BARBARA J. THAEMERT, Employee/Appellant, v. HONEYWELL INT’L, INC., SELF-INSURED, and SEDGWICK CLAIMS MGMT. SERVS., INC., Employer-Insurer/Respondents and INJURED WORKERS’ PHARMACY, Intervenor.

The employee appeals from the compensation judge’s determination, relying on the opinion of the self-insured employer’s independent medical examiner, that the employee’s current medical claim for narcotic medications does not constitute medical treatment that was reasonable, necessary, and causally related to the work-related injuries on January 29, 1993, and June 17, 1998. We vacate Findings 17 and 19-23 and the denial of benefits, and remand to the compensation judge for reconsideration.

The employee, Barbara Thaemert, worked at Honeywell, the self-insured employer, from 1977 until June 1998. The employee suffered an admitted work injury on January 29, 1993, as a result of assembly work, largely consisting of connecting parts and pinching wires. She began experiencing headaches and pain in her neck, bilateral shoulders, and bilateral arms. First seeking chiropractic treatment, physical therapy, and massage therapy, she then began treating with A.V. Anderson, M.D., in May 1993. Dr. Anderson diagnosed the employee with degenerative disc and joint disease in the cervical spine at C3 through C6, tendinitis of the right shoulder, and lateral epicondylitis of the upper right arm. In 1995, Dr. Anderson concluded the employee was at maximum medical improvement (MMI) for the January 29, 1993, work injury; opined continuing conservative care was appropriate to address the effects of that injury; and rated the employee with a permanent partial disability (PPD) of 10.5 percent for the cervical spine and 3 percent for the right shoulder.

In December 1995, Dr. Anderson prescribed Tylenol #3, an opioid medication, to be taken as needed for pain. The employee had been taken off work for one week due to an aggravation of her pain symptoms. Dr. Anderson noted the employee had a 50 percent reduction of her pain due to the use of Tylenol #3. In June 1996, Dr. Anderson noted that the employee needed Tylenol #3 for sufficient pain relief to be able to sleep. In March 1997, Dr. Anderson noted the employee was unable to continue working without the pain relief provided by Tylenol #3, and the employee’s use of that medication was reduced when she was not working. On January 21, 1998, Dr. Anderson began the employee on a trial of oxycodone as a replacement for the Tylenol #3 pain medication. The employee credited her ability to work full time to the pain relief she was receiving from the medication.

The employee suffered an alleged work injury on June 17, 1998, which caused her to be taken off work by Dr. Anderson. The claimed work injury was bilateral carpal tunnel syndrome, which the employee attributed to her work duties. An EMG study supported the diagnosis. The employee did not resume working for the employer.

At a follow-up appointment on July 15, 1998, Dr. Anderson noted the employee’s use of OxyContin (20 mg) to address her ongoing pain symptoms and Oxycodone for breakthrough pain. After the failure of conservative treatment, the employee underwent carpal tunnel surgery on the right side in December 1998, and on the left side in February 1999. Both surgeries were performed by David R. Olson, M.D. On May 5, 1999, Dr. Anderson noted the employee’s continued use of OxyContin and Oxycodone, and indicated the employee was experiencing ongoing pain symptoms resulting in other adverse effects, such as sleep interruption. On June 16, 1999, Dr. Anderson documented the employee’s physical symptoms, including muscle spasms, which he considered consistent with the employee’s complaints of pain.

On December 15, 1998, the employee underwent an independent medical examination (IME) by Joseph T. Teynor, M.D., on behalf of the self-insured employer. Dr. Teynor opined the employee did not suffer a Gillette^[1] injury at work. Dr. Teynor considered the employee’s ongoing use of narcotic medications to be unnecessary to treat any claimed work injury with the employer.

On December 17, 1999, Dr. Anderson provided a narrative letter describing the employee’s condition, including the unsuccessful effort to address arm pain through carpal tunnel surgery. Dr. Anderson attributed the employee’s ongoing pain syndrome to her 22 years of assembly work. Dr. Anderson increased the employee’s PPD rating, and considered the employee to be permanently and totally disabled. Dr. Anderson noted the ongoing opioid prescriptions were needed to give the employee enough pain relief to sleep and perform ordinary activities of daily living (hereinafter ADLs).

On March 2, 2000, Dr. Anderson conducted a follow-up examination and again opined the employee was permanently and totally disabled. Dr. Anderson also noted the employee’s medications substantially reduced her pain and improved her overall functioning.

On May 12, 2000, the employee underwent a second IME by Dr. Teynor, on behalf of the self-insured employer. Dr. Teynor opined the employee’s ongoing symptoms did not arise from any work injury with the employer.

On July 12, 2000, Dr. Anderson conducted a follow-up examination and noted the employee’s ongoing prescription for opioids was consistent with current medical practice and was needed to provide sufficient functioning for ADLs.

On April 4, 2001, Dr. Olson provided a narrative report regarding the employee’s carpal tunnel condition. Dr. Olson discussed permanent restrictions and a permanent partial disability rating which would be either zero percent or three percent, depending on the outcome of a subsequent EMG arising from that condition and the relative success of the surgery. There was no discussion of chronic pain and no discussion of the employee’s opioid treatment.

The parties reached a settlement and on July 19, 2001, an Award on Stipulation was filed. The employee received $70,000, less attorney fees of $14,200, for a close-out of claims including “chiropractic care and treatment, formal chronic pain clinic programs, [and] psychiatric treatment . . . .” Future non-chiropractic medical expenses not explicitly closed out were left open, with defenses other than statute of limitations retained by the self-insured employer. All of the benefits described in the stipulation were attributed to the January 29, 1993, work injury. The alleged June 17, 1998, work injury was left open subject to all defenses raised by the self-insured employer including a denial of primary liability.

Following the settlement, the employee’s pain medication dosages increased until 2003, when Dr. Anderson stated no higher dosage could be prescribed and the employee was no longer obtaining the same degree of pain relief with her existing prescription. The employee’s prescription was changed to Kadian^[2] (50 mg), maximum six per day, with morphine sulfate for use with breakthrough pain.

On June 7, 2004, Richard Hadley, M.D., conducted a medical record review on behalf of the self-insured employer. Dr. Hadley noted the consistency in the employee’s complaints of chronic pain over the period of her treatment. Dr. Hadley opined the narcotics dosages were large and extended over a long period of time, which was not a recommended form of treatment.

On March 11, 2009, Dr. Anderson conducted a review of the employee’s pain management program. Dr. Anderson assessed the employee’s ADLs of walking, personal interaction, temperament, sleep patterns, and overall quality of life to be improved by 50 percent through the use of pain medication. The employee reported she was looking for work, but could not find any positions within her restrictions. The employee’s medications included Kadian (50 mg) five per day, with morphine sulfate for breakthrough pain.

On January 23, 2014, Dr. Anderson conducted a review of the employee’s pain management program. The employee rated her pain as “today a 7, best was a 4, worst was a 10+.”^[3] The employee’s medications at that time were Kadian taken three every 12 hours, Zanaflex (20 mg), Wellbutrin, and Paxil. The employee assessed her condition as 55 percent improved with her treatment. Dr. Anderson applied the Minnesota Prescription Monitoring Program risk factors and noted the employee’s urine screening was consistent with her prescribed medications. He assessed the employee’s ADLs of walking, personal interaction, temperament, sleep patterns, and overall quality of life to be improved by 50 percent through the use of her pain medication. The employee indicated she was looking for work, but could not find any positions within her restrictions. Dr. Anderson met with the employee in follow-up appointments on an eight-week schedule, with notations that were consistent regarding the employee’s ADLs, perceived improvement in condition, and compliance with drug screening.

As part of Dr. Anderson’s regular follow-up examinations, he monitored the employee’s pain medication usage from January 15, 2014, through December 22, 2015. Throughout this period, the employee’s dosage of opioid medication was unchanged, that being Kadian, six per day. The only alteration in the employee’s medication was a brief trial of the generic version in the same dosage, which did not adequately control the employee’s pain and had an additional side effect of nausea.

On March 14, 2016, Dr. Anderson conducted a follow-up examination of the employee, who had reduced her intake of Kadian from six doses daily to four. This change was due to the workers’ compensation administrator advising that there would be a change in the amount of the medication covered. The employee reported a significant reduction in her ability to function with the 100 mg per day decrease in her medication.

On April 4, 2016, Dr. Anderson conducted a follow-up examination of the employee, who indicated the reduction in pain medication resulted in an increase in pain leaving her unable to perform housework, shop for groceries, or take a shower. Still, Dr. Anderson formally reduced the employee’s medication to match the reduced dosage approved by the workers’ compensation administrator. That lowered amount was continued through follow-up appointments, with the same increase in symptoms and decrease in functioning noted by the employee and documented in the employee’s medical record.

On July 11, 2016, Dr. Anderson discussed the employee’s situation with a consulting pharmacologist for the workers’ compensation administrator. The pharmacologist further limited the employee’s approved dosage of Kadian, requiring the employee to move to three per day, then two per day. Although advocating for the employee, Dr. Anderson wrote the prescriptions to fit the reduced amounts approved. At the October 3, 2016, follow-up examination, Dr. Anderson documented an increase in the employee’s pain behavior. The employee described being “bedbound” under the two per day dosage of Kadian and functioning well with a return to the four doses daily, with morphine sulfate being taken more frequently to address the effects of her chronic pain. At the January 24, 2017, follow-up, the employee described similar impairments, including inability to socialize or do housework. The same outcome was described at the March 21, 2017, follow-up, with the dosage down to two doses of Kadian daily, and the morphine sulfate available every four to six hours as needed. At the October 16, 2017, follow-up, the employee described her functioning as decreased by 40 percent due to the decrease in dosage. Dr. Anderson noted an increase in exhibited pain symptoms throughout the examination.

On July 21, 2017, the employee underwent an IME conducted by Mark Friedland, M.D., on behalf of the self-insured employer. Dr. Friedland noted the employee had been prescribed opioid medication since 1993, and the dosages of that medication increased in 1997, 1998 and 1999. The change of medication from Oxycontin to Kadian in 2001 was noted, along with the increase of the Kadian dosages in 2004 and 2005. Dr. Friedland noted there was no change in the employee’s dosage in 2014. Dr. Friedland briefly discussed Dr. Anderson’s rationale for continuing the employee’s dosage in 2016 in response to the efforts to reduce the approved amount. Dr. Friedland explicitly discounted any impairment in the employee’s ability to perform ADLs and maintained that no such impairment was documented in the employee’s medical record. Dr. Friedland concluded the amounts of opioid medication prescribed by Dr. Anderson were excessive. Dr. Friedland opined that none of the employee’s treatment by Dr. Anderson over the previous 10 years had been medically reasonable or necessary or causally related to the employee’s work injuries. The employee’s symptomology was described as “highly exaggerated and nonanatomic.”^[4] Dr. Friedland also opined the employee was capable of working full time with a 20-pound lifting restriction and limited repetitive motion. For pain relief, Dr. Friedland considered plain Tylenol^[5] to be sufficient.

Realief Medical P.A. billed for examinations and drug/alcohol assessments conducted by Dr. Anderson on October 16, 2016, and January 11, 2017, at $390.00 per examination and $125.00 per assessment, totaling $1,030.00. The self-insured employer denied payment. The employee filed a claim petition seeking payment for that treatment. Injured Workers’ Pharmacy (IWP) filed a motion to intervene seeking payment for Kadian and morphine sulfate provided to the employee, totaling $14,823.31.

This matter came on for hearing before a compensation judge on December 20, 2017. The employee testified regarding the nature of her work injuries, her surgeries, the limitations that she experiences in ADLs, and her use of opioid medications.

The compensation judge found the employee suffered permanent work-related Gillette-type injuries on January 29, 1993, and June 17, 1998.^[6] In an unappealed finding, the compensation judge found the employee’s complaints of pain since those injuries to be credible.^[7] The judge determined the Stipulation for Settlement did not foreclose the employee from seeking payment for her chronic pain medications and the employee’s chronic pain was causally related to the work injuries.^[8] The judge found one effort to wean the employee off of opioid medications was made in 2014, and then stated that Dr. Anderson made no such effort.^[9] The compensation judge described the employee’s benefit from the medication as “extremely temporary.”^[10] The judge also found that $14,823.31 was an excessive amount for one year’s supply of opioid medication.^[11] The judge found Dr. Anderson’s determination of MMI in 1995 and his discussion of treatment options at that time, did not support the current claim for opioid medications in 2016 and 2017. ^[12] The judge denied the claims of the employee and IWP, and ordered payment of a non-specific “wean off narcotic medications program” as suggested by Dr. Friedland.^[13] The employee 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).

The burden of proof to establish that the opioid medications are appropriate and medically reasonable and necessary rests on the employee.^[14] Whether the employee has met her burden is a question of fact for the compensation judge.^[15]

At hearing, the employee presented evidence of her ongoing pain symptoms and the effect of her long-term opioid medication on treating those symptoms. She also presented evidence of the effects on her overall ability to be productive and perform ADLs when dosages of that medication were reduced. The compensation judge unambiguously found the employee’s complaints of pain and the effects from that pain to be credible.^[16] Citing the lack of referral to another medical provider, the frequency of the employee’s need for medication, the duration of the employee’s use of the medication, and the cost of that medication, the compensation judge, nonetheless, found the medical treatment unreasonable and denied the claim.

Substantial evidence to support a decision can ultimately rest on a well-founded medical opinion.^[17] The compensation judge’s choice of expert will be upheld on appeal, except where the facts assumed by the expert in arriving at that opinion are not supported by the record.^[18] An expert medical opinion is not competent if it is based on assumptions that lack a factual basis or if it materially relies on facts contrary to those found by the compensation judge.^[19]

The determination of whether an expert opinion has adequate foundation is within the discretion of the compensation judge. Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802, 77 W.C.D. 117, 124 (Minn. 2017). Once an expert opinion has been admitted into evidence without objection the evidentiary issue becomes one of weight rather than one of competence. Weis v. Clinton Elec. Co., slip op. (W.C.C.A. Oct. 10, 1997). But the employee raised no objection to the introduction of Dr. Friedland’s report and therefore forfeits the foundation issue on appeal as to admissibility. See Gianotti, 889 N.W.2d at 801, 77 W.C.D. at 123.

The compensation judge relied on the opinion of Dr. Friedland in concluding that the opioid medication prescribed was not reasonable and necessary or causally related to cure and relieve the effects of the January 29, 1993, and June 7, 1998, work injuries. The employee contends that Dr. Friedland’s opinion was “so fundamentally flawed” so as to have no evidentiary weight. Dr. Friedland’s opinion expressly relies on a purported lack of a causal relationship between the employee’s complaints and the work injuries, on his belief that the employee engaged in symptom magnification about her pain, and on a lack of documentation of negative effects from reduction in the employee’s dosage, to conclude that the medication regimen was unreasonable. All of these points are contradicted either by the compensation judge’s findings of fact or by uncontroverted evidence from the employee’s medical records.

The compensation judge’s unappealed finding that the employee’s complaints of pain and symptoms were credible cannot be reconciled with Dr. Friedland’s opinion concluding that the employee’s complaints of pain were “highly exaggerated” and required no meaningful treatment. Furthermore, Dr. Friedland’s assertion of a lack of documentation of negative effects from dosage reduction in the employee’s medical record is contradicted by every chart note by the employee’s treating physician from March 14, 2016, onward.^[20] Even with at least six of those notations in records purportedly reviewed by Dr. Friedland, he took the position that long-term opioid medication is inappropriate for treatment of the employee’s condition.^[21] Therefore, while Dr. Friedland’s opinion had foundation for the purpose of admission into evidence, that opinion no longer had foundational support given the factual findings of the compensation judge. We conclude Dr. Friedland’s ultimate opinion, in this case, materially relies on facts contrary to those found by the compensation judge.

We next review whether the factors relied on by the compensation judge to assess reasonableness have substantial support in the record.

The compensation judge noted the lack of any referral to another medical provider to explore an alternative means of alleviating the employee’s chronic pain. While the treatment parameters do not apply in this case (see infra), we note that the treatment parameters require such a referral under specific circumstances, including the amounts of opioids prescribed for the employee here.^[22] In this case, however, the parties closed out such alternative forms of treatment in the July 19, 2001, Award on Stipulation.^[23] In essence, the parties bargained away this aspect of possible future treatment. The same is true for all other alternative forms of treatment, such as psychological and behavioral programs, interventional techniques, alternative medicine, and exercise programs. Under the circumstances of this case, the lack of a referral is not an appropriate basis for finding the treatment to be unreasonable.

The compensation judge found the employee’s daily use of opioid medication only provides pain relief for a limited period of time until the next dose is required. From this the judge concluded the employee was receiving pain relief “on an extremely temporary basis.”^[24] The employee’s daily medication regimen, however, is standard for treatment of chronic pain with opioids.^[25] Further, the record before us lacks any medical opinion to the contrary. Were we to apply the standard put forward by the compensation judge for pain relief, no long-term opioid medication could be found to be compensable for relief of chronic pain.

In Johnson v. Darchuks Fabrication, Inc., WC17-6114 (W.C.C.A. June 13, 2018), cert. filed (Minn. July 21, 2018), we upheld the compensation judge’s determination that the treatment parameters did not apply to the claimed prescriptions for narcotic medication after the insurer denied liability for the employee’s condition. We continue to be of the view that an employer and insurer who contest liability for the treatment sought due to resolution of the condition cannot simultaneously assert the treatment parameters apply to limit payment for that treatment.^[26] Although the judge was not obligated to analyze this case under the treatment parameters, we believe they provide useful guidance for analyzing whether the treatment claimed is reasonable and necessary.^[27] Where the treatment parameters do apply, they establish the limits of compensable treatment in all but the most exceptional circumstances.^[28]

The compensation judge considered the treatment cost for one year unreasonable, in part, because the employee had been prescribed opioid medication for 25 years. No evidence in the record suggests the employee was ever free from her chronic pain. The 2004 IME opinion of Dr. Hadley noted the consistency of the employee’s pain symptoms; those complaints are documented over the entire history of the employee’s medical record. Further, the employee’s treating physician monitored the dosage of the opioid medication prescribed and periodically adjusted the employee’s medication and dosages as appropriate under the contemporaneous treatment protocols. Because the employee’s condition was found to be chronic and permanent, the duration of the employee’s need for pain control does not by itself provide a basis for the denial of compensability.^[29] Unlike other provisions of the treatment parameters, those addressing chronic pain treatment through long-term use of opioid medications do not set forth specific durational limitations as long as the pain relief is sustained.^[30]

Similarly, the compensation judge’s reliance on a lack of an effort to wean the employee from opioid medication is troubling. The language in the stipulation specifically closed out all formal chronic pain clinic programs. Further, the employee’s medical record is clear. Her long-term levels of medication were reduced at the direction of the workers’ compensation administrator beginning in early 2016. The employee’s medical record reveals that when medication levels were reduced, the employee reported increases in pain symptoms and a reduced ability to perform ADLs. The evidence is contrary to the compensation judge’s finding that no effort to wean the employee from the medication occurred. Thus, this factor is not an appropriate basis to find the medication unreasonable.

The compensation judge also relied on the cost of the employee’s medication in finding that medication unreasonable. In this case, however, we conclude the cost of the medication is not, by itself, a basis for finding the claimed benefit to be unreasonable. The compensation judge did not provide any comparisons, facts, or information to explain how or why this amount exceeds the usual cost of such medication. We therefore conclude the compensation judge’s finding that the opioid medication was unreasonable based on cost was not supported by substantial evidence in the record.

Without an explanation for the compensation judge’s finding as to the limited relief obtained from opioid medication to address the employee’s pain symptoms, we are unable to assess whether substantial evidence in the record supports the result in this case. The compensation judge made unappealed findings determining the employee’s work injuries were permanent, based on the medical evidence in the record and the employee’s credible testimony of ongoing chronic pain. Each workers’ compensation case must be assessed on its individual merits, not dominated by unrelated issues affecting others who are not parties to the proceeding. As chronic pain treatment using opioid medication is allowable under the statute, rules, and case law, the compensation judge must assess the evidence in the record by the appropriate standard.

The compensation judge relied on an expert medical opinion that was based on material facts contrary to those found by the compensation judge as well as factors unsupported by the evidence in the record. Therefore, the denial of the claimed benefits is vacated, along with Findings 17 and 19-23. This matter is remanded to the compensation judge for reconsideration of the employee’s claims, applying the appropriate standard of reasonableness and the law of the case established through the unappealed findings of the employee’s credible complaints of chronic pain caused by the work injuries.