The Employee suffered an admitted Gillette injury to her neck in 2004. The Employee received physical therapy and medial branch blocks, then began receiving facet joint injections approximately every three months from 2013 onward. She initially described significant benefits from these procedures, both in reduced pain and increased functionality.
In 2017, Dr. Gedan performed an IME at the request of the Employer and Insurer and concluded that the Employee’s facet joint injections were not reasonable or necessary. After receiving the IME report, the employee underwent another medial branch block procedure on April 25, 2018. The employee did not obtain any pain relief from that procedure. The Employer and Insurer denied payment for the procedure, and the Employee filed a request for hearing.
The judge held the facet joint injections were not reasonable and necessary as they exceeded the treatment parameters and the employee did not demonstrate progressive improvement in her condition to support a departure from the treatment parameters. The judge did not consider the employee’s claim under the rare case exception.
On appeal, the employee argued that the finding that facet joint injections were not reasonable and necessary treatment is not based on substantial evidence.
Minn. R. 5221.6205, subp. 5 governs therapeutic injections for neck pain. Subpart 5.A.(2)(c) limits facet joint injections to three discrete injections to any one site. The Employee had received over 20 injections at one site.
The judge did not consider the rare case exception to the treatment parameters under Jacka v. Coca-Cola which holds that a compensation judge may depart from the rules in those rare cases in which departure is necessary to obtain proper treatment. The court found that the compensation judge should have considered whether the rare case exception applies to permit a departure from the treatment parameters for the employee’s injections, and failure to do so was an error of law.
Judge Stofferahn dissented, arguing that the Employee failed to meet her burden of proof in establishing her claim that the facet joint injections she had received on a regular basis since 2008 and which had provided only temporary pain relief were reasonable and necessary. The Employee clearly went outside the treatment parameters of 3 injections at one site. Departure from treatment parameters is warranted if 2/3 are met: 1. Progressive improvement in subjective pain; 2. Progressive improvement in objective findings; 3. Progressive improvement in functional status.
In a decision dated April 28, 2021, the Supreme Court found the WCCA committed two errors in reversing the compensation judge’s decision. First, they found the WCCA must give due weight to the compensation judge’s decision and that the judge’s findings that the employee was not entitled to the ongoing facet injections was supported by the substantial weight of the evidence.
Second, the Supreme Court reversed the WCCA who had found it was in error for the compensation judge to not consider the rare case exception. The Supreme Court said issues raised on appeal for the first time are barred on appeal.
Takeaway: If treatment does not comply with the treatment parameters it’s on the employee to prove why it is reasonable and necessary, otherwise the compensation judge’s opinions will not be disturbed.