WAYNE A. ARMSTRONG, Employee/Respondent, v. CLYDE MACHINES, INC., and RTW GROUP, Employer-Insurer/Appellants.

The employer and insurer appeal from the compensation judge’s order approving treatment at the Center for Pain Management on the basis that the medical treatment is closed out by a prior Stipulation for Settlement, and that the medical recommendations relied on by the judge are vague and overbroad. We affirm.

The employee, Wayne Armstrong, who was employed as a machinist for Clyde Machines, suffered a work-related injury on September 19, 2007.^[1] While lifting a 95-pound block of steel, the employee experienced a sharp pain between his shoulder blades, and pain shooting into his neck, right arm, and left leg.^[2] Days later and after his symptoms did not improve, the employee sought emergency room care, where he was given limited, short-term physical restrictions, and was prescribed medication for pain in his upper back, neck, and right shoulder.^[3]

In the months following his injury, the employee participated in physical therapy programs, which he considered to have provided only temporary relief.^[4] He continued to work in a light-duty capacity, though he eventually reduced his hours as a result of his pain.^[5] He was treating his pain with medication, narcotic and non-narcotic.^[6] By 2010, the employee felt he could no longer tolerate the pain he experienced at work, and his employment with Clyde Machines ended.^[7] He has not worked since, and currently receives Social Security disability benefits.^[8]

In the summer of 2009, the parties entered into a stipulation for settlement, resolving the employee’s claims arising out of his September 19, 2007, work injury on a full, final, and complete basis, with the exception of claims for future medical treatment.^[9] According to the language of the agreement, claims for future medical treatment “are limited by foreclosure of claims for … formal in or out patient pain programs, as defined by the treatment parameters, including MAPS….” The employee agreed to resolve his claims in exchange for a lump sum payment of $50,000.00, less attorney’s fees.^[10]

Throughout 2009 and 2010, the employee regularly treated with Dr. Thomas Haus of Glacial Ridge, Glenwood Medical Center, with reports of chronic pain primarily in his back, neck, and right shoulder.^[11] By 2012, the employee’s pain complaints focused on the right shoulder and neck. In April 2013, MRI scans were done of the neck and right shoulder, showing degenerative changes in both, as well as a disc herniation at C6-7.^[12] Dr. Haus referred the employee to the Center for Pain Management, where he was evaluated and injections were eventually performed.^[13]

In 2014, the employee began treating with Dr. George Kryder of Douglas County Hospital, Alexandria Clinic. In his August 28, 2014, office note, Dr. Kryder outlined the employee’s treatment history to have included physical therapy, unsuccessful steroid injections, and use of narcotics at levels the doctor found concerning. He reviewed the July 2014 MRI scans of the cervical and thoracic spines showing disc bulges, degenerative disc disease, and spinal canal stenosis. He also reviewed the prior right shoulder scan showing impingement. Based on his review of the medical history, MRI scans, and office examinations of the employee, Dr. Kryder recommended reducing the employee’s use of narcotics and addressing obesity as a source of ongoing back pain, and referred the employee to a physiatrist.^[14] In December 2014, the employee underwent steroid injections at the Center for Pain Management, but did not experience relief of his symptoms.^[15] Dr. Kryder recommended another physical therapy program, which the employee participated in during the early months of 2015.^[16] Dr. Kryder’s treatment records from 2015 reflect that the employee continued to have difficulty ambulating which negatively affected his activities of daily living.^[17] In late 2015, the employee sought Dr. Kryder’s assistance to obtain approval for additional injections, however, the request for approval for a referral to the pain clinic was denied by the insurer.^[18]

The employee continued to treat with Dr. Kryder into 2016 for chronic pain. Dr. Kryder’s office notes contain repeated references to attempts to limit and reduce the employee’s use of narcotic pain medication and continued suggestions for alternative treatment of the employee’s chronic pain, including non-narcotic medication, use of a TENS unit, weight loss, and referrals for further physical therapy.^[19] Despite denials from the insurer, Dr. Kryder continued to note that the employee would benefit from physical therapy, a non-narcotic pain regimen, and pain management.

Since his injury, the employee has undergone numerous evaluations by independent medical examiner, Dr. Robert Barnett, at the request of employer and insurer.^[20] The employer and insurer also requested that the employee undergo an independent neurological evaluation by Dr. Donald Starzinski.^[21] With regard to the employee’s current claims, both Dr. Barnett and Dr. Starzinski opined that the referral to a pain clinic was reasonable, but unrelated to the employee’s work injury.^[22] It was also Dr. Barnett’s opinion that further treatment for the employee’s cervical and right shoulder conditions, including additional physical therapy and a repeat MRI, was not necessary.^[23]

The employee filed a medical request seeking approval of Dr. Kryder’s March 23, 2016, referral for physical therapy.^[24] The treatment was denied following an administrative conference, and the employee then filed a request for formal hearing on that issue.^[25] The employee also filed a medical request seeking approval of a right shoulder MRI recommended by Dr. Jefferson Brand of Heartland Orthopedics in August 2016, and approval for a pain clinic consultation recommended by Dr. Kryder on July 12, 2016.^[26] The employee’s medical request and request for formal hearing were consolidated and a hearing scheduled before a compensation judge at the Office of Administrative Hearings.

On December 1, 2016, a compensation judge conducted a hearing on the employee’s claims for approval of physical therapy, a right shoulder MRI, and a consultation at the Center for Pain Management. By Findings and Order dated January 17, 2017, the compensation judge denied the employee’s claims for physical therapy and the MRI. The employee did not appeal. In an unappealed finding, the compensation judge found that the recommended treatment at the Center for Pain Management is reasonable, necessary, and casually related to the employee’s work injury.^[27] In approving the referral, the judge rejected the employer and insurer’s argument that the treatment was closed out by the language of the 2009 settlement.^[28] It is on this basis alone that the employer and insurer submit this appeal.

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.”^[29] 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.”^[30] Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.^[31] Similarly, “[f]actindings 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.”^[32] 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.”^[33]

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.^[34]

Appellants make two arguments on appeal. First, they contend the terms of the stipulation for settlement bar the referral to the Center for Pain Management. Second, they contend a referral to the Center for Pain Management for chronic pain is not clear and the judge’s interpretation of the agreement was overbroad. We disagree.

In approving the referral, the compensation judge rejected the employer and insurer’s argument that the referral was foreclosed by the language of the 2009 stipulation for settlement. The settlement agreement left open claims for future medical care, with a list of exceptions. Among those exceptions listed was “formal in or out patient pain programs, as defined by the treatment parameters, including MAPS… .”^[35] In his supporting memorandum, the compensation judge reasoned that because the referral did not specify what the treatment would be, the consultation could not be said to meet the requirements for a pain program under the treatment parameters, and was therefore not closed out by the agreement. We conclude that the compensation judge’s interpretation of the stipulation and referral were reasonable based on the record in this case.

The stipulation for settlement does not foreclose a referral to a specialized pain center for all aspects of assessment, diagnosis, treatment recommendation, pharmacotherapy management, and pain management treatment. A close reading of the treatment notes of Dr. Kryder reveals his ongoing efforts to provide the employee with advice, treatment, and recommendations so as to relieve the employee of his pain symptoms. By taking on the responsibility of being the employee’s primary care physician in 2014, Dr. Kryder has since reviewed the employee’s medical history and past treatment, analyzed multi-factorial barriers to the employee’s recovery including obesity and mental health, and emphasized the importance of limiting narcotic use, while carefully considering the limits of the employee’s workers’ compensation coverage. Dr. Kryder was aware of prior treatment the employee received at the Center for Pain Management, including injections, and had even referred the employee there in the past.^[36] Noting that there were few treatment options remaining to the employee, Dr. Kryder made a number of suggestions, which, on July 12, 2016, included a referral to a pain clinic.

Though the language used in Dr. Kryder’s referral was for a “pain clinic,” we are not persuaded by the employer and insurer’s argument that approval of a referral to a pain clinic is equivalent to an authorization of a pain program as defined by the treatment parameters.^[37] The employer and insurer concede that the Center for Pain Management provides services other than those that would otherwise be foreclosed by the settlement agreement. In fact, the employee had been referred to the Center for Pain Management in the past for injection therapy, and while the evidence does not establish that the nature of Dr. Kryder’s referral at issue was, in fact, for injection therapy, the evidence also does not establish that the referral was for a pain program as defined by the treatment parameters. The compensation judge’s analysis was properly limited to whether the referral to the Center for Pain Management constituted treatment foreclosed by the settlement, and we conclude that his analysis was reasonable. Because substantial evidence in the record supports the compensation judge’s conclusion that the referral to the Center for Pain Management is not closed out by the settlement language, we affirm.