MEDICAL TREATMENT & EXPENSE – TREATMENT PARAMETERS; RULES CONSTRUED – MINN. R. 5221.6050, SUBP. 8.D. Where substantial evidence in the record including expert opinion supports the compensation judge’s conclusion that repeat and regular epidural steroid injections and radiofrequency neurotomies do not satisfy the treatment parameter departure criteria and do not qualify as a rare case exception, the denial of claimed medical benefits is affirmed.
Compensation Judge: David M. Bateson
Attorneys: Stephanie M. Balmer, Falsani, Balmer, Peterson & Balmer, Duluth, Minnesota, for the Appellant. Craig A. Larsen, Aafedt, Forde, Gray, Monson & Hager, P.A., Minneapolis, Minnesota, for the Respondents.
Affirmed, in part, and remanded, in part. Remand stayed for 60 days.
PATRICIA J. MILUN, Chief Judge
The employee appeals from the compensation judge’s denial of his claim for various medical benefits. We affirm, in part, and remand, in part.
The employee, Craig Engblom, sustained an admitted work injury to his low back on May 22, 1989, because of a slip and fall while working for the employer, Gateway Foods of MN, Inc. He underwent extensive medical treatment to address his low back pain and radicular symptoms. Surgical treatment included a left laminotomy at L4-5 and medial facetectomy and discectomy in April 1991, followed in January 1992 by a decompression at L5-S1, laminectomies at L4-S1, and fusion at the L4-5 and L5-S1 levels. The employee’s symptoms persisted despite these surgeries. He was placed under work and activity restrictions; treated with physical therapy, pool therapy, chiropractic care, as well as massage and heat therapies; and was provided with a work hardening program, a pain clinic program, and a regimen of narcotic pain medication. A third surgery was performed in April 2000 to remove hardware.
In 2001, the employee began treating with Dr. Timothy Seidelmann of Essentia Health, who diagnosed the employee with failed back syndrome and chronic pain. The employee had undergone nerve blocks as well as radiofrequency neurotomies (RFNs), which he reported provided some benefit but the pain eventually returned.
In 2003, under the care of Dr. Hal Heyer of Lakewalk Surgery Center, the employee began treating his symptoms with epidural steroid injections (ESIs). Repeated and regular ESIs were administered throughout 2004 and 2005 with the employee reporting temporary relief of his symptoms for varying durations. The employee continued with ESIs on an as-needed basis and with narcotic pain medication.
By 2007 and through 2008, the employee was regularly undergoing ESIs as well as RFNs on a two-to-three-month basis. These treatments provided relief of his pain for a couple of months and allowed him to reduce his use of pain medication. This course of treatment continued through 2009.
In a chart note following a visit in January 2010, Dr. Seidelmann stated that the employee experienced relief of his symptoms from the RFNs for 5-6 months, and from the ESIs for 2-3 months. The employee underwent an RFN in February 2010 with no improvement, but when the treatment was expanded to include the L5 level in May 2010, the employee’s pain was reduced. He continued to receive regular ESIs through 2010, 2011, and 2012. The medical records show that the duration of symptom relief was decreasing between treatments over this period.
In 2013, the employee began a new part-time job. He reported no increase in pain with working. He had consistently been rating his pain at 6 out of 10 around this time with periodic RFNs and an ESI every one to two months. This course of treatment continued into 2014, alongside the use of morphine to control the employee’s pain. Efforts were made through 2015 to wean the employee from narcotic pain medication while continuing regular RFNs and ESIs and restarting physical therapy in 2016.
In late 2014, the employee was seen by Dr. Paul Biewen for an independent medical evaluation on behalf of the employer and insurer. It was Dr. Biewen’s opinion that the ESIs constituted excessive treatment and were not reasonable and necessary because they provided only temporary and limited benefit.
The employee was further seen for an independent medical evaluation by Dr. Teresa Gurin on behalf of the employer and insurer in 2016. It was similarly Dr. Gurin’s opinion that neither the ESIs nor the RFNs were reasonable and necessary treatment. She stated that the ESIs provided only temporary relief for episodes of pain that should resolve within weeks of conservative care or spontaneously. With respect to the RFNs, Dr. Gurin noted that the treatment had not provided the employee with significant and/or lasting benefit.
The employee continued with repeat RFNs and ESIs through 2016, 2017, and 2018. He consistently rated his pain from 5 to 8 out of 10 while receiving these treatments every one to three months. The RFNs and ESIs were administered on a similarly regular basis through 2019, less frequently in 2020, and continued through 2021 and 2022 up until the time of the hearing. He rated his pain during this period as low as 2 to 3 on a 10-point scale and as high as 7 to 8. At the time of the 2022 hearing, the employee characterized his pain level as a 7 out of 10. He testified that the RFN and ESI treatments reduce his pain for some period of time, enabling him to engage in work and recreational activities more easily. He takes Lyrica, treats with massage therapy, and uses a full-length heating pad prescribed by Dr. Seidelmann.
Dr. Christopher Davies of Pain Clinic of Lake Superior submitted a narrative report on behalf of the employee, dated June 16, 2022. He opined that the ESIs administered to the employee provided two to four months of significant relief and resulted in decreased pain complaints and improved range of motion and flexibility. He further opined that the employee is not a candidate for further surgical intervention and that the ESIs are cost effective and provide the employee with functional and analgesic benefit.
Dr. Seidelmann also prepared a narrative report on behalf of the employee. In his September 13, 2022, letter, Dr. Seidelmann opined that the RFNs are reasonable and necessary treatment. In contrast to the surgical procedures previously performed, the RFNs provide pain relief to the employee and increase his ability to work and perform other functional activities.
The employee filed a medical request seeking payment of unpaid medical bills and reimbursement for out-of-pocket expenses. His claims were heard before a compensation judge at the Office of Administrative Hearings on November 16, 2022. In his Findings and Order, served and filed January 13, 2023, the compensation judge adopted the opinion of Dr. Gurin and found that the claimed ESIs and RFNs are not reasonable and necessary treatment, are outside of the applicable treatment parameters, and do not qualify for an exception to the treatment parameters. The judge denied the employee’s claim for payment of expenses related to that treatment. The employee 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 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 appeals from the compensation judge’s denial of his claim for payment for repeat and regular ESI and RFN procedures. Although he concedes that the treatment exceeds the treatment parameters and provided temporary and varied relief, the employee argues that the compensation judge erred in concluding that the treatment did not satisfy the departure criteria and did not qualify as a rare case exception.
The compensation judge found that the therapeutic injections had not resulted in progressive improvement, as required by the departure criteria outlined in Minn. R. 5221.6050, subp. 8.D.[1] In his memorandum, the judge stated that the criteria requires “progressive improvement of his symptoms, not temporary relief” and “progressive improvement of objective clinical findings, not temporary improvement.” (Mem. at 11.) On appeal, the employee contends that the temporary nature of the relief should not automatically disqualify the treatment because neither statute nor rule define the term “progressive,” and that periodic improvements which return the employee to baseline constitute progressive improvement under the departure criteria.
“Progressive” has been defined as “proceeding in steps; continuing steadily by increments.”[2] Although treatment providing temporary periods of relief may, in appropriate circumstances, constitute reasonable and necessary treatment,[3] the overall reasonableness of palliative care is not the question here; rather, the issue presented by this case is one of interpreting the specific provisions of the departure criteria.
We conclude that in this context, the requirement for “progressive improvement” means that the disputed treatments must be shown to have provided a cumulative degree of lasting improvement. That improvement need not be entirely continuous, and certainly some degree of “backsliding” may occur following some individual treatments, but overall, there must be a forward momentum to the improvement provided. This interpretation is consistent with prior consideration of the concept of progressive improvement.[4] The compensation judge did not err in concluding that the employee failed to demonstrate a basis for a departure from the treatment parameters.
The employee also appeals from the compensation judge’s conclusion that this case does not present a “rare case” exception to the treatment parameters.[5] Treatment that would be compensable under a rare case exception must be reasonable and necessary.[6] The judge explicitly found the therapeutic injections were not reasonable and necessary treatment, relying on the opinion of Dr. Gurin.[7] This finding was not appealed.[8] As such, we must affirm the compensation judge’s determination that this case does not present a rare case exception to the treatment parameters.
We are troubled by the over-reliance on the language of the treatment parameters in determining the reasonableness of treatment in recent cases.[9] The parameters are intended only as a “flexible guide” for compensation judges.[10] The statute requires that medical treatment “cure and relieve the effects of the injury.” Minn. Stat. § 176.135. In this case, the employee spent three decades seeking pain relief. He discontinued his use of opioids. It is the ESIs and RFNs that, while beyond the treatment parameters, reduce his pain to a level that allows him to keep working, which is a core policy of the Workers’ Compensation Act, [11] and could present a rare case exception.[12] In cases such as this, non-compliance better achieves the objectives of the workers’ compensation system than strict compliance with the treatment parameter.[13]
Finally, at hearing, the employee claimed reimbursement for a medical expense for a heating pad prescribed by Dr. Seidelmann. The compensation judge made no finding or order about this claim. On appeal, the employee seeks a remand for a determination of this issue. Following oral argument before this court, the respondent submitted a letter representing that reimbursement for the heating pad expense would be paid to the employee, but no notice of benefit payment has been filed. We remand this issue to the compensation judge for determination. However, the remand is stayed for a period of 60 days, during which the stay may be lifted and the order for remand dismissed upon the employer and insurer filing a notice of benefit payment.
[1] A departure from the treatment parameters may be appropriate if the treatment at issue continues to meet two of the following three criteria:
[2] Progressive, The American Heritage Dictionary 990 (2d. College Ed. 1982).
[3] In some cases, such as treatment for chronic pain, the term “temporary” might not refer to a specific duration of time; instead, it may be used to designate the absence of permanence. See, e.g., Thaemert v. Honeywell Int’l, Inc., 78 W.C.D. 693 (W.C.C.A. 2018). In Thaemert, we vacated a compensation judge’s denial of benefits that was based on the conclusion that the employee’s daily use of opioid medication provided only “extremely temporary” relief of pain symptoms related to her chronic and permanent condition, noting that “[u]nlike other provisions of the treatment parameters, those addressing chronic pain treatment through long-term use of opioid medications do not set forth specific durational limitations as long as the pain relief is sustained.” Id. at 708.
[4] See, e.g., Asti v. Northwest Airlines, 588 N.W.2d 737, 59 W.C.D. 59 (Minn. 1999). In Asti, while reversing this court on other grounds, the supreme court expressly agreed with this court’s conclusion that temporary periods of improvement from health club visits that did not create ongoing sustained improvement failed to qualify under the departure rules because of the absence of “progressive improvement.”
[5] See Jacka v. Coca Cola Bottling Co., 580 N.W.2d 27, 58 W.C.D. 395 (Minn. 1998).
[6] Amunrud v. Advance United Expressway, 64 W.C.D. 204, 217 (W.C.C.A. 2004) (citing Pawlitschek v. Dundee Steel, Inc., slip op. (W.C.C.A. Sept. 7, 1999)), summarily aff’d (Minn. May 27, 2004).
[7] Finding 62. The opinion of Dr. Gurin has questionable foundation. She does not acknowledge the employee’s three surgeries, failed back syndrome, or post laminectomy syndrome. The opinion was rendered six years prior to the hearing such that medical treatment subsequent to 2016, including the employee’s weaning off of opioids in 2018, was not considered. Yet, no foundational objection to the report was made at hearing. See Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 77 W.C.D. 117 (Minn. 2017).
[8] Notice of Appeal dated February 2, 2023.
[9] See Johnson v. Darchuks Fabrication, Inc., 963 N.W.2d 227 (Minn. 2021); Leuthard v. Indep. Sch. Dist. 912 – Milaca, 958 N.W.2d 640 (Minn. 2021); Sullinger v. KIW Constr., No. WC22-6489 (W.C.C.A. Apr. 21, 2023).
[10] Wald v. Walgreens Corp., 73 W.C.D. 297, 305 (W.C.C.A. 2013) (citing Jacka, 580 N.W.2d at 36, 58 W.C.D. at 409-10)).
[11]See Jenkins v. Minn. Vikings Football Club, 75 W.C.D. 659 (W.C.C.A. 2015); see Minn. Stat. § 176.101, subds. 1(g) and 1(h); Minn. Stat. § 176.102; Minn. Stat. § 176.82, subd. 2; Minn. R. 5220.0100; Minn. R. 5220.1900.
[12] See Asti, 588 N.W.2d at 740, 59 W.C.D. at 64.
[13] See Johnson, 963 N.W.2d at 235 (citing Asti, 588 N.W.2d at 740).