MEDICAL TREATMENT & EXPENSE – TREATMENT PARAMETERS; RARE CASE EXCEPTION. Substantial evidence in the record supports the compensation judge’s finding that the employee’s acupuncture treatment was reasonable and necessary and met a rare case exception.
MEDICAL TREATMENT & EXPENSE – REASONABLE & NECESSARY. Substantial evidence in the record, including medical records and the employee’s credible testimony, supports the compensation judge’s determination that recommended treatment modalities were reasonable and necessary to treat the employee’s CRPS condition.
EVIDENCE – RES JUDICATA. The employee’s current claim for prescription medications were not barred by res judicata because those medications were prescribed to treat the employee’s current CRPS condition and the prior denial of those medications applied only through the date of the prior hearing.
MEDICAL TREATMENT & EXPENSE – REASONABLE & NECESSARY. Substantial evidence in the record, including references in other treatment records and the prior findings and order, supports the compensation judge’s award of psychotherapy treatment without the specific treatment records submitted into evidence.
Compensation Judge: Stephen R. Daly
Attorneys: James M. Gallagher, Gallagher Law Firm, Minneapolis, Minnesota, for the Respondent. Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota, for the Appellants.
Affirmed.
DEBORAH K. SUNDQUIST, Judge
The employer and insurer appeal the compensation judge’s award of medical benefits, claiming that the treatment did not satisfy the medical treatment parameters, that a rare case exception does not apply, and that the award is not supported by substantial evidence. We affirm.
On June 20, 2011, the employee, Scott Roux, injured his right ankle in a motor vehicle accident while working for R.J. Reynolds Tobacco, the employer. Liability for the ankle injury was admitted, but the employer denied claimed injuries to the employee’s head, brain, back, neck, and left eye. Two years later, the employee and the employer and insurer entered into a stipulation for settlement, settling all workers’ compensation claims with the exception of medical benefits related to the right ankle, subject to defenses. (Ex. 1, Award on Stipulation, June 17, 2013.) Specifically closed out were medical benefits for treatment to the head, brain, back, neck, and left eye, as well as medical benefits for mental health and depression treatment. The stipulation affirmed that the employee may have complex regional pain syndrome (CRPS), and that the condition was related to the June 20, 2011, work injury.
After the settlement, the employee continued to seek medical treatment for the right ankle injury. The employer and insurer contested some treatment based on whether the treatment was reasonable and necessary and whether it was closed out by the stipulation for settlement. These disputes resulted in three hearings between 2015 and 2018.
In 2015, the parties litigated the reasonableness and necessity of prescriptions for trazadone and hydrocodone, pool therapy, MAPS treatment, and a consultation with an orthopedic surgeon specializing in foot and ankle surgery. In Findings and Order of April 15, 2015, the compensation judge ordered payment of the prescription medications and MAPS treatment, but denied pool therapy and the orthopedic consultation. The reasonableness and necessity of additional treatment was litigated in 2016. In Findings and Order of August 11, 2016, the compensation judge ordered the employer and insurer to pay for treatment outlined by Orlando Charry, M.D., a pain medical specialist at Courage Kenny Pain Clinic. Dr. Charry had recommended aggressive and continuous treatment concluding that a departure from the treatment parameters was warranted. Treatment included acupuncture, injections, a spinal cord stimulator, and prescription medications of gabapentin and lidocaine.
At a third hearing in 2018, the issue presented was whether prescribed acupuncture, pool therapy and opioid prescriptions were reasonable and necessary treatment to cure or relieve the effects of the employee’s right ankle injury. In Findings and Order of March 21, 2018, the compensation judge denied prescription drugs to relieve the employee’s headaches and depression because those conditions were closed out in the 2013 stipulation for settlement. He also denied pool therapy because the roundtrip travel was too far for such limited relief. The judge awarded treatment for acupuncture, physical therapy, and opioid medication prescribed by Dr. Charry. He found that David Lund, Psy.D., L.P., had provided reasonable and necessary psychotherapy in connection with the employee’s chronic pain. (Finding 6.) The employee appealed the judge’s denial of medical benefits and the employer and insurer cross-appealed the judge’s award of other medical benefits. This court affirmed the compensation judge’s decision in its entirety. Roux v. R.J. Reynolds Tobacco, 78 W.C.D. 651 (W.C.C.A. 2018).
In the present case, the employee filed a medical request claiming payment of medical mileage, medical bills for acupuncture treatment at Point of Prosperity, treatment at Courage Kenny, prescription medication for Topamax, Cymbalta, trazodone, and lidocaine, payment for compression socks and the Sensus Pain Management System, and Dr. Lund’s psychotherapy sessions. The matter was heard on November 17, 2020, by the same judge presiding at the 2016 and 2018 hearings. In support of his claim, the employee offered into evidence treatment notes from Point of Prosperity, Terri Allen, C.N.P., of Courage Kenny, and narrative reports from Todd Hess, M.D., of United Pain Clinic, and from Dr. Charry. No treatment notes for Dr. Lund’s psychotherapy treatment were offered into evidence. The judge awarded the employee’s claims for medical mileage, prescription medication, compression socks, the Sensus Pain Management System, and Dr. Lund’s psychotherapy treatment, finding that all constituted reasonable and necessary medical treatment. The judge also awarded the employee’s claim for acupuncture treatment beyond that allowed under the treatment parameters upon concluding that the rare case exception applied. The employer and insurer appeal.
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, the employer and insurer raised several issues. They argue that the judge erred in awarding the claimed acupuncture treatment, maintaining that the treatment is not in compliance with the medical treatment parameters and is not supported by the factors laid out in Horst and Field-Seifert,[1] that this case does not present a rare case exception, and that the award is not supported by substantial evidence. Because the prescription medications awarded by the judge were previously denied, the employer and insurer contend that res judicata should bar the award. The judge also erred, they argue, in awarding Dr. Lund’s bills because no medical records documenting his care were offered into evidence. Finally, the employer and insurer assert that the judge erred in awarding compression socks, the Sensus Pain Management System, and medical mileage because substantial evidence does not support the judge’s decision.
The employer and insurer first argue that the judge erred in finding that acupuncture treatment which did not comply with, and departed from, the treatment parameters was payable under a rare case exception. We are not persuaded.
The medical treatment parameters are guidelines for reasonable and necessary medical treatment and are used to determine whether a provider is performing procedures or providing services at a level of frequency that is excessive, unnecessary, or inappropriate under Minn. Stat. § 176.135. See Minn. R. 5221.6020, subp. 1; Jacka v. Coca Cola Bottling Co., 580 N.W.2d 27, 34, 58 W.C.D. 395, 404 (Minn. 1998). The parameters give a compensation judge flexibility to extend treatment for as long as medically necessary and effective, and flexibility to depart from the treatment parameter rules when determining reasonable and necessary medical treatment. Jacka, 580 N.W.2d at 34, 58 W.C.D. at 404. For acupuncture treatment of the CRPS condition, the treatment parameters limit care to 12 weeks in duration. Minn. R. 5221.6305, subp. 2B(4). As the treatment parameters cannot anticipate every exceptional circumstance, a compensation judge may depart from this limited care in “rare cases” when departure is necessary to obtain proper treatment. Jacka, 580 N.W.2d at 36, 58 W.C.D. at 408.
Here, the judge found that the acupuncture treatment which exceeded the 12-week limit, between April 3, 2018, and December 19, 2019, met the rare case exception and was reasonable and necessary. He explained that the employee suffered from intractable pain due to his work injury for many years, and that acupuncture treatment provided significant pain relief, improved mobility, and increased function. (Finding 13.) The employer and insurer argue that even with a departure from the 12-week limit, the rules require the health care provider to evaluate whether the treatment is resulting in progressive improvement to facilitate treatment independence at each visit. Minn. R. 5221.6050, subp. 1; see also Horst v. Perkins Rest., 45 W.C.D. 9 (W.C.C.A. 1991); Field-Seifert v. Goodhue Cty., slip op. (W.C.C.A. Mar. 5, 1990). Here, they argue the treatment notes do not comply with the requisite provider evaluation.
The acupuncture treatment notes document that acupuncture helped the employee’s pain and function, that it was needed at least twice weekly or his pain increased, and it was needed when the CRPS condition was aggravated regularly due to cold and damp weather. While the notes do not reflect a goal of treatment independence, other evidence supports the basis for long-term treatment. Dr. Hess opined in a 2017 narrative report that ongoing medical treatment was appropriate for CRPS, which he considered difficult to treat. (Ex. H.) Pain medicine specialist, Dr. Charry, also concluded that treatment, which included acupuncture, must be aggressive and continuous. He opined that a departure from the medical treatment parameters was reasonable and necessary and should be continued. (Ex. I.) Moreover, the employee testified that acupuncture helped improve his quality of life, reduced his right foot pain, and increased his function. It was, therefore, reasonable for the judge to find that the acupuncture treatment was reasonable and necessary, and we affirm his award of the treatment through December 19, 2019.
The employer and insurer also appeal from the compensation judge’s award of compression socks and the Sensus Pain Management System which were recommended by Terri Allen, C.N.P. The employer and insurer argue that the recommendation was outdated having been made over a year before the hearing, and that the judge failed to provide an explanation as to how these items were reasonable and necessary or related to the work injury. Ms. Allen treated the employee’s CRPS and noted in her October 24, 2019, record that the employee’s “quality of life could improve further with the addition of compression socks and the Sensus pain management system.” (Ex. A.) The employee testified that Ms. Allen recommended these items for regional sympathetic dystrophy.[2] (T. 38.) Evidence in the record is adequate to support the judge’s finding, and we affirm.
The employer and insurer also argue that the judge committed an error of law in awarding prescription pain medications. Alleging that the claim for medication is barred by res judicata, they assert that the medications which were prescribed for depression were denied at the 2018 hearing and were then prescribed to treat CRPS even though the employee experienced no change in diagnosis, symptoms, or treatment plan. The judge noted that the prior findings and order denied the employee’s claim only through the date of the last hearing and the stipulation for settlement had closed medical expenses for depression. The current treatment notes, he explained, support that the medications are now prescribed for the CRPS condition. The judge reasoned that the medical notes and the employee’s testimony regarding the effectiveness of the medications were sufficient to carry the employee’s burden of proof. We agree.
Res judicata does not bar an employee from claiming benefits for a time period after a prior decision by a compensation judge. Mach v. Wells Concrete Prods. Co., 866 N.W.2d 921, 75 W.C.D. 279 (Minn. 2015). In the context of the workers’ compensation system, employers have ongoing liability for treatment of work-related injuries which continue until the effects of an injury are cured or the symptoms relieved. Id. at 926, 75 W.C.D. at 285. Here, where the medications were prescribed to address chronic and intractable pain due to the employee’s work-related CRPS, it was reasonable for the judge to find that the medications were reasonable and necessary to cure or relieve the effects of the employee’s injury for the relevant time period. Accordingly, we affirm.
The employer and insurer also argue that the judge committed an error in awarding payment of Dr. Lund’s bills because there were no records offered to support the claimed treatment making the finding unsupported by evidence. Arguably, this finding would appear inconsistent with other findings. The judge denied acupuncture treatment after December 19, 2019, because the bills lacked corresponding medical records. The judge also denied intervenor Allina Clinic’s claim for treatment as no medical records were submitted regarding those dates of service. “Without that evidence,” the judge reasoned, “it is difficult for the Court to evaluate the reasonableness.” (Mem. at 6.) However, despite there being no medical records offered into evidence, the judge awarded payment of Dr. Lund’s bills.
A compensation judge makes findings of fact on all disputed issues of fact based on a preponderance of the evidence. Minn. Stat. § 176.021, subd.1a. “Preponderance of the evidence means evidence produced in substantiation of a fact which, when weighed against the evidence opposing the fact, has more convincing force and greater probability of truth.” Id. The judge’s factual findings should not be disturbed on appeal, even though this 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).
Here, the judge reasoned that his previous finding in 2018 established that Dr. Lund’s medical bills were reasonable, necessary and causally related to the employee’s work injury. He determined that the employee credibly testified that Dr. Lund had provided beneficial pain control counseling since the last hearing. The judge explained that an August 21, 2019, chart note referenced Dr. Lund’s effective pain psychological treatment since the last hearing, and further, that the Medica Health Plan intervention motion included a description of the treatment provided by Dr. Lund. We cannot conclude that the judge’s findings were manifestly contrary to the weight of the evidence and therefore must affirm the award of medical benefits for Dr. Lund’s treatment.
Finally, the employer and insurer appeal from the award of medical mileage for acupuncture and Dr. Lund’s treatment because the treatment was not reasonable and necessary. Because we affirm the compensation judge’s findings for the reasonableness and necessity of this care, we also affirm the judge’s award of reasonable and necessary medical mileage.