MARK SULLINGER, Employee/Appellant, v. KIW CONSTR. and AM. INTERSTATE INS. CO., Employer-Insurer/Respondents, and INJURED WORKERS PHARM., Intervenor.

The employee appeals from a compensation judge’s denial of his claim for payment of opioid medication provided by the intervenor, Injured Workers Pharmacy (IWP).  We affirm.

The employee, Mark Sullinger, injured his low back on August 4, 2008, while working for the employer, KIW Construction, when he slipped on mud at a job site.  The employer and insurer admitted the injury.

The employee underwent x-rays, MRI scans, an EMG, and different injection therapies, as well as extensive physical therapy.  When those treatments did not resolve his symptoms, in January 2009, he had an L5-S1 laminectomy and discectomy to treat a disc bulge, stenosis, and radiculopathy.  Unfortunately, the surgery was not successful in relieving the employee’s symptoms.  Subsequent flexion/extension x-rays showed spondylolisthesis, and an L5-S1 fusion was performed in May 2010.^[1]  Despite the fusion being solid, this surgery also failed to relieve the employee’s symptoms.  Post-operatively, the employee was prescribed opioids and other medications to treat his ongoing pain.  By the fall of 2010, he had been prescribed hydrocodone-acetaminophen (Norco) 5/500 milligrams, one every six hours as needed, gabapentin 100 milligrams, three times a day, cyclobenzaprine 10 milligrams, twice a day, and tramadol 50 milligrams, four times per day by Dr. Majid Ghazi at Sanford Clinic Pain Management under an opioid therapy agreement.^[2]  On September 23, 2010, the team at Sanford recommended that the employee not treat with opioids and instead attend a chronic pain rehabilitation program and receive a spinal cord stimulator.

The employee continued to experience moderate to severe pain in the low back with radiation to the back of the left leg.  He also had pain in his right leg, mainly limited to the calf and foot.  His pain increased when standing and walking and improved by taking medications.  He also had complaints of numbness and paresthesia in his feet.  A spinal cord stimulator was recommended, and a psychological evaluation showed the employee was cleared for the proposed procedure.

The employee saw his primary care provider, Dr. Kevin Walters, on November 3, 2010, for his ongoing back pain.  Dr. Walters noted that a spinal cord stimulator had been recommended but that the employee reasonably wanted to try physical therapy with ultrasound first.  He continued the employee’s narcotic prescriptions and noted that the employee had no signs of addiction.  Similar notations by Dr. Walters continued over the next few years, and the employee continued to have ongoing low back pain with radicular symptoms of burning pain into his legs, numbness, and the sensation of cold in his feet.  He testified that these symptoms were the same as he had before the first surgery.  He further testified that other treatments, such as nerve blocks and epidural steroid injections, provided no lasting relief.  On January 19, 2011, the Social Security Administration declared the employee disabled as of August 4, 2008.

Dr. Matthew Monsein evaluated the employee at the request of the employer and insurer and issued a report dated February 17, 2011, in which he opined that the employee was not a good candidate for a spinal cord stimulator and that a spinal cord stimulator would not improve the employee’s functional status.  Dr. Monsein found the August 4, 2008, work injury to be a substantial contributing factor to the employee’s diagnosis, limitations, and PPD rating, and found the employee had reached maximum medical improvement (MMI).  The only additional medical care Dr. Monsein recommended was ongoing monitoring of the employee’s medications by a primary care physician three to four times per year.  He did not think the employee would benefit from a multidisciplinary behavioral-based pain management program.

The employee saw Dr. Walters on March 31, 2011.  He stated that he could not tolerate his chronic pain and told Dr. Walters that he was denied the recommended spinal cord stimulator.  They renegotiated the employee’s pain contract, increasing Norco to six per day.  Dr. Walters stated that the employee understood the concepts of tolerance and addiction and noted the employee was beginning to show signs of tolerance.  He referred the employee to Detroit Lakes Chronic Pain Clinic.  There was no follow up on this referral.

On June 29, 2011, the employee and the employer and insurer entered into a stipulation for settlement.  The parties agreed to settle the employee’s claims on a full, final, and complete basis in exchange for a lump sum of $126,000 ($111,000 after attorney fees).  Medical benefits remained open, although certain medical benefits were closed out, including chiropractic care, spinal cord stimulators, morphine pumps, inpatient chronic pain treatment, chemical dependency care, psychological and psychiatric care, psychotropic medications, massage therapy, pool therapy, acupuncture, acupressure, health club membership, and exercise equipment.

Dr. Walters wrote a note dated July 26, 2011, stating that it was his opinion that the employee was unable to work in any gainful employment due to his use of chronic pain medicine, his need for medicine to control neuropathic pain, his inability to ambulate, walk, or lift without significant pain, his need for assistance with walking safely, and his inability to sit for a prolonged time without excruciating pain.

The employee continued treating his symptoms with Norco medication prescribed by Dr. Walters through November 2014.  The employee saw other physicians in March and April 2015 who also recommended the employee seek treatment through a chronic pain management program to help him better understand his chronic pain condition.  The employee indicated that he was unlikely to attend chronic pain classes.

After the retirement of Dr. Walters, the employee began treatment with Susan Stark, APRN/CNP, of Essentia Health - Northern Pines Clinic Family Medicine in Aurora, Minnesota.  He first saw her on May 22, 2015.  The employee has continued to meet with CNP Stark through the date of the hearing, approximately five to seven times per year.

At his first appointment with CNP Stark, she noted the employee’s high blood pressure, which was most likely due to his smoking, high cholesterol, and chronic low back pain.  He provided a history of his work injury and the various surgical procedures he had undergone and the fact that his pain persisted despite the surgeries.  He described various physical and injections therapies before and after surgery, all without success, and reported that Norco provided the most pain relief.  He listed walking, weight bearing on his left foot, prolonged sitting, and prolonged spine movements as aggravators of his pain. He described using a nerve stimulator and that he was unable to get a spinal cord stimulator for pain control due to a denial by the workers’ compensation insurer. His medication list at that time included Norco 10/325 eight per day, and gabapentin twice per day, with an occasional additional pill as needed.  CNP Stark noted no concerns of misuse of medication. The employee testified that when he started with CNP Stark, he was unable to control his pain, as it was unbearable in the morning, and that he had to force himself to wake at night to take a pill so his mornings would be less horrible.  He felt as if he was “chasing” his pain.  CNP Stark discussed prescribing Hysingla ER (extended release) as an alternative to taking so much Norco and recommended increasing the amount of gabapentin.

At a follow-up visit on June 23, 2015, CNP Stark prescribed Hysingla ER due to its “drug abuse decreasing factor.”  Along with that medication, the employee continued to take gabapentin, and for breakthrough pain he took Norco.  The employee treated with CNP Stark through February 23, 2022, and while he did continue to medicate, CNP Stark noted no signs of misuse. There is nothing in the record to indicate that CNP Stark had referred the employee for modalities other than physical therapy or to another medical provider to review the employee’s use of narcotic pain medications.

The employer and insurer retained Healthesystems to perform pharmacotherapy evaluations.  The evaluations were apparently conducted by an unidentified pharmacist and were unsigned.  Each of the evaluations concluded that the prescribed medication regimen of Norco, Hysingla ER, and Pantoprazole^[3] was unsafe, with the employee being prescribed 95 MMEs (morphine milligram equivalence) of opioids.  They recommended the employee’s prescriptions be tapered off and discontinued with alternative treatments of non-narcotic medications and/or other modalities.

After two of these evaluations, Healthesystems sent CNP Stark letters dated October 28, 2016, and September 21, 2018, requesting that she evaluate the employee’s use of narcotics and acid inhibitors and indicating that his usage warranted additional scrutiny and tapering as well as over-the-counter alternatives.  CNP Stark’s records do not contain these letters, there is no record of any follow up by Healthesystems or by the employer and insurer, and there is no record of any reply CNP Stark may have made.

On August 4, 2021, the employee was unable to refill his prescription Hysingla ER as it was not approved by the pharmacy.  CNP Stark contacted the pharmacy to answer their concerns.  The pharmacy wanted a history of the employee’s medication use, including those that had been tried and failed in the past.  CNP Stark was unable to provide this information as she did not have access to the employee’s medical records before 2015 when she began treating the employee.  On the same date, CNP Stark wrote a letter opining that she first saw the employee due to high blood pressure which was poorly controlled and which she considered related to his chronic pain.  She noted he was taking Norco and gabapentin at that time, but he was unable to control his pain and prescribed Hysingla ER because it was safer.  Since then, his pain had been controlled with Hysingla ER, gabapentin, and physical therapy, with Norco only for breakthrough pain.  She stated there was no misuse of the medication^[4] and recommended that his current regimen continue.  Thereafter, IWP began refilling the employee’s medications.

The employee filed a medical request on January 11, 2022, seeking payment for medical prescriptions that were being provided by IWP.  The employer and insurer denied the request, stating that the employee had been receiving opioid medications for many years beyond the Minnesota opiate prescribing guidelines and seeking to have the opioids tapered and discontinued.  IWP filed a motion to intervene and as of August 22, 2022, its intervention claim totaled $26,726.09.

At the request of the employer and insurer, Dr. Lon Lutz performed an examination of the employee and wrote a report dated June 8, 2022.  Dr. Lutz agreed that the employee’s work injury remained a substantial contributing factor to his symptoms of mechanical back pain and chronic radicular pain.  Dr. Lutz opined that the opiate therapy the employee was receiving was not reasonable and necessary for several reasons.  First, he found the employee had not received any demonstrable reduction in pain or improvement in function since the opiate therapy began.  Second, he opined that Hysingla ER is extremely expensive and does not provide any significant benefit compared to short-acting, less expensive medications.  Third, the employee’s dosage regimen of 95 MMEs was associated with increased risk of motor vehicle accidents, opioid use disorder, and inadvertent overdose.  He also noted that 95 MMEs was approximately double the recommended maximum dosage for those on long-term opioids.  Furthermore, Dr. Lutz indicated the employee was at risk for other side effects such as constipation, decreased hormone levels which may produce bone loss, mood disturbance, and decreased adrenal function.  Dr. Lutz also noted that if the opioids were discontinued, the employee would no longer need a proton pump inhibitor medication, as his heartburn and reflux were a result of the opioid therapy.  Dr. Lutz recommended the employee have water-based therapy if available and that heat pads might be helpful.  He also recommended the employee be transitioned from high dose Norco to a sustained release morphine and then a gradual reduction of morphine until the medication could be safely discontinued.

At a hearing held on August 23, 2022, the employer and insurer submitted into evidence “Guidelines for Prescribing Opioids for Chronic Pain”^[5] which were issued by the Center for Disease Control in 2016.  They also submitted into evidence “Opioid Prescribing Guidelines” which were issued by the State of Minnesota in March 2018.  These guidelines recommended against opioid therapy as a treatment for chronic pain, noting the risks for patients with a history of substance abuse.  Both guidelines, and the Healthesystems evaluations, were received into evidence by the compensation judge over the employee’s objections.  The employee testified at the hearing that since starting the current opioid therapy he has better management of his pain, which when combined with physical therapy,^[6] keeps the pain down to a three out of ten, and that he is able to go on walks and do household chores, including lawnmowing and laundry.

The compensation judge issued a findings and order on September 9, 2022, finding that the medication prescribed by CNP Stark and filled by IWP did not comply with the treatment parameters, specifically Minn. R. 5221.6110.  She also found the prescriptions did not qualify for a departure from the parameters or for a “rare case” exception and were not reasonable and necessary care for the employee’s work injury.  She accepted the opinions of Dr. Lutz, including that the employee be tapered off the narcotics in accordance with Minn. R. 5221.6110.  In her memorandum, the compensation judge highlighted the aspects of the treatment parameters that were not complied with, as well as CNP Stark’s lack of familiarity with the employee’s previous medical history, including his past alcohol abuse.  She also discussed the departure rules and noted that while the employee’s pain seemed to have reached a tolerable level, there was no evidence that his pain was lessening or that his level of functioning was increasing.    The judge ordered payment of an opioid medication tapering program.  The employee appeals the denial of payment for the opioid medications.

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 presents several arguments on appeal.  First, he argues that the compensation judge abused her discretion in allowing the Healthesystems pharmacotherapy evaluations into evidence, as they lacked foundation.  Second, he argues that the compensation judge erred as a matter of law by failing to apply the treatment parameters, specifically Minn. R. 5221.6110, subp. 9.  Third, he asserts that the substantial evidence does not support the compensation judge’s finding that the opioid medications prescribed were unreasonable and unnecessary.  We are not persuaded.

The employee objected to the introduction of the Healthesystems pharmacotherapy evaluations into evidence at the hearing.  The compensation judge admitted the evaluations, stating that the employee’s objections went to the weight and credibility of the reports.  On appeal, the employee argues that the judge erred by allowing these evaluations into evidence.  A compensation judge is to accept only relevant and material evidence.  Minn. R. 1420.2900, subp. 6.A.  The compensation judge, however, is not bound by the Minnesota Rules of Evidence in making a determination regarding admissibility of evidence.   Minn. Stat. § 176.411, subd. 1; Bey v. Oxford Properties, Inc., 481 N.W.2d 40, 42, 46 W.C.D. 198, 201 (Minn. 1992); Cici v. Methodist Hosp., 63 W.C.D. 421, 426 (W.C.C.A. 2003).

The employee argues that the pharmacotherapy evaluations lack foundation and should not have been admitted into evidence.  An expert opinion lacks foundation if it does not include the facts or data relied upon by the expert in forming the opinion, or if the basis of the opinion is not explained, or if it is based in part on facts that are not supported by the evidence.  Mattick v. Hy-Vee Foods Stores, 898 N.W.2d 616, 621, 77 W.C.D. 617, 624 (Minn. 2017).  The Healthesystems records, both the evaluations and the letters sent to CNP Stark, were unsigned.  The identity and qualifications of the persons who completed the evaluations and/or sent the letters are unknown.   While the employee’s foundation arguments are compelling, these evaluations were not relied upon by the compensation judge in concluding the prescriptions ordered by CNP Stark and filled by IWP were beyond the treatment parameters or were unreasonable and unnecessary.  Instead, the compensation judge relied upon the opinions of Dr. Lutz as well as the other admissible medical evidence in reaching her ultimate findings of fact.  A compensation judge is afforded wide discretion in making evidentiary rulings, and reversal of such a ruling requires it to have been both erroneous and prejudicial.  See Hawley v. Kwik Trip, Inc., No. WC06-200 (W.C.C.A. Jan. 10, 2007) (citing Keiser v. Dick Lind Heating Co., slip op. (W.C.C.A. Nov. 22, 1996)).  The employee has demonstrated no prejudice and any alleged error in admitting the evidence does not materially change the outcome of the matter because other evidence in the record supports the decision, as discussed below.

The employee argues the record does not support the compensation judge’s findings that the employee’s medical provider did not follow the requirements of Minn. R. 5221.6110, the employee did not qualify for a departure from the parameters under Minn. R. 5221.6050, subp. 8, and did not qualify for a rare case exception.

Minn. R. 5221.6110 provides that long-term use of opioid medications is not indicated unless the requirements of the rule are met by the treating medical provider, including assessing the pain and function of the injured employee, determining if other patient selection criteria are met, such as assessing whether the patient has a current substance abuse disorder, assessing whether other contraindications exist, continuing regular follow-up assessments, having an up-to-date opioid-use contract with the patient, and regularly monitoring long-term usage.  See Minn. R. 5221.6110, subps. 3-8.

As the compensation judge found, the evidence does not show that CNP Stark followed all the requirements of the rule while providing the prescriptions to the employee.  The compensation judge noted that the record lacks documentation of regular urine testing or risk assessments.  There is no indication that CNP Stark had reviewed the employee’s prior medical records to fully comprehend his past treatments or his history of alcohol abuse.  Substantial evidence supports the compensation judge’s findings that the treatment parameters were not followed by CNP Stark and/or IWP.

Similarly, substantial evidence supports the compensation judge’s findings that a departure from the parameters, per Minn. R. 5221.6050, subp. 8, was not warranted.  First, we note, a departure was not requested as required by the rule.  Likewise, as the compensation judge noted in her memorandum, there was no evidence of at least two of the three requirements for a departure under Minn. R. 5221.6050, subp. 8D.  Specifically, while there was evidence that the employee’s pain was maintained at a tolerable baseline, there was no evidence of improvement in the employee’s subjective complaints of pain, objective improvement in clinical findings, or objective improvement of function.  The judge did not err by finding that the employee did not qualify for a departure from the treatment parameters.

The compensation judge also correctly determined that the employee did not qualify for a “rare case” exception.  She noted that the first step in making this determination is whether there was compliance with the treatment parameters, citing Johnson v. Darchuks Fabrications, Inc., 963 N.W.2d 227 (Minn. 2021).  Because there was not compliance with the parameters in this case, she found that the first step was not met and no further evaluation of such an exception was necessary.  We agree that given the decision in Johnson, consideration of a “rare case” exception was precluded in this case.

The compensation judge, however, did not deny the employee’s claims based solely on the application of the opioid medication treatment parameters.  She also found that the employee’s prescriptions at issue were not reasonable and necessary treatment.  The reasonableness and necessity of treatment is an underlying determination that can be made independently of compliance with the treatment parameters.  See Black v. Essential Health, No. WC21-6403 (W.C.C.A. July 28, 2021) (citing Morgan v. Care Force Homes, Inc., 76 W.C.D. 831 (W.C.C.A. 2016); Riendeau v. Walmart, 61 W.C.D. 811 (W.C.C.A. 2001); Olson v. Allina Health Sys., 59 W.C.D. 37 (W.C.C.A. 1999); Thielen v. Lufkin Lutes Tours, slip op. (W.C.C.A. July 20, 1994)); Minn. R. 5221.6050, subp. 1.A. (providing that all treatment must be medically necessary treatment).  “Regardless of whether . . . governed by the treatment parameters or analyzed under Minn. Stat. § 176.135 and long-standing case law principles, the reasonableness and necessity of any given medical treatment is a question of fact for the compensation judge.”  Amunrud v. Advance United Expressway, 64 W.C.D. 204, 218 (W.C.C.A. 2004) (citing Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993)), summarily aff’d (Minn. May 27, 2004).

Here, CNP Stark opined that the prescription therapy under her guidance was reasonable and necessary care, as the employee was able to better control his pain, had good function, and was showing no signs of abuse of his prescriptions.  This opinion is well-founded and supported by other evidence in the record.  The employee has undergone two failed low back surgeries.  Post-operatively, several other modalities to treat his pain have failed as well, including injections and physical therapy.  While some providers have recommended a chronic pain program, others have suggested this would not likely succeed.  Further, the employee has stated he would likely not maintain attendance at such a program.  There have also been differing opinions regarding a spinal cord stimulator.  Regardless, payment for chronic pain programs, spinal cord stimulators, and several other treatment modalities have been foreclosed by the stipulation for settlement.  Meanwhile, the opioid therapy, while not providing any improvement of symptoms or function, has at least maintained the employee’s pain at a tolerable level.^[7]  It is understandable, therefore, that CNP Stark, as many providers before her, determined that this treatment was reasonable and necessary.

Dr. Lutz, however, stated that the use of extended-release narcotics, plus additional breakthrough-pain narcotics over many years, was unreasonable and unnecessary treatment.  He reasoned that the employee was receiving no demonstrable reduction in pain or increase in function, the cost was prohibitively greater than any benefit, that the employee was receiving almost twice the amount of recommended MMEs of Norco, that the employee had greater risks of overdose and misuse, and that he was at greater risk of immediate and long-term side effects, including the acid reflux he apparently suffered from, which required yet another prescription.  While Dr. Lutz recommended some further care that was closed out by the stipulation for settlement,^[8] he also recommended other care that was not foreclosed by the settlement, including the tapering program as ordered by the compensation judge.

The compensation judge accepted the opinion of Dr. Lutz, that the prescription medication at issue was not reasonable and necessary medical treatment, over that of CNP Stark.  This court will uphold a compensation judge’s choice between conflicting expert medical opinions so long as the accepted opinions are adequately founded.  Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).  Because Dr. Lutz’s opinion was well-founded, we will not disturb the compensation judge’s choice of that opinion.  Substantial evidence supports the compensation judge’s finding that the disputed treatment was not reasonable and necessary treatment.^[9]

Accordingly, we affirm.