BARBARA J. MCKEEVER, Employee/Respondent, v. CUB FOODS and GALLAGHER BASSETT SERVS., INC., Employer-Insurer/Appellants, and UNITED HOSP., INJURED WORKERS' PHARMACY, and ALLINA MED. CLINIC, Intervenors.

The employer and insurer appeal from a compensation judge’s findings that the employee’s sympathetic block injection therapy was reasonable and necessary and qualifies as a “rare case exception” to the treatment parameters, and from the award of payment for that therapy.  We affirm.

The employee, Barbara McKeever, suffered an injury to her low back on May 7, 2010, while working for the employer, Cub Foods.  Since the injury, the employee has undergone several surgeries including an L5-S1 decompression discectomy, a second disc herniation excision, a fusion at L5-S1, a hardware removal procedure, a spinal cord stimulator implant, and a revision surgery to repair loose stimulator leads.  She also participated in physical therapy, pain management programs, and received injections, in addition to being prescribed various medications to attempt to reduce her symptoms.

In 2014, following the sixth surgery, the employee was diagnosed with chronic regional pain syndrome (CRPS) affecting her left leg.  Conservative treatment was undertaken, including biofeedback, pool therapy, and physical therapy.  When these treatments were unsuccessful, she was treated with sympathetic block injections to address her high levels of pain.  The injections provided significant, temporary relief.

In March 2015, Dr. Todd Hess of United Pain Center began treating the employee and agreed with the CRPS diagnosis.  He also recommended ongoing sympathetic block injections to treat the diagnosed condition.  In late 2015, Dr. Hess noted symptoms of swelling and redness, along with sensitivity, in her other extremities.  By 2017 or 2018, Dr. Hess diagnosed the employee with CRPS in all four extremities.  On June 12, 2018, following a hearing addressing the nature, extent, and causation of the employee’s work injury, as well as disputes over treatment, a compensation judge found that the employee developed CRPS as a result of the May 7, 2010, work injury, that the CRPS had migrated into all four of her extremities, and ordered the employer and insurer to pay for various treatments, including sympathetic block injections.  This decision was not appealed.

The employee continued to receive lumbar sympathetic block injections at the left L2-3 level of her low back every one to two months.  By mid-2019, she was receiving injections on an “as needed” basis.

At a visit on December 5, 2019, the employee reported to Dr. Hess that she recently obtained a job managing a sewing machine company.  In addition to her managing duties, she also sold machines, trained new employees, and taught classes on how to use sewing machines.  She testified that the job allowed her to alter her activity depending on her symptoms.

Throughout her ongoing treatment with Dr. Hess, the employee reported continued chronic pain in all four extremities, that her left foot was particularly painful and cold, and that her symptoms included burning, tingling, and sharp pain that worsened with movement, increased activity, and exertion.  Her symptoms improved with relaxation, pain medication, and heating pads, but the injections provided relief of 50 percent, including significant warming of her left foot, which lasted a couple of months.  On average, her foot temperature increased over 10 degrees Celsius after the injections.

Dr. Hess noted that the employee’s signs and symptoms of CRPS included vascular instability, allodynia, temperature changes, discoloration, mottling, and decreased sensation.  Dr. Hess described the employee’s pain as “very difficult to treat,” and reported that all other sources to treat the employee’s symptoms, particularly her pain, had been exhausted and that the sympathetic block injection therapy provided enough relief to minimize her opioid use and her emergency room visits.  Dr. Hess repeatedly referred to the employee in his notes as “permanently and totally disabled.”  (Ex. B.)  Dr. Hess indicated that the goal of the injection therapy was to maintain her pain management and to slowly wean her off medications.  He also noted that the employee had a controlled substance agreement which was regularly reviewed and updated and that he found no signs of chemical dependency or misuse of her pain medications.

On March 25, 2020, Dr. Hess noted that the employee continued to struggle with her CRPS, but the injections continued to offer some relief, including allowing her to retain her job which she enjoyed, which she was able to do within her restrictions, and which allowed her to be productive.  At a visit on December 28, 2020, the employee reported to Dr. Hess that her feet were cold and that she experienced spikes in pain during cold weather.

The employee was examined by Paul C. Biewen, M.D. on January 11, 2021, at the request of the employer and insurer.  In his report issued January 14, 2021, Dr. Biewen opined that the employee had failed back surgery syndrome and chronic low back and left leg pain as a result of the May 7, 2010, work injury.  He further opined that she had subjective pain without objective findings and of an unknown etiology involving her other three extremities.  Dr. Biewen also opined that the injection therapy was not reasonable nor necessary because she received symptomatic relief typically for only one to two months.  Following this report, the employer and insurer discontinued paying for sympathetic block injections.  Dr. Biewen issued two subsequent reports, dated June 25, 2021, and June 15, 2022, and his opinions relative to the sympathetic block injection therapy did not change.

The employee reported to Dr. Hess on March 29, 2021, that she continued to have the same CRPS symptoms in the left lower extremity with additional symptoms in the other extremities. She had lumbar muscle spasms and reduced range of motion, SI joint dysfunction, and her CRPS symptoms were noticeable and reproducible by Dr. Hess.  He also noted that she remained pleasant and upbeat without drug-seeking behavior or pain behavior and that the objective findings were consistent with her subjective complaints.

On December 1, 2021, Dr. Hess reported that the employee’s last injection was on September 22, 2020, that there had been a delay due to workers’ compensation issues, and that he believed that the injections should be approved as they are used “carefully and judiciously.”  He found her left lower extremity very cold, in a CRPS flare.  Despite the denial by the employer and insurer, an injection was provided that day.  On December 22, 2021, the employee reported very good relief from the injection and that she would have liked to have the injections closer together.  Dr. Hess opined that the injections successfully allowed the employee to reduce her pain and increase her functioning, allowed her to remain working, and while the injections were outside the treatment parameters, the therapy was reasonable and medically necessary because it improved the employee’s quality of life and her daily functioning.

The employee filed a claim petition and the matter was heard before a compensation judge on September 9, 2022.  At hearing, the employee, who was found to be credible by the compensation judge, testified to having received varying degrees and duration of relief from the injections, ranging from weeks to months, and a significant reduction of pain.  The injections also warmed her extremities, particularly the left foot, allowing her to function better at her job and to tolerate the working conditions related to temperature changes in the office from both cold weather and summertime air conditioning, as well as allowing her to stand and walk for longer periods.  She described pain in all four extremities which caused sweating and caused her left foot to feel like it was in an ice bucket.  She testified that the injection therapy “stops the cycle of pain.”  (T. 51.)  After the injection therapy was discontinued, although she missed no time from work, the employee needed significant assistance to complete her tasks.

On November 4, 2022, the compensation judge issued his findings and orders concluding that the sympathetic block injection therapy was reasonable and necessary and was payable under the “rare case exception” to the treatment parameters.

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).

Both parties acknowledge that the sympathetic block injection therapy administered since the time of Dr. Biewen’s report is outside of the treatment parameters and the departure rules found in Minn. R. 5221.6305 and Minn. R. 5221.6050.  The compensation judge determined that the “rare case exception” to the treatment parameters applied and, because the sympathetic blocks provided by Dr. Hess were otherwise reasonable and necessary, awarded payment for the treatment. The employer and insurer argue that the compensation judge erred.  We are not persuaded.

The employee has undergone six surgical procedures to address her work injury.  Dr. Hess, who has been treating the employee for her symptoms since 2015, provided extensive medical documentation as to the employee’s diagnosis, symptoms, and treatment of her CRPS.  The employee was found to have developed CRPS in all four extremities as a result of the May 7, 2010, work injury in a decision issued in 2018, which was not appealed.  Although Dr. Biewen opined that the employee displayed no signs of CRPS at either of his examinations, the employer and insurer do not dispute that the employee suffers from CRPS and that it has spread to all four of her extremities.  Further, the record shows that the employee was initially receiving sympathetic block injections every two to three months through mid-2019.  However, from June 2019 through September 22, 2020, the last insurance-approved injection, the employee received only four injections.  There is substantial evidence in the record that the sympathetic block injection therapy is reasonable and necessary to relieve the employee’s CRPS symptoms.  Because the factual findings are not appealed or disputed in this case, the only issue before this court is whether this matter constitutes a “rare case exception.”

The “rare case exception” was first identified by the supreme court in Jacka v. Coca-Cola Bottling Co., 580 N.W.2d 27, 58 W.C.D. 395 (Minn. 1998).  In Jacka, the court determined that, although the treatment parameters were valid under the Workers’ Compensation Act, a compensation judge may depart from the rules contained in the parameters in “those rare cases in which departure is necessary for the employee to obtain proper treatment.”  Id. at 35-36.  The court also noted that the parameters were “flexible and yielding,” ensuring that, while abuses would be regulated and prices would remain reasonable, medical care would not be denied “simply because of a timeline or rigid categories.”  Id. at 36.

Since the Jacka opinion, the supreme court has further substantively addressed the “rare case exception” on only two occasions.  First, in Asti v. Northwest Airlines, 588 N.W.2d 737, 59 W.C.D. 53 (Minn. 1999), the court affirmed the compensation judge’s finding that the employee’s otherwise reasonable and necessary health club membership was outside the treatment parameters and outside the departure rules.  The court also affirmed the compensation judge’s finding that the membership was still payable because the drafters of the parameters could not have “considered every possible scenario,” and that the membership was reasonably aiding the employee in maintaining his employment.  Id. at 740.  This was the type of “rare case,” the Asti court concluded, where a departure was in order.

Second, in Johnson v. Darchuks Fabrication, Inc., 963 N.W.2d 227 (Minn. 2021), the court held that it is not enough for treatment to be reasonable and necessary to constitute a “rare case” and thus be payable by the employer and insurer, noting that if the only issue was reasonableness and necessity, then the treatment parameters would be irrelevant.  In so ruling, the court stated that the issue of whether the facts fit a “rare case exception” is a legal determination reviewed de novo.  The court then determined that the employee’s long-term opioid use was not a “rare case” because the provider had no explanation for failure to follow the parameters nor why compliance was not possible.  The court further noted that the particular parameters at issue were created to address a nationwide opioid epidemic and the risks that patients face when the dependency occurs without adequate monitoring.

We review a compensation judge’s findings of fact under a substantial evidence standard and review the conclusion of whether the facts demonstrate a “rare case” under a de novo standard.

The Darchuks court noted concern that the medical provider did not address other treatment options nor explain why the narcotic treatment parameters could not be followed.  In this case, Dr. Hess adequately explained the various unsuccessful treatment modalities and medications and why they failed.  He explained that the employee’s CRPS has been particularly difficult to treat and that all other treatment modalities have been exhausted.  He opined that the employee’s judicious use of the injections and the resulting benefits made the treatment both reasonable and necessary. This opinion was adopted by the compensation judge and is supported by both the medical record and the employee’s credible testimony.

In determining whether a “rare case exception” was proven in Jacka, Asti, and Darchuks, the supreme court considered the employee’s ability to return to work, which is a significant goal of the workers’ compensation system.  Here, the employee was able to seek out and return to employment within her work restrictions with the aid of the injections, despite being assessed as permanently and totally disabled by Dr. Hess.^[1]  The employer and insurer argue that there is no evidence as to when her employment began or that the employee specifically testified to the injections assisting her in finding and continuing work.  Yet, the record shows that the employee obtained her current job some time before her December 5, 2019, visit with Dr. Hess when she informed him of her new job, and her credible testimony and the medical records indicate that she was allowed to continue her employment, and to be more active in her employment duties and activities of daily living while being treated with the injections.  

The employer and insurer also note that the employee went fifteen months without an injection and the employee did not miss time from work.  They contend that the injection therapy was not necessary for the employee to continue working.  There is no dispute, however, that the employee required extra assistance to perform her job duties over this fifteen-month period.  As was the case in Asti, the employee’s condition does not need to deteriorate to total disability before the “rare case exception” can be applied.  As the compensation judge noted in his memorandum, although the “rare case exception” is a tough burden for the employee to prove, “given the extensive history of injury, ongoing symptomology, numerous failed treatment attempts, and established successes of the injection therapy, coupled with the employee’s resilience and her refusal to deem herself unable to work in any capacity and the role this therapy plays in her ability to live her life, . . . this is the very rare case exception both the Asti and Johnson Courts were describing.”  (Memo. at 5-6.)  We agree.

The Darchuks court also identified reducing dependency on narcotics as a factor in assessing a “rare case exception.”  In this case, Dr. Hess noted one of the goals of the sympathetic block injection therapy was to reduce the employee’s reliance on narcotics.  By November 30, 2020, the employee began reducing the amount of Oxycontin intake by another 10 mg per day.

When assessing whether a “rare case exception” has been proven, each case must be considered on its own merits.  In this case, the employee has suffered from CRPS in all four extremities for nearly ten years.  She has been treated with numerous other modalities, including six surgeries, without relief.  As Dr. Hess noted, the injection therapy significantly improved her symptoms and allowed her to find and maintain employment.  In addition, the medical records show, and the employee credibly testified, that the injections reduced her pain,^[2] regulated the temperature in her extremities, and increased her functional ability.  The relief of the employee's symptoms goes hand-in-hand with her ability to continue performing work and home activities.  Under these circumstances, we conclude that the compensation judge did not err in applying the “rare case exception” to the treatment parameters and awarding the claimed medical expenses for the injection therapy.  Accordingly, we affirm.