KANDICE M. MORGAN, Employee/Respondent, v. CARE FORCE HOMES, INC., and SFM MUT. INS. CO., Employer-Insurer/Appellants, and MINN. INST. FOR PAIN MGMT., FAIRVIEW HEALTH SERVS., UCARE, and NORAN NEUROLOGICAL CLINIC, Intervenors.

The employer and insurer appeal from the compensation judge’s determination that a departure from the treatment parameters was applicable to botulinum toxin (“Botox”) injection treatment proposed by the employee’s physician for SI joint and pelvic instability. We affirm.

The employee had a low back injury at work with a previous employer in 2000. An MRI on December 5, 2000, suggested a small herniation at L5-S1 to the left. On July 30, 2001, when seen by Dr. Richard Salib at the Institute for Low Back and Neck Care, the employee’s complaints were low back pain, left buttock pain, and leg pain secondary to a bulging disc at L5-S1. A further MRI on August 7 showed only mild-to-moderate disc space narrowing at L5-S1, without evidence of disc herniation or nerve compression. The employee was not deemed a surgical candidate and conservative back care was recommended.

In 2005 the employee underwent neck surgery after she reported neck and cranial pain with nausea and weakness and was found to have a congenital condition called an Arnold-Chiari malformation. She injured her neck in 2006 in an automobile accident and in 2007 she underwent an anterior cervical discectomy and fusion at C5-6.

The employee treated a couple of times in 2009 and 2010 with a chiropractor for various symptoms including back pain. In 2010 her complaints were of thoracic and left hip pain, as well as pain in the gluteal area. The employee did not treat for back problems again until after the 2013 work injury.

The employee began working for the employer, Care Force Homes, as a personal care attendant beginning in 2012. She testified that when she began work for the employer, she was not having low back problems.

On January 6, 2013, the employee sustained an admitted personal injury to her lumbar spine and SI joint when she was trying to assist with repositioning and lifting one of the employer’s personal care clients. The pain was not initially severe. However, the next day, when she awoke in the morning, the employee “could barely move,” prompting her to seek treatment that day at Fairview Health Services. She was noted to have low back pain across the very low back and toward the right gluteal area. She was diagnosed with acute low back pain, taken off work, and instructed to follow up with her primary care physician. Pain medications were prescribed.

The employee was seen by Steven R. Johnson, M.D., at Fairview Clinics Princeton on January 10, 2013. The assessment was low back strain. Dr. Johnson referred her for physical therapy and continued her on Vicodin and Flexeril.

The employee was seen by Daniel W. Hanson, M.D., a spine surgeon, at Midwest Spine Institute, LLC, on February 8, 2013. She complained of lumbar spine pain, right hip pain, bilateral buttock pain, and left leg pain. Dr. Hanson’s assessment was right sacroiliac joint syndrome, right and left lumbar radiculopathy, and lumbar spondylosis.

An MRI was done on February 26, 2013, and compared to an MRI study from 2001. It was read as showing an unchanged central to left paracentral annular fissure at L5-S1 and progression of an annular bulge at L4-5 without central stenosis or neural impingement. Mild facet arthritis and mild left, chronic and mild-to-moderate right foraminal narrowing were noted. Changes since 2001 were deemed to be mild.

The employee saw Dr. Johnson again on March 1, 2013, at Fairview Northland Regional Medicine Center for a lumbar strain. Dr. Johnson recommended that the employee follow up with the Midwest Spine Institute. She continued outpatient physical therapy.

On March 28, 2013, the employee returned to Dr. Hanson. His assessment was bilateral sacroiliac joint syndrome. He referred her to see Dr. Orrin Mann, an occupational medicine specialist, for treatment of bilateral sacroiliac joint pain.

A sacroiliac joint injection was performed on April 8, 2013, at the Midwest Spine Institute. The employee reported to Dr. Johnson that it had been helpful.

On May 8, 2013, the employee was seen by Dr. Mann at MultiCare Associates. His assessment included subacute low back pain; pelvic joint dysfunction, right posterior innominate rotation; left leg pain, likely referred; bilateral gluteal myofascial pain; poor lumbar and global deconditioning; and obesity. He recommended a physical rehabilitation program at NovaCare.

The employee started at NovaCare on May 13, 2013, with Jeffrey D. Winter, P.T. She was noted to exhibit difficulty sitting, decreased hip extension, and minimal gluteal activation during sequence.

The employee was seen back at MultiCare Associates by Dr. Mann on May 22, 2013. His assessment included subacute low back pain, resolved pelvic joint dysfunction, resolving pelvic joint instability, resolved left leg referred pain, and right leg referred pain. He revised the employee’s medications and ordered more therapy.

When the employee was seen again on June 5, 2013, by Dr. Mann, he advised that she continue with physical therapy. It was noted she had refractory gluteal myofascial symptoms.

On August 14, 2013, the employee followed up with Dr. Mann at MultiCare Associates. His assessment was low back pain; pelvic joint dysfunction; and profound pelvic joint instability. He referred the employee to Dr. David W. Polly, an orthopedic surgeon, for consideration of a sacroiliac joint fusion.

The employee was seen at Twin Cities Orthopedics by Dr. Paul C. Biewen on September 10, 2013, for a second opinion. Dr. Biewen's assessment was low back pain which he felt was more in the back, not the sacroiliac joints. He recommended a MedX program.

The employee was seen at the University of Minnesota Medical Center by Dr. Polly on September 25, 2013. She described bilateral buttock and low back pain, helped with sacroiliac joint injections. Bilateral sacroiliac injections had provided some relief, and the employee indicated that she had mild relief from five months of physical therapy. Dr. Polly concluded that while the employee did have symptoms that were consistent with the sacroiliac joint, her symptoms did not point specifically at one specific diagnosis. He suggested sacroiliac joint therapy. A CT scan of the pelvis was also recommended to better assess the sacroiliac joints.

On December 13, 2013, the employee was seen by Dr. Sanjeev Arora, a physiatrist, at the Minnesota Institute for Pain Management. His assessment was low back pain, resolving; pelvic joint dysfunction; bilateral trochanteric bursitis; right gluteal myofascial pain; and narcotic dependence. He addressed weaning off narcotic pain medication. At his suggestion, the employee underwent an L5-S1 interlaminar epidural steroid injection on January 17, 2014. An EMG was also done, on January 10, 2014.

The employee was seen back by Dr. Arora on February 3, 2014, for back pain and left leg pain. The epidural injection had not helped. Right leg symptoms were improving, and the left leg was getting worse. Dr. Arora suspected that her left sacroiliac joint was the most likely pain source, he recommended an MRI of the lumbar spine and left sacroiliac joint injection, along with a pain psychologist evaluation.

Dr. Arora performed a left sacroiliac injection on February 28, 2014. Her pain started at 7/10 and decreased to 0/10. He diagnosed aggravated left buttock pain, possibly from the left sacroiliac joint. Additional physical therapy and work hardening was recommended. It was also suggested that the employee try a TENS unit, Lidoderm patches, and sacroiliac joint belt.

However, on April 14, 2014, the employee told Dr. Arora that the therapy at NovaCare did seem to help, and that the sacroiliac injection was ultimately not helpful. Dr. Arora felt that the employee would benefit from continuing with medication and physical therapy.

The employee continued with NovaCare treatment particularly directed toward her sacroiliac joints. She was seen back by Dr. Arora on May 2, 2014. The plan at this point was to get an updated lumbar MRI.

On May 20, 2014, the MRI was performed. It was read as showing no significant interval changes since the scan of February 26, 2013.

In a follow up appointment with Dr. Arora on June 9, 2014, the employee continued to report 10/10 back pain and left radicular leg pain. The plan was for an L5 nerve root injection and referral to Dr. John C. Mullan at Neurosurgical Associates for surgical consultation. In a letter dated June 19, 2014, Dr. Mullan responded that he had reviewed the images and did not see anything of surgical significance.

On June 20, 2014, the employee underwent a left L5 nerve root injection by Dr. Arora. In follow up with Dr. Arora on June 30, 2014, the employee said the injection was not helpful. On July 25, 2014, Dr. Arora released the employee to light-duty work.

The employee continued to follow up with Dr. Arora through the fall of 2014. Her left sided symptoms became progressively worse with more pain and a burning sensation down the leg. She also noted coldness in her left foot and the back of her left leg. Dr. Arora kept her under restrictions and continued medications.

Because of continuing symptoms, Dr. Arora referred her back to Dr. Polly, who saw her on August 14, 2014. Dr. Polly did not recommend surgery as there was no clear etiology of the source of the employee's pain.

The employee followed up with Dr. Arora on October 29, 2014. At this point, her pain was increasing, so she was taken off work and her OxyContin was increased to twice a day. Dr. Arora suggested a piriformis injection with a local anesthetic for diagnostic purposes.

A left piriformis injection under fluoroscopic guidance was done on November 20, 2014, by Dr. Arora. The employee's pain score went from 9/10 to 6/10. The employee was seen on December 19, 2014, by Dr. Arora, who noted employee’s good response to the numbing anesthetic. Botox treatment was considered.

On January 12, 2015, Dr. Arora and the employee discussed piriformis and Botox treatments, medication management, physical management, and interventional management. They also discussed pool therapy. The employee was referred to a neurologist for further evaluation.

The employee was seen by Ana Patricia Groeschel at the Noran Neurological Clinic on January 30, 2015. She was diagnosed with thoracic pain, hip pain, low back pain, numbness, and tingling. Dr. Groeschel recommended an EMG of the left lower extremity.

The employee was seen again by Dr. Arora on February 25, 2015. The employee was to follow up with Noran Neurological Clinic for the EMG of the left lower extremity. The low back pain seemed multifactorial, and she was provided with prescriptions of Norco, Norflex, and OxyContin. Dr. Arora recommended that the employee continue off work for the next four weeks.

The EMG of the left lower extremity was performed on March 12, 2015. It was read as a normal left leg study. Dr. Groeschel deferred to Dr. Arora's pain management treatment recommendations.

Dr. Kristin Zeller saw the employee on behalf of the employer and insurer on March 26, 2015. She diagnosed left SI joint/pelvic pain with pelvic instability and left trochanteric bursitis. In her opinion, the employee’s left leg symptoms radiated from the SI joint. Dr. Zeller considered the employee’s SI joint/pelvic instability to be longstanding. In her view, the January 6, 2013, work injury was a strain of her low back/SI joint resulting in an aggravation of an underlying condition. She disagreed with Dr. Arora's treatment recommendations.

On June 24, 2015, the employee saw Dr. Arora. His diagnoses included lumbago, thoracic strain/sprain, chronic pain syndrome and disorders of the sacrum. He thought her symptoms were coming from her lumbar spine disc degeneration, lumbar facet joints, bilateral SI joints, and piriformis muscles. He recommended a medial branch block as well as a Botox injection. On August 21, 2015, Dr. Arora added a diagnosis of complex regional pain syndrome of the left leg. In October, Dr. Arora recommended a referral for platelet-rich plasma injections to the sacroiliac/pelvic region.

An MRI of the lumbar spine on December 23, 2015, was compared to the MRI of November 20, 2014, and showed no significant change from the prior study. An MRI of the sacrum and coccyx on December 23, 2015, showed mild upper left sacroiliac joint degenerative changes.

The employee continued to treat with Dr. Arora in early 2016. On February 8, 2016, Dr. Arora issued a report in which he expressed the opinion that the employee’s pelvic area pain came either from her SI joints or was referred pain from her lower lumbar facet joints. He considered the 2013 work injury to be a substantial contributing cause of the employee’s condition. He continued to recommend medial branch blocks, which he thought would indicate whether her facet joints were a pain source. He also continued to recommend a Botox injection in the piriformis muscle and referral for a consideration of PRP injections in the SI joint.

On March 17, 2016, Dr. Zeller again examined the employee for the employer and insurer. In a subsequent report, she continued to diagnose left SI joint/pelvic pain with pelvic instability and left trochanteric bursitis, which she thought to be consistent with SI joint/pelvic instability issues. She thought the employee’s ongoing left low back pain was very consistent with sacroiliac joint and pelvic instability, which could irritate the piriformis muscle. Dr. Zeller did not think the employee had RSD. She continued to recommend postural restoration therapy. She did not think medial branch blocks were appropriate. She did agree that a consultation for PRP injections in the SI joint could be considered reasonable.

The employee had not returned to work for the employer and had been paid 130 weeks of temporary total disability compensation. In late March 2016, the parties entered into a partial stipulation for settlement which closed out all past, present and future claims, except for reasonable and necessary treatment for the low back and SI joint, in return for a lump sum cash payment and specified payments to the intervenors. In the stipulation, the parties agreed that the employee’s further claim that she had sustained complex regional pain syndrome in her left and right lower extremities remained open for hearing subject to the employer and insurer’s defenses, as they continued to deny that the work injury was a substantial contributing cause of that condition.

Dr. Arora provided a supplemental report on April 18, 2016, which further explained the basis for his opinions.

On April 26, 2016, a hearing was held before a compensation judge at the Office of Administrative Hearings. The issues presented included causation for a claimed complex regional pain or RSD condition, and approval of various disputed treatment recommended by Dr. Arora, including medial branch blocks, the Botox injections in the piriformis muscle, and the referral for consideration of PRP injections in the SI joint. With respect to the Botox injections, the employer and insurer raised a defense based on the treatment parameters. Following the hearing, the compensation judge found that the employee had not established complex regional pain syndrome or RSD. The judge found all of the requested medical treatment recommended by Dr. Arora to be reasonable and necessary. With respect to the Botox treatment and PRP injections, while he found these to be precluded by the treatment parameters, he found that there was a documented medical complication which justified a departure from the parameters.

The employer and insurer have appealed solely from the award of the requested Botox treatment.

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).

The compensation judge found that the Botox treatment recommended by Dr. Arora was reasonable and necessary treatment. That determination has not been appealed. The employer and insurer had also raised a defense to the treatment based on the treatment parameters. Specifically, they relied on Minn. R. 5221.6200, subp. 5.C., which states that “botulinum toxin injections are not indicated in the treatment of low back problems and are not reimbursable.” The employee argued at the hearing that this rule should not be interpreted as applying to the SI joint, but the compensation judge concluded that the parameter applied to the present situation.^[1] However, the judge found that a departure was warranted from the treatment parameters on the basis that the employee’s symptoms appear to be multifactorial and present an extremely complicated medical situation which constitutes a documented medical complication. The employer and insurer appeal from the judge’s decision not to deny the treatment on the basis of the treatment parameters.

The employer and insurer make three separate arguments. First, they point out that the employee did not specifically argue a departure from the treatment parameters at the hearing. They contend that in such a situation it was improper, as a matter of law, for the compensation judge to consider whether a departure was appropriate, or to find a departure from the treatment parameters.

The employee responds that the question of a departure should be seen as an intrinsic part of any parameter defense, so that it was not improper for the judge to find a departure was applicable even in the absence of that point being initially argued by the parties. We agree. We note that, pursuant to Minn. R. 5221.6050, subp. 7.D., a determination of the compensability of medical treatment under the workers’ compensation statutes “must include consideration” of

Second, the employer and insurer argue that, as a matter of law, departures can only be permitted from parameters which limit the scope or duration of treatment, and not from parameters that entirely exclude a treatment modality from use in a specific situation. They argue that under the plain meaning of the language of Minn. R. 5221.6200, subp. 5.C., which states that botulinum toxin injections “are not reimbursable,” no departure may be awarded.

The employee disagrees and points out that this court has previously affirmed departures from parameters denying specific treatment modalities. For example, in Jackson v. Minneapolis Pub. Sch. Special Dist. No. 1, No. WC09-5027 (W.C.C.A. Apr. 8, 2010), this court affirmed a departure permitting the award of a Tempur-Pedic mattress where the applicable medical treatment parameters provided that “beds, waterbeds, mattresses, chairs, recliners, and loungers” are “not indicated for home use for low back conditions.”

We note that Minn. R. 5221.6050, subp. 8, which governs departures, uses the following language: “[a] departure from a parameter that limits the duration or type of treatment . . . may be appropriate.” (Emphasis added.) As the treatment parameter rules thus specifically contradict the appellants’ argument that the judge erred in awarding a departure here, we decline to reverse on the basis of that argument.

As their third and final argument in support of a reversal of the judge’s findings, the appellants contend that the judge’s finding of a medical complication is unsupported by substantial evidence.

The employee responds by detailing the medical evidence which she contends supports the compensation judge’s determination, including that several physicians concluded that her symptoms were multifactorial in nature and associated with more than one diagnosis; that she had received good relief of pain with a diagnostic left piriformis injection in November 2014, and that the compensation judge could reasonably accept the opinion of Dr. Arora that the proposed Botox injections to the piriformis constituted reasonable and necessary treatment causally related to the work injury. This evidence would normally be sufficient to constitute substantial evidence to support the judge’s determination.

The appellants do not argue that the evidence cited by the employee was unreliable. Instead, they argue, based on a dictionary entry^[2] that a “medical complication” is limited to “a secondary disease or condition developing in the course of a primary disease or condition.” They argue that a finding that the employee’s symptoms might have several sources does not satisfy this definition and cannot serve as the basis for a departure, regardless of what evidentiary support that finding might have. However, as noted by the employee in her respondent’s brief, this court has previously interpreted the term “complication” as it occurs in the departure rules in Smith v. Country Manor Healthcare, slip op. (W.C.C.A. Jan. 31, 2000). In that case, we concluded that the term “medical complication” as it relates to a departure from the treatment parameters is not limited to situations where the work injury has brought about a wholly new, secondary medical condition, but includes situations where effects of the work injury, even in combination with a pre-existing condition, result in a more complicated course of symptoms, disability, and treatment. After reviewing the extensive medical evidence in this matter, we conclude that the compensation judge’s finding of a medical complication warranting a departure from the treatment parameters had substantial support in the record and was not clearly erroneous.

We therefore affirm the compensation judge’s determination that a departure from the treatment parameters was warranted with respect to the proposed Botox injection treatment.