CARMEN L. ROCHEL, Employee/Appellant, v. SCHWAN’S HOME SERV., SELF-INSURED/SEDGWICK CLAIMS MGMT. SERVS., INC., Employer/Respondent, and UCARE and REALIEF MED., Intervenors.

The employee, the appellant in this matter, appeals from the compensation judge’s findings that the employee’s settlement entered as an Award served and filed on September 16, 2014, closed out ongoing prescription expenses to treat the employee’s continuing pain symptoms from the effects of the employee’s July 23, 2010, work injury.  The self-insured employer maintained that the compensation judge’s decision is supported by the plain language of the settlement agreement.  We disagree with the compensation judge’s assessment of the language as unambiguous and reverse.

The employee was working in a warehouse of the employer, Schwan’s Home Service, when she suffered a fractured ankle while stepping off a loading dock on July 23, 2010.  The employee subsequently underwent three surgeries on her left ankle.  The first surgery was conducted by Robert Silverman, M.D., on March 11, 2011.  Subsequently, the employee required revision surgeries conducted on September 24, 2012, and May 22, 2013, performed by Fernando Pena, M.D.  Dr. Pena diagnosed the employee with ankle fragmentation after use of cadaver bone, likely from avascular necrosis, together with chronic pain.  Dr. Pena recommended fusion surgery, which, to date, the employee has declined.  The employee complained of low back pain which she contended was caused by the July 23, 2010, work injury.  The employee was prescribed Vicodin on a regular basis after her failed surgery.^[1]

On April 22, 2014, the employee was evaluated by Matthew Monsein, M.D., of the Phoenix Center Pain Services clinic.  The Phoenix Center offers an interdisciplinary approach to chronic pain management.  Dr. Monsein noted that the employee had gained 100 pounds and was suffering from persistent avascular necrosis of the left ankle, situational anxiety, depression, and chronic pain.  Dr. Monsein suggested that the alternatives open to address the employee’s pain were developing a coping strategy or chronic use of opiates.  On June 5, 2014, the employee was examined on follow-up by Jay Tracy, PA-C, and she was directed to try acupuncture before possibly beginning Lidoderm patches or a TENS unit.^[2]

On June 25, 2014, the self-insured employer filed a medical request to allow discontinuance of payment for the employee’s use of narcotic medication (Vicodin).  A conference was held pursuant to Minn. Stat. § 176.106.  The employee prevailed.^[3]

In September 2014, the employee and the self-insured employer entered into a full, final, and complete settlement.  The terms of the settlement explicitly closed out an extensive list of treatment modalities, including treatment at MAPS.  There was no mention of pain medication or narcotic medication in the list of modalities that were closed out.  The settlement left open pain clinic treatment while the employee attended Dr. Monsein’s program at the Phoenix Chronic Pain Center and 12 weeks of acupuncture.  The settlement then stated: “After the conclusion of the Phoenix Chronic Pain Center program in which the employee is presently enrolled is complete, any and all future chronic pain treatment is closed.”  Future claims for medical care and treatment that were not otherwise foreclosed and are causally related to the work injury were left open.  The settlement amount was $50,000.00, with $10,000.00 of that amount paid as attorneys’ fees.  The settlement closed out temporary total disability, permanent total disability, temporary partial disability, and permanent partial disability benefits.^[4]  The settlement was approved by a compensation judge by an award that was served and filed on September 16, 2014.

Contrary to the statement in the settlement, the employee never formally enrolled in the Phoenix Chronic Pain Center Program.  The employee indicated that the program required a lengthy inpatient period and the employee was unwilling to undertake that obligation.^[5]

On December 22, 2014, the employee was examined by Alfred V. Anderson, M.D., D.C., on referral from Dr. Monsein.  Dr. Anderson operates the Realief Medical Clinic.  Dr. Anderson noted swelling, pain, and increased temperature around the employee’s left ankle and foot.  Dr. Anderson diagnosed arthropathy of the left ankle and foot.  The employee described being unable to walk or participate in activities requiring physical exertion.  Dr. Anderson prescribed Oxycontin and Oxycodone to allow the employee sufficient pain relief to increase her physical activity, increase her muscle strength, and cope with her pain.  Follow-up examinations were conducted on April 13, 2015, May 11, 2015, July 1, 2015, and August 26, 2015.  The employee’s diagnosis from these visits was unspecified arthropathy to the ankle and foot, unspecified backache, and pain in soft tissues of limb.  The opioid medications are noted as to be used for the employee’s chronic pain.^[6]

Dr. Anderson submitted billings for the required examination and screenings for continued prescription of opioid medications, totaling $3,472.64.^[7]  The employee incurred a total of $13.00 in copays for the opioid medication prescribed by Dr. Anderson.^[8]  The self-insured employer refused payment, asserting that the billings and copays were for treatment that had been closed out by the parties’ stipulation.

The employee filed a Medical Request which was heard at the Department of Labor and Industry.  Thereafter, a Request for Formal Hearing was made which came before the compensation judge on September 1, 2015.  The compensation judge heard testimony from the employee.  The judge made findings regarding the nature of the employee’s medical care received from Dr. Anderson, particularly with respect to the references to chronic pain.  The compensation judge found that the treatment provided by Dr. Anderson, including the prescriptions for opioid medication, was chronic pain treatment.  In his memorandum, the compensation judge concluded that “the settlement unambiguously closed out chronic pain treatment.”  The compensation judge denied the employee’s claim.  The employee appealed this denial.

In reviewing cases 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.”  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  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.”  Id. 358 N.W.2d at 60, 37 W.C.D. at 240.   Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  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 Foods Products, 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.”  Id.  This court reviews questions of law under a de novo standard of review.  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607 (W.C.C.A. 1993).

The employee contends that the settlement is ambiguous as to what was closed out.  For this reason, the employee maintains that the compensation judge erred both in finding the language to be unambiguous and that ongoing opioid pain medication was closed out.  The employee also maintained that the compensation judge’s interpretation contravened public policy by shifting the payment of benefits attributable to a work injury to other payors.  The self-insured employer asserts that the compensation judge’s decision arises from the plain language of the settlement and should be affirmed.

There is a dispute between the parties regarding what was meant to be closed out by the terms of the settlement.  The employee maintains that the settlement language only closes out pain clinic treatment of the type offered by Dr. Monsein.  In the employee’s view, purely palliative care, such as ongoing pain medication of the type received by the employee from Dr. Anderson, was not intended to be closed out in the settlement.  The self-insured employer asserts that the settlement extends to any pain clinic treatment, whether that is a complex multidisciplinary program or merely ongoing opioid prescriptions.

A settlement is a contract and whether a contract is ambiguous is a question of law.  Trondson v. Janikula, 458 N.W.2d 679 (Minn. 1990).  This court reviews questions of law under a de novo standard of review.  Krovchuk, 48 W.C.D. 607, see also Small v. St. Louis Park Plaza Healthcare Ctr., No. WC13-5568 (W.C.C.A. Jan. 2, 2014).  A contract is ambiguous where its language is reasonably susceptible to more than one interpretation.  Brookfield Trade Ctr., Inc., v. County of Ramsey, 584 N.W.2d 390 (Minn. 1998).

In workers’ compensation practice, the term “chronic pain treatment” describes an interdisciplinary approach to intractable pain which is specifically designed to manage pain without the lengthy use of opioid medications.^[9]  This distinction was clearly stated in Dr. Monsein’s April 22, 2014, evaluation of the employee for possible participation in the Phoenix Chronic Pain Center program.^[10]  To the extent that the use of the word “all” in the September 2014 stipulation could be read to extend to treatment beyond an interdisciplinary pain program, the language is ambiguous.  The compensation judge’s finding that the language is unambiguous is reversed.

Having determined that the language in the September 2014 stipulation is ambiguous, this court must construe the disputed provision.  As this court has stated, “[t]he cardinal purpose of construing a contract is to give effect to the intention of the parties as expressed in the language used in the entire contract.”  Hampton v. Spectro Alloys Corp., 65 W.C.D. 541, 545 (W.C.C.A. 2005) (citing Art Goebel, Inc., v. North Suburban Agencies, Inc., 567 N.W.2d 511 (Minn. 1997)).  Where there is ambiguity in a stipulation, the language is construed against the drafter.  Peterson v. Honeywell, Inc., slip op. (W.C.C.A. June 26, 1996).

The employee maintains that she intended to close out chronic pain clinic treatment of the sort offered by Dr. Monsein.  As the employee did not intend to pursue such a program, there was no disincentive to agree to close out such future treatment.  Further, the context of the close out provision expressly leaves open the chronic pain clinic treatment that the employee was consulting Dr. Monsein for until such time as that program is completed and then closing “all chronic pain treatment.”  The structure of the paragraph suggests that chronic pain treatment programs are being closed out, not opioid pain medication.  There is no explicit mention of closing out such pain medication in any other provision of the September 2014 stipulation.  There is no indication that the employee intended to forego receiving treatment for her continuing ankle pain, except for the described interdisciplinary chronic pain program.

Construing the ambiguous language in the September 2014 stipulation against the self-insured employer who drafted that language, we conclude that the employee did not close out ongoing palliative care outside of that provided by an interdisciplinary team in the form of a chronic pain treatment program.  For that reason, we reverse the compensation judge’s decision.

The interpretation urged by the self-insured employer would necessarily close out payment for all treatment of the employee’s chronic pain, not merely pain clinics and opioid prescription medication that was at issue in this proceeding.  The medical record is clear that the employee will continue to experience pain so long as she does not undergo ankle fusion surgery.  There is no dispute that the employee continues to experience this pain as a result of the July 23, 2010, work injury.  There is no dispute that continued medical treatment for her ongoing pain condition is reasonable and necessary.  As a result, the costs of the employee’s work injury would necessarily be shifted to other insurance or a government agency.^[11]  This cost shifting violates public policy and constitutes a further, separate ground for reversing the decision of the compensation judge.  See Wiehoff v. Indep. Sch. Dist. No. 15, No. WC13-5610 (W.C.C.A. Jan. 17, 2014).

Determination of ambiguity in a stipulation is considered de novo by this court.  Applying the normal usages of terms to the parties’ stipulation, the language relied upon by the self-insured employer is ambiguous.  Construing the ambiguous terms of the stipulation, we determine that the employee did not intend to close out all care for her ongoing chronic pain arising out of the July 23, 2010, work injury.  We therefore reverse the compensation judge’s findings regarding ambiguity of the stipulation and the resulting denial of reimbursement.