McKeever v. Cub Foods, et. al.

McKeever v. Cub Foods, et. al.,  No. WC22-6499 (W.C.C.A. August 8, 2023).

The employee, Barbara McKeever, suffered an injury to her low back on May 7, 2010, while working for the employer, Cub Foods.  Since the injury, the employee has undergone several surgeries including an L5-S1 decompression discectomy, a second disc herniation excision, a fusion at L5-S1, a hardware removal procedure, a spinal cord stimulator implant, and a revision surgery to repair loose stimulator leads.  She also participated in physical therapy, pain management programs, and received injections, in addition to being prescribed various medications to attempt to reduce her symptoms. In 2014, following the sixth surgery, the employee was diagnosed with chronic regional pain syndrome (CRPS) affecting her left leg. 

Conservative treatment was undertaken, including biofeedback, pool therapy, and physical therapy.  When these treatments were unsuccessful, she was treated with sympathetic block injections to address her high levels of pain.  The injections provided significant, temporary relief.

On June 12, 2018, following a hearing addressing the nature, extent, and causation of the employee’s work injury, as well as disputes over treatment, a compensation judge found that the employee developed CRPS as a result of the May 7, 2010, work injury.

Dr. Hess noted that the employee’s signs and symptoms of CRPS included vascular instability, allodynia, temperature changes, discoloration, mottling, and decreased sensation.  Dr. Hess described the employee’s pain as “very difficult to treat,” and reported that all other sources to treat the employee’s symptoms, particularly her pain, had been exhausted and that the sympathetic block injection therapy provided enough relief to minimize her opioid use and her emergency room visits.

The employee was examined by Paul C. Biewen, M.D. on January 11, 2021, at the request of the employer and insurer.  In his report issued January 14, 2021, Dr. Biewen opined that the employee had failed back surgery syndrome and chronic low back and left leg pain as a result of the May 7, 2010, work injury.  He further opined that she had subjective pain without objective findings and of an unknown etiology involving her other three extremities.  Dr. Biewen also opined that the injection therapy was not reasonable nor necessary because she received symptomatic relief typically for only one to two months.  Following this report, the employer and insurer discontinued paying for sympathetic block injections. 

On December 1, 2021, Dr. Hess reported that the employee’s last injection was on September 22, 2020, that there had been a delay due to workers’ compensation issues, and that he believed that the injections should be approved as they are used “carefully and judiciously.” Despite the denial by the employer and insurer, an injection was provided that day.  On December 22, 2021, the employee reported very good relief from the injection. Dr. Hess opined that the injections successfully allowed the employee to reduce her pain and increase her functioning, allowed her to remain working, and while the injections were outside the treatment parameters, the therapy was reasonable and medically necessary because it improved the employee’s quality of life and her daily functioning.

The employee filed a claim petition and the matter was heard before a compensation judge on September 9, 2022. On November 4, 2022, the compensation judge issued his findings and orders concluding that the sympathetic block injection therapy was reasonable and necessary and was payable under the “rare case exception” to the treatment parameters.

The “rare case exception” was first identified by the supreme court in Jacka v. Coca-Cola Bottling Co., 580 N.W.2d 27, 58 W.C.D. 395 (Minn. 1998).  In Jacka, the court determined that, although the treatment parameters were valid under the Workers’ Compensation Act, a compensation judge may depart from the rules contained in the parameters in “those rare cases in which departure is necessary for the employee to obtain proper treatment.”  Id. at 35-36. The Court also analyzed prior decisions in Asti and Darchuks.

In determining whether a “rare case exception” was proven in Jacka, Asti, and Darchuks, the supreme court considered the employee’s ability to return to work, which is a significant goal of the workers’ compensation system.  Here, the employee was able to seek out and return to employment within her work restrictions with the aid of the injections, despite being assessed as permanently and totally disabled by Dr. Hess.

The Darchuks court also identified reducing dependency on narcotics as a factor in assessing a “rare case exception.”  In this case, Dr. Hess noted one of the goals of the sympathetic block injection therapy was to reduce the employee’s reliance on narcotics.  By November 30, 2020, the employee began reducing the amount of Oxycontin intake by another 10 mg per day.

The WCCA affirmed the compensation judge’s decision and concluded that the compensation judge did not err in applying the “rare case exception” to the treatment parameters.