PRACTICE & PROCEDURE – INDEPENDENT MEDICAL EXAMINATION. The compensation judge did not abuse her discretion by denying the employer and insurer’s request to compel an independent psychological examination beyond the statutory limit for presenting such a report. The requesting party was aware of the employee’s psychological treatment and took no action to obtain discovery until immediately before trial.
CAUSATION - PSYCHOLOGICAL INJURY; CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s finding that the employee’s depression and related psychological treatment are causally related to his work injury and resulting intractable pain and physical limitations. As the employee’s injuries have not healed and the employee’s ability to work remains impaired, no expert psychological opinion was required to support the compensation judge’s determination of causation.
MEDICAL TREATMENT & EXPENSE – REASONABLE & NECESSARY. Substantial evidence, including medical records and lay testimony supports the award to the employee for gastroesophageal care as reasonable and necessary treatment resulting from the employee’s work injury.
MEDICAL TREATMENT & EXPENSE – REASONABLE & NECESSARY. Substantial evidence, including medical records, expert medical opinion, and lay testimony supports the award to the employee for medical cannabis as reasonable and necessary treatment for intractable pain caused by the employee’s work injury.
JURISDICTION - SUBJECT MATTER. The compensation judge correctly concluded that she lacked subject matter jurisdiction to consider the appellants’ defense of federal preemption arising under the Controlled Substances Act, 21 U.S.C. § 801 et seq., regarding a claim for medical marijuana to treat intractable pain.
Compensation Judge: Kristina B. Lund
Attorneys: Danielle T. Bird, Bird, Stevens & Borgen, P.C., Bloomington, Minnesota, for the Respondent. Luke Smith, Brown & Carlson, P.A., Minneapolis, Minnesota, for the Appellants.
Affirmed as modified.
PATRICIA J. MILUN, Chief Judge
Corexpo, Inc. and Berkley Risk Administrators appeal the award of benefits as unsupported by substantial evidence and based on an error of law. In addition, the appellants assert that the compensation judge abused her discretion by denying a requested extension of time to conduct an independent psychological evaluation. As substantial evidence supports the award, no error of law is evident, and the compensation judge did not abuse her discretion, we affirm.
The employee, Michael Warhol, worked for Corexpo (formerly known as North American Trade Shows, Inc.) as a laborer, carpet room supervisor, and warehouse operations manager. The employee was related to an owner of the business and expected to take a role in running the business after gaining more experience in its operations. On November 1, 2002, the employee attempted to pull a loaded pallet jack over an obstacle when he experienced pain in his neck and lower back. Imaging showed central annular tears and bulging at the C5-C6 and C6-C7 levels. (Employee Ex. J.) After conservative treatment, the employee underwent cervical disc replacement surgery at C6-C7 in 2012, performed by Dr. Mahmoud Nagib, MBChB. In 2016, the employee underwent a fusion at that level performed by Dr. Nagib. Corexpo was insured for the 2002 work injury by Berkley Risk Administrators (“Corexpo Berkley”).
From the date of his work injury onward, the employee experienced chronic pain which he attributed to the 2002 work injury. In 2005, the employee was directed to a pain clinic to address chronic pain. His symptoms were not meaningfully reduced by the treatment received, primarily medication and injections. In 2016, Dr. Nagib certified the employee for medical cannabis and the employee reported that the medication was helpful in controlling his pain. The employee could not afford the program and he discontinued using medical cannabis. In April 2019, the employee was certified as suffering from intractable pain and was again eligible for medical cannabis. (Employee Ex. B.)
The employee experienced impairment in his ability to perform some of his job duties due to his physical limitations. In 2017, the employee underwent a functional capacity evaluation (FCE). The conclusion drawn from the FCE was that the employee could not perform the laboring duties required of his position. The employee used alcohol and non-steroidal anti-inflammatory medications (NSAIDs) to reduce pain. He occasionally used marijuana which afforded some pain relief. By 2018, the employee was diagnosed with general abdominal pain and tenderness. The employee attributed the gastrointestinal problems to the NSAIDs. On April 20, 2018, an upper GI endoscopy was performed which showed reflux esophagitis and reactive gastropathy. On May 8, 2018, Sandra Denman, M.D., a gastroenterologist, assessed the employee’s symptoms and issued the following statement: “(W)e assume the Advil caused the reactive gastropathy and may have worsened his reflux.” Dr. Denman noted that the employee was able to decrease his daily use of NSAIDs through the use of medical cannabis. (Employee Ex. G.)
On January 31, 2019, the employee was referred by the pain clinic for psychological treatment to address the employee’s depression. The referral note described the care to be provided as “clinical health psychology/pain psychology.” The note also stated “[employee] has been feeling depressed for about a year. States pain is impacting his work and personal life.” On April 17, 2019, the employee began treating with Mike Driscoll, M.A., L.P. The chart note of his initial consultation indicated that the employee’s “depressed anxious mood secondary to a workplace neck injury in 2002.” The employee’s interest in therapy was described as “to discuss his loss of physical prowess and learn to cope with his limitations.” In a counseling session on August 22, 2019, the employee described increasing neck pain, being upbeat despite chronic pain, and “guilty he cant [sic] do more.” (Employee Ex. F.) In October 2019 the employee ceased consuming alcohol to excess. The employee made this change when he felt that his alcohol consumption was affecting his marriage.
On March 5, 2019, the employee experienced increased neck pain after a long shift at work. The employee claimed a separate injury to his neck occurred on that date. On March 12, 2019, the employee was examined by Dr. Nagib, who noted total restriction of neck motion, severe left side radiculopathy, and an inability to walk or stand for any length of time due to the resulting pain. Due to the severity of his symptoms, the employee underwent a cervical fusion at C5-C6 performed by Dr. Nagib on March 18, 2019. (Employee Ex. D.) Corexpo was insured in 2019 by Travelers Group (“Corexpo Travelers”), which denied the employee’s claim of a March 5, 2019, work injury.
On August 14, 2019, the employee underwent an independent medical examination (IME) on behalf of Corexpo Travelers conducted by Thomas V. Reiser, M.D. Dr. Reiser opined that the employee did not suffer a work injury on March 5, 2019, but rather, a natural progression from the 2002 work injury and the degenerative condition of the employee’s spine. Dr. Reiser assessed the employee with “chronic pain issues relative to the cervical spine.” Dr. Reiser concluded that use of medical marijuana to address the employee’s chronic pain was appropriate. (Corexpo Travelers Ex. T1.)
On October 21, 2019, the employee underwent an IME conducted by Rick Davis, M.D., on behalf of Corexpo Berkley. Dr. Davis concluded that the employee suffered temporary cervical and lumbar strains in 2002. Dr. Davis opined that there was no work injury suffered on March 5, 2019. He attributed the employee’s condition to preexisting degeneration and underlying cervical spondylosis unrelated to any work injury. Dr. Davis found restrictions of 50 pounds lifting and 25 pounds pushing and pulling to be appropriate. On February 12, 2020, Dr. Davis supplemented his report, noting that gastrointestinal problems could arise from the use of NSAIDs, but he attributed the employee’s problems to alcohol use and smoking. Dr. Davis noted a lack of general consensus to support the use of medical cannabis to address pain from degenerative post-surgical spine conditions. He also disputed whether the employee suffered from intractable pain and concluded that medical cannabis was not reasonable and necessary to treat the employee’s condition.
Upon receipt of the IME report of Dr. Davis, Corexpo Berkley accepted liability for some of the employee’s benefits, while disputing other benefits. (Employee Ex. O.)
The employee continued to treat for chronic pain. At a telemedicine follow-up on May 20, 2020, the employee’s chart note lists the employee’s pain-causing conditions and states “Poor tolerance to medications due to GI side effects.” (Employee Ex. D.)
On April 19, 2019, the employee filed a claim petition seeking payment for medical care and claiming a consequential psychological injury. The typical authorizations for access to health records were signed by the employee but were edited to exclude release of mental health records. On July 2, 2019, the employee was deposed by Corexpo Berkley, and he indicated that he was receiving treatment from the Associated Clinic of Psychology. The hearing on the employee’s claim petition was scheduled for February 13, 2020. On February 7, 2020, Corexpo Berkley requested authorizations from the employee that would include mental health records. Those authorizations were promptly provided. The hearing was postponed. Corexpo Berkley scheduled an independent psychological evaluation (IPE). The employee objected to the IPE for exceeding the 120-day deadline set forth in Minn. Stat. § 176.155, subd. 1.
Corexpo Berkley moved to extend the deadline for scheduling an IPE. The employee opposed the motion, asserting a failure of diligence. The motion was argued before the compensation judge. By order served and filed on March 11, 2020, the compensation judge denied the motion.
On July 1, 2020, the matter came on for hearing before a compensation judge. The issues were identified as: 1) entitlement to temporary total disability (TTD) benefits; 2) whether the employee reached MMI with respect to his injuries; 3) reasonableness and necessity of the intervenors’ claims to treat the employee’s 2002 work injury; 4) reimbursement of the intervention claims of BCBS/Painters and Allied Trades District; 5) reimbursement of the employee’s out-of-pocket expenses and medical mileage; 6) use of medical cannabis as treatment for the employee’s 2002 work injury; 7) jurisdiction to determine whether claim for medical cannabis is federally preempted; 8) causal relation of the employee’s proposed therapy at the Associated Clinic of Psychology to his 2002 work injury; 9) penalties for late payments and denials; 10) extinguishing potential intervention claims; and 11) whether the employee sustained a work injury on March 5, 2019.
In Findings and Order dated August 25, 2020, the judge found: 1) the employee was eligible for TTD; 2) MMI was reached by February 25, 2020; 3) the claimed medical treatment was reasonable, necessary, and causally related to addressing the effects of the November 1, 2002, work injury; 4) the intervenors were entitled to reimbursement; 5) the employee was entitled to out-of-pocket expenses and medical mileage; 6) medical cannabis was reasonable, necessary, and causally related to addressing the effects of the November 1, 2002, work injury; 7) there was no jurisdiction to consider federal preemption of the medical cannabis; 8) psychological treatment was reasonable, necessary, and causally related to addressing the effects of the November 1, 2002, work injury; 9) an award of penalties was not appropriate; 10) the potential intervenors’ interests were extinguished; and 11) the employee did not sustain a work injury on March 5, 2019.[1] The employee was awarded benefits consistent with the findings. Corexpo Berkley 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).
Under Minn. Stat. § 176.155, subd. 1, an injured employee must submit to an examination by the employer’s physician, if requested by the employer, and at reasonable times thereafter upon the employer’s request. The examination shall be completed, and the report of the examination shall be served on the employee and filed within 120 days of the service of the claim petition. A compensation judge shall extend the time for completing the adverse examination and filing the report upon “good cause shown.” Good cause includes but is not limited to the complexity of the medical issues in the employee’s case. The extension must not be for the purpose of delay and the insurer must make a good faith effort to comply.
Appellants contend the compensation judge erred by denying their request for an independent psychological evaluation, relying on the language in Minn. Stat. § 176.155 requiring an extension of time for good cause shown. Citing Christensen v. Burns Manor Nursing Home, No. WC11-5358 (W.C.C.A. Apr. 4, 2012), appellants argue their case presented a complex medical issue and as such their request for an extension of time must be granted. They further argue that the failure of the employee to sign unredacted medical authorizations as a basis of their request for an extension of time. We are not persuaded by these arguments.
The filing of a claim petition initiates a proceeding that triggers a 120-day requirement for completing an independent medical examination and filing the examination report. In Christensen, the independent medical expert reports were offered into evidence at the hearing and objected to because the completed examination and medical report were outside the 120-day requirement. The compensation judge noted the particular facts in the case to be complex and further noted that the “timing of the IME did not in any way delay the hearing.”[2] On appeal we affirmed the compensation judge, noting that the complexity of the medical issues are fact driven and may constitute good cause for an extension, even where the extension is requested after the 120-day time period. Here, complex medical issues may have been present, but there is no explanation to the compensation judge or in the record of this appeal to account for the significant delay in the request for signed medical authorizations or to schedule an IPE. Here, the employer and insurer sought to extend the deadline to schedule an independent psychological examination and the scheduling and report would move the hearing date. The relevant facts in Christensen are absent in this case.
Furthermore, the employee’s failure to sign unredacted medical authorizations does not support the employer and insurer’s arguments under the facts presented. While the employee claimed a psychological injury in his April 2019 claim petition and then signed medical authorizations that precluded the employer and insurer from obtaining mental health records, he disclosed his psychological care in his July 2019 deposition and the employer and insurer did not act diligently and instead failed to request unredacted medical authorizations for over seven months.
As a general rule, evidentiary rulings are within the sound discretion of the compensation judge. Folstrom v. Northgate Liquors, 77 W.C.D. 955 (W.C.C.A. 2017); Welter v. Ray N. Welter Heating Co., 76 W.C.D. 961 (W.C.C.A. 2016); Ziehl v. Vreeman Constr. Co., slip op. (W.C.C.A. Oct. 15, 1991). The compensation judge did not abuse her discretion in denying the requested extension of time to obtain an IPE and file the report. We therefore affirm the compensation judge on this issue.
Appellants contend there is not substantial evidence in the record to support the judge’s determination that the employee’s need for psychological treatment was the result of the November 1, 2002, work injury. Appellants maintain there was insufficient expert psychological opinion(s) to support a determination of causation. By contrast, the employee points to the psychological treatment records which indicate that employee’s need for treatment arose out of the effects of the work injury.
The degree to which an employee’s treatment record supports a determination of causation is a matter of evidentiary weight, properly left to the compensation judge for determination. In the absence of a professional opinion establishing causation, this court has held:
Where healed injuries have not impaired an employee's ability to work and other possible causes of the mental injury are present, medical opinion that establishes a causal connection between the physical injury and the mental injury or disability is required before the mental injury can be found compensable ….”
Bell v. Indep. Sch. Dist. 625, 65 W.C.D. 465, 469 (W.C.C.A. 2005) (emphasis added).
Here, the compensation judge found that the employee continues to experience the effects of his physical work injury and his ability to work remains impaired. Under these circumstances, an explicit medical or psychological opinion that psychological effects arose out of the employee’s work injury is not required. The compensation judge can determine compensability through assessment of the medical record and witness credibility regarding the source of the psychological injury. Petrie v. Todd Cty., 78 W.C.D. 631 (W.C.C.A. 2018). The employer and insurer argue, however, that a narrative report is required when medical causation is complicated and further assert that any case that has disputed medical causation is, definitionally, complicated. We do not agree with that assertion. In this case, the record contains multiple references to the employee’s work injury, resulting chronic pain, and ongoing physical limitations that relate to the employee’s need for psychological care. The employee also testified that he sought treatment for depression that arose out of his chronic pain. From this evidence, the compensation judge could reasonably conclude that the employee’s need for psychological treatment arose out of the effects of the November 1, 2002, work injury. The award of psychological benefits is affirmed.
Appellants contend that the award of gastroesophageal treatment is not supported by substantial evidence regarding causation. As analyzed above, the evidentiary weight to be given to evidence in the record is the role of the compensation judge. So long as substantial evidence exists to support that determination, this court must affirm. Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239. The employee testified that his stomach problems coincided with taking the pain medications prescribed to alleviate his chronic neck pain. The employee’s medical records contain multiple references to his gastrointestinal problems and relating those problems to the pain medication that the employee used to address his chronic pain from the November 1, 2002, work injury. The employee was directed to reduce the amount of pain medication taken as part of his gastroesophageal treatment plan. While these references are not couched in the form of a causation opinion, they do constitute substantial evidence supporting the compensation judge’s determination. The award of gastroesophageal treatment is affirmed.
Appellants contend that the award of medical marijuana is not supported by substantial evidence, particularly regarding causation. As analyzed above, the evidentiary weight to be given to evidence in the record is the role of the compensation judge and this court affirms where substantial evidence supports that determination. The employee’s medical records contain numerous references to the employee’s reporting of pain relief obtained through medical marijuana, the elimination of opioid medication as a modality of pain relief, and the reduction of NSAIDs for pain relief. The employee testified regarding the benefits he experienced using medical marijuana. Dr. Reiser provided a medical opinion that the employee’s ongoing use of medical marijuana was appropriate treatment. This constitutes substantial evidence supporting the compensation judge’s award.
Dr. Davis maintained that there was no medical consensus regarding the use of medical marijuana to address postsurgical neck pain. Appellants maintain that this opinion demonstrates the lack of a medical consensus which precludes an award of medical marijuana under the treatment parameters.[3] The Minnesota Legislature has determined that persons certified with intractable pain are eligible to obtain medical marijuana as a means of relieving that pain. Minn. Stat. §§ 152.22-.37. Under such circumstances, the general opinion of an expert does not constitute a basis for denial of medical treatment otherwise determined to be compensable. See Pelowski v. K-Mart Corp., 627 N.W.2d 89, 61 W.C.D. 276 (Minn. 2001) (general disagreement with treatment parameter not a basis for denial of treatment meeting that parameter).
At trial, appellants maintained that a claim for medical marijuana was preempted by the Controlled Substances Act, 21 U.S.C. § 801 et seq. The compensation judge did not consider appellants’ claims regarding preemption, stating:
The Compensation Judge only has jurisdiction to address questions of law and fact arising under Minnesota's Workers' Compensation Laws. Hale v. Viking Trucking Co., 654 N.W.2d 119, 123 (Minn. 2002); Minn. Stat. § 175A.01, subd. 5 (2020). Whether payment of medical cannabis is a violation of federal law is outside the scope of the Minnesota Workers' Compensation Act. Therefore, that argument is reserved for a court of competent jurisdiction.
(Findings and Order, at 18.)
Appellants argue that the foregoing analysis is an error of law, contending that subject matter jurisdiction exists, in which case the preemption defense can be heard. They argue that because medical care is part of the Workers’ Compensation Act, then any issue, even this federal preemption issue, that deals with medical care is within the jurisdiction of the workers’ compensation courts. Further, they argue that if there is no jurisdiction for this issue, then no medical marijuana benefits can be awarded. This approach does not recognize that workers’ compensation courts are courts of limited jurisdiction. Just as with questions of constitutionality, there are issues that must await the opportunity to be presented to a court with the authority to grant the requested relief. Musta v. Mendota Heights Dental Ctr., No. WC19-6330 (W.C.C.A. Nov. 10, 2020). The compensation judge did not err in refusing to consider appellants’ federal criminal preemption defense. The award of medical marijuana is affirmed.
Based on the analysis above, we hold that substantial evidence supports the compensation judge’s determinations. The judge made no error of law in arriving at her decisions. For these reasons, the Findings and Order, served and filed August 25, 2020, is affirmed. However, a typographical error was made misstating a claimed injury date as March 20, 2019, when the actual date was March 5, 2019. Therefore, Finding 80 is modified to identify the claimed injury date as March 5, 2019.
[1] A typographical error incorrectly identified the claimed injury date as March 20, 2019.
[2] In Christensen, the employee requested a continuance before the first hearing date and the Minnesota state government shutdown further delayed the hearing.
[3] Appellants’ Brief, at 32, citing Minn. R. 5221.6040, subp. 10.