Hipppert v. Maid Pro and Auto Owners, No. WC20-6348, (W.C.C.A December 23, 2020).
The employee sustained an admitted injury to her low back while working for the employer as a housekeeper on July 26, 2010. She has continued to experience chronic low back pain and left lower extremity pain and numbness since the work injury despite conservative car
The employee treated with Dr. Thomas Rieser at Midwest Spine Institute who recommended fusion surgery at L4-5 and L5-S1. Dr. Terry Hood opined in IME from March 31, 2011 that he did not agree with sugery. He instead recommended a referral to a chronic pain clinic.
The employee entered into a settlement agreement with the employer and insurer and an Award issued in October of 2011. The settlement included a lump sum payment of $20,000.00, for a FFC settlement of future benefits, with the exception of reasonable and necessary medical treatment not expressly listed in the agreement. The settlement closed out payment for the two-level fusion surgery recommended by Dr. Rieser, as well as post-surgery care. Psychological treatment was also closed out.
By late August 2011, the employee had started treating with Dr. Sena Kihtir at United Pain Center. Following a course of unsuccessful conservative treatment, Dr. Kihtir endorsed the idea of fusion surgery with decompression, as previously recommended by Dr. Rieser. Dr. Kihtir also recommended a spinal cord stimulator (“SCS) for the employee as an alternative treatment option. The employee saw Dr. David Chang at United Pain Center on September 7, 2018, who also recommended fusion surgery.
The employee continued to receive conservative treatment, without relief. When seen by Dr. Kihtir in April 2019, the employee requested a psychological consultation for possible implantation of a SCS. Dr. Kihtir made a recommendation for a SCS for the employee’s continued complaints and provided the employee with a referral for the psychological testing.
The employee filed a medical request seeking approval of a psychological or psychiatric consultation to assess whether comorbidities were present that would preclude implantation of a spinal cord stimulator, so that she might qualify for a trial of such a stimulator and potentially its permanent implantation. At hearing, the employer and insurer waived any defense that the proposed treatment was not causally related to the work injury. They argued that a SCS was not reasonable and necessary treatment, based on the opinions of their evaluating physicians, and further argued that the employee did not meet the qualification requirements of the medical treatment parameters for a SCS.
The compensation judge found that the employee does not meet the requirements of the medical treatment parameters applicable to the implantation of a SCS under Minn. R. 5221.6200, subp. 6(C) (2019), and denied the psychological consultation that was sought in order to further qualify for and obtain that treatment. The employee appealed.
The use of a SCS for treatment of low back pain from a work injury is governed by Minn. R. 5221.6200, subp. 6(C) (2019). That rule provides that spinal cord stimulators have limited application and are indicated only if the treating health care provider has determined that a trial screening period of a spinal cord stimulator is indicated because the patient: (a) has intractable pain; (b) is not a candidate for another surgical therapy; and (c) has no untreatable major psychological or psychiatric comorbidity that would prevent the patient benefiting from this treatment.
The compensation judge found that although the employee has intractable pain, she does not meet the requirements of the rule because she is a candidate for another surgical therapy, namely the fusion surgery which has been recommended by Dr. Rieser, Dr. Chang, and Dr. Kihtir. The compensation judge reasonably concluded that where the employee, as a surgical candidate, failed to meet subpart (b) of the rule, there was no basis to order the employer and insurer to pay for a psychological consultation solely intended to determine whether she met another of the rule’s three necessary conditions, that of subpart (c).
In the workers’ compensation context, whether a patient is a surgical candidate is essentially a medical question, and hinges on whether a surgical procedure is considered to be a medically appropriate treatment option. The rule’s use of the phrase “. . . is not a candidate for another surgical therapy” does not depend on personal considerations, as opposed to medical ones, regardless of who pays for the surgery.
Ultimately, the court upheld the finding that the requested psychological treatment was appropriate denied because the Employee failed to meet prong (b) of the requirements.