to their reversal of the remaining findings. I would affirm the compensation judge’s findings and order in its entirety.