ISACC L. FAULKNER, Employee/Respondent, v. MENARDS and GALLAGHER BASSETT SERVS., INC., Self-Insured Employer/Appellants.

The employer appeals the compensation judge’s finding that the employee suffers from a work-related diagnosis of complex regional pain syndrome (CRPS) and has met the Minnesota medical treatment parameters criteria for a spinal cord stimulator (SCS) trial to address his work injury.  The employer also appeals the judge’s finding that the employee did not refuse a suitable job and is entitled to temporary total disability benefits.  Substantial evidence supports the compensation judge’s findings and order, and we affirm.

Since 2015, Isacc Faulkner, the employee, worked in the receiving department for Menards, the employer, which was self-insured for workers’ compensation liability.  The position required the employee to drive forklifts, move and separate stock, and intake products coming into the dock.  On September 25, 2020, he suffered a crush injury to his small “pinkie” finger of his right hand while moving a roll of carpet, which he estimated weighed 300 to 350 pounds.^[1]

The employee, who is right-handed, reported the injury immediately and was seen at the emergency department at Fairview St. John’s Hospital where he was diagnosed with mallet finger.^[2]  He saw orthopedic surgeon, Edward Su, M.D., who restricted the employee from use of the right hand.  When conservative treatment did not resolve the employee’s symptoms, Dr. Su performed surgery which involved placing a pin in the distal interphalangeal (DIP) joint on October 30, 2020.  The employee returned to the employer in a cashier position but was physically uncomfortable performing the task.

On January 8, 2021, Dr. Su surgically removed the pin from the employee’s finger.  The surgery was uneventful, however shortly thereafter, the employee developed inflammation, limited range of motion, and severe pain in his right hand.  Dr. Su prescribed medication, but the symptoms failed to improve.  Dr. Su considered a possible revision of the pinning of the DIP joint and returned the employee to work with no use of the right hand.  The employee’s symptoms continued, and he returned to Dr. Su on February 8, 2021. Without mentioning additional surgery, Dr. Su referred the employee for an evaluation for possible CRPS.

On February 18, 2021, the employee met with anesthesiologist and interventional pain medicine specialist, Andrew Clary, M.D.  Dr. Clary diagnosed the employee with CRPS and recommended a SCS.  He also recommended stellate ganglion blocks, which were performed in March 2021 but did not help relieve the symptoms.  Physical therapy at Courage Kenny also did not relieve his complaints of pain and CRPS symptoms.  Again, Dr. Clary recommended a SCS, and a referral was made for a psychological evaluation, a requirement for a SCS trial under the Minnesota workers’ compensation treatment parameters.  Minn. R. 5221.6305, subp. B(1)(c).  The employee met with psychologist Kathleen Tresness on June 17, 2021, who determined that there were no concerns related to his cognition, mental health, or current substance use which would interfere with the proposed SCS procedure.

The employee was referred to Twin Cities Pain Clinic, where he treated for several months with a certified physician’s assistant, Britta Carlson.  PA-C Carlson physically examined the employee and took a medical history from him.  She noted severe pain and prescribed medication and a TENS unit.  She also noted that the employee continued with physical therapy and that a psychological evaluation was scheduled.  She determined that the employee had CRPS, that a SCS trial should be considered, and explained the trial process to him.  She further opined that a SCS trial for his pain is a reasonable option to help him reduce his current dose of opioids as well as ideally improve his overall functional level with the hope of helping him return to work. 

The employer retained a neurologist, Joel Gedan, M.D., for a medical opinion related to the employee’s diagnosis and proposed medical treatment.  Dr. Gedan examined the employee, took a medical history, and reviewed multiple medical records, but did not have the Courage Kenny physical therapy records at the time of the examination.  Dr. Gedan rejected the diagnosis of CRPS, instead opining that the employee suffered from profound disuse with fear avoidance behavior related to the September 25, 2020, injury.  He restricted the employee to right hand use for gentle assists and no firm or repetitive gripping.  He opined that, except for the stellate block injections, the treatment to date was reasonable, necessary, and causally related to the work injury.  He further opined that the SCS was not reasonable and necessary treatment because the employee did not have CRPS and had not demonstrated a poor response to six months of conservative treatment or participated in a functional restoration program.  Consequently, the employer denied a SCS trial.

The employee did not return to work after the January 8, 2021, surgery.  Dr. Su released the employee to return to work with no use of the right hand on January 29, 2021.  The employer offered a cashier job to the employee, expecting that the employee would be able to perform the cashier job having performed it before his surgeries. The employee testified that having previously performed the cashier job, he believed that the job was outside his restrictions.  The QRC and Dr. Clary opined that the cashier job was outside the employee’s restrictions.  Consequently, the employee rejected the job offer.

In Autumn 2021, the employer arranged for surveillance of the employee over the course of nine days.  The surveillance video showed the employee raking and mowing his lawn using his left hand, often with the injured right hand in his pocket.  The video showed the right hand guiding the top of the rake but did not appear to be active.  The employee was also seen using both hands while assisting an elderly man who was in a wheelchair, suggesting the possibility that he was capable of function that he had denied.  The employee testified that he was in pain while helping the man in the wheelchair but had no choice at the time.

The employee filed a medical request on July 8, 2021, asking for approval of the SCS recommended by Dr. Clary and the employer filed a petition to discontinue on September 10, 2021.  A hearing was held on the issues before a compensation judge on February 2, 2022.  The compensation judge awarded payment of the SCS trial as recommended by Dr. Clary and PA-C Carlson and denied the employer’s petition to discontinue the employee’s temporary total disability benefits.  The employer 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 involve 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 issues before the compensation judge at hearing were the nature and extent of the September 25, 2020, injury, whether the employee refused a suitable job offer thereby ending his temporary total disability benefits, and whether the SCS trial was reasonably required medical treatment to cure and relieve the effects of the injury.  The compensation judge found that the employee developed CRPS because of the September 25, 2020, work injury, that the employee had reasonably refused the cashier job offer because the job was outside his restrictions, and that he met the Minnesota treatment parameter requirements establishing the reasonableness and necessity of a SCS trial.  The issues before this court are whether substantial evidence supports the compensation judge’s findings and order, and whether the judge correctly applied criteria under the treatment parameters for a SCS trial.

On appeal, the employer argues that the compensation judge erred in finding that the employee had a CRPS diagnosis.  The employer maintains that the employee failed to meet criteria pursuant to Minn. R. 5221.6305, subd. 1, which requires the employee to meet five concurrent and qualifying conditions.^[3]  They maintain that at no concurrent moment had the employee met five of these criteria.  We are not persuaded.

Failing to meet these criteria concurrently does not prohibit the compensation judge from finding that the employee has CRPS.  See Ruby v. Casey’s Gen. Store, Inc., 75 W.C.D. 535 (W.C.C.A. Sept. 23, 2015); see also Stone v. Harold Chevrolet, 65 W.C.D. 102 (W.C.C.A. 2004), summarily aff’d. (Minn. Feb. 2, 2005); Ellsworth v. Days Inn/Brutgers Equities, No. WC06-276 (W.C.C.A. June 8, 2007).  Moreover, the rules offer an alternative to the five-condition test.  The rules also describe CRPS as any condition of the upper extremity:

In finding that the employee met the criteria for a diagnosis of CRPS, the compensation judge adopted Dr. Clary’s opinion.  Dr. Clary noted that the employee’s upper extremity condition developed after trauma (surgery), it was characterized by continued pain, and classic allodynia that was nonanatomic and disproportionate to the original injury.  The compensation judge also determined that the providers documented swelling, discoloration, temperature changes, limited function, allodynia, and noted the IME also agreed with the employee’s treating providers that the employee had significant pain and limited function of the right hand.  Substantial evidence supports the judge’s finding that the employee has a diagnosis of CRPS, and we affirm.

On appeal, the employer also argues that the judge erred in finding that the employee reasonably refused a job offer as it was outside his restrictions.  We are not persuaded.  The compensation judge denied the employer’s petition to discontinue temporary total benefits because both the QRC and the treating doctor had concerns that the job was outside the employee’s restrictions.  Furthermore, the employee testified that he was familiar with the job and that it would require him to work outside his restrictions.  Substantial evidence supports the compensation judge’s finding, and we affirm.

Finally, the employer argues that the compensation judge erred in the application of Minn. R. 5221.6305, subp. 3.  This rule provides that the SCS has very limited application and is indicated only if the conditions of subitems (1), (2), and (3) are satisfied.^[4]  The employer argues that the employee failed to meet two of the treatment parameter criteria: (1) that he was a candidate for additional surgery as recommended by Dr. Su, and (2) that he provided no qualified second opinion recommending the SCS.

As for the employer’s characterization that the employee was a candidate for another surgical therapy, we are not persuaded.  Following the second surgery, the employee returned to Dr. Su on January 29, 2021, with complaints of inflammation, limited range of motion, and severe pain.  Dr. Su questioned the possibility of a neuropathic component, prescribed medication, and considered revision surgery of the pinning of the DIP joint.  When the employee’s symptoms did not improve by February 8, 2021, Dr. Su did not reference surgery, but instead referred the employee for an evaluation of possible CRPS.   Following the referral, the employee treated with Dr. Clary who first administered stellate ganglion blocks.  The injections did not relieve the employee’s pain.

Dr. Clary referred the employee to psychologist Dr. Tresness and to PA-C Carlson.  Dr. Tresness opined that the employee had no psychological barriers to a SCS trial.  PA-C Carlson diagnosed CRPS, recommended a treatment plan, and indicated that the employee would be a good candidate for the SCS.  The employee returned to see Dr. Clary who also diagnosed CRPS and recommended a SCS trial, but the employee wished to try other options.  The employee treated with stellate ganglion blocks, pain medication, physical therapy, and a TENS unit with little effect.  In May 2021, the employee agreed to pursue a SCS trial.  Notably, after January 29, 2021, no physician had recommended surgery other than a SCS trial.  It was therefore reasonable for the judge to determine that the employee was not a candidate for other surgical therapy, thereby satisfying a criterion of the treatment parameters for the SCS trial.  Minn. R. 5221.6305, subp. 3(B)(1)(b).

As for the second part of the argument that the employee failed to meet the requirement of a second opinion, we are also not persuaded.   At the hearing, the employer argued unsuccessfully that PA-C Carlson was not qualified to give a second opinion because she was not a physician.  The compensation judge correctly found that “PA-C” met the treatment parameter’s criteria for a second opinion given by a “provider” which is defined to include “any other person who furnishes a medical or health service to an employee under this chapter . . . .”  Minn. Stat. § 176.011, subd. 12a; Minn. R. 5221.0100, subp. 12.

On appeal, the employer makes a new argument not made at the hearing.  They contend that PA-C Carlson did not meet all the criteria of Minn. R. 5221.6305, subd. 3(B)(1), which requires that before a trial screening is conducted, a second opinion from a provider outside of the treating provider’s practice, must confirm that the employee has intractable pain, is not a candidate for another surgical therapy, and has no untreatable major psychological comorbidity that would prevent him benefiting from the SCS trial.  Here, because the issue was not specifically raised at the hearing, we cannot now consider it on appeal.  See Gianotti v. Indep. Sch. Dist. No. 152; 889 N.W.2d 796, 77 W.C.D. 117 (Minn. 2017); Leuthard v. Indep. Sch. Dist. 912, 958 N.W.2d 640 (Minn. 2021).

As a provider outside of Dr. Clary’s practice, PA-C Carlson noted that the employee had constant and severe pain, recommended no other surgical options except for the SCS trial, and noted that the employee would be seen by a psychologist.  Based on the record, it was reasonable for the compensation judge to conclude that the employee sustained CRPS as a result of the work injury and that the SCS trial recommended by PA-C Carlson and Dr. Clary is reasonably required to cure and relieve the effects of the September 25, 2020, injury and meets the requirements of Minn. R. 5221.6305, subp. 3(B).  Accordingly, we affirm.