MEDICAL TREATMENT & EXPENSE – REASONABLE & NECESSARY. Where the compensation judge found that employee’s expert medical opinion was too general to support the employee’s claim for custom orthotics as treatment for his work injury, but the opinion specifically stated that the employee would benefit from custom orthotics on this basis, the compensation judge’s finding that the employee’s custom orthotics were not reasonable and necessary treatment for the employee’s work injury is vacated and the issue is remanded to the compensation judge.
Compensation Judge: James F. Cannon
Attorneys: Joseph P. Pope, McCoy Peterson, Ltd., Minneapolis, Minnesota, for the Appellant. Jaclyn S. Millner, Law Office of Thomas P. Stilp, Golden Valley, Minnesota, for the Respondents.
Vacated and remanded.
DEBORAH K. SUNDQUIST, Judge
The employee appeals the compensation judge’s denial of payment for custom foot orthotics. We vacate and remand.
Michael Mellin, the employee, injured his low back on August 3, 2010, while working as a custodian for Independent School District No. 286, the employer. The employer and its insurer admitted liability for this injury.
In April 2011, complaining of foot pain, the employee saw Paul C. Biewen, M.D., who indicated that the etiology of the employee’s foot pain was unclear and that his symptoms were not suggestive of radicular pain from the low back. The employee also treated with orthopedic surgeon Manuel R. Pinto, M.D., in April 2011 for pain and numbness in his feet. Dr. Pinto recommended that the employee avoid back surgery as long as possible and that he consult a foot surgeon. On June 3, 2011, the employee saw Brian J. Greteman, D.P.M., with complaints of numbness in his great toes bilaterally and foot pain in his heels and arches. Dr. Greteman diagnosed the toe numbness as likely being radiculopathy due to his low back injury and diagnosed the foot pain as possible plantar fasciitis. The employee also had moderate pes planus (flat feet). Dr. Greteman treated the employee’s foot pain with supportive taping and arch padding, stating that if the employee responded favorably, custom-molded orthotics would be considered.
The employee returned to Dr. Pinto in October 2011. Dr. Pinto recommended medication and possible nerve block injections. He also referred the employee to a foot specialist to address the plantar fasciitis condition with shoe modifications.
Dr. Greteman summarized his findings in a January 10, 2012, letter diagnosing the employee with neuropathy in his great toes with the proximal source likely being the low back. He noted that an EMG study performed by a neurologist could document the source of the neuropathy. [1] While Dr. Greteman stated that the employee’s foot pain appeared to be more consistent with a mechanically inducted plantar fasciitis condition, he could not rule out any low back issues as contributing to the foot condition. Dr. Greteman indicated that the employee’s foot pain should respond favorably to mechanical support such as custom-molded orthotics.
Due to the employee’s disability, he asserted a claim for permanent total disability (PTD) benefits. By Findings and Order of September 5, 2014, a compensation judge awarded PTD benefits from August 31, 2010, and approved a cervical and lumbar spine surgical consultation at the Mayo Clinic. On August 25, 2015, while in pool therapy for his low back condition, the employee slipped on the pool deck, striking his head and injuring his right knee. By Findings and Order served and filed December 1, 2016, a compensation judge approved probable ACL reconstruction and partial medial meniscectomy surgery, concluding that the surgery was reasonable, necessary, and causally related to the injury sustained while the employee was engaged in pool therapy due to his work-related August 3, 2010, lumbar spine injury.
Following the consequential knee injury, the employee’s gait suffered, and Dr. Pinto referred him for treatment at Impact Physical Medicine and Aquatic Center with pain medicine and rehabilitation specialist, Mark Agre, M.D. In April 2016, Dr. Agre recommended physical therapy to evaluate and treat for custom orthotics to improve function. An orthotic therapist indicated that custom orthotics were medically necessary for gait, comfort, function, goal achievement, and self-management. A therapy visit note from February 2017 indicated that the employee presented for orthotics to help with feet, leg, and low back pain and that he was referred by Dr. Agre to improve function.
Dr. Agre recommended four orthotic treatments in February 2018. A therapist noted that the employee had flat feet and walked with a limp to guard his right knee and sized the employee for custom foot orthotics. The employee continued to have issues with his right knee injury. In September 2018, Dr. Agre prescribed new custom orthotics. The employer and insurer denied the employee’s request for foot orthotics, indicating that they had accepted liability for a lumbar and bilateral knee injury, but not for any foot condition.[2]
Dr. Agre opined in his narrative report of April 4, 2019, that shoe orthotics are found to be very helpful for individuals with lumbar degenerative issues because they align the feet properly, which positively and significantly affects the lumbar spine. (Ex. A.) He stated that the employee would benefit from custom orthotics and indicated that his opinion was based on a reasonable degree of medical certainty. Dr. Agre’s opinion was unopposed. The employee testified that the orthotics decreased his low back pain. (T. 25.)
A hearing on the employee’s claim for payment of custom orthotic inserts was held on July 15, 2019. The issues at the hearing were whether the employee’s work-related low back injury was a substantial contributing factor to his need for the recommended custom shoe orthotics; whether the orthotics were reasonable, necessary, and causally related to the employee’s work injury; and whether the claim was barred by the statute of limitations. In denying the employee’s claim, the judge found that the employee had not shown that the work-related low back injury had caused his foot symptoms, noting that the employee’s medical expert, Dr. Agre, did not give a medical opinion that the employee’s work-related low back injury was a substantial contributing factor to his need for the recommended shoe orthotics. The judge also found that the custom orthotics were not reasonable, necessary, or causally related to the employee’s work-related low back injury. The judge did not reach the issue of whether the employee’s claim was barred by the statute of limitations. 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 appeals the compensation judge’s denial of payment for the requested orthotics. Pursuant to Minn. Stat. § 176.135, an employer is required to provide medical treatment “as may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury.” The compensation judge found Dr. Agre’s opinion that orthotics are routinely very helpful for individuals with lumbar issues to be only a “general opinion.” (Finding 12.) We disagree. While Dr. Agre noted generally that orthotics help relieve back pain by aligning the feet properly for the knees and hips which positively and significantly affects the lumbar spine, he specifically opined that, “[f]or that reason, . . . Mr. Mellin would benefit from custom shoe insert orthotics.” (Ex. A.) The judge erred in finding that Dr. Agre’s opinion was not a specific medical causation opinion and was therefore insufficient medical evidence to support the employee’s claim that the custom orthotics were reasonable and necessary medical treatment for the employee’s work injury. For this reason, we vacate Findings 12 and 14, and Order 1.[3]
The judge found that the employee testified that the use of his orthotics made him feel better, lessened the pain in his lower back, and improved his gait and posturing. (Finding 9.) In addition, Dr. Agre continued to refer the employee for orthotic treatment which addressed gait correction and the therapist continued to recommend custom orthotics for the employee with emphasis on how proper footwear influenced alignment, weight bearing, biomechanics, and postural position. The judge failed to recognize that by treating the employee with custom orthotics, his work-related low back pain and consequential knee injury may be relieved. See Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993) (recommended gastric surgery for weight reduction was compensable treatment for work-related thrombosis condition). To that end, we remand to the compensation judge the issue of whether the employee’s custom orthotics constituted reasonable and necessary medical treatment to cure and relieve the effects of the 2010 low back injury or of the 2015 consequential knee injury as contemplated by Minn. Stat. § 176.135. If the judge finds the treatment compensable, the statute of limitations defense may be ripe for consideration.
[2] The employer and insurer initially paid for the foot orthotics but denied the employee’s current claim for orthotics alleging mistake of law or fact.
[3] In support of his finding denying the foot orthotics, the compensation judge incorrectly states that Dr. Agre’s original prescription for the foot orthotics on February 19, 2018, was due to the employee’s flat arches with the goal of decreasing his knee pain. (Findings 8 and 11.) To the contrary, Dr. Agre did not diagnose the employee with flat feet on February 19, 2018. (Ex. B.) We note that Dr. Agre had referred the employee to a therapist who listed the employee’s diagnosis as flat feet on that day. The therapist also noted that the employee walked with a limp because he was guarding his right knee. The employee’s right knee treatment was previously found to be causally related to the employee’s work-related low back injury. We vacate Findings 8 and 11.