MEDICAL TREATMENT & EXPENSE – TREATMENT PARAMETERS. Where the compensation judge determined that the implantation of a spinal cord stimulator (SCS) did not result in significant pain relief and the medical provider did not comply with the requirement to obtain a second opinion from outside the provider’s practice, payment for the procedure was properly denied.
Compensation Judge: Kirsten M. Tate
Attorneys: Joshua E. Borken, Law Office of Joshua Borken, St. Paul, Minnesota, for the Employee Respondent. Eric S. Hayes, Brown & Carlson, P.A., Minneapolis, Minnesota, for the Employer/Insurer Respondents. Michael G. Schultz, Sommerer & Schultz, PLLC, Minneapolis, Minnesota, for the Intervenor Appellant.
Affirmed.
SEAN M. QUINN, Judge
The intervenors, Minneapolis Pain Centers and Medical Advanced Pain Specialists (collectively MAPS), appeal the compensation judge’s denial of payment for the implantation of a spinal cord stimulator (SCS) to treat the employee’s pain symptoms. We affirm.
On September 1, 2013, the employee, Bonnie Brandia, suffered an injury to her right elbow. She underwent several medical treatments to alleviate her symptoms. Eventually, a MAPS doctor recommended a trial SCS and, if the trial was successful, the implantation of a permanent SCS. The trial was performed in December 2016 and the permanent implant was done in April 2017. In the time between the trial and the permanent SCS procedures, the parties entered into a stipulation for settlement. Prior to the settlement, MAPS had been given notice of its right to intervene, but did not. Its interest, as far as it existed at that time, was extinguished by the award on stipulation signed by a compensation judge on February 7, 2017. In late 2017, another doctor suggested the employee try medical cannabis.
The employer and insurer denied payment for the permanent SCS and the medical cannabis and the matter came on for hearing before a compensation judge on January 8, 2019. On February 15, 2019, the compensation judge granted the employee's request for reimbursement for her out-of-pocket expenses associated with medical cannabis, but denied the request for payment for the permanent SCS. MAPS appealed the denial of payment for the permanent SCS to this court.
We affirmed most of the compensation judge’s findings.[1] Those findings are the law of the case.[2] The employee injured her right elbow on or about September 1, 2013 as a result of repetitive lifting and moving. (Finding 4.) The employee had carpal tunnel relief surgery in 2015 at Summit Orthopedics which was not successful in improving the employee’s symptoms. (Finding 5.) Subsequently, the employee treated with Dr. Mark Fischer at Twin Cities Orthopedics and underwent a course of care which included a right elbow medial epicondyle release, stellate ganglion blocks, and long-arm casting. At the conclusion of this care, Dr. Fischer did not find any signs of sympathetic dystrophy and instead diagnosed the employee as suffering from elbow pain. (Findings 6-14.) The employee then treated at MAPS, where she underwent stellate ganglion blocks and pool therapy, which did not provide any relief. In December 2016, the employee underwent a trial SCS and reported a 55-60 percent reduction of pain and improved sleep. She later underwent an implantation of a permanent SCS in April 2017 where she reported pain, prior to the implant of 3/10 at best and 8/10 at worst, and at the time of implant, 5/10. By September 2017, she was reporting right arm pain of 4/10 and continued to take various medications to treat her pain symptoms. She then began medical cannabis and soon after reported pain of 1/10 and a reduction toward ultimately weaning off any narcotic pain medications. (Findings 15-23.) There were at least six expert opinions provided by medical doctors and a psychologist, some of whom were treaters and some of whom were one-time evaluators. (Findings 29-34.) In her memorandum, the compensation judge was persuaded by portions of the expert medical opinions of Dr. Adam Locketz and Dr. Teresa Gurin. Dr. Locketz was of the opinion that long-term opioid medication was unsafe, and that medical cannabis was a reasonable, appropriate, and safe alternative to treat the employee’s chronic pain. As to the SCS, the compensation judge adopted the opinion of Dr. Gurin that the employee did not have chronic regional pain syndrome (CRPS). The medical cannabis was reasonable and necessary care to treat the employee’s elbow injury. (Finding 42.) There was an earlier Stipulation for Settlement in 2017 where MAPS failed to intervene. Consequently, per the terms of the February 7, 2017, Award on Stipulation, MAPS’ claims were extinguished through that date. (Findings 35-38.) For the current claim, MAPS had intervened seeking payment for care occurring both before and after the February 7, 2017, Award on Stipulation. Their claims predating February 7, 2017, were not properly before the court. (Findings 40, 41, and 45.)
This court vacated other findings and remanded for additional findings related to the permanent SCS. The compensation judge denied the employee’s claim for payment for a permanent SCS[3] because the employee did not have CRPS. We noted that even if the employee did not have CRPS, the compensation judge needed to make findings regarding whether an SCS could be reasonable and necessary care regardless of diagnosis, and that she needed to make findings related to the medical treatment parameters.
On remand, the compensation judge conducted another hearing on January 13, 2020. No additional testimony was offered, although one additional medical expert report was admitted into evidence. In her February 14, 2020, findings, the compensation judge concluded that regardless of diagnosis, the SCS was not reasonable and necessary medical care. She also found that MAPS did not follow the treatment parameters regarding the stimulator, that a departure from the treatment parameters was not appropriate, and that the employee’s situation did not rise to the level of a rare case as defined by the Asti[4] or Jacka[5] cases. MAPS 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).
On appeal, MAPS argues that substantial evidence does not support the compensation judge’s finding that an SCS was not reasonable and necessary. They also argue that they followed the treatment parameters and that the compensation judge erred in concluding they did not. Finally, they argue that even if the treatment parameters were not followed, the compensation judge erred in finding substantial evidence failed to support a departure from the treatment parameters. We disagree with MAPS.
The compensation judge concluded that regardless of the employee’s diagnosis, the SCS was not reasonable and necessary care to treat her pain symptoms. While MAPS points to evidence that could have led to a different conclusion, substantial evidence supports the compensation judge’s findings.
A February 19, 2016, EMG showed no ulnar nerve entrapment or dysfunction. In her earlier findings, the compensation judge concluded the only diagnosis for the employee was non-neuropathic elbow pain. On July 7, 2016, psychologist Dr. Mary Mattison diagnosed depression and a pain disorder and recommended the employee treat with a psychiatrist. Later, on December 2, 2016, when Dr. Mattison evaluated the employee again for a pre-surgical evaluation ahead of the trial SCS, she diagnosed the employee with depression and a pain disorder and recommended individual psychotherapy. The employee had a pain level of 3-8/10 on the day of the trial SCS. Two months later, before the permanent SCS implant, the employee had pain of 4-8/10. This evidence supports the conclusion that the employee may have had a psychological comorbidity and regardless, that the trial SCS was not successful in reducing the employee's pain. Likewise, the evidence also showed that after the permanent implant of the SCS, the employee still had pain at the 2-6/10 range and was still taking narcotic pain medication. It was reasonable for the compensation judge to infer from this evidence that the permanent SCS was not particularly successful.
The compensation judge concluded that it was the use of medical cannabis that improved the employee’s symptoms rather than the SCS. The employee’s medical record indicates that only after the employee began taking medical cannabis in the fall of 2017, did she experience a sustained and substantial reduction in her pain, reporting pain of 1/10, with weaning from narcotic pain medications. This evidence supports the finding that the SCS was not reasonable and necessary care.
The compensation judge found the employee suffers from elbow pain, and not from CRPS or any other neuropathic injury to her elbow. Nonetheless, the compensation judge concluded that although the employee’s pain was nonanatomic, it loosely met the threshold contemplated by the treatment parameter addressing CRPS and other neurogenic conditions, Minn. R. 5221.6305.
Under Minn. R 5221.6305, subp. 3.B., an SCS is indicated only if there is intractable pain, no other surgical option, and no major psychological comorbidity as assessed by a psychologist or psychiatrist. If there is such a psychological comorbidity, that condition must be treated and the employee later reassessed. The employee can then undergo a trial SCS only where a second opinion from a provider outside of the treating provider’s practice confirms all prerequisites and finds no contraindications. Finally, there must be at least a 50 percent improvement in pain for at least three days before the long-term SCS can be implanted.
Here, there is evidence that could support the first and third of the requirements under the treatment parameters. The employee does have intractable pain, is not a candidate for other surgeries, and was evaluated by Dr. Mary Mattison for psychological comorbidities and who approved the trial from a mental health perspective.[6] Likewise, there is evidence that the employee had at least a 50 percent reduction in pain for at least three days after the trial SCS.
The employee’s medical record shows that the second requirement was never satisfied. After the recommendation of the SCS, and after Dr. Mattison’s evaluation, there was no referral for a second opinion from a provider outside of the treating provider’s practice to confirm the intractable pain, the lack of another surgical option, and the lack of psychological comorbidities.
MAPS argues that the evaluation done by Dr. Mark Fischer in June 2016, six months before Dr. Mattison’s evaluation, satisfies the second opinion requirement. This argument fails for several reasons. A doctor visit occurring six months before a treatment modality is proposed cannot serve as the required second opinion regarding that recommended care. There also is nothing in the record to indicate that Dr. Fischer evaluated for intractable pain, the lack of other surgical options, or the lack of psychological comorbidities as required by the rule. Further, Dr. Fischer is not a psychiatrist or psychologist. While MAPS points out that the employee testified to discussing an SCS with Dr. Fischer and that he advised that such a procedure would be one of the last things tried if nothing else worked, this testimony does not describe the type of evaluation that can serve as the second opinion contemplated by the rule.
MAPS also argues that the second opinion requirement as outlined in the rules is irrelevant in this case because that second opinion is to occur before the trial, and the issue before the compensation judge was the permanent SCS. According to MAPS, even if the treatment parameters were not followed for the trial SCS, the only relevant parameter for the permanent SCS is the requirement that the trial SCS result in at least 50 percent reduction in pain. We are not persuaded. If that position were accepted, the only requirement for providers before implanting a permanent SCS would be that there is a 50 percent reduction in pain for three days following a trial, regardless of whether the employee has intractable pain, other surgical options, or a psychological comorbidity. We reject this argument. A provider cannot proceed with implementation of a permanent SCS without compliance with rules specific to the prerequisite trial SCS.
MAPS argues that a departure from the treatment parameters is called for in this case. Under Minn. R. 5221.6050, subp. 8.D., a departure could apply when the treatment at issue meets at least two of three criteria:
(1) the employee’s subjective complaints of pain are progressively improving as evidenced by documentation in the medical record of decreased distribution, frequency, or intensity of symptoms;
(2) the employee’s objective clinical findings are progressively improving, as evidenced by documentation in the medical record of resolution or objectively measured improvement in physical signs of injury; and
(3) the employee’s functional status, especially vocational activity, is objectively improving as evidenced by documentation in the medical record, or successive reports of work ability, of less restrictive limitations on activity.
As discussed above, the compensation judge concluded that medical cannabis, not the permanent SCS, relieved the employee’s pain symptoms. She also noted in her memorandum that there was no evidence of any of the three criteria supporting a departure under this rule. Substantial evidence supports her conclusions.[7]
Under Asti and Jacka, even if the treatment parameters apply to preclude payment of medical care, an employer and insurer might still be responsible to pay for the medical care in rare cases presenting circumstances so extraordinary that a departure is necessary so that the employee may obtain proper treatment. Asti, 588 N.W.2d at 740, 59 W.C.D. at 64; Jacka, 580 N.W.2d at 35-6, 58 W.C.D. at 408. The compensation judge found that this case was not such a rare case. There is nothing in the record that suggests the compensation judge erred as a matter of law or fact in reaching this conclusion.
Substantial evidence supports the Findings and Order of the compensation judge and we affirm.
[1] Brandia v. Keystone Automotive, No. WC19-6268 (W.C.C.A. Oct. 25, 2019).
[2] See Hanson v. Team Pers. Servs., Inc., slip op. (W.C.C.A. May 7, 2004).
[3] The compensation judge denied claims for both the trial and permanent stimulators. However, as the compensation judge noted, the trial SCS predated the 2017 Stipulation for Settlement and thus payment for the trial SCS was not at issue before her.
[6] Although she approved the employee to proceed with the trial SCS, Dr. Mattison diagnosed a psychological comorbidity and recommended psychotherapy which was not done. Arguably, the parameter would not have been satisfied until the employee underwent the psychotherapy and then underwent another evaluation to determine if the psychological comorbidity was no longer an impetus to undergoing the trial SCS. We need not reach this issue in this case.
[7] The employer and insurer also argue on appeal that MAPS failed to follow the procedures for a departure. Minn. R. 5221.6050, subp. 8, states, “the health care provider must provide prior notification of the departure as required by subpart 9.” Subpart 9 notes that prior notifications to the insurer are the responsibility of the health care provider and sets out the procedures for such notifications as well as the responsibilities of insurers to respond to requests for departures. Although the record contains no evidence that MAPS sought a departure or followed any part of the rules regarding departures, the compensation judge did not address this argument and we need not reach the issue.