JOEL J. LEUTHARD, Employee/Appellant, v. CRAIG’S TREE SERV. and ASSIGNED RISK PLAN/BERKLEY RISK ADM’RS CO., LLC, Employer-Insurer/Respondents.

OCTOBER 6, 2016

No. WC16-5926

MEDICAL TREATMENT & EXPENSE – REASONABLE & NECESSARY. Substantial evidence supports the compensation judge’s finding that a referral to another physician was not reasonable and necessary medical treatment where the record as a whole provided no clear basis for the referral.

    Determined by:
  1. Deborah K. Sundquist, Judge
  2. David A. Stofferahn, Judge
  3. Gary M. Hall, Judge

Compensation Judge: Adam S. Wolkoff

Attorneys: DeAnna M. McCashin, McCashin Law Firm, Chtd., Alexandria, Minnesota, for the Appellant. Colleen O. Kaufenberg and Evan W. Cordes, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., St. Paul, Minnesota, for the Respondents.




The employee appeals the compensation judge’s denial of a medical consultation with a physician with whom the employee had previously treated. Substantial evidence supports the compensation judge’s finding that the employee’s request for a consultation does not meet the criteria under Minn. Stat. § 176.135 for reasonable and necessary medical treatment related to the employee’s 2003 date of injury, and we affirm.


The employee, Joel Leuthard, was working for the employer, Craig’s Tree Service, on July 4, 2003, when he threw a heavy log off a roof and injured his right shoulder and upper back. At the time, the employee had a second job as a pipefitter for J & B Piping, which was not a party to the employee’s workers’ compensation claim. Craig’s Tree Service and its insurer, the Assigned Risk Plan, administered by Berkley Risk Administrators Company, admitted primarily liability and paid temporary total disability (TTD) benefits for 104 weeks, and temporary partial disability (TPD) benefits for 225 weeks.

Following the injury, the employee underwent multiple diagnostic tests. He underwent an MRI of the right shoulder which identified no abnormalities. An MRI of the cervical spine was essentially unremarkable. He underwent a CT scan of the bilateral scapulae which showed narrowing of the distance between the scapulae and the rib cage which was interpreted to be of possible clinical evidence for scapulothoracic impingement. An MRI scan of the thoracic spine showed minimal early disc degeneration. The employee had an EMG which was normal. A second MRI of the cervical spine was also normal.

Multiple medical consultations and treatments were also provided to the employee, but nothing appeared to alleviate the employee’s complaints of pain. The employee underwent several series of injections and multiple physical therapy sessions. He underwent arthroscopic surgery of the right shoulder with Dr. Michael Freehill. Dr. James E. Andrews, an osteopath, administered a series of medial branch blocks to the thoracic spine area in 2006, but the employee continued to experience pain. Dr. Andrews performed a thoracic radiofrequency ablation. Again, the employee had no permanent relief. Dr. Andrews referred the employee to Dr. Samir M. Elghor, who between 2006 and 2007 treated the employee with steroid and trigger point injections. Dr. Elghor referred the employee to a rehabilitation program at Physicians Neck and Back Clinic (PNBC). After two sessions at PNBC, the employee stopped attending due to increased pain. Dr. Elghor permanently restricted the employee to no lifting over 30 pounds and assigned a permanent partial disability (PPD) rating of 7.5 percent.[1] Between 2007 and 2013, the employee sought no medical attention for his work injury. During that same period, the employee was working as a welder between 40 and 100 hours per week and working outside his restrictions.

After a five to six-year break from medical treatment, the employee again sought medical treatment with Dr. Elghor complaining of ongoing thoracic and shoulder pain. On February 21, 2013, Dr. Elghor scheduled a nerve block and also referred the employee to Dr. Kelly Collins or Dr. Jeffrey Derr, both physicians specializing in pain medicine and rehabilitation, to see if they had something more to offer the employee. Dr. Collins was not taking patients with back injuries and Dr. Derr would not take workers’ compensation patients, leaving the employee without a recourse for a second opinion. Dr. Elghor recommended another cervical MRI and referred the employee to Dr. Andrews, a physiatrist, for a second opinion to explain what was causing the pain. Seven years prior, Dr. Andrews had initially referred the employee to Dr. Elghor, and Dr. Elghor referred the employee back in 2013. Dr. Elghor explained that prior medical procedures had not proved helpful and he did not know how to proceed without further information.

Dr. G. Peter Boyum examined the employee as part of an independent medical examination on August 16, 2013. He opined that the July 4, 2003, work injury was a mild sprain of the right shoulder area which had resolved by October 1, 2003. He further opined that any claim for cervical spine treatment was unrelated to the July 2003 injury. Because the employee had a completely normal cervical spine examination and two normal cervical MRI scans, Dr. Boyum concluded that the third MRI scan, as recommended by Dr. Elghor, was not indicated. Dr. Boyum explained that the employee had “bilateral snapping scapula syndrome,” idiopathic in nature. He further explained that the employee did not complain of scapular pain until December 18, 2003, when Dr. Freehill examined the employee, and therefore this condition was incidental and not related to the July 4, 2003, work injury. The employer and insurer subsequently denied Dr. Elghor’s referral to Dr. Andrews.

The employee filed a medical request for approval of the referral to Dr. Andrews and medial branch blocks, which was denied at an administrative conference. The employee requested a formal hearing which was held on January 20, 2016.[2] At the hearing, the employee claimed, as the sole issue, the approval of Dr. Elghor’s referral to Dr. Andrews as reasonable and necessary medical treatment. The compensation judge found that the referral to Dr. Andrews was not reasonable and necessary medical treatment under Minn. Stat. § 176.135. The employee 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, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

A 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 employee makes three substantive arguments. First, he argues that the compensation judge committed a mistake of fact in finding that the employee “saw” Dr. Collins in 2013.[3] Second, he argues that the judge’s decision effectively blocks the employee from obtaining any medical treatment that could relieve his ongoing pain symptoms. Third, he argues that the judge erred in finding that the request for a second opinion with Dr. Andrews was not reasonable and necessary medical treatment. The employer and insurer respond that the judge’s finding that the employee “saw” Dr. Collins is a harmless error; that the judge’s denial of the referral to Dr. Andrews does not effectively block the employee from future medical treatment; and that employee had not met his burden in proving that the referral to Dr. Andrews was reasonable and necessary.

1.   Harmless Error

The compensation judge erroneously stated that the employee “saw” Dr. Collins in a finding. The employer and insurer claim the use of “saw” was harmless error. In considering whether an error is harmless in nature, this court analyzes whether the error is a significant factor in the compensation judge’s conclusions, and if it is not, then no action by this court is required. See Engelhart v. Liston Gen. Contracting, Inc., 72 W.C.D. 753, 759 n.1 (W.C.C.A. 2012) (citing Johnson v. Arctic Cat, Inc., 64 W.C.D. 106, 110 (W.C.C.A. 2004); Dozier v. Control Data Corp., 44 W.C.D. 246 (W.C.C.A. 1990), summarily aff'd (Minn. Mar. 7, 1991) (when the evidence in question is portrayed correctly in substance, an error may be considered harmless). In this case, while the compensation judge found that the employee “saw” Dr. Collins, he also stated that the employee was informed that Dr. Collins did not treat spine complaints. The judge did not find that the employee had been treated by Dr. Collins and did not rely on such a finding in making his decision. The judge’s use of the word “saw” in the finding is harmless error. Neither Dr. Collins nor Dr. Derr would treat the employee after Dr. Elghor’s referral, which in turn, prompted the referral to Dr. Andrews. That the employer and insurer authorized the referrals to Drs. Collins and Derr at the time has no bearing on the compensation judge’s determination of the reasonableness and necessity of Dr. Andrew’s consultation.

2.   Barring Future Claims

With regard to the employee’s concern that the judge’s decision bars all future medical and rehabilitation treatment, we disagree. The sole issue raised at the hearing by the employee was approval of Dr. Andrews’ consultation. Since no other issue was heard by the compensation judge, the effect of the decision is therefore limited to that issue. See Fischer v. Saga Corp., 498 N.W.2d 449, 450, 48 W.C.D. 368, 369 (Minn. 1993) (doctrine of res judicata only precludes claims that were specifically litigated and decided in an earlier decision).

3.   Reasonable and Necessary Medical Treatment

The primary issue here is whether Dr. Elghor’s referral to Dr. Andrews was reasonable and necessary to cure or relieve the effects of the injury. Whether a medical referral is reasonable and necessary medical care under the Workers’ Compensation Act is a fact question to be determined by the compensation judge. See Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993). It is the employee’s burden to prove that medical expenses are reasonable and necessary. Wylie v. Dan’s Plumbing & Heating, 47 W.C.D. 235, 238 (W.C.C.A. 1992) (citing Wright v. Kimro, Inc., 34 W.C.D. 702 (W.C.C.A. 1982)). Here, the compensation judge found that the employee did not meet his burden and that finding is supported by the record as a whole. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

The employee’s work injury in 2003 was followed by an extensive medical workup which included multiple radiographic scans, injections, bilateral medial branch blocks, physical therapy, and physical rehabilitation at PNBC. He underwent an arthroscopic surgery in 2005 and radiofrequency ablation in 2006. The employee testified that these medical procedures did not relieve his pain complaints. Between 2007 and 2013, the employee sought no medical treatment, yet he continued to work as welder outside of his restrictions sometimes as much as 100 hours per week. In 2013, independent medical examiner Dr. Boyum opined that no further medical treatment was reasonable and necessary relative to the July 4, 2003, work injury. Furthermore, multiple MRI and CT scans, and an EMG, were interpreted as normal or unremarkable.

The employee had previously treated with Dr. Andrews in 2005-2006. The treatment rendered by him did not serve to relieve the employee’s pain complaints. While the employee asserts that Dr. Elghor’s medical records reflect that the employee received some relief from the radiofrequency ablations performed by Dr. Andrews, Dr. Andrew’s records do not conclude the same. Dr. Andrews’ records from March 2006 indicate that the employee did not benefit from the ablation treatment. In making a referral to Dr. Andrews, Dr. Elghor did not provide an explanation that would assist the compensation judge in finding for the employee. Because substantial evidence supports the compensation judge’s denial of a referral to Dr. Andrews, we affirm.

[1] The parties reached a settlement in 2013 closing out PPD to the extent of 7.5 percent with the employer and insurer alleging that the PPD rating was not due to the work injury. (Exhibit E.)

[2] The compensation judge also previously presided over two separate hearings involving different issues. On December 26, 2013, the compensation judge denied the employee’s claim that he sustained a cervical spine injury on July 4, 2003, and denied the employee’s request for a cervical MRI scan. On March 27, 2015, the judge denied the employer and insurer’s request to terminate vocational rehabilitation, concluding that the employee’s job as a welder was not physically suitable work. Neither decision was appealed.

[3] Finding 10.