Warhol v. COREXPO, Inc, et al.

Warhol  v. COREXPO, Inc, et al., No. WC26373 (W.C.C.A. April 28, 2021)

The Employee worked as a laborer, carpet room supervisor, and warehouse operations manager. On November 1, 2002, the Employee experienced pain in his neck and lower back while pulling a pallet jack over an obstacle. Imaging revealed central annular tears and bulging at C5-6 and C6-7.  He eventually underwent a cervical disc replacement surgery in 2012 performed by Dr. Nagib at C6-7. In 2016, he underwent a one level fusion at C6-7. Berkley was the insurer on November 1, 2002.

The Employee experienced chronic pain since the date of injury. He was seen at a pain clinic in 2005. Medication and injections did not reduce the pain, so in 2016, his surgeon certified the Employee for medical cannabis. The Employee reported this was helpful in controlling his pain. The Employee could not afford the program, so he discontinued the use of medical cannabis. In April of 2019, the Employee was certified for intractable pain, and was again eligible for medical cannabis.

In 2018, the Employee was diagnosed with reflux esophagitis and reactive gastropathy due to the use of NSAIDs. It was noted that the used of medical cannabis reduced the Employee’s NSAIDs daily intake.

In January of 2019, the Employee was referred to for psychological treatment to address the Employee’s depression. He had been feeling depressed for about a year due to pain impacting his work and personal life. He began treating with Mike Driscoll a licensed psychologist, for depressed anxious mood secondary to a workplace neck injury in 2002. He continued treating for his psychological symptoms.

On March 5, 2019, the Employee experienced increased neck pain after a long shift at work. He claimed a separate injury to his neck on that date. On March 12, 2019, the Employee was seen by his surgeon who noted total restriction of neck motion, severe left side radiculopathy, and an inability to walk or stand for any length of time due to the resulting pain. He eventually underwent a second one-level fusion at C5-6 performed by Dr. Nagib, the same surgeon who performed the first fusion. Travelers was the insurer at the time of the March 5, 2019 injury. They denied the claim.

On August 14, 2019, the Employee underwent an IME by Dr. Thomas Reiser on behalf of Travelers. He determined the Employee did not suffer a work injury on March 5, 2019, but rather a natural progression from the 2002 work injury and a degenerative condition of the Employee’s spine. He also opined the Employee’s use of medical marijuana to address the Employee’s chronic pain was appropriate.

On October 21, 2019, the Employee underwent an IME by Dr. Rick Davis, on behalf of Berkley. Dr. Davis concluded the Employee suffered a temporary cervical and lumbar strains in 2002 and that there was no work injury suffered on March 5, 2019. He attributed the Employee’s condition to pre-existing degeneration and underlying cervical spondylosis unrelated to any work injury.

On February 12, 2020, Dr./ David supplemented his report, noting that the gastrointestinal problems could arise from the use of NSAIDs, but he attributed the Employee’s problems to his alcohol and smoking use. He noted a “lack of general consensus to support the use of medical cannabis,” to address pain from degenerative post-surgical spine conditions, and disputed whether the employee suffered from intractable pain and concluded medical cannabis was no reasonable or necessary to treat the Employee’s condition.

Based upon Dr. Davis’ IME report, Berkley, the insurer at the time of the 2002 injury, accepted liability for some of the employee’s benefits, while disputing others.

The Employee filed a Claim Petition on April 19, 2019, seeking payment for medical care and claiming a consequential psychological injury. Authorizations were signed by the Employee, but excluded release of mental health records. A hearing was set for February 13, 2020. On February 7, 2020, Berkley requested signed authorizations from the Employee to include mental health records. The hearing was postponed and Berkley scheduled and IPE. The Employee objected to the IPE on the grounds it exceeded the 120-day deadline. Berkley moved to extend the deadline, and the Employee opposed the motion, asserting failure of diligence. On March 11, 2020, the issue of the motion was heard, and the compensation judge denied the motion.

On July 1, 2020, the matter was heard before the compensation judge. There were 11 issues before the court including 1) reasonableness and necessity of the intervenors’ claims to treat the employee’s 2002 work injury; 2) use of medical cannabis as treatment for the Employee’s 2002 work injury; 7) jurisdiction to determine whether claim for medical cannabis is federally preempted; 8) causal relation of the employee’s proposed therapy at the Associated Clinic of Psychology to his 2002 work injury.

On August 25, 2020, the Findings and Order was issued. The compensation judge determined the medical treatment was reasonable, necessary, and causally related to addressing the effects of the November 1, 2002 work injury, medical cannabis was reasonable and necessary and causally related to the November 1, 2002 work injury, there was no jurisdiction to consider federal preemption of the medical cannabis, and psychological treatment was reasonable and necessary and causally related to address the effects of the November 1, 2002 work injury.

The Employer and Berkley filed an appeal on four issues; 1) the compensation judge erred by denying their request for an IPE based upon Minn. Stat. 176.155. The WCCA affirmed the compensation judge’s decision holding that the complexity of the medical issues may constitute good cause for an extension, there was no explanation to the compensation judge or in the record of the appeal for the significant delay in the Employer and Insurer request for signed medical authorizations or the schedule the IPE. Further, the Employee disclosed his psychological care during his deposition in July of 12019 and the Employer and Insurer did not act diligently and instead failed to request unredacted medical records for over seven months.

Second, the Employer and Insurer argued there was no substantial evidence to support the judge’s determination that the Employee’s need of psychological treatment was the result of the November `1, 2002 work injury. The employer and insurer argued there was insufficient expert psychological opinions to support a determination of causation. The Employee presented psychological treatment records which indicated the Employee’s need for treatment arose out of the effects of the work injury.

The WCCA determined that since the Employee continues to suffered the effects of his physical injury and that his ability work remains impaired, the explicit medial or psychological opinion that psychological effects arose out of the employee’s work injury is not required. The compensation judge can determine compensability through assessment of the medical records and witness credibility regarding the source of the psychological injury. The Employer and Insurer argued that a narrative report is required when medical causation is complicated. The WCCA disagreed with this. The record contained multiple references to the Employee’s work injury, resulting chronic pain, and ongoing physical limitations related to the Employees need for psychological care. From the evidence, it was reasonable for the compensation judge to conclude the Employee’s need or psychological treatment arose out of the effects of the November 1, 2002 injury.

Third, the Employer and Insurer argued the Employee’s gastroesophageal treatment was not supported by substantial evidence regarding causation. The WCCA once again disagreed. They determined the record did provide substantial evidence supporting the compensation judge’s determination.

Finally, the Employer and Insurer argued that the award of medical cannabis is not supported by substantial evidence. Once again the WCCA determined the Employee’s medical records contain numerous references to the Employee’s report of pain relief obtained through medical marijuana, the elimination of opioid medications as a modality of pain relief, and the reduction of NSAIDs for pain elimination of pain relief. The Employee also testified the benefits he experiences using medical marijuana, and Dr. Reiser (the IME physician for Travelers) provided a medical opinion that the Employee’s ongoing use of medical marijuana was appropriate treatment. This constitutes substantial evidence supporting the compensation judge’s decision.

The Employer and Insurer also argued the claim for medical marijuana was preempted by the Controlled Substance Act. However, the compensation judge did not consider the claims regarding preemption. The Employer and Insurer argue that because medical care is part of the workers’ compensation act, that any issue, even the issue of federal preemption that deals with medical care, is within the jurisdiction of the workers’ compensation courts. They further argued that if there is no jurisdiction for this issue, then no medical marijuana benefits can be awarded. The WCCA determine this argument does not recognize the limitation jurisdiction of the workers’ compensation courts. The WCCA determined the compensation judge did not err in refusing to consider the federal preemption defenses as there are issues that must await the opportunity to be presents to a court with the authority to grant the requested relief. The award of medical marijuana was confirmed.

Takeaway: 1) Request medical records in a timely manner 2) request an IME or an extension in good faith. 2) compensation judges may award medical marijuana even if they are not able to rule on the issue of preemption.