Rochel v. Schwan’s Home Serv., et al.

Rochel v. Schwan’s Home Serv., et al., No. WC15-5884 (WCCA May 20, 2016)

The employee in this matter appealed a compensation judge’s determination that a 2014 Stipulation and Award closed out ongoing prescription expenses for continuing pain following a July 23, 2010 work injury. The employee suffered a fractured ankle and had three surgeries in 2011, 2012, and 2013. Fusion surgery was recommended following diagnoses of chronic pain and ankle fragmentation post use of cadaver bone; she declined the fusion and began complaining of low back pain related to the injury.

She was prescribed Vicodin on a regular basis following the failed surgeries and was evaluated by Phoenix Center Pain Services, which offers an interdisciplinary approach to chronic pain management, in April 2014. In June 2014, the employer filed a medical request to discontinue payment of narcotic medication and the employee prevailed. In September 2014, the parties entered a stipulation which explicitly closed out a list of modalities, including treatment at Medical Advanced Pain Specialists. There was no mention of pain medication or narcotic medication in the list of modalities that were closed out. The settlement left open pain clinic treatment while the employee attended Phoenix Chronic Pain Center, but stated, “after the conclusion of the Phoenix Chronic Pain Center program in which the employee is presently enrolled is complete, any and all future chronic pain treatment is closed.” Future medical care not otherwise foreclosed was left open.

The employee never enrolled in the Phoenix Chronic Pain Center Program because she was unwilling to complete a required lengthy inpatient period.

She was examined in December 2014 by Dr. Alfred Anderson of Realief Medical Clinic on referral from Dr. Monsein of the Phoenix Center and was prescribed Oxycontin and Oxycodone, with opioids noted to be used for the employee’s chronic pain. Dr. Anderson submitted bills for the required examination and screenings for continued opioid prescriptions, and the employer denied payment under the 2014 Stipulation and Award. The employee filed a medical request and the compensation judge denied the claim because “the settlement unambiguously closed out chronic pain treatment”.

The employee appealed to the Workers’ Compensation Court of Appeals which noted the standard on appeal is whether the compensation judge’s determination is supported by substantial evidence; findings of fact are to be upheld unless clearly erroneous. The employee stated the stipulation was ambiguous and that the compensation judge erred in finding opioids were unambiguously closed out. The employee argued that purely palliative care like receiving ongoing pain medication from Dr. Anderson was not intended to be closed out the stipulation unlike the type of care at Phoenix Center.

The Court of Appeals found that in workers’ compensation practice, “chronic pain treatment” describes an interdisciplinary approach to intractable pain which is specifically designed to manage pain without the lengthy use of opioids. It reasoned that the use of the word “all” in conjunction with “chronic pain treatment” in the stipulation could reasonably extend to treatment beyond an interdisciplinary pain program; nonetheless, the finding that the language was unambiguous was reversed.

The Court of Appeals then interpreted the settlement against the self-insured employer who drafted it, finding that the verbiage suggested a close out of chronic pain treatment programs, not opioid pain medication. The court further noted that the employee did not intend to close out all care for her ongoing chronic pain arising from the 2010 work injury and revised the compensation judge’s findings resulting in denial of reimbursement.