Where substantial evidence supports the compensation judge’s findings and order that the employee’s ongoing use of medication, including narcotic medication, was monitored, used in moderation, and kept the employee’s symptoms stable, and where there is no challenge to the medical opinion of the treating doctor supporting the ongoing use of medications, the compensation judge did not err as a matter of law in finding that the use of medication was reasonable and necessary for the cure or relief of the effects of the work related injury.

On January 12, 1999, while employed by Blackwoods Grill & Bar in Two Harbors as a dining room supervisor, the employee, Penny Winter, slipped on ice while walking from her car to the restaurant.^[1]  She landed on the ground on her butt and side and back.^[2]  In February 1999, the employee first treated with Dr. Jed Downs.^[3]  She underwent various conservative treatment methods.^[4]  Ultimately, Dr. James Ogilvie recommended a discography and three-level fusion.^[5]  The employee suffered from three-level degenerative disc disease with an internal disc disruption as confirmed by the discography.^[6]

On September 18, 2000, the employee underwent a three-level fusion at L3-S1.^[7]   Within a few days, a second surgery was performed to remove a screw.^[8]  On October 9, 2000, a third surgery was performed, which included a partial laminectomy, screw removal, and hematoma evacuation.^[9]  Thereafter, the employee was referred to Dr. Tom Elliot at Duluth Clinic, who diagnosed chronic low back pain related to degenerative disc disease, failed back surgery syndrome with probable complex regional pain syndrome at the right lower extremity, stress urinary incontinence, and minor depression.^[10]

The employee returned to Dr. Downs for treatment and management of her chronic low back pain.^[11]  In a narrative report dated November 30, 2004, Dr. Downs noted that since her return to his care, the employee had been prescribed gradually increasing doses of OxyContin and Neurontin, bupropion, amitriptyline, as well as tizanidine and Senolax for constipation.^[12]  He opined that her injuries were permanent, and that the employee would need to be monitored while she continued on her chronic pain medication cocktail.^[13]  He stated that the employee should remain stable on her current dosage of OxyContin for quite some time.^[14]

On March 3, 2005, this matter came on for hearing before Compensation Judge Gregory Bonovetz on the issue of whether the employee was permanently and totally disabled as a result of the January 12, 1999, work injury.^[15]  The compensation judge found the employee to be permanently and totally disabled from July 14, 1999, to the present and continuing as a result of the work injury at Blackwoods Grill & Bar.^[16]  No appeal was taken from this decision.

In March 2011, the employee began treating with Dr. Debbie Allert at Lakeview Clinic, as Dr. Downs was closing his practice.^[17]  In her office note dated March 23, 2011, Dr. Allert referred to a letter from Dr. Downs that indicated the employee was stable on her medication regimen and that she was compliant in her care.^[18]  Dr. Allert noted this regimen consisted of OxyContin, amitriptyline, bupropion, gabapentin, and Senna, and that the employee reported it was a good balance and she was able to function.^[19]  After this initial visit, the employee treated with Dr. Allert on a regular basis in the time leading up to the June 16, 2015, hearing.^[20]  Dr. Allert required the employee to execute regular pain contracts and submit to random drug testing.^[21]  Throughout her treatment records, Dr. Allert noted no change to the medication regimen, the employee was compliant in her care, and that her symptoms were stable and well-controlled.^[22]

A record review was conducted at the request of the employer and insurer by Dr. Teresa Gurin, who issued an independent medical opinion dated April 17, 2014.^[23]  With regard to the employee’s medication regimen, Dr. Gurin recommended that she be tapered off OxyContin over the next 3-6 months as in her view the use of opiates for chronic non-malignant pain has not been proven effective and chronic use of opiates can cause nerve hypersensitivity with increased pain.  She concluded that exercise had been underutilized, despite being more effective than OxyContin in controlling pain.  In addition to tapering off OxyContin and increasing exercise, Dr. Gurin recommended that the employee use non-steroidal anti-inflammatory medications during exacerbations of pain, use ice application, and quit smoking.  Dr. Gurin opined that gabapentin and tizanidine are reasonable and necessary and related to the work injury.  She did not consider any use of OxyContin after three months from the employee’s surgery reasonable or necessary.

A record review was also conducted at the request of the employer and insurer by Dr. Donald Starzinski, who issued an independent medical opinion dated December 29, 2014.  It was Dr. Starzinski’s opinion that the employee’s medication regimen is not reasonable or necessary for purposes of controlling her pain.  He opined that OxyContin is not appropriate for treatment of chronic musculoskeletal-type pain because its side effect profile outweighs its benefits, and because it inherently promotes tolerance and dependence.  He considered the Senna to be unreasonable as it is used to treat the side effects of the OxyContin.  Dr. Starzinski opined that both the amitriptyline and bupropion are useful for the treatment of depression, but are not related to the work injury and are duplicative.  He was of the opinion that the gabapentin is useful and appropriate for treatment of chronic pain and is related to the work injury.  Based upon his review of the employee’s medical history, Dr. Starzinski considered the January 12, 1999, injury to have been an exacerbation of a pre-existing degenerative spine condition.  Dr. Starzinski recommended that treatment for the employee’s pain consist of a regular exercise and conditioning program, weight management, diet modification, and tobacco abstinence.

A narrative report was also issued by Dr. Debbie Allert, dated May 28, 2015.  Dr. Allert outlined that since assuming the care of the employee in 2011, the existing combination of medication was working well and allowing her to be functional, and that she had been stable for years.  The employee has been compliant, has not misused or diverted her medications, and has not demonstrated tolerance.  Dr. Allert was of the opinion that without the medications, the employee would be much less functional.  She considered bupropion and amitriptyline to be necessary for the employee’s depression and anxiety, as well as to help her sleep.

This matter came on for hearing before Compensation Judge Stacy Bouman on June 16, 2015.  The employee testified that she is currently taking the same medications as she has since her surgeries, namely, OxyContin for chronic pain, amitriptyline for sleep, bupropion for anxiety, gabapentin for RSD and the nerves in her legs, and Senna for constipation from the OxyContin.^[24]  Identified as issues for Judge Bouman’s consideration was whether the employee’s current medication usage is reasonable and necessary, and if not, whether the medication management should be modified as recommended by either Dr. Teresa Gurin or Dr. Donald Starzinski.  By Findings and Order dated July 14, 2015, Judge Bouman relied upon the opinions of Dr. Allert and the testimony of the employee in determining that her current medication usage is reasonable and necessary.

The employer and insurer appeal this determination.

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 (2014).  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).

On appeal, the employer and insurer argue that substantial evidence does not support the compensation judge’s determination that the medication used by the employee was reasonable and necessary to cure and relieve the effects of the injury.  The employee responds by arguing that the employer and insurer failed to show on appeal that the compensation judge committed an error of law or that the findings of fact and order were erroneous and not supported by substantial evidence.

Pursuant to Minn. Stat. § 176.135, subd. 1, an employer is required to furnish medical treatment reasonably required to cure and relieve the effects of a work injury.  Whether medical treatment is reasonable and necessary is a question of fact for the compensation judge.  Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993); Richardson v. Hot Shot Prods., 72 W.C.D. 113 (W.C.C.A. 2012).  The compensation judge’s determination on this issue must be affirmed if supported by substantial evidence in the record.  Minn. Stat. § 176.421, subd. 1; Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).

In making a determination whether medical treatment is reasonable and necessary, a compensation judge may take into consideration the factors set forth in Field-Seifert v. Goodhue County, slip op. (W.C.C.A. Mar. 5, 1990).  Those factors include (1) evidence of a reasonable treatment plan, (2) documentation of the details of the treatment, (3) the degree and duration of relief resulting from the treatment, (4) the frequency of treatment, (5) the relationship of the treatment to the goal of returning the employee to suitable employment, (6) potential aggravation of underlying conditions, (7) the duration of the treatment, and (8) cost.  Id.  The weight and significance to be afforded to these factors is a question of fact for the compensation judge.  Fuller v. Naegele/Shivers Trading, slip op. (W.C.C.A. Apr. 14, 1993).

Compensation Judge Bouman found the employee’s current medication use to be reasonable and necessary treatment, and denied the employer and insurer’s request to have those medications modified according to the recommendations of Dr. Gurin and Dr. Starzinski.^[25]  She noted that the employee’s medication regimen, as approved and monitored by Dr. Allert, has helped keep the employee’s condition stable and maintains her functional status.  The employee follows up with Dr. Allert on a regular basis, executes regular pain contracts, undergoes regular random drug testing, and is compliant in her care.

The compensation judge’s decision ultimately depended upon her choice between conflicting medical opinions.  She explicitly accepted the opinions of the employee’s treating physician, Dr. Debbie Allert.^[26]  A compensation judge’s choice of expert is affirmed so long as the accepted opinions have adequate foundation.  Smith v. Quebecor, 63 W.C.D. 566 (W.C.C.A. 2003) (citing Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985)).  The employer and insurer do not contend that the opinions of Dr. Allert lack foundation, nor would the evidence in the record support such a position.  Therefore, we affirm the compensation judge’s findings and order.