WILLIAM JOHNSON, Employee/Respondent, v. DARCHUKS FABRICATION, INC. and HARLEYSVILLE INS., Employer-Insurer/Appellants, and INJURED WORKERS PHARMACY, Intervenor.

The employer and insurer appeal the compensation judge’s award of payment for opioid medication in which the judge found that the rare case exception to the treatment parameters set out in Jacka v. Coca-Cola Bottling Co., 580 N.W.2d 27, 58 W.C.D. 395 (Minn. 1998) applied.  As the compensation judge’s application of the rare case exception to the treatment parameters in awarding the requested medical treatment is supported by substantial evidence, this court affirms that award.

This matter is again before this court on appeal.  The underlying facts are set out in this court’s prior decision, 79 W.C.D. 285 (W.C.C.A. 2018), and that of the Minnesota Supreme Court, Johnson v. Darchuks Fabrication, Inc., 926 N.W.2d 414, 79 W.C.D. 291 (Minn. 2019).  For the purposes of this appeal, the employee, William Johnson, suffered a work-related injury on September 4, 2002, that resulted in an intractable pain condition which was treated by prescription of Oxycontin, Percocet, and methadone.  In 2005, the employee’s condition was assessed as not treatable by surgery other than by amputation.  At that time, the employee was prescribed Endocet (an opioid medication) as the treatment to address his ongoing left ankle pain by Gregory Sperle, M.D.  In 2009, Dr. Sperle’s treatment regimen was assessed by Matthew Monsein, M.D., on behalf of the employer and insurer.  Dr. Monsein considered the employee’s treatment, including Endocet and Neurontin, to be reasonable, necessary, and causally related to the employee’s work injury and resulting complex regional pain syndrome (CRPS) condition.  The employee continued treating for pain using opioid medications.

On May 2, 2016, the employee underwent an independent medical examination conducted by Randal Wojciehoski, D.P.M., D.O., on behalf of the employer and insurer.  Dr. Wojciehoski opined that the employee was not experiencing CRPS and that the employee be weaned off opioid medications.  In an addendum report dated July 11, 2017, Dr. Wojciehoski supplemented his earlier report and affirmatively maintained that the employee did not have CRPS, that his current opioid medication (Endocet) was not prescribed properly under the treatment parameters, and that the ongoing prescriptions of Lorazepam, nifedipine, and Neurontin were neither reasonable nor necessary to treat the employee’s chronic pain condition.

Based on the opinion of Dr. Wojciehoski, the employer and insurer sent a letter to the employee’s treating physician, Dr. Sperle, requesting compliance with Minn. R. 5221.6110, the treatment parameter governing opioid medications.  The progress notes of Dr. Sperle from October 14, 2016, indicate that the employee continued to experience most of the symptoms of CRPS and that the employee requires Endocet, cyclobenzaprine, and Neurontin to address those symptoms.  Dr. Sperle supported referral of the employee to a pain clinic as a possible alternative to continuing the current prescription regimen.

The employee filed a medical request seeking payment for various medications, including Endocet, which was ultimately heard by a compensation judge on July 21, 2017.  The compensation judge found that the employee’s CRPS condition had not resolved, that the medications at issue were reasonable and necessary to cure and relieve the employee of the effects of the work injury, and that the treatment parameters were not applicable.  The employer and insurer appealed to this court the refusal to apply the treatment parameters to the employee’s claim.  This court affirmed^[1] and the employer and insurer appealed to the Minnesota Supreme Court.  The Supreme Court reversed the decision and remanded the case to the compensation judge for application of the treatment parameters.^[2]

On remand, the parties presented the matter for hearing on the prior record, supplemented by one exhibit from the employee.  No additional witness testimony was offered.  The compensation judge heard argument from counsel for the employee and the employer and insurer.  In his Findings and Order on Remand, the compensation judge incorporated by reference all but Finding 16 from the prior Findings and Order, found that the employee had not complied with the applicable treatment parameter, determined that a departure from that parameter had not been demonstrated, and concluded that the rare case exception applied. Based on these conclusions, the judge awarded payment for the requested medications.  The employer and insurer appealed.

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 employer and insurer contend that the compensation judge made an error of law by awarding the claimed medication, which did not comply with the treatment parameters or qualify for a departure from the parameters, under the rare case exception.  In support of this argument, the employer and insurer rely on this court’s holdings in Wald v. Walgreens Corp., 73 W.C.D. 297 (W.C.C.A. 2013), Vicari v. Nat’l Steel Pellet Co., 65 W.C.D. 416 (W.C.C.A. 2005),  Kozlak v. Minnegasco, 64 W.C.D. 454 (W.C.C.A. 2004), and Rushmeyer v. Lyngblomsten Care Ctr., No. WC06-177 (W.C.C.A. Dec. 20, 2006).  In essence, the employer and insurer maintain that the treatment parameters regarding opioid medications anticipate the employee’s situation, and therefore the rare case exception cannot apply.  Additionally, the employer and insurer contend that the compensation judge relied on the requirements of the treatment parameters being “onerous” in applying the rare case exception and maintain that this was an error of law.

In the first proceeding, the compensation judge found that the prescribed medication was reasonable and necessary to treat the employee’s intractable pain.  Those findings were not appealed and are therefore the law of the case in this proceeding.  See Darvell v. Wherley Motors, No. WC04-320 (W.C.C.A. May 17, 2005).  The prior appeal determined that, as a matter of law, the treatment parameters were applicable to the claim presented and, therefore, the judge was required to use the treatment parameter analysis in resolving the claims of the parties.

Analyzing a medical claim under the treatment parameters requires that the appropriate parameter be applied to the requested treatment, that the standards for departure from the parameter be assessed, and if the standards for departure are not met, the application of the rare case exception is then determined.  See Marschel v. Bird & Cronin, Inc., 75 W.C.D. 333 (W.C.C.A. 2015).  On remand, the compensation judge determined that the requested treatment was not in compliance with some portions of the applicable treatment parameter, primarily in recordkeeping.  The judge also found that the standards for departure from that parameter were not met.  Neither of those determinations were appealed.  The only determination that was appealed is the application of the rare case exception.

The compensation judge determined that the rare case exception applies in this case because the requested medical treatment is needed to provide proper treatment to the employee even though the treatment did not strictly comply with the treatment parameters.  This determination is to be assessed on appeal using the Hengemuhle standard, which requires affirmance where the decision is supported by substantial evidence.^[3]  Amunrud v. Advance United Expressway, 64 W.C.D. 204, 217 (W.C.C.A. 2004), summarily aff’d (Minn. May 27, 2004).

The rare case exception is not found in the treatment parameters.  This exception was created by the Minnesota Supreme Court when the court determined that, for the treatment parameters to constitute legally adopted rules, the application of such an exception was necessary to preclude an undue restriction on awarding care under Minn. Stat. § 176.135.^[4]  This court assessed the standard of review to be applied to determinations of the rare case exception as follows:

Given, however, that most reasonableness and necessity questions are factual in nature, we will review Jacka “rare case” medical treatment disputes under Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984), and Minn. Stat. § 176.421, subd. 1(3).  In other words, the question for us on appeal is whether the compensation judge’s decision is clearly erroneous and unsupported by substantial evidence in view of the entire record.^[5]

Under Jacka and Asti, the compensation judge retains the flexibility to award proper medical treatment outside of the parameters and departure standards.  Despite these holdings, the employer and insurer in this case contend that this court’s holdings in Wald, Vicari, Kozlak, and Rushmeyer somehow limit that flexibility.  We disagree.  In Wald, this court affirmed the application of the rare case exception to an award of a common physical therapy program where the compensation judge found that the employee was likely to experience functional improvement and a reduction in her chronic pain.  In Vicari, the award of acupuncture treatment under the rare case exception was affirmed due to the degree of pain relief afforded by the treatment to the employee’s otherwise intractable pain.  In Kozlak, this court reversed an award due to the lack of medical support for the treatment and the judge’s finding that “the treatment provided no significant long-term pain relief or progressive objective or even subjective improvement in the employee’s condition.”^[6]

The employer and insurer in this case note that in Rushmeyer, this court affirmed an award of opioid medication for treatment of intractable pain through the rare case exception.  The employer and insurer contend that this case is distinguishable from Rushmeyer on the facts.  On the contrary, we find that the facts in this case align with those in Rushmeyer,  which were set out in that decision as follows:

This is a case where despite fusion surgery the employee continued to have intractable pain and has had this pain for many years.   The employee is not a candidate for further surgery at this time.  The employee’s use of narcotics is closely monitored by her treating physicians.  There is no evidence of abuse of narcotics.  There is no alternate treatment for the employee’s intractable pain being proposed at this time that the employer and insurer are willing to pay for.^[7]

From the foregoing facts, the court in Rushmeyer affirmed the award of opioid medication, noting particularly that: “While we might agree that the facts of this case are not particularly rare or unique, the compensation judge was clearly persuaded that the employee is experiencing intractable pain.  We note also that the disputed treatment is not invasive, is carefully monitored by the employee’s physicians, is not being abused, and allows the employee to function somewhat normally.”^[8]

In this case, there is no dispute that the employee suffers from intractable pain.  The only alternative offered to the employee was amputation of the affected limb.  The compensation judge made specific findings, both in the Findings and Order and the Findings and Order on Remand regarding the employee’s compliance with the prescribing regime, the careful monitoring of the opioid medication by the treating physician, and the absence of any evidence of abuse of that medication. While the employer and insurer noted that the employee’s treating physician was open to trying alternatives, these have not actually been proposed as treatments that will be paid for by the employer and insurer.  There is no meaningful distinction between the facts in this matter and those in Rushmeyer.

The employer and insurer contend that the compensation judge made an error of law by expressing sympathy for the employee’s argument that compliance with the recordkeeping requirements was “onerous, cumbersome, and extremely difficult.”^[9]  This expression of sympathy was followed by the conclusions that the parameter applied nevertheless and had not been met.  There is no reference to those standards in the judge’s analysis of the rare case exception.  There is no evidence that the compensation judge considered the asserted onerous nature of compliance with the parameter in concluding that the rare case exception applied in this case and therefore, we find that no error of law arose from the judge’s statement.

In determining that the rare case exception applied, the compensation judge noted the use of opioid medication reduced the employee’s pain by half and allowed the employee to engage in activities of daily living, while being without the medication resulted in unbearable pain, stress, and anxiety.  There is substantial evidence in the record supporting the compensation judge’s application of the rare case exception.  The decision of the compensation judge is affirmed.