ALIA BLACK, Employee/Appellant, v. ESSENTIA HEALTH/SMDC and BERKLEY RISK ADM’RS CO., LLC, Employer-Insurer/Respondents, and BLUE CROSS BLUE SHIELD OF MN AND BLUE PLUS, Intervenor.

The employee asserts that the employer and insurer failed to give the notice required by Minn. R. 5221.6110, subp. 9, prior to discontinuing opioid medication to address the employee’s chronic pain condition.  The employee also maintains that the determination by the compensation judge that continued opioid medication was not reasonable to treat the employee’s condition was not supported by substantial evidence.  Additionally, the employee contends that admission of evidence regarding her 2017 conviction for driving while impaired was error.  As the notice provided was adequate, the judge’s determination was supported by substantial evidence, and the admission of the 2017 conviction was not an abuse of discretion, we affirm.

The employee, Alia Black (formerly Alia Jordan), suffered an admitted lumbar back injury in 2002 while working for the employer as a registered nurse.  After undergoing several failed back surgeries and a wide variety of conservative treatment, the employee began taking opioid medication to address her chronic back pain, starting prior to December 2004.  In 2007, Dr. Puckett diagnosed the employee’s condition as chronic back pain and indicated that pain management was her only viable option.  In 2007, the employee began taking Methadone.  In 2009, the employee was prescribed Kadian (extended release morphine).

In March 2011, the employee was seen at a follow-up evaluation regarding her pain medication.  A drug screen showed the employee had a blood alcohol concentration of 0.08 (the legal limit for operating a motor vehicle).  The employee admitted to drinking before the visit and she was counseled on the hazards of consuming alcohol while using opioids.  The employee smelled of alcohol in a subsequent visit in June 2011, when she sought a refill of her opioid medication.  (Ex. B.)

In July 2011, the employee began treating with Steven Trobiani, M.D., for pain management.  In September 2011, the employee underwent nerve block injections with Marcaine that did not reduce her ongoing pain.

In May 2012, Dr. Trobiani began prescribing OcyContin and oxycodone for the employee.  Each of these medications carry warnings against consuming alcohol, as the interaction of opioids and alcohol can result in cognitive impairment, leading to coma and death.  (Ex. B.)  In January 2015, a drug screening indicated presence of an alcohol metabolite.^[1]  In 2015, a taper of the employee’s opioid medication was attempted.  The employee reported being essentially bedridden by the resulting increase in pain.

In July 2017, the employee pled guilty to gross misdemeanor driving while impaired (DWI) with a measured blood alcohol concentration of 0.226.  A one-year jail sentence was stayed, and the employee was put on probation until June 2019.  A condition of her probation was no consumption of alcohol.  (Exs. K and L.)  In September 2017, the employee underwent a chemical dependency evaluation.  The employee did not report her long-term use of opioid medication to the evaluator.  The employee described her work status as “retired.” (Ex. N.)

On May 22, 2019, the employee underwent an independent medical examination (IME) conducted by Teresa Gurin, M.D., on behalf of the employer and insurer.  Dr. Gurin noted that the employee smelled of alcohol at the examination.  When asked about her alcohol consumption, the employee indicated that she typically drinks three to four beers, about four times per week.  The employee’s medical record was reviewed and Dr. Gurin noted references to the employee’s alcohol use while she was taking opioid medications.  Dr. Gurin concluded that the employee’s continued use of opioid medication was not reasonable, necessary, or safe.  Dr. Gurin also concluded that Dr. Trobiani’s management of the employee’s opioid medications did not meet the requirements of the treatment parameters by failing to document functional activities, pain levels, physical examinations, and results of assessment tools.  Dr. Gurin recommended that the employee be tapered off of opioid medication with small reductions occurring every two weeks.  Dr. Gurin directly contacted Dr. Trobiani’s office to inform him of the employee’s unsafe practices regarding alcohol consumption in conjunction with use of opioid medications.  (Ex. B.)

On July 19, 2019, the employer and insurer sent Dr. Trobiani and the employee a letter, accompanied by the IME report of Dr. Gurin and a copy of Minn. R. 5221.6110.  The letter noted Dr. Gurin’s recommendation of a taper, indicated the employer would not pay for OxyContin after August 5, 2019, and stated that the employer would pay for referral to a pain specialist.  The letter expressly requested that Dr. Trobiani provide the tapering plan within 30 days.  Additionally, the letter requested compliance documentation for assessment of function, opioid risk assessment, a written opioid contract with the employee, and monitoring of the employee’s long-term opioid use, as required by Minn. R. 5221.6110, subps. 3, 6-8.  (Ex. O.)

Dr. Trobiani submitted his office records of the employee’s examinations to the employer and insurer in response to the July 19, 2019, letter.  Dr. Gurin reviewed those notes and identified a number of deficiencies in the records kept from the documentation required under the treatment parameters for long-term opioid medical treatment.  (Ex. D.)  At a follow-up examination on July 29, 2019, Dr. Trobiani expressed willingness to attempt a gentle taper, consistent with Dr. Gurin’s suggestion of small reductions every two weeks.  Dr. Trobiani refilled the employee’s opioid medication for one month.

On August 26, 2019, Dr. Trobiani initiated a reduction in the employee’s opioid dosage, from 80 mg to 60 mg.  After a month, the employee reported an increase in pain, impairments in activities of daily living, and negative effects on personal relationships.  Dr. Trobiani continued the reduced dose for another month.  On October 14, 2019, he concluded that the taper was not successful and resumed prescribing the employee’s opioid medication at the 80 mg dosage.  At the November 25, 2019, follow-up, Dr. Trobiani noted that, upon restoring the original dosage of opioid medication, the employee experienced improved pain control and had resumed activities of daily living that had been discontinued during the taper.  (Ex. 4.)  The employer and insurer refused to pay for continued opioid medication, relying on the opinion of Dr. Gurin.

In June 2020, the employee was deposed regarding the current workers’ compensation dispute.  In her deposition, the employee acknowledged two DWI convictions in the 1980s and indicated that she might have had a DWI in the 1990s and another in 2011.  She made no mention of the 2017 conviction.  The employee denied having had a chemical dependency evaluation in the prior 10 years.  (Ex. P.)

The employee filed a medical request seeking approval of her ongoing opioid medication.  After a hearing before a Department of Labor and Industry mediator/arbitrator under Minn. Stat. § 176.106, the employer and insurer requested a formal hearing.  This matter came on for hearing before a compensation judge on December 10, 2020.

The issues before the compensation judge were: 1) whether the ongoing use of opioid pain medication is reasonable, necessary and causally related to the April 19, 2002, injury; 2) whether the treatment parameters for opioid medication, Minn. R. 5221.6110, apply; 3) if so, whether the care complies with the treatment parameters generally and specifically with regard to subparts 3-8; 4) if not, whether a departure from the parameters or the rare case exception applied; and 5) whether the employer and insurer complied with the notice and plan required by Minn. R. 5221.6110, subpart 9.

During the hearing, the judge admitted evidence of the 2017 DWI and related proceedings into the record over the employee’s objection.  (Exs. K, L, and N.)  The judge found that continued opioid medication was not reasonable and necessary, the treatment parameters applied, the prescription did not comply with the treatment parameters, departure from the parameters was not appropriate, the rare case exception did not apply, and the employer and insurer complied with the notice requirement.  The judge denied the employee’s medical request.  The employee 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 employee maintains that denial of the requested opioid medication is error due to inadequate prior notice under Minn. R. 5221.6110, subp. 9, a lack of substantial evidence to support the judge’s conclusion that the medication was not reasonable or necessary to treat the employee’s chronic pain condition, and reliance on evidence improperly admitted.  The employer and insurer contend that proper notice was given, substantial evidence supports the denial, and the judge did not abuse her discretion in admitting evidence of the employee’s DWI conviction and related proceedings.

When seeking to discontinue long-term opioid medication, the treatment parameters require that a notice be sent to the employee and the provider.  This notice requirement, Minn. R. 5221.6110, subp. 9, states:

The employer and insurer sent a notice to Dr. Trobiani (and copied to the employee), including Dr. Gurin’s June 21, 2019, report and a copy of the rule.  (Ex. O.)  The notice identifies four areas in the treatment parameters where compliance documentation is sought.  The employee maintains that the notice was insufficient due to the lack of narrative description in the letter as to what constituted the noncompliance with the treatment parameters.  The employer and insurer maintain that the notice meets the requirements of subpart 9, and that Dr. Trobiani understood the documentation required, based on his responses to the notice.

Under the circumstances of this case, the notice provided by the employer and insurer adequately informed the employee and Dr. Trobiani of the treatment parameters that were considered out of compliance.  The compensation judge’s determination that the notice met the requirements of Minn. R. 5221.6110, subp. 9, is supported by substantial evidence.

The compensation judge determined that continued prescription of opioid medication was not reasonable and necessary to treat the employee’s chronic pain condition.  This determination was largely based on the judge’s findings that the employee was consuming alcohol, sometimes to excess, while using opioid medications.  This behavior increases the risk of serious harm or death by overdose or misadventure.  The record contains adequate evidence to show that the employee has consistently consumed alcohol over the period that she has been prescribed opioid medication, contrary to the warnings against such behavior.

The employee argues that discontinuing opioid medications due to alcohol consumption cannot be considered in this proceeding, as alcohol use was not listed in the notice provided under Minn. R. 5221.6110, subp. 9.  The purpose of the notice is to identify recordkeeping noncompliance that can be corrected by the prescribing provider.  The prescribing provider, Dr. Trobiani, was not responsible for the employee’s consumption of alcohol.  The inclusion of Dr. Gurin’s report with the notice identified the employee’s consumption of alcohol as a reason for discontinuing the prescription of opioid medication.  The employee received adequate notice that the reasonableness of prescribing opioid medication was at issue.

The need for, and reasonableness of, treatment is an underlying determination that, in appropriate cases, can be made independently of compliance with any specific treatment parameter.  See Morgan v. Care Force Homes, Inc., 76 W.C.D. 831 (W.C.C.A. 2016); Riendeau v. Wal-mart, 61 W.C.D. 811 (W.C.C.A. 2001); Olson v. Allina Health Sys., 59 W.C.D. 37 (W.C.C.A. 1999); Thielen v. Lufkin Lutes Tours, slip op. (W.C.C.A. Jul. 20, 1994).  In this case, the compensation judge concluded that continued prescription of opioid medication for the employee posed an unacceptable risk of harm to the employee that outweighed the benefits derived from the medication.  Substantial evidence, in the form of expert opinion and the employee’s medical records, supports this conclusion.

The employee asserts that the judge erred in admitting evidence regarding the employee’s 2017 DWI conviction into the record at the hearing.  The employee maintains this evidence is irrelevant.  The court disagrees.  The dangers of alcohol consumption in combination with opioid use are well understood, clearly stated in the OxyContin and oxycodone usage warnings, expressed to the employee by various medical providers, and extensively recounted by Dr. Gurin in her IME reports.  The evidence at issue goes directly to whether the employee consumed alcohol, at times to excess, during the period that she was using opioid medication for relief of her chronic pain.  Evidentiary rulings are generally left to the sound discretion of the compensation judge.  Ziehl v. Vreeman Constr. Co., slip op. (W.C.C.A. Oct. 15, 1991).  The relevance of the disputed evidence is clear, and the judge committed no abuse of discretion in admitting that evidence into the record.

As the employee received adequate notice regarding the treatment parameters, substantial evidence supports the compensation judge’s determination that the opioid medication was not reasonable and necessary, and no abuse of discretion was committed in admitting evidence to the record, the judge’s decision is affirmed.