MARGARET LEUTHARD, Employee/Appellant, v. INDEP. SCH. DIST. 912 – MILACA, and BERKLEY RISK ADM’R, Employer-Insurer/Respondents.

The employee appeals the compensation judge’s findings regarding the reasonableness and necessity of medical treatment related to her ongoing cervical spine pain symptoms.  The judge, in unappealed findings, determined that the treatment resulted in improvement in the employee’s ability to perform activities of daily living, but failed to determine whether the rare case exception applies.  We vacate Findings 37, 38 and 40 and remand for further proceedings consistent with this opinion.

The employee, Margaret Leuthard, suffered an admitted Gillette-type work injury to her neck culminating on April 14, 2004, while working for the employer, ISD 912 Milaca.  Conservative care did not resolve her ongoing neck pain, and an MRI showed significant narrowing of the spinal canal and severe stenosis at C5-C6 and C6-C7, resulting in spinal cord deformity.  The employee was prescribed Vicodin for her ongoing pain symptoms.  In 2005, Robert A. Wengler, M.D., conducted an independent medical examination (IME) and concluded that the employee had suffered a Gillette-type injury which was sufficiently symptomatic for consideration of surgery in the form of a fusion from C5 through C7.  After physical therapy failed to resolve the employee’s neck pain, Bryan J. Lynne, M.D., examined the employee in 2007.  Dr. Lynne did not consider the employee to be a good surgical candidate.

In May 2008, the employee again sought treatment for her chronic neck pain and movement limitations.  Steven R. Sabers, M.D., ordered trial facet joint injections from C5 through C7, which were done on July 22, 2008.  The injections resulted in a 60 percent reduction in pain that lasted about one week.  Medial branch blocks were performed to determine if radiofrequency ablation (also known as rhizotomy or neurotomy) would be of benefit to the employee.^[1]  The medial branch blocks did not result in any reduction of the employee’s neck pain.

On January 28, 2010, the employee was examined by Dr. Sabers, who noted that the employee was no longer getting as much pain control from her medications and was seeking an increase in dosages, particularly of the opioid medication.  In September 2010, Dr. Sabers performed facet joint injections at the employee’s C5 through C7 spine as a test of the efficacy of using this procedure on an ongoing basis to address the employee’s pain without increasing her dosages of opioid pain medication.

On January 27, 2011, Dr. Sabers noted that the employee’s period of effective relief from the repeated facet joint injections increased from one week for the earlier injections to one month for the later injections.  Dr. Sabers considered this to be a “progressively positive and longer term response with repeat injection.”  (Ex. F.)

In April 2012, Dr. Sabers assessed the employee’s condition following additional repeated facet joint injections.  Dr. Sabers proposed that the three-month regimen of facet joint injections be continued to address the employee’s ongoing neck pain.  Dr. Sabers’ only alternative to this approach was a two-level fusion, which he had already concluded was inappropriate for the employee.

From 2013 onward, Dr. Sabers performed facet joint injections at the C5 through C7 levels approximately every three months.  The employee described significant benefits from these procedures, both in reduced pain and increased functionality.  The employee noted that particular activities, such as sewing and computer use, aggravated her neck pain about two months after the prior injections.

On September 25, 2017, the employee underwent an IME conducted by Joel I. Gedan, M.D., on behalf of the employer and insurer.  Dr. Gedan’s summary of the employee’s medical records fails to note that branch blocks were performed in 2008.  The medical records reviewed by Dr. Gedan begin in 2013.  In his opinion, Dr. Gedan relied on an absence of medial branch blocks and subsequent neurotomy in concluding that the employee's facet joint injections were “not necessary, reasonable or indicated treatment from a medical standpoint.”  (Ex. 2.)  Dr. Gedan also opined that the employee’s use of opioid medications was not reasonable or necessary to treat her chronic pain, because that medication did not result in any functional improvement.  Dr. Gedan suggested that the employee engage in stretching exercises and use ibuprofen as needed to address her pain symptoms.

After receiving the IME report, the employee underwent another medial branch block procedure on April 25, 2018.  The employee did not obtain any pain relief from that procedure.  Dr. Sabers provided a narrative report indicating that the employee was suffering from work-exacerbated cervical facet arthritis addressed with repeated facet joint injections, which, while atypical, were the only effective means of addressing the employee’s chronic pain.  Dr. Sabers noted that the employee did “not have any other easy, straightforward or surgical treatment options.”  (Ex. V.)

After the employer and insurer denied payment for her treatment, the employee filed a request for formal hearing.  The matter came on for hearing before Compensation Judge Kristina B. Lund on April 2, 2019.  The employee objected to the foundation for Dr. Gedan’s IME opinion.  The employee testified that she suffered significant pain, exacerbated by activity, which increased until she received her facet joint injections.  The employee testified that the pain relief received from an injection was highly effective, but gradually wore off, leaving her again impaired in her activities of daily living (ADLs) until the next facet joint injections were undertaken.  The compensation judge found that the employee's testimony was credible.  The judge held that the facet joint injections were not reasonable and necessary treatment, as they exceeded the treatment parameters and the employee did not demonstrate progressive improvement in her condition to support a departure from the treatment parameters.  The judge did not consider the employee’s claim under the rare case exception.  The judge awarded the claims of intervenors for the employee’s opioid medications and denied the claims of the employee for the facet joint injections.  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 employee maintained that the compensation judge erred by applying the treatment parameters, because the employer previously denied liability for the work injury.  The employee also argues that the finding that facet joint injections were not reasonable and necessary treatment is not based on substantial evidence.  The employer and insurer argue that the treatment parameters apply, and the judge’s determination was supported by substantial evidence.

The Minnesota Supreme Court in Johnson v. Darchuks Fabrication, Inc., 926 N.W.2d 414, 79 W.C.D. 291 (Minn. 2019), established that the treatment parameters apply to an admitted work injury regardless of whether there is a dispute as to the employee's condition having resolved.  The employer and insurer admitted the work injury in this case, thereby meeting that standard.  The treatment parameter at issue is Minn. R. 5221.6205, subp. 5, which governs therapeutic injections for neck pain.  Subpart 5.A.(2)(c) limits facet joint injections to three discrete injections to any one site.  The employee’s course of treatment exceeded this limit.

The compensation judge analyzed the employee's treatment under the departure standards of Minn. R. 5221.6050, subp. 8, and concluded that the employee did not meet the required criteria for a departure from the treatment parameters to apply.  The court agrees that the employee did not meet those criteria.  

The judge did not consider whether the treatment provided to the employee constituted a "rare case" exception to the treatment parameters under Jacka v. Coca-Cola Bottling Co., 580 N.W.2d 27, 58 W.C.D. 395 (Minn. 1998).  In Jacka, the Minnesota supreme court determined that the treatment parameters were not to be applied rigidly, but rather in the context of whether the employee was receiving “proper treatment.”  As the Supreme Court further explained in Asti v. Northwest Airlines, 588 N.W.2d 737, 740, 59 W.C.D. 53, 63-64 (Minn. 1999):

In his IME opinion, Dr. Gedan discusses the rationale for the three-injection limit in the treatment parameters.  The facet joint injections are followed by medial branch blocks.  If the branch blocks are successful at reducing the pain symptoms, then rhizotomy is performed at the identified levels.  Here, however, the employee’s situation differs from that assumed by Dr. Gedan in that the medial branch blocks resulted in no pain relief, both when first attempted in 2008 and when last attempted in 2018.  The history provided in Dr. Gedan's 2017 report shows that he did not know that medial branch blocks had already been tried but had proven ineffective. His opinion was not updated following the failure of the branch block procedure in 2018.  The only medical opinion in the record that acknowledges the failure of branch blocks is that of Dr. Sabers.  In this case, the opinion of Dr. Sabers is the only medical opinion that addresses the employee’s actual medical condition.  Dr. Sabers described the employee's situation as "atypical."  (Ex. V.)  The record demonstrates that the continued use of facet joint injections relieved the employee’s credible complaints of pain and reduced limitations on her ADLs.  Given the record in this case, we conclude that the compensation judge should have considered whether the rare case exception applies to permit a departure from the treatment parameters for the employee's injections.^[2]

In concluding that a departure from the treatment parameters was inappropriate, the compensation judge relied on a failure of several injections to provide significant or lasting pain relief, on medical records showing some symptoms worsening over time, on continued use of opioid medication for pain relief, and on Dr. Sabers' concerns regarding long-term use of facet joint injections.  In unappealed findings, however, the judge also found that the employee's testimony was credible and that the injections aided in her being more functional in her life activities. (Findings 2 and 35.)  In such circumstances, the compensation judge must analyze the claim under the rare case exception standard in Jacka.  Without further analysis by the compensation judge, we are unable to reconcile the apparent contradiction between the judge’s findings regarding the effectiveness of the facet joint injections in allowing the employee to conduct ADLs and the conclusion that those injections were not reasonable and necessary.  As the holding in Asti makes plain, the rare case exception is assessed even if the employee's situation does not warrant a departure from the treatment parameters under Minn. R. 5221.6050, subp. 8.  The dissent does not address the obligation of the compensation judge to make this assessment, but instead dismisses this obligation.  Under the facts of this case, the failure to analyze the employee’s claim under the rare case exception is an error of law under the precedent of the Minnesota Supreme Court and the prior decisions of this court.

While assessment of the record is the province of the compensation judge, the determination must be supported by substantial evidence in the record.  See Hodgin v. Xcel Energy, No. WC09-4993 (W.C.C.A. Apr. 5, 2010) (compensation judge’s findings regarding departure from treatment parameters not supported by record).  The IME opinion of Dr. Gedan, relied upon by the compensation judge, does not address the reasonableness of continuing facet joint injections where medial branch blocks have failed to provide relief.  As the judge found the employee’s testimony to be credible, the judge's conclusions are not supported by the record.  As the decision is not supported by substantial evidence, we must vacate the denial and remand for additional findings.^[3]    For these reasons, Findings 37, 38 and 40 and Orders 1-3 are vacated with respect to the denial of payment for the facet joint injections.  The case is remanded for further proceedings consistent with this opinion.

The issue for the compensation judge at hearing was whether the employee met her burden of proof in establishing her claim that the facet joint injections she had received on a regular basis since 2008 and which had provided only temporary pain relief were reasonable and necessary medical care for her 2004 work injury.  After considering the employee’s testimony, medical records going back to 2004, and medical opinions, the compensation judge determined that the employee had failed to meet her burden of proof.

The majority has properly held that the treatment parameters for facet joint injections to the cervical spine, found in Minn. R. 5221.6205, subp. 5.A.(2), control in this case.  Under that rule, no more than three injections are allowed at one site.  The employee has had more than 20 injections to one site.

After finding that the treatment parameters applied to this case, the compensation judge then considered whether a departure from the parameters was warranted by Minn. R. 5221.6050, subp. 8.  For a departure to be allowed under that rule, two of three listed criteria must be met: 1. Progressive improvement in subjective pain; 2. Progressive improvement in objective findings; 3. Progressive improvement in functional status. Progressive improvement in any of these three criteria must be evidenced in the employee’s medical records.  The employee presented no evidence at the hearing that a departure from the parameters was appropriate pursuant to this rule and made no argument that her situation fit even one of the required criteria.  The compensation judge found that the employee had failed to meet her burden in establishing entitlement to a departure under the rules.

The majority does not address the specifics of Minn. R. 5221.6050, subp. 8, and fails to point to any evidence that there had been progressive improvement in the employee’s condition in any of the three criteria.  The record is clear that the ten-year course of injection therapy has never provided anything other than short term relief.  Given the plain language of the treatment parameter rules, a departure from the rules was not available to the employee.

Finally, the majority cites to and quotes selectively from Jacka and Asti for the proposition that this is a “rare” case in which the parameters do not apply and the employee’s claim should have been allowed on that basis.  The majority ignores the evidence in those decisions.  In Jacka, the court found that the departure from the parameters set out in the rules applied and the treatment was allowed on that basis.  In Asti, the court found a departure from the parameters was appropriate when additional weeks of health club membership allowed the employee to continue working.  Neither of those situations are relevant to this case.  Whether or not this case is identified as a rare case, there is no authority for ignoring administrative rules that apply in this case.

The compensation judge properly considered the treatment parameters and the evidence in this case.  The decision of the compensation judge should be affirmed.