MEDICAL TREATMENT & EXPENSE – TREATMENT PARAMETERS. The requirement for improvement in pain and functioning for the opioid medication treatment parameter, Minn. R. 5221.6110, subp. 8.B., applies to the first six months of long-term treatment. After that period, the treatment parameter is met for that standard where an employee demonstrates maintenance of that level of pain relief and functioning.
Compensation Judge: James F. Cannon
Attorneys: James A. Reichert, James A. Reichert, LLC, Minneapolis, Minnesota, for the Respondent. Howard Y. Held and William R. Moody, Fitch, Johnson, Larson & Held, P.A., Minneapolis, Minnesota, for the Appellants.
Affirmed.
PATRICIA J. MILUN, Chief Judge
The employer and insurer appeal the compensation judge’s determinations that the employee’s ongoing opioid prescriptions are in compliance with the treatment parameters for such treatment and that treatment is necessary and reasonable. As the compensation judge correctly applied the applicable rules to the medical record of the employee’s treatment and other evidence in the record, this court affirms the judge’s decision. We note that three findings[1] suggest action to be taken in the future, are conditional on facts not yet known, and address issues not properly before the compensation judge. Those findings in the compensation judge’s Findings and Order have no force and effect and are not before this court on appeal.
On September 1, 2009, the employee, Tina Castro, suffered an admitted work injury while working for the employer, Speedway LLC, when she attempted to catch a falling 50-pound box and felt an immediate pain in her low back. The employee received temporary total disability and was initially prescribed Percocet, which was discontinued. On November 6, 2009, Dr. Mary Arneson advised the employee of the long-term risks of prescribing opioids and Dr. Arneson refused to continue to prescribe them. The employee then underwent epidural steroid injections that failed to address her low back pain condition.
On April 6, 2010, the employee underwent a L5-S1 discectomy. The employee was prescribed opioid medication following surgery. In August 2010, the employee underwent revision surgery. Percocet was prescribed following that surgery. The employee’s dose started at six daily and was reduced to 3 daily after five weeks.
On September 28, 2010, the employee sought emergency room care, having exhausted her supply of Percocet. The chart note indicated that the employee had not complied with her pain management plan and her surgeon was no longer willing to prescribe opioid medication. The surgeon later indicated that the employee was not a surgical candidate to address her ongoing pain. The employee began receiving treatment from Donald A. Asmussen, M.D., who prescribed Percocet, six per day.
On December 17, 2010, the employee underwent a functional capacity evaluation that recommended a release to work with permanent restrictions. In December 2010, the employee began working as a hotel front desk clerk. The employee underwent physical therapy with Physicians Neck and Back Clinic and was found to be at maximum medical improvement as of September 7, 2011. The employee received a 13% permanent partial disability payment from the employer and insurer.
On August 1, 2011, the employee was cited for failing to provide a breath sample, resulting in a conviction under Minn. Stat. § 169A.20.
On January 9, 2012, the employee was assessed at the MAPS pain clinic. The employee was taking from 4 to 6 Percocet per day. The MAPS recommendation was to taper the opioid medication. The employee obtained a second opinion from Dr. Asmussen, who changed the employee’s prescription to 2 OxyContin per day.
On January 26, 2012, the employee was assessed at the Twin Cities Pain Clinic (TCPC) on referral from Dr. Asmussen. The initial chart note indicated that the OxyContin prescription was somewhat effective in reducing the employee’s pain symptoms. The employee’s score on the Owestry Index at that time was 56%. The TCPC increased the employee’s dosage of OxyContin to 3 per day. Subsequently the employee was prescribed 2 Percocet per day. The employee’s Owestry Index score on December 6, 2012, was 66%.
In 2012, the employee underwent epidural injections without effective relief of her low back pain. In December 2012, the employee underwent a spinal cord stimulator trial, which was not effective in relieving her pain. In 2013, the employee continued to receive treatment from TCPC and compliance with her opioid management plan was documented. Further epidural injections were ineffective at pain relief and overall, the employee experienced increasing low back pain. Compliance with the opioid management plan was documented through October 2014.
On January 22, 2015, the employee underwent an independent medical examination (IME) conducted by Kristen Zeller, M.D. Dr. Zeller noted that the employee’s pain medications were Percocet, 5 per day, OxyContin, 3 per day, and Naprosyn (a nonsteroidal anti-inflammatory drug). Dr. Zeller opined that the employee’s medication regimen was inappropriate as it failed to motivate the employee to work on strengthening and use of proper mechanics. Dr. Zellar recommended tapering opioid medications and engaging in further physical therapy. Dr. Zellar considered the employee a poor surgical candidate for fusion.
On February 4, 2015, the employer and insurer filed a Medical Request seeking to require that the employee wean from the continued use of opioid medications. After an administrative conference, the request was denied on November 9, 2015. The employer and insurer requested a Formal Hearing before a compensation judge.
On November 23, 2015, the employer and insurer provided the employee with written notice of the opioid treatment parameters, Minn. R. 5221.6110, subp. 10.
On January 13, 2016, the employee was examined on a follow-up visit at TCPC by Andrew Will, M.D. The chart note from that visit identifies a surplus of opioid medication and provides a narrative regarding the alternative treatments that had been attempted by the employee over her long term medical care, without success. The chart note also recounted the benefits that the employee obtained through ongoing use of opioid medication.
On February 11, 2016, the employee was examined on follow-up by Dr. Will. The chart note from that visit notes compliance with the medication agreement, that the employee’s pain was at least 50% relieved by the medication, and the employee’s daily activity and functional levels were improved. Dr. Will approved the ongoing use of opioid medication and scheduled a follow-up in two months.
This matter came on for a formal hearing before Compensation Judge James Cannon on March 29, 2016. At the hearing, the employee testified regarding the specific standards in the treatment parameter at issue. The record was held open for post-hearing briefs.
The compensation judge found that the employee met all of the requirements for continued prescription of opioid medication as set out in the treatment parameters. The judge held that Minn. R. 5221.6110, subp. 8.B., requires only that the employee maintain improved functioning after the initial 6-month period of prescribing. The judge found the employee’s testimony to be credible and that the testimony supported a finding of substantial compliance with the treatment parameters. The judge took “judicial notice” that the employee was 30 years old, and the judge stated that “long term opioid medication should not be a lifetime use for a young person, unless absolutely necessary.” The judge’s final two findings were that Dr. Will should consider developing a treatment plan for tapering or weaning the employee from opioid medications or file a narrative report explaining why such an approach is inappropriate. The compensation judge ordered the employer and insurer to continue paying for the employee’s current opioid pain medication and dismissed the employer and insurer’s Request for Formal Hearing. The employer and insurer appealed the decision.
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 employer and insurer contend that the compensation judge erred in concluding that the treatment parameters do not require a demonstration of improvement of pain and function as a condition of approving ongoing opioid medications. They further argue that the finding of ongoing opioid medication as reasonable and necessary treatment for chronic pain is unsupported by substantial evidence and in direct contradiction of the compensation judge’s Findings 18 and 19 in the decision. The employee contends that the judge correctly applied the treatment parameters and that substantial evidence supports the decision. We conclude, after viewing the record as a whole, that the compensation judge correctly applied the applicable treatment parameter and the result reached by the compensation judge is supported by substantial evidence. The findings that are claimed to be “contradictory” are dicta that have no effect on the benefits that were awarded.
The Minnesota Department of Labor and Industry promulgated Minn. R. 5221.6110, the treatment parameter at issue in this proceeding, governing long-term opioid medication. The rules became effective on July 13, 2015.[2] The employer and insurer assert that the applicable rule requires the employee to show continued improvement in both pain and function and that this showing must be made throughout the course of treatment. Minn. R. 5221.6110, subp. 8.B., reads as follows:
At each follow-up visit, the prescribing health care provider must assess the success of the program treatment in meeting its goals. The prescribing health care provider must assess pain and function at each follow-up visit, using the same tools chosen for the initial assessment in subpart 3. The program is considered successful if there is improvement in both pain and function within six months after long-term treatment with opioid analgesic medication is initiated, and this improvement is at least maintained at subsequent follow-up assessments.
The employer and insurer’s argument focuses on the words “improvement in both pain and function” while ignoring the rest of the rule. The rule explicitly requires the improvement in the first six months of long-term treatment. After that, the employee need only maintain the benefits of the treatment to meet that portion of the treatment parameter. Here, the employee began long-term opioid medication treatment for chronic pain in 2012 with Dr. Will. The compensation judge applied the plain language of the rule to conclude that the employee, now after several years of opioid treatment for chronic pain, is obligated to show that she is maintaining her level of function. The employee’s medical record and her testimony indicate that the employee benefitted from her treatment in both the relief of pain and enhancement of function. The employee was also able to obtain and hold employment and participate in physical therapy due to the pain relief afforded by the chronic pain treatment. There is no basis on this record to conclude that the compensation judge erred as a matter of law. We affirm.
The employer and insurer contend that that the compensation judge ignored uncontroverted medical opinion by refusing to adopt the IME opinion on reasonableness and necessity. This argument has no basis in fact as applied to this case. The general rule is that a compensation judge cannot disregard an unopposed medical opinion. See Ruether v. State, Mankato State Univ., 455 N.W.2d 475, 478, 42 W.C.D. 1118, 1122 (Minn. 1990) (citing Olson v. Midwest Printing Co., 347 N.W.2d 43, 46, 36 W.C.D. 623, 627 (Minn. 1984)); Flansburg v. Giza, 284 Minn. 199, 169 N.W.2d 744, 25 W.C.D. 3 (1969); Clark v. Archer Daniels Midland, 50 W.C.D. 363, 369 (W.C.C.A. 1994), summarily aff’d (Minn. May 23, 1994); Tuomela v. Reserve Mining Co., 299 Minn. 203, 204, 216 N.W.2d 638, 639, 27 W.C.D. 312, 313 (1974). There is an exception where the employee’s medical record supports one position and an unopposed expert medical opinion holds a contrary position. See Stans v. Long Prairie Mem’l Hosp. & Home, No. WC11-5354 (W.C.C.A. May 24, 2011). The employee’s medical record, and particularly the unambiguous January 13, 2016, and February 11, 2016 narrative chart notes of Dr. Will, plainly controverts the IME opinion.[3]
A compensation judge’s choice between conflicting expert opinions is generally upheld unless the facts assumed by the expert are not supported by substantial evidence. Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985)(citing Klapperich v. Agape Halfway House, Inc., 281 N.W.2d 675, 679-80, 31 W.C.D. 641, 650 (Minn. 1979); McDonald v. MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff’d (Minn. July 13, 1990). In this matter, the compensation judge relied upon the medical office records of Dr. Will over the medical report of the independent examiner, Dr. Zeller. In addition, the employee testified regarding the benefits of the treatment program and that testimony was found credible by the compensation judge. The compensation judge could reasonably have taken into account that the alternative treatment modalities were ineffective at pain management thereby providing additional support to the conclusion that continued opioid medication was both necessary and reasonable. Substantial evidence in the record supports the compensation judge’s findings and conclusion that the continued prescription of opioid medication is necessary and reasonable to cure and relieve the employee of the effects of her September 1, 2009, work injury.
In unappealed Findings 17, 18 and 19, the compensation judge noted that lifetime use of opioid medication is inadvisable, that a number of doctors had advised that the employee attempt to wean from use of opioid medication, and Dr. Will should prepare a treatment plan or file a narrative report why such a plan is not appropriate. The employer and insurer contended that these findings contradicted the award of the compensation judge in this matter and therefore this court must reverse the award. The employee responded that the findings were merely dicta.
In these findings, the compensation judge applies an incorrect standard (“not unreasonable”). As the compensation judge determined that the employee had demonstrated continued use of opioid medications was reasonable, whether the employee must be required to wean off of opioid medication was no longer before the compensation judge. By suggesting future actions on matters that had already been decided by the compensation judge, these findings constitute dicta that has no bearing on the relief ordered by the judge and no effect on the award of benefits.[4] We are not persuaded by the employer and insurer’s argument regarding contradiction.
The employee has demonstrated by substantial evidence compliance with the opioid medication treatment parameters and the continued need and reasonableness of such treatment to maintain her ongoing level of pain relief and functionality. The compensation judge’s findings are fully supported by substantial evidence. The judge did not commit an error of law. The compensation judge applied the correct standard and the record supports his decision. We therefore affirm.
MANUEL J. CERVANTES, Judge
I concur with the majority’s opinion affirming the compensation judge’s appropriate application of the long-term opioid treatment parameter, Minn. R. 5221.6110 as well as it’s affirmation that the treatment provided to the date of hearing was reasonable and necessary. As for the majorities’ determination that the judge’s findings[5] relative to treatment with a goal of weaning the employee off opioids was dicta, I respectfully dissent.
In consideration of the record as a whole, I would affirm the compensation judge’s recommendation to the employee’s current medical provider based on the substantial evidence of record. In the unappealed Finding 17, the judge cites the hearing record as follows,
[T]he employee testified that both her surgeon, Dr. Schwender and her occupational doctor, Dr. Mary Arnason, had either refused to provide the employee with opioid medication or had advised the employee to wean off her opioid medication. Further, the employer and insurer correctly noted in their letter brief that when the employee was seen at MAPS Pain Clinic on January 9, 2012, she was recommended to taper off the 4-6 Percocet a day that she was receiving.
Moreover, the independent medical examiner, Dr. Zeller, recommended that the employee be weaned off opioids, in addition to more active participation in physical therapy.
Based on this record, I would affirm the compensation judge’s recommendation that Dr. Will “should consider” a treatment plan with a goal of weaning this employee off of opioids, if deemed medically appropriate. On appeal, the factual determinations of a compensation judge based on his choice between medical expert opinions are typically affirmed “so long as the accepted opinion has adequate foundation.” Smith v. Quebecor Printing, Inc., 63 W.C.D. 566, 573 (W.C.C.A. 2003), summarily aff”d (Minn. Aug. 15, 2003) (citing Nord v. City of Cook, 360N.W.2d 337, 37 W.C.D. 364 (Minn. 1985)).
[1] Findings 17, 18 and 19.
[2] Minn. Rule 5221.6110, subp. 10, governs the application of the rules to employees who were already receiving treatment with opioids when the rules became effective. Subpart 10.D, requires the prescriber to “establish monitoring of the treatment that complies with the requirements of subpart 8.”
[3] “The medication relieves at least 50% of the pain and increases the employee’s daily activity and function level. . . . There are no contraindications to continuing this treatment.” Employee’s Exhibit 3, February 11, 2016 chart note. “[The employee] has tried numerous nonopioid medications. No conservative measure or surgeries have relieved pain enough for adequate function for self care or for her to be able to perform full time work until the current regimen was found.” Employee’s Exhibit 3, January 13, 2016, chart note.
[4] This court notes that the treatment parameters regarding opioid medications require ongoing monitoring of usage for continued need and explicitly require a tapering program in the event that the medications are to be discontinued. Minn. Rule 5221.6110, subds. 6.M. and 8.C. (“prescribing health care provider must assess … contraindications to continuing treatment.”).
[5] Compensation judge’s Findings 17, 18, and 19.