JIMMY J. LOUPE, JR., Employee/Appellant, v. MCNEILUS STEEL, INC. and CREATIVE RISK SOLUTIONS, Employer-Insurer/Respondents.

SEPTEMBER 11, 2018

No. WC18-6175

MEDICAL TREATMENT & EXPENSE – TREATMENT PARAMETERS; RULES CONSTRUED – MINN. R. 5221.6100. Where the employee had a good recovery from surgery in 2013, where post-surgical x-rays that year showed a stable replacement, where annual examinations and x-rays each year through 2016 showed no new or altered findings, and where there were no new symptoms or knee issues reported in 2017 requiring radiographic findings for diagnosis or treatment, substantial evidence supported the finding that a further x-ray at the 2017 annual examination was simply a routine, repeat x-ray which was not authorized under the medical treatment parameters.

    Determined by:
  1. Deborah K. Sundquist, Judge
  2. Patricia J. Milun, Chief Judge
  3. Gary M. Hall, Judge

Compensation Judge: Miriam Rykken

Attorneys: Thomas A. Atkinson and Dana L. Gerber, Atkinson Law Office, Arden Hills, Minnesota, for the Appellant. Thomas A. Atchison and Mackenzie R. Moy, Heacox, Hartman, Koshmrl, Cosgriff, Johnson, Lane, & Feenstra, St. Paul, Minnesota, for the Respondents.




The employee appeals the compensation judge’s conclusion that payment for an x-ray administered four years after the employee underwent knee surgery due to a work-related injury was precluded under the medical treatment parameters. Affirmed.


Jimmy J. Loupe, Jr., injured his right knee while working for the employer, McNeilus Steel, Inc. The employer and its insurer, Creative Risk Solutions, admitted liability and paid benefits. In 2016, the parties entered into a stipulation for settlement. Although otherwise a full, final, and complete settlement, medical treatment and expenses were left open subject to defenses.

Following the injury, the employee moved to Louisiana where he began treating in 2012 with Chad Millet, M.D., an orthopedic surgeon. Dr. Millet recommended partial knee replacement surgery, which was approved by the employer and insurer. Dr. Millet performed a unicompartmental replacement of the medial compartment of the right knee on August 21, 2013. The surgery was successful. In follow-up visits to Dr. Millet, the employee exhibited no swelling or atrophy. Muscle testing, stability, and gait were subsequently normal. Although the surgery had been successful, Dr. Millet saw the employee for a follow-up visit and examination each year thereafter. In 2014, 2015, and 2016, Dr. Millet ordered x-rays of the right knee and the employer and insurer paid for them. However, in 2017, after several years of normal findings, the employer and insurer declined to approve another x-ray recommended by Dr. Millet. Citing Minn. R. 5221.6100, the employer and insurer argued that the x-ray sought was a “routine” x-ray and therefore not indicated under the treatment parameters for radiographic studies.

In March 2018, the employee obtained a narrative report from Dr. Millet, who explained why he considered the x-ray to be necessary. (Ex. B.) Dr. Millet opined that after a total joint replacement, x-rays are necessary at each follow-up visit to ensure that the components are in the correct position, that there is no abnormal wear on the prosthesis, and to check for signs of arthritis. Dr. Millet’s opinion was the only medical opinion in evidence.

The employee filed a medical request in July 2017 seeking payment for the 2017 x-ray. The matter was heard on April 12, 2018, and the Findings and Order were filed on April 18, 2018. The compensation judge found that the treatment parameters precluded payment for routine x-rays and denied the employee’s claim. The employee appeals.


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 2017 x-ray was “routine” and not allowed by the treatment parameters.[1] Under the treatment parameters, a routine x-ray is “not indicated unless the information from the study is necessary to develop a treatment plan.” Minn. R. 5221.6100, subp. 1.C. A “repeat” x-ray “of the same views of the same body part with the same imaging modality is not indicated except” under certain circumstances. Those circumstances include “to follow up a surgical procedure.” Minn. R. 5221.6100, subp. 1.D(3). As the compensation judge noted in her memorandum, the employee had a good recovery from his right knee surgery and the medical records showed no new or altered physical findings. She further explained that the employee had not sustained any exacerbation. She concluded that the x-ray ordered by Dr. Millet was “routine” imaging and not allowed under the treatment parameters.

On appeal, the employee argues that the compensation judge erred in applying the treatment parameter governing “routine” imaging, rather than the treatment parameter governing “repeat” imaging. Because Dr. Millet opined that the employee’s right knee replacement surgery requires ongoing x-rays to examine the surgical hardware and to monitor the extent of the employee’s arthritis, the employee argues that the post-surgical x-rays are necessary under Minn. R. 5221.6100, subp. 1.D(3).

We are not persuaded. Dr. Millet ordered post-surgical x-rays following the employee’s surgical procedure on August 21, 2013. Such x-rays were repeated on April 29, 2014, October 7, 2014, July 7, 2015, and July 7, 2016, at each yearly examination. The employer and insurer authorized all of these x-rays, but denied authorization for yet another x-ray to be taken on May 23, 2017.

During each of the post-surgery examinations, the employee’s symptoms were stable and objective findings were normal and/or stable. The employee was doing well and the surgery was successful. (T. 20; Ex. 3.) Since four consecutive x-rays performed in the years following surgery were all unremarkable, the judge could reasonably conclude that further x-rays were routine, and therefore not indicated under the treatment parameters. Nothing in the rules governing medical imaging require the employer to pay for post-surgical x-rays to be repeated every year in perpetuity, when the employee’s examinations are unremarkable.

The employee contends, however, that the compensation judge erred as a matter of law by rejecting what he characterizes as uncontroverted medical opinion, specifically, Dr. Millet’s claim that annual x-rays are medically necessary on an ongoing basis indefinitely following knee replacement surgery. We are unpersuaded. While unopposed medical opinion cannot be "ignored" in reviewing the evidence, it is not necessarily binding on a trier of fact. See Tuomela v. Reserve Mining Co., 299 Minn. 203, 204, 216 N.W.2d 638, 639, 27 W.C.D. 312, 313 (1974). The issue here is not whether the judge rejected uncontroverted medical opinion but whether substantial evidence in the record supports the judge’s factual determination. See, e.g., Amunrud v. Advance United Expressway, 64 W.C.D. 204 (W.C.C.A. 2004). Here, the judge analyzed the disputed treatment under case law principles and under the treatment parameters, which were specifically enacted to aid the trier of fact in determining appropriate treatment. We conclude that substantial evidence in the record supports the judge’s finding. We accordingly affirm.

[1] The treatment parameters were established for reasonably required medical treatment of employees with compensable workers’ compensation injuries to prevent excessive services under Minn. Stat. §§ 176.135 and 176.136. They are not intended to expand or restrict a health care provider’s scope of practice under any other statute. Minn. R. 5221.6020, subp. 1. In general, all treatment must be medically necessary treatment. Minn. R. 5221.6050, subp. 1.A. These parameters also include a section for medical imaging. Minn. R. 5221.6100.