Employer and Insurer maintained that Employee’s Suboxone prescription was closed out during the parties’ 2006 settlement, and classified as “outpatient chemical dependency treatment.” They alternatively contended that the award for the Suboxone prescription was precluded by Minn. R. 5221.4070, subp.1, because there was a generic alternative to the prescription. Since the 2006 settlement was ambiguous and reasonably interpreted to exclude prescriptions from the forms of chemical dependency treatment that were closed out, and the record contained substantial evidence to support the compensation judge’s determination on the treatment parameter defense, the Court affirmed the decision.
Employee, Sharon Sobczak suffered a prior lumbar injury on April 23, 1985 while working for another employer. She underwent unsuccessful conservative treatment that culminated in a laminectomy in 1987. Although her side effects from this injury persisted, she took a job with Employer, Walmart Stores, Inc. On March 28, 1997, she suffered another lumbar injury while with Employer. The Findings and Order dated February 12, 2002 indicated that her 1997 injury was a substantial permanent aggravation of her pre-existing low back condition.
In 2001, Employee underwent an L4-5 fusion surgery. She claimed that the 1997 injury caused her to be permanently and totally disabled. She ultimately received $95,000.00 as a result of a 2006 full, final, and complete settlement that closed out certain specified medical benefits. The settlement provision closing out medical benefits read as follows:
Employee after consultation with her attorney, agrees to waive and to close-out any future claims for the following specific types of medical benefits: Passive care as defined by the treatment parameters of any nature or by any variety of provider specifically including but not limited to . . . inpatient or outpatient chemical dependency treatment; in-patient or out-patient chronic pain management programs; . . . psychological or psychiatric counseling, treatment, or prescriptions of any sort; . . .
Employee used opioid medication for 20 years to treat her injuries, and became dependent on the opioid medication. Employer and Insurer paid for Employee’s treatment at the Hazelden Betty Ford clinic to taper her opioid use. Provider Lisa Vollmer, MD, prescribed Suboxone, and later, a generic alternative, buprenorphine and naloxone (buprenorphine) to relieve her opioid cravings. She tried this generic alternative, but experienced withdrawal symptoms better controlled by Suboxone. As this was such, Dr. Vollmer renewed the Suboxone prescription.
Employer and Insurer stopped paying for Hazelden on March 17, 2020 and denied payment for Suboxone and buprenorphine as further use of opioid medications was no longer considered appropriate under Minn. R. 5221.6110. Employer authorized one last Suboxone prescription on August 5, 2020 and also indicated that they would only approve generic medications during her “taper” period.
As Employee’s low back condition worsened, she underwent an L3-4 decompression and fusion surgery on September 14, 2020. She then filed a medical request, seeking payment for surgery, injections and a Suboxone prescription.
The matter was heard on November 9, 2020. The issues were whether the L3-4 decompression and fusion surgery was reasonable, necessary and causally related to her 1997 work injury, whether the surgery violated Minn. R. 5221.6500, subp. 2C; whether the intervenors’ claims were reasonable, necessary, and causally related to her work injury; and whether the claimed Suboxone prescription was closed out by the prior stipulation, and if it was not, is a generic alternative reasonable and necessary under the treatment parameter in Minn. R. 5221.4070, subp. 1. The compensation judge awarded payment for surgery, some of the intervenors’ claims, and the Suboxone prescription. Employer and Insurer appealed the Suboxone award.
Decision / Takeaways:
Employer and Insurer alleged that the compensation judge erred in concluding that Suboxone was not closed out in 2006 as part of the original settlement. They also alleged that the treatment parameters required that the generic medication be substituted; therefore, the Suboxone award was made in error.
The Court agreed with the compensation judge’s findings that the settlement language that closed out “chemical dependency treatment” was ambiguous and implied a close out of a treatment program, not prescriptions. The 2006 settlement expressly closed out prescription medication for psychological and psychiatric treatment (as they agreed to close out inpatient/outpatient chemical dependency treatment), but the language did not extend to prescription medications that addressed symptoms that arose from the effects of chemical dependency.
Employer and Insurer indicated that the treatment parameters for prescription medications, as outlined in Minn. R. 5221. 4070, incorporates Minn. Stat. § 151.21 (requiring substitution of a less expensive generic equivalent, where available). The requirement does not apply when the prescriber has indicated “dispense as written” for the medication (see Minn. Stat § 151.21, subds. 2 and 3). Employer and Insurer alleged that Employee did not introduce the written Suboxone prescriptions as evidence, so the compensation judge erred in awarding payment for it.
The compensation judge noted that neither party introduced the actual prescription into evidence, and instead relied on Employee’s testimony and medical records that Suboxone fell within the treatment parameters and awarded payment based on that finding. The Court agreed that there was in fact, substantial evidence to support the compensation judge’s finding that the Suboxone prescription was to be prescribed and dispensed as written. Employee’s record of withdrawal symptoms and side effects from the generic medication, along with Dr. Vollmer’s agreement to change Employee’s medication back to the Suboxone supported a “reasonable inference” that the Suboxone was to be prescribed and dispensed as written.
Also, Insurer’s claims adjuster noted that “substitution was not allowed by the provider” for the April 22, 2020 Suboxone prescription. (Of note, this was not mentioned by the compensation judge)
As there was supporting evidence to support the compensation judge’s finding that Suboxone fell within the treatment parameters, the Court affirmed this award too.