Barbara Thaemert v. Honeywell Int’l, Inc., WC18-6164 (December 20, 2018).
Employee appeals from the compensation judge’s denial of claimed medical treatment on the basis that the judge relied on an IME which assumed facts in contradiction to those found by the judge and was otherwise unsupported by evidence. Vacated in part and remanded.
Barbara Thaemert (“Employee”) was an employee of Honeywell from 1977 to 1998. She suffered an admitted Gillette injury on January 29, 1993, in the form of headaches, neck, and bilateral shoulder and arm pain from assembly work connecting parts and pinching wires. In 1995, Employee was found to be at maximum medical improvement by Dr. Anderson. In December of 1995, Dr. Anderson prescribed Tylenol #3, an opioid medication, after Employee was taken off of work for a week due to an aggravation of symptoms. In June ’96 Dr. Anderson noted the meds were necessary for pain relief and sleep. In March of ’97 Dr. Anderson noted Employee could not work without the meds and that her use was decreased when not working. On January 21, Employee was switched to Oxycodone.
Employee suffered an alleged carpal tunnel injury on June 17, 1998 that took her off work completely, and from which she did not return. A July of’98 medical record notes Employee’s use of OxyContin for ongoing pain symptoms and Oxycodone for breakthrough pain.
Employee underwent carpal tunnel surgery on the right side in December 1998 and the left side in February 1999.
On December 15, 1998 (assumed typo in the record and 1999 in actuality), Employee underwent an independent medical examination (“IME”) by Dr. Joseph Teynor, who opined that Employee suffered no Gillette injury at work and the ongoing use of narcotic medication was unnecessary.
On December 17, 1999, Dr. Anderson provided a narrative letter describing Employee’s condition and history of treatment. Dr. Anderson attributed her condition to Employee’s 22 years of assembly work, increased her PPD rating, and considered her to be permanently and totally disabled. Dr. Anderson also noted the opioids were needed to allow Employee to sleep and perform ordinary activities of daily living (“ADLs”).
In March of 2000, Employee underwent a follow up with Dr. Anderson who confirmed his findings and noted the meds substantially reduced pain and increased Employee’s overall functioning.
In May of 2000, Employee underwent a second IME with Dr. Teynor who again found that Employee’s symptoms did not arise from any work injury with the employer.
On July 12, 2000, Dr. Anderson noted Employee’s opioid prescription was consistent with current medical practices and necessary.
On April 4, 2001 Dr. Olson provided a narrative discussing Employee’s condition, but not mentioning opioid treatment or chronic pain. Dr. Olson discussed permanent restriction and permanent partial disability rating dependent on EMG.
The case settled on July 19, 2001. The Award on Stipulation left open future non-chiropractic medical expenses that were not expressly closed out. All benefits were attributed to the January 29, 1993 injury, the alleged June 17, 1998 work injury was left open subject to all defenses.
In 2003, Employee maxed out her dosages for the pain management meds and was changed over to Kadian for chronic pain and morphine sulfate for breakthrough pain.
In June of 2004, Dr. Richard Hadley did a record review noting the consistency of pain complaints and opining the narcotics dosages were large and over a long period of time, which is not recommended for treatment.
In March of 2009, Dr. Anderson reviewed Employee’s pain management program and assessed ADLs to be improved by 50% through the use of pain medication. In January of 2014 Dr. Anderson performed a review again with the same finding. This time he applied MN Rx Monitoring Program risk factors, and noted urine screening consistency with prescribed meds. As part of Dr. Anderson’s regular follow-up examinations he monitored pain medication usage.
Employee’s dosage was reduced in March of 2016 due to coverage and she reported a significant reduction in functioning. In April of 2016, Dr. Anderson noted Employee’s inability to perform ADLs due to the reduction in medication.
In July of 2016 the workers’ compensation administrator further reduced the medication dosages, Dr. Anderson advocated against this but wrote out the prescriptions anyway. In October of 2016, Dr. Anderson noted the increased pain behavior and decreased functioning. Employee described herself as “bedbound” under the reduced dosage and unable to perform ADLs. Same in January, March, and October of 2017 with Dr. Anderson noting the increase in pain symptoms.
On July 21, 2017, the Employee underwent an IME with Dr. Mark Friedland who completely discounted Dr. Anderson and Employee’s accounting of Employee’s inability to perform ADLs and maintained that no such impairment was documented. Dr. Friedland opined that none of Dr. Anderson’s 10 years of treatment was reasonable, necessary, or causally related to Employee’s work injuries. Dr. Friedland described Employee’s symptoms as “highly exaggerated and nonanatomic” and stated she could work full time with a 20 pound restriction and limitations on repetitive motion. Dr. Friedland considered Tylenol sufficient for Employee’s pain management.
Employer denied payment for Dr. Anderson’s examinations and drug assessments and for the pain medications.
Lower Court’s Finding:
The compensation judge found that Employee suffered permanent work-related Gillette injuries on January 29, 1993 and June 17, 1998, Employee’s complaints of pain were credible, and that the stipulation did not close out pain medications. However, the judge also found that only one effort had been made to wean Employee off of opioid medications and none by Dr. Anderson and the amount charged for a year of medication was excessive ($14,823.31). The Judge also found that Dr. Anderson’s 1995 determination of MMi and discussion of treatment options did not support a claim for opioid medications in 2016 and 2017, and therefore denied employees claims for such and ordered payment for a wean off program. Employee appealed.
Whether Employee met her burden of proof to establish that her opioid medications were appropriate and medically reasonable and necessary.
Employee presented evidence of ongoing pain symptoms and the effect of opioid medication on those symptoms. She also presented evidence of the reduction in function of ADL’s on decreased dosages. The compensation judge found employee to be credible. Despite this, the compensation judge cited to a lack of referral to another provider, the duration of the employee’s use of the medication, and the cost of that medication, and found the medical treatment unreasonable and denied the claim.
Substantial evidence to support a decision can ultimately rest on a well-founded medical opinion. The compensation judge’s choice of expert will be upheld on appeal, except where the facts assumed by the expert in arriving at that opinion are not supported by the record. An expert medical opinion is not competent if it is based on assumptions that lack a factual basis or if it materially relies on facts contrary to those found by the compensation judge.
(Foundation irrelevant in that Employee raised no objection to the introduction of the “bad” IME”
The compensation judge relied on the opinion of Dr. Friedland in concluding that the opioid medication prescribed was not reasonable and necessary or causally related to the work injuries. Dr. Friedland’s opinion expressly relies on a purported lack of a causal relationship between the employee’s complaints and the work injuries, on his belief that the employee engaged in symptom magnification about her pain, and on a lack of documentation of negative effects from reduction in the employee’s dosage, to conclude that the medication regimen was unreasonable. All of these points are contradicted either by the compensation judge’s findings of fact or by uncontroverted evidence from the employee’s medical records.
The compensation judge’s unappealed finding that the employee’s complaints of pain and symptoms were credible cannot be reconciled with Dr. Friedland’s opinion concluding that the employee’s complaints of pain were “highly exaggerated” and required no meaningful treatment. Furthermore, Dr. Friedland’s assertion of a lack of documentation of negative effects from dosage reduction in the employee’s medical record is contradicted by every chart note by the employee’s treating physician from March 14, 2016, onward. Therefore, Dr. Friedland’s opinion has no foundational support given the factual findings of the compensation judge. Court concludes Dr. Friedland’s opinion relied on facts contrary to those found by the compensation judge.
The court also reviewed whether the factors relied on by the compensation judge to assess reasonableness had substantial support.
The compensation judge noted the lack of any referral to another medical provider to explore an alternative means of alleviating the employee’s chronic pain. However, the parties closed out such alternative forms of treatment. In essence, the parties bargained away this aspect of possible future treatment. As such, the lack of a referral is not an appropriate basis for finding the treatment to be unreasonable.
The compensation judge found the employee’s daily use of opioid medication only provides pain relief for a limited period of time until the next dose is required. From this the judge concluded the employee was receiving pain relief “on an extremely temporary basis.” The appellate judges found that the employee’s daily medication regimen was standard treatment and that the record lacked any medical opinion to the contrary.
An employer and insurer who contest liability for the treatment sought due to resolution of the condition cannot simultaneously assert treatment parameters to limit payment for that treatment.
The compensation judge considered the treatment cost for one year unreasonable, in part, because the employee had been prescribed opioid medication for 25 years. No evidence in the record suggests the employee was ever free from her chronic pain. The Employee’s treating physician monitored the dosage of the opioid medication prescribed and periodically adjusted the employee’s medication and dosages as appropriate. Because the employee’s condition was found to be chronic and permanent, the duration of the employee’s need for pain control does not by itself provide a basis for the denial of compensability. The treatment parameters 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.
The language in the stipulation specifically closed out all formal chronic pain clinic programs. Employee’s long-term levels of medication were reduced at the direction of the workers’ compensation administrator beginning in early 2016. The employee’s medical record reveals that when medication levels were reduced, the employee reported increases in pain symptoms and a reduced ability to perform ADLs. The evidence is contrary to the compensation judge’s finding that no effort to wean the employee from the medication occurred. Therefor, this factor is not an appropriate basis to find the medication unreasonable.
The compensation judge also relied on the cost of the employee’s medication in finding that medication unreasonable. The cost of the medication is not, by itself, a basis for finding a claimed benefit to be unreasonable. The compensation judge did not provide any comparisons, facts, or information to explain how or why this amount exceeds the usual cost of such medication. It was therefore concluded that the compensation judge’s finding that the opioid medication was unreasonable based on cost was not supported by substantial evidence in the record.
Without an explanation for the compensation judge’s finding as to the limited relief obtained from opioid medication to address the employee’s pain symptoms, the court could not assess whether substantial evidence in the record supports the result. The compensation judge made unappealed findings determining the employee’s work injuries were permanent, based on the medical evidence in the record and the employee’s credible testimony of ongoing chronic pain. Each workers’ compensation case must be assessed on its individual merits, not dominated by unrelated issues affecting others who are not parties to the proceeding. As chronic pain treatment using opioid medication is allowable under the statute, rules, and case law, the compensation judge must assess the evidence in the record by the appropriate standard.
The compensation judge relied on an expert medical opinion that was based on material facts contrary to those found by the compensation judge as well as factors unsupported by the evidence in the record. The denial of the claimed benefits was therefore vacated. The matter was remanded to the compensation judge for reconsideration of the employee’s claims, applying the appropriate standard of reasonableness and the law of the case established through the unappealed findings of an employee’s credible complaints of chronic pain caused by work injuries.