SETTLEMENTS - INTERPRETATION. Where a settlement closes out “inpatient or outpatient chemical dependency treatment” and makes no mention of closing out prescription medication, the settlement is ambiguous. A reasonable interpretation of that language is that prescription medication to address symptoms of chemical dependency was not closed out in the settlement.
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS. The treatment parameter for prescription medication does not require the written prescription to be admitted into evidence to demonstrate the medication must be dispensed as written, so long as substantial evidence in the record supports a reasonable inference that the “dispense as written” requirement of Minn. Stat. § 151.21 was met.
Compensation Judge: Steven R. Daly
Attorneys: James W. Balmer, Falsani, Balmer, Peterson & Balmer, Duluth, Minnesota, for the Respondent. Jerome D. Feriancek, Julie R. Benfield, Trial Group North, Duluth, Minnesota, for the Appellants.
Affirmed.
GARY M. HALL, Judge
The employer and insurer maintain that the employee’s prescription for Suboxone was closed out under the parties’ 2006 settlement as “outpatient chemical dependency treatment.” In the alternative, they contend that the award for Suboxone was precluded by Minn. R. 5221.4070, subp. 1, because a generic alternative exists. As the 2006 settlement is ambiguous and reasonably interpreted to exclude prescriptions from the forms of chemical dependency treatment that were closed out, and the record contains substantial evidence that supports the compensation judge’s determination on the treatment parameter defense, we affirm.
The employee, Sharon Sobczak, suffered a lumbar injury while working for a different employer on April 23, 1985. After unsuccessful conservative treatment, she underwent a laminectomy in 1987. While not free from the effects of the 1985 injury, the employee was able to reenter the workforce and took a job with Walmart Stores, Inc., the employer. On March 28, 1997, the employee suffered a lumbar injury while working for Walmart. By Findings and Order dated February 12, 2002, the 1997 injury was determined to be a substantial permanent aggravation of the employee’s low back condition. (Ex. E.)
The employee’s condition worsened and in 2001 she underwent a fusion surgery at L4-5. The employee maintained that she became permanently and totally disabled from her 1997 injury. In 2006, the parties entered into a full, final, and complete settlement, closing out certain specified medical benefits. The employee received $95,000. The medical benefit close-out provision, as relevant to this appeal, states:
Employee after consultation with her attorney, agrees to waive and to close-out any future claims for the following specific types of medical benefits: Passive care as defined by the treatment parameters of any nature or by any variety of provider specifically including but not limited to . . . inpatient or outpatient chemical dependency treatment; in-patient or out-patient chronic pain management programs; . . . psychological or psychiatric counseling, treatment, or prescriptions of any sort; . . . .
(Ex. 2.)
For 20 years the employee used opioid medication to address ongoing pain from her 1997 work injury. She became dependent on the medication. In April 2018, the employer and insurer voluntarily paid for the employee to enter the Hazelden Betty Ford clinic program to taper the employee from opioids. As part of that program, Lisa Vollmer, M.D., prescribed Suboxone (a combination opioid/opioid antagonist) to relieve the employee’s craving for opioids. After the employee had taken Suboxone for a time, Dr. Vollmer discussed a generic alternative, buprenorphine and naloxone (buprenorphine), with the employee. For several months, the employee took buprenorphine and she experienced withdrawal symptoms that had been better controlled by Suboxone. When the employee reported this to Dr. Vollmer, she renewed the Suboxone prescription. (T. at 37-38; Ex. 5.)
On March 17, 2020, the employer and insurer ceased paying for the Hazelden program. On July 31, 2020, they denied payment for Suboxone and buprenorphine on the basis that further opioid medication was no longer appropriate under Minn. R. 5221.6110. On August 5, 2020, the employer authorized one more name brand prescription of Suboxone and indicated that approval was only granted for generic medications during the employee’s taper period. (Ex. 5.)
The employee’s low back condition worsened and on September 14, 2020, she underwent L3-4 decompression and fusion surgery. The employee filed a medical request seeking payment for the surgery, a series of injections for her low back condition, and the Suboxone prescription.
On November 9, 2020, the matter came on for hearing before a compensation judge. The issues presented were described as whether the claimed L3-4 decompression and fusion surgery was reasonable, necessary and causally related to the March 28, 1997, work injury; whether that surgery violates Minn. R. 5221.6500, subp. 2C; whether the intervenors’ claims were reasonable, necessary, and causally related to the employee's work injury; and whether the claimed Suboxone prescription was closed out by the prior stipulation of the parties, and if not, is a generic alternative reasonable and necessary under the treatment parameter in Minn. R. 5221.4070, subp. 1.
The compensation judge awarded payment for the surgery, some of the intervenors’ claims, and the Suboxone prescription. The employer and insurer appeal the award of Suboxone.
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 maintain that the compensation judge erred in concluding that Suboxone was not closed out in the parties’ 2006 settlement. They also contend that the treatment parameters required that the generic buprenorphine be substituted and therefore the award of Suboxone was made in error.
The parties disagree as to whether the 2006 settlement closes out prescription medication to address chemical dependency symptoms. A settlement is a contract and whether a contract is ambiguous is a question of law. Trondson v. Janikula, 458 N.W.2d 679 (Minn. 1990). This court reviews questions of law under a de novo standard of review. Krovchuk, 48 W.C.D. 607; see also Small v. St. Louis Park Plaza Healthcare Ctr., No. WC13-5568 (W.C.C.A. Jan. 2, 2014). A contract is ambiguous where its language is reasonably susceptible to more than one interpretation. See Staffing Specifix, Inc. v. TempWorks Mgmt. Servs., Inc., 913 N.W.2d 687, 692 (Minn. 2018).
The settlement language directly bearing on chemical dependency treatment closes out “inpatient or outpatient chemical dependency treatment.” The compensation judge assessed this language as ambiguous and found that it clearly implied the close out of a treatment program, rather than merely prescriptions. We agree. This court has interpreted similar settlement language as not closing out prescription medication. Rochel v. Schwan’s Home Serv., 77 W.C.D. 69 (W.C.C.A. 2016), summarily aff’d (Minn. Jan. 27, 2017). In the 2006 settlement, this conclusion is further supported by the express close out of prescription medication for psychological and psychiatric care. While the parties agreed to close out inpatient and outpatient treatment for chemical dependency, this language does not extend to prescription medication to address symptoms arising from the effects of chemical dependency.
The employer and insurer note that the treatment parameter for prescription medication, Minn. R. 5221.4070, incorporates Minn. Stat. § 151.21. This statute requires substitution of a less expensive generic equivalent, where available, for the prescribed medication. The substitution requirement does not apply where the prescriber has indicated “dispense as written” or “D.A.W.” for the particular medication. Minn. Stat. § 151.21, subds. 2 and 3. The employer and insurer contend that the employee did not introduce the written prescriptions for Suboxone into evidence and therefore the compensation judge erred in awarding payment for that medication.
The compensation judge noted that neither party introduced the actual prescriptions as written by Dr. Vollmer. The judge relied on the employee’s testimony and the medical record to conclude that the employee’s prescription met the treatment parameter and to award payment for Suboxone. Having reviewed the record, this court concludes that substantial evidence supports the compensation judge’s finding that Suboxone was prescribed to be dispensed as written. Specifically, the employee’s testimony and medical records indicate that when Dr. Vollmer first directed the use of the generic buprenorphine in place of Suboxone, the employee reported poor results from the generic, and Dr. Vollmer agreed to change the prescription back to Suboxone. This evidence supports a reasonable inference that the prescription was directed to be dispensed as written. Additionally, while not mentioned by the compensation judge, the insurer’s claims adjuster noted that “substitution was not allowed by the prescriber” for the April 22, 2020, prescription for Suboxone. (Ex. 5, at 62.) As substantial evidence supports the compensation judge’s determination that the Suboxone prescription meets the treatment parameter for prescription medication, the award is affirmed.