KAREN NASH, Employee/Respondent, v. DIOCESE OF DULUTH/ST. JOSEPH’S CHURCH and CHURCH MUT. INS. CO., Employer-Insurer/Appellants, and MINN. DEP’T OF HUM. SERVS., ALLINA MED. CLINIC, and BLUE CROSS BLUE SHIELD OF MN, Intervenors.

The employer and insurer appeal from the compensation judge’s award of a trial dorsal root ganglion (DRG) implant and her denial of the employer and insurer’s request to terminate the employee’s rehabilitation plan.  We affirm.

The employee, Karen Nash, sustained an admitted right ankle injury when she fell during an ice-skating field trip with her students while working as a physical education teacher for the employer, St. Joseph’s School/Diocese of Duluth, on February 1, 2018.  She was taken to the emergency room at Grand Itasca Clinic and Hospital that same day.  X-rays showed a posterior malleolar distal tibia fracture.  She was casted and given crutches to walk.  She was to be non-weightbearing and began physical therapy.

Since the work injury, the employee has had an extensive history of medical treatment.  In May 2018, the ankle fracture was believed to have healed, however, the employee was walking with improper gait mechanics.  She was given a CAM immobilizer boot and underwent additional physical therapy.  A CT scan revealed an incomplete healed fracture and a two to three millimeter step-off at the ankle joint.  The employee’s symptoms continued to wax and wane.  On November 21, 2018, Dr. Xan Courville at Essentia Health performed an arthroscopic debridement and an open reduction fixation of a posterior malleolar tibia facture.  The employee did not recover well following surgery and physical therapy.  By March 2019, she was once again having difficulty walking due to ongoing pain.

In April 2019, the employee began treating with Dr. Paul Cammack through Twin Cities Orthopedics and Twin Cities Pain Clinic.  Another CT scan was taken and confirmed a non-union of the distal tibia fracture.  An injury to the syndesmosis,^[1] which had previously been missed, was discovered around that time.  Dr. Cammack performed a revision open reduction internal fixation of the distal tibia fracture with bone graft taken from the right proximal tibia and a reduction fixation of the syndesmosis on June 13, 2019.  Following this second procedure and another round of physical therapy, the employee experienced difficulties getting out of the CAM boot and could not continue with physical therapy because of the pain.  X-rays revealed satisfactory healing of the distal tibia fracture.^[2]

The employee was seen by Dr. Dustin Ward of iSpine, to consider whether the employee suffered from chronic pain syndrome.  She underwent separate lumbar sympathetic block injections in October and November 2019, but she reported only minimal short-term pain relief following each injection.

In November 2019, the employee reported to Dr. Cammack that her pain had not improved.  Dr. Cammack considered that she might be suffering from chronic regional pain syndrome (CRPS) and suggested a spinal cord stimulator (SCS).  The employee underwent a psychological evaluation at Nystrom and Associates as a pre-condition for the SCS.  Initially, she was determined to have no mental health issues and was cleared psychologically, for the SCS.  However, by April 2020, the employee was diagnosed with major depressive disorder, adjustment disorder, generalized anxiety disorder, and attention-deficit/hyperactivity disorder (ADHD) by Robin Mahan, M.A., L.M.F.T.  Counseling focused on the employee’s psychological responses to her ankle pain, loss of job, and loss of mobility.^[3]  The employee continued regular treatment with Ms. Mahan for three years.

Throughout the rest of 2020, the employee continued with ongoing physical therapy, underwent a cortisone injection, and took medication for her pain symptoms and mental health diagnoses.  CT and MRI scans showed that the fracture had healed, but the chronic syndesmosis injury remained a problem.  Dr. Cammack recommended an ankle fusion procedure.  In December 2020, the employee had multiple increased symptoms including significant deviation and pronation of her right foot, worsened right leg motor function, inability to perform a basic leg raise, and random spasms of her right leg musculature.

On March 8, 2021, the employee was seen by Dr. Thuy Hoang-Tienor at Hennepin County Medical Center for right leg pain.  She had a stiff gait and her right foot was everted.  She could not heel-to-toe or tandem walk but could walk normally in the CAM boot.  On March 26, 2021, the employee met Dr. Stefan Kaiser at Essentia Health.  He was concerned she might have conversion disorder and that her reliance on the CAM boot may be contributing to her symptoms.  She was referred to Courage Kenny to meet with a psychologist.

On June 15, 2021, the employee was seen by Dr. Kerry Brockberg of Courage Kenny.  The employee reiterated the same mental health struggles for which she had been treating with Ms. Mahan, including losses of her career, physical function, and enjoyment of leisure activities due to the work injury.  She also disclosed past personal struggles and losses unrelated to her ankle condition.  Dr. Brockberg diagnosed the employee with pain disorder with physical and psychological factors, major depressive disorder, and generalized anxiety disorder.  She opined that the employee’s anxiety and depression stemmed from chronic pain and physical changes to her ankle and that there appeared to be other stressors related to the loss of function impacting her work, leisure activities, and overall quality of life.  Dr. Brockberg suggested that the employee may benefit from ongoing psychotherapy that focused on chronic pain, depression, and anxiety.

The employee’s ankle condition continued to deteriorate through 2021.  She underwent interarticular injections, which provided minimal relief, and she was noted to have chronic right ankle pain.  She was discharged from physical therapy to focus on her mental health care for which she continued to treat with Dr. Brockberg.

Dr. Kristen Zeller issued a report on March 31, 2022, after examining the employee at the request of the employer and insurer.  Dr. Zeller diagnosed the employee with depression, CRPS, and poor gait mechanics with her right foot turning almost 90 degrees outward.  She noted that without improvement in her gait, the employee’s prognosis was very poor.  She limited the employee to mostly sedentary work and noted that, while the medical care was reasonable and necessary, it had not helped.  Dr. Zeller recommended additional psychotherapy sessions, but also social group activities, pool membership to gain more functional abilities, a chronic pain program, and a SCS trial, and if successful, an implant.  Dr. Zeller opined that the employee’s depression was overtaking her physical health and overall well-being and that any medical care would not be successful unless her mental health conditions were also addressed.  While she was advocating for the SCS, Dr. Zeller indicated that the implant trial should wait until the employee was better conditioned.

Dr. J. Chris Coetzee issued a report on October 4, 2022, after examining the employee at the request of the employer and insurer.  He was asked to opine on whether the recommended ankle fusion proposed by Dr. Cammack was reasonable and necessary to cure and relieve the employee’s condition.  He agreed that the fusion surgery proposed by Dr. Cammack was the only viable option to treat the employee’s ankle condition, with a possible ankle replacement surgery in the future.  Dr. Coetzee opined that the employee suffered a significant complex injury due to the posterior malleolar fracture and that the missed syndesmosis injury led to a delay in proper care and her subsequent ongoing issues.

The right ankle fusion was performed on December 6, 2022.  The employee underwent post-surgery physical therapy, but her symptoms did not improve long term.  The employee was again diagnosed with CRPS at iSpine on April 11, 2023.  Various treatments, including desensitization therapy, lumbar sympathetic block injections, and medications were attempted, but none provided lasting effects.  She also continued with weekly physical therapy at Grand Itasca and at Courage Kenny.

The employee returned to Dr. Cammack on May 25, 2023.  The incision from her fusion surgery had healed and the swelling, ankle color, and motion had all improved.  Dr. Cammack recommended ongoing physical therapy and pain management and released the employee to return to work with restrictions, including wearing the CAM boot at all times and requiring rest periods in order to elevate her ankle.  Six weeks later, the employee reported to Dr. Cammack that she continued to have ongoing ankle pain, especially when walking and standing, which increased as the day progressed.  Dr. Cammack recommended ongoing physical therapy aimed at treating CRPS.

The employee underwent right lumbar sympathetic block procedures on May 22, June 1, and June 8, 2023, to treat the CRPS.  On July 20, 2023, the employee was seen by PA-C Lindsay Haugen at iSpine.  The employee reported pain with discoloration at her right ankle, hypersensitivity, and decreased range of motion.  She also related moderate relief with improvement in cold sensation, sensitivity, and color from the lumbar sympathetic block procedures.  The employee also demonstrated signs of severe depression at this visit.  She was advised to continue her physical therapy at Courage Kenny.  PA-C Haugen suggested other treatments including a repeat of a series of lumbar sympathetic injections, a SCS, or a DRG stimulator.

On August 14, 2023, the employee returned to iSpine and met with PA-C Valerie Lessard.  The employee’s symptoms, including severe depression, were similar to her prior visit.  Upon a review of her chart, Dr. Ward again recommended a SCS, and should the SCS trial fail, a DRG stimulator would be considered.  The employee was referred to a psychologist for a behavior health evaluation in advance of the trial SCS.

The employee was discharged from further therapy at Courage Kenny.  She demonstrated limitations but was able to walk without a boot or crutches by September 2023.  She was advised to continue a home therapy program and pool exercises.  She continued to treat with Dr. Cammack through fall 2023.  Dr. Cammack noted decreased strength in the employee’s right foot, as well as swelling, tenderness, decreased motion, and a slight red color.  He diagnosed the employee with chronic pain syndrome, CRPS, and pain in the right foot and ankle.  He stated that a DRG implant would likely better target the location of the employee’s symptoms, compared to a SCS.

For the remainder of 2023, Dr. Cammack restricted the employee to a 30-hour work week.  The DRG implant was ordered on the advisement that the employee undergo a psychological evaluation ahead of the implant procedure to ensure she was an appropriate candidate.  Dr. Cammack recommended a rocker be added to the bottom of her shoe to improve her ambulation and to wean her off of the CAM boot.

The employee underwent a psychological evaluation with Dr. Peg Maude-Griffin at Twin Cities Spine on January 8, 2024.  Dr. Maude-Griffin noted in her report that the employee hoped the procedure could allow her to return to her career as a physical education teacher, but failing that, at least be able to walk with her dogs and spend time with loved ones without as much pain.  The employee demonstrated a history of generalized anxiety disorder.  She also discussed her depression and described the benefits of her psychotherapy treatment to address her major depressive and anxiety symptoms.  Dr. Maude-Griffin diagnosed the employee with pain disorder, generalized anxiety disorder, depressive disorder due to a medical condition, and ADHD.  She opined that the employee was an appropriate candidate for the DRG implant, that the employee’s mental health condition was secondary to her persistent pain, that she had significantly improved with treatment, and that her symptoms were not severe enough to prevent the employee from benefiting from the DRG implant.  Dr. Maude-Griffin noted that the employee was positive, but realistic about outcome expectations and was able to articulate the risks and benefits of the DRG stimulator implant.  She concluded, “There are no additional psychiatric treatments or interventions that need to take place before the implantable pain device procedure.”  (Ex. A.)

Dr. Scott Yarosh examined the employee at the request of the employer and insurer and issued a report on March 25, 2024.  Dr. Yarosh noted the employee’s initial mental health care began in April 2020, and that she received psychotherapy weekly and trauma therapy bi-weekly.  In his review of the medical records, Dr. Yarosh noted the losses of the employee’s job, physical functioning, and enjoyment of leisurely activities following the work injury.  He also noted the employee’s past struggles.  In his examination, Dr. Yarosh found the employee to be above average in intelligence, clear in speech, situationally appropriate, logical, and goal directed.  Dr. Yarosh also observed that the employee had a restricted affect and that he believed she was withholding information or unable to regulate her emotions.  He opined that the employee was not an ideal candidate for the DRG stimulator at that point due to the “confounding factors that she psychologically confronts.”  (Ex. 4.)  It was his opinion that the employee’s psychological treatment, which focused on pain as the primary etiology of the employee’s mood disorder, was too narrow in scope and that the employee appeared to “channel all of her psychological distress from previous causes into her perceived consequences of the skating incident.”  (Id.)  Dr. Yarosh concluded that, while the employee may benefit from the DRG stimulator, it would not alleviate her psychological distress and perceived level of pain.  It was his medical and psychiatric opinion that until the employee worked on her “deep-rooted” psychological issues stemming from elsewhere, it was unlikely she would be a good candidate for the DRG stimulation therapy.  (Id.)

Dr. Maude-Griffin provided a letter to the employee’s attorney dated June 24, 2024, in which she re-affirmed the assessment and opinions she expressed in her prior evaluation.  She further stated that:

On August 19, 2024, Dr. Kerry Brockberg wrote a report to the employee’s attorney.  She recounted the June 2021 diagnoses which included pain disorder with psychological and physical factors, major depressive disorder, and generalized anxiety disorder.  While those diagnoses remained, she opined that the employee may also suffer from possible post-traumatic stress disorder as well.  Dr. Brockberg further opined that the employee’s work injury was a substantial cause of her psychological diagnoses, as her injury, pain, and many medical procedures had a “major impact on her presenting mental health conditions.”  (Ex. B.)  Dr. Brockberg disagreed with the opinions of Dr. Yarosh.  Dr. Brockberg noted that the employee did not treat for any mental health issues prior to the work injury.  She opined that the employee was an appropriate candidate for the DRG stimulator.  Finally, Dr. Brockberg concluded that, while Dr. Yarosh opined that the implant would not alleviate the employee’s psychological distress, the employee was not looking to relieve psychological distress “but rather to reduce her chronic pain. . . . [The employee] seems to realistically recognize and hope that with a reduction in pain she will be able to increase her functioning, especially her physical functioning, which could contribute to increased feelings of happiness and decreased feelings of anxiety and depression.”  (Id.)

A functional capacity evaluation (FCE) was performed on August 27 and 28, 2024, at Sauders Therapy Center.  The evaluator felt that the employee functioned better wearing her CAM boot than not.  It was determined by the FCE that the employee was limited to sedentary work based on her low tolerance for standing.  She was limited to an eight-hour workday with unlimited time sitting, up to two hours per day standing, but no more than 15 minutes at one time, up to one hour walking, but no more than five minutes at one time.  She was also limited to wearing the CAM boot while working.  There were additional limits of no ladders, including small stepladders, using a handrail when navigating stairs, no working on uneven or slippery surfaces, and avoiding narrow hallways.  Following the FCE, Dr. Cammack modified her work restrictions to increase to 40 hours per week, consistent with the evaluation findings, encouraged the employee to wean off the use of the boot, and prescribed custom orthotics.

The employee returned to PA-C Lahr on October 2, 2024.  Objective observations of the employee’s right foot and ankle showed allodynia, redness, swelling, decreased range of motion, skin color changes, and toenail changes.  The DRG implant remained the recommendation “as this is a late/last resort treatment option to manage this patient’s chronic ankle pain.”  (Ex. A.)  The employee told PA-C Lahr that she would like to proceed using her own insurance given the workers’ compensation denial.

On October 31, 2024, Dr. Coetzee issued a report after re-examining the employee at the request of the employer and insurer.  In his report, Dr. Coetzee diagnosed the employee with a well-healed right ankle fusion with ongoing right calf atrophy and muscle weakness.  He acknowledged the employee had significant pain and complaints of difficulty walking normally but had no orthopedic structure/mechanical explanation for these complaints.  He saw no obvious physical signs of ongoing CRPS.  He opined that the treatment the employee had received to treat her ankle had been reasonable and necessary but that no further orthopedic treatment was necessary to cure or relieve her condition, deferring any necessary mental health care to experts in that field.  He further opined that the employee required restrictions, including light or sedentary activities, and avoiding uneven terrain.  Dr. Coetzee intimated that the employee’s pain might be better explained by her mental health issues but declined to address or provide an opinion about the employee’s ongoing psychological treatment.

The employee underwent the DRG implant trial procedure at Abbott Northwestern Hospital on November 26, 2024.

The employee had secured a job at L & S Consulting in March 2022, working within her work restrictions averaging 10-15 hours of work per week.  A job search plan was made however, the employee did not regularly report to Kara Bunes, her assigned qualified rehabilitation consultant (QRC), on her job search efforts, nor did she follow up on job search leads that were provided to her.  Nevertheless, the employee found a second job on her own with another employer with the opportunity to work up to 29 hours per week.

The employee filed a claim petition seeking approval of a DRG implant trial.  The employer and insurer filed a medical request seeking to discontinue vocational rehabilitation services.  The matters were consolidated and came on for hearing before a compensation judge on January 10, 2025.  On February 10, 2025, the compensation judge granted the employee’s request for a DRG implant trial and denied the employer and insurer’s request to discontinue rehabilitation services.  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).  When the findings are supported by substantial evidence, the Workers’ Compensation Court of Appeals must defer to the compensation judge.  Lagasse v. Horton, 982 N.W.2d 189, 202 (Minn. 2022).  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); see also Smith v. Carver Cnty., 931 N.W. 2d 390, 79 W.C.D. 495 (Minn. 2019).

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); see also Busch v. Advanced Maint., 659 N.W.2d 772, 778-79 (Minn. 2003).

The employer and insurer appeal the award of the DRG implant trial and the denial of their request to terminate the employee’s rehabilitation plan.  We address each in turn.

The employer and insurer appeal the compensation judge’s award of the DRG implant trial, arguing that the DRG implant was not reasonably required to cure and relieve the effects of the employee’s work injury, that under Minn. R. 5221.6305, subp. 3.B(1)(c) the employee has an untreatable major psychological or psychiatric comorbidity that would prevent the employee from benefitting from the procedure, and that the employee had unrealistic expectations of the procedure.  We are not persuaded.^[4]

Surgical treatment of CRPS is guided, in part, under Minn. R. 5221.6305, subp. 3.B.  The rule states, in relevant part:

The employer and insurer argue that the employee suffers from untreatable mental health conditions which prevent her from benefitting from the DRG implant trial.  They argue that she has not shown improvement in her mental health conditions after years of treatment, and that this lack of improvement, by definition, means her condition is untreatable.  The testimony of the employee, the record, and reports of Dr. Brockberg, Ms. Mahan, and Dr. Maude-Griffin, however, all indicate that the employee’s mental health has improved with care and would not preclude her from benefitting from the DRG implant trial.  The employer and insurer rely on the medical opinions of Dr. Yarosh who stated that while the employee might benefit from a DRG implant, it was unlikely to be successful because of her “deep-rooted” mental health issues, which needed significant care and attention.  (Ex. 4.)

We reject the employer and insurer’s definition of untreatable.  Not only is their definition inconsistent with the record before the court in that the record shows the employee has improved with mental health care, but it is contrary to their own expert’s opinion that the employee needs more mental health treatment.

Further, Drs. Brockberg and Maude-Griffin were aware of not only the employee’s depression caused by her work injury, but also of her personal losses and related depression.  These experts maintained their opinions that the employee’s mental health conditions were treatable and would not prevent the employee from benefitting from the trial.  Dr. Maude-Griffin also opined that the employee did not need additional mental health care for the device to be successful.  Moreover, Dr. Zeller, while opining that the employee needed more mental health care first, agreed that a stimulator was necessary.  The record indicates that since the issuance of Dr. Zeller’s report, the employee underwent three more years of such care under Drs. Brockberg and Maude-Griffin, wherein they reported improvement in the employee’s symptoms.  That medical experts disagreed as to whether the employee required additional care prior to the trial was a conflict of expert medical opinion to be resolved by the compensation judge.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985); Ruether v. State of Minn., 455 N.W.2d 475, 478-79, 42 W.C.D. 1118, 1122-24 (Minn. 1990) (a compensation judge resolves conflicts in the record, chooses between competing medical opinions, and makes findings and orders based upon the evidence in the record).

We further note that Dr. Yarosh and Dr. Coetzee suggested that the proposed DRG implant would not cure the employee of her mental health conditions.  The record before the court, however, shows that the medical providers proposing the DRG implant, Dr. Cammack and Dr. Ward, believed the DRG implant, including the trial procedure, would improve the employee’s pain symptoms.  Neither doctor suggested the DRG implant was intended to treat the employee’s mental health conditions.  The records show that a SCS or DRG stimulator had been recommended since as early as fall 2019, prior to any mental health diagnoses.  Dr. Brockberg and Dr. Maude-Griffin cleared the employee, psychologically, for the DRG implant trial and they opined that the trial procedure would offer the employee an opportunity to have less pain.

The employer and insurer also argue that the DRG implant is not indicated because the employee has undergone years of physical treatment for her ankle injury without resolution in her pain symptoms or function.  The failure of the years of surgery, physical therapy, and other physical rehabilitation to reduce the employee’s chronic pain and restore the employee to greater functionality does not mean that other modalities of care cannot be pursued.  The treatment parameters make clear, stimulator implants are often treatments of last resort.^[6]

Lastly, the employer and insurer argue that the employee has unrealistic expectations of the procedure.  We disagree.  While the employee has stated that she would like to return to teaching physical education, she has not expressed the belief that the DRG implant will lead to that specific result.  Dr. Brockberg wrote in her report that, “[the employee] is not looking for the stimulator to relieve her psychological stress, but rather to reduce her chronic pain” and that the employee “hope[s] that with a reduction in pain she will be able to increase her functioning, especially her physical functioning.”  (Ex. B at 922.)  The employee also testified at the hearing that her expectation is to have less pain, which is the primary function of the DRG implant.

In this case, the compensation judge found the employee to be an appropriate candidate for the DRG implant trial.  Because substantial evidence supports the compensation judge’s award of the DRG trial, we affirm.  See Minn. Stat. § 176.421, subds. 1, 6; Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239 (Minn. 1984).

The employer and insurer appeal the compensation judge’s denial of their request to terminate the employee’s rehabilitation plan.  They argue that the employee did not cooperate or participate effectively in the rehabilitation plan, that she is not likely to benefit from further rehabilitation services, and that the employee has been steadily working at suitable gainful employment for 30 days or more.

It is clear from the record on appeal that the employee did not cooperate with her QRC in job search efforts.  She failed to complete or provide job search logs, follow through on job leads provided by the QRC, or complete suggested job applications.  Moreover, in light of her own efforts to secure two separate jobs, job placement services may not be necessary.

There is no evidence in the record that the employer and insurer attempted to modify the rehabilitation plan to terminate job placement services.  Rather, they sought to terminate the entire rehabilitation plan, including medical management.  At hearing, QRC Bunes testified that in addition to vocational rehabilitation services, she also provided the employee medical management.  She scheduled and attended the employee’s medical visits and kept all parties up to date on the employee’s medical condition, treatments, and work limitations.  Medical management is an aspect of vocational rehabilitation.  See Minn. R. 5220.0100, subp. 20.  While, as the QRC testified, medical management is typically no longer needed once the employee returns to work, it is utilized when medical care can lead to changes to the employee’s physical disabilities and work restrictions.  The employee remained a qualified employee for rehabilitation services under Minn. R. 5220.0100, subp. 22.  The purpose of rehabilitation services, including medical management, is to return the employee to suitable gainful employment.  See Minn. R. 5220.0100, subp. 34.  In this case, the employee testified that the QRC has helped her manage her various appointments and organize her medical care.  The record shows that the employee continues to receive medical care and treatment and is continuing to work with restrictions as a result of the February 1, 2018, work injury.  This evidence supports the compensation judge’s finding that terminating the rehabilitation plan would be premature.  The compensation judge’s denial of the employer and insurer’s request to terminate the employee’s rehabilitation plan is supported by substantial evidence in the record, and we affirm.