Margaret Leuthard, Respondent, vs. Independent School District 912 – Milaca and Berkley Risk Administrator, Relators.
A20-0893
STATE OF MINNESOTA IN SUPREME COURT
Filed: April 28, 2021
Moore, III, J.
Workers’ Compensation Court of Appeals
Timothy P. Jung, Molly de la Vega, João C.J.G. de Medeiros, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, Minnesota, for relators.
S Y L L A B U S
- Substantial evidence in the record supports the decision of the compensation judge that the employee‘s medical treatment exceeded the treatment parameters and was therefore not reasonable and necessary.
- The Workers’ Compensation Court of Appeals erred in directing the compensation judge to address whether the employee‘s claim presented a rare exception to
the treatment parameters promulgated by the Department of Labor & Industry when the employee raised that claim for the first time on appeal.
Reversed.
O P I N I O N
MOORE, III, J.
This case asks us to decide whether the rare case exception to the treatment parameters for compensable, work-related injuries, see Jacka v. Coca-Cola Bottling Co., 580 N.W.2d 27, 35–36 (Minn. 1998), can be raised for the first time on appeal. We must also decide whether the Workers’ Compensation Court of Appeals (WCCA) erred in vacating factual findings made by the workers’ compensation judge regarding the reasonableness and necessity of the employee‘s medical treatment. Because we conclude that the WCCA erred in vacating the workers’ compensation judge‘s factual findings and that the WCCA erred in directing the compensation judge to consider whether the employee‘s case presented rare circumstances warranting an exception from the treatment parameters, we reverse the decision of the WCCA and reinstate the decision of the compensation judge.
FACTS
Respondent Margaret Leuthard was hired by relator Independent School District No. 912 (ISD 912) to be a school cafeteria dishwasher. After a year of employment, Leuthard began feeling pain in her neck and reported difficulty looking upward. A medical consultation determined that the repetitive stress of her job had culminated in a Gillette-style injury to her neck and upper spine. Gillette v. Harold, Inc., 101 N.W.2d 200, 206–07 (Minn. 1960) (explaining that covered workers’ compensation injuries are not exclusively injuries attributable to a single incident, but may also be repetitive stress injuries).1
For the next four years, Leuthard underwent multiple diagnostic efforts, including many MRIs, and tried various treatments to resolve her pain and heal the underlying injury. She received multiple courses of physical therapy and was prescribed medication for pain management. These treatments provided little to no long-term relief for Leuthard‘s pain.
In July 2008, after the other treatments failed, Leuthard was evaluated by Dr. Steven Sabers to determine whether her pain was centered in her facet joints or disc mediated.2 To complete his diagnosis, Sabers administered facet joint injections between Leuthard‘s C5, C6, and C7 vertebrae. If the injections successfully blocked Leuthard‘s pain, the facet joints were the cause of her pain.3 If the injections were unsuccessful, Leuthard‘s pain was attributable to her spinal discs. These injections provided partial, short-lived pain relief and no clear answer as to the underlying source of her pain.
But because Leuthard had some temporary pain relief from the facet joint injections, Sabers began administering quarterly injections to her for the next eight years. The degree and duration of relief provided by these injections varied: some provided up to three months of relief, while the relief from others lasted only a week. Leuthard continued to use prescribed pain medication throughout the injection treatments.
In September 2017, Dr. Joel Gedan conducted an independent medical exam at the request of ISD 912 and its insurer. See
Leuthard returned to Sabers for further examination in February 2018, after she experienced decreased sensation in her extremities and a grinding sensation in her neck. He ordered an MRI and performed more medial branch blocks. The MRI showed no changes in Leuthard‘s condition and the medial branch blocks were again unsuccessful. The next report by Sabers acknowledged that facet joint injections are a less than ideal solution for managing Leuthard‘s pain, but were the only treatment that had significant and reproducible pain relief. He continued to administer quarterly injections to Leuthard until April 2019.
Meanwhile, Leuthard filed a request with the Department of Labor & Industry for authorization of and payment for additional facet joint injections. The Department denied the request based on Gedan‘s report and ISD 912 stopped paying for the injections.
The compensation judge found Leuthard‘s testimony credible. But based on the preponderance of the evidence, the compensation judge determined that ongoing facet joint injections do not meet the applicable treatment parameter and Leuthard had not met the burden to show that a departure from the parameter‘s 3-injection limit was warranted, see
Leuthard appealed to the WCCA, asserting in the Notice of Appeal that the compensation judge committed unspecified errors of law and fact. She then filed her brief in the case where, in addition to arguing that the compensation judge‘s decision was clearly
The WCCA reversed in a 2-1 decision. Leuthard v. Indep. Sch. Dist. 912, No. WC19-6290, 2020 WL 3073339 (Minn. WCCA May 26, 2020). The WCCA agreed that Leuthard is not entitled to a departure from the facet joint injection treatment parameter under the criteria set out in
ISD 912 sought review of the WCCA‘s decision by writ of certiorari.
ANALYSIS
The Workers’ Compensation Act requires an employer to “furnish any medical . . . treatment [to an employee] . . . as may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury.”
ISD 912 argues that the WCCA committed two errors in reviewing the compensation judge‘s decision. First, the school district asserts that the WCCA erred in vacating the compensation judge‘s factual findings regarding the reasonableness and necessity of Leuthard‘s continued facet joint injections. Second, the school district contends that the WCCA erred in remanding the case for consideration of whether Leuthard‘s circumstances present a rare exception to the treatment parameters when Leuthard raised that issue for the first time on appeal.
Our standard of review on these issues is well established. As to questions of fact, we will reverse the WCCA if we conclude that the court clearly and manifestly erred by rejecting findings supported by substantial evidence. Gibberd v. Control Data Corp., 424 N.W.2d 776, 779 (Minn. 1988). We review questions of law de novo. Johnson v. Darchuks Fabrication, Inc., 926 N.W.2d 414, 419 (Minn. 2019).
I.
We begin with the compensation judge‘s determination that continued facet joint injections are not reasonable and necessary. The WCCA concluded the findings supporting this decision were not supported by substantial evidence in the record, vacated them, and remanded for additional findings.
When reviewing a compensation judge‘s decision, the WCCA is required to defer to the compensation judge‘s findings of fact unless those findings are unsupported “by substantial evidence in view of the entire record as submitted.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59 (Minn. 1984). The compensation judge‘s findings should be upheld if “they are supported by evidence that a reasonable mind might accept as adequate.” Id. “In applying this standard, the [WCCA] looks not only at the evidence which supports the compensation judge‘s findings, but also at the opposing evidence and the evidence from which conflicting inferences might be drawn.” Id. “[W]here the evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld.” Id. at 60.
The factual question presented here—are quarterly injections reasonable and necessary to treat the pain resulting from Leuthard‘s work-related injury—must be considered within the framework of the relevant treatment parameters. The Department of Labor & Industry has adopted standards—parameters—that set forth the reasonably required medical treatment for compensable, work-related injuries. Johnson, 926 N.W.2d at 418; see
The facet joint injections Leuthard has received are a form of therapeutic treatment.
It is undisputed that Leuthard received over twenty facet joint injections between 2008 and 2019. Based on the evidence in the record from medical providers, the compensation judge found Leuthard‘s “response” to the injections was “variable” and several of the injections “have not resulted in significant or lasting pain relief.” Further, Leuthard‘s “subjective symptoms have worsened over time,” and she continues to manage the pain with medications. No evidence suggested that Leuthard‘s objective clinical findings were improving, nor did the more recent MRI scans show changes from prior
The WCCA acknowledged that Leuthard‘s quarterly injections had “exceeded” the limit established by the treatment parameters and agreed with the compensation judge that she “did not meet the required criteria for a departure from the treatment parameters to apply.” Leuthard, 2020 WL 3073339, at *4.8 But the WCCA concluded that the compensation judge‘s decision was unsupported by substantial evidence because the judge found Leuthard‘s testimony credible while also noting Leuthard‘s testimony that the injections helped her be more functional in some daily activities. Id. at *5. Additionally, the WCCA noted that Gedan‘s report from the independent medical exam did not “address the reasonableness of continuing facet joint injections” given that the medial branch blocks “failed to provide relief.” Id.
ISD 912 argues the WCCA erred for two reasons. First, the school district asserts that the WCCA misunderstood the compensation judge‘s findings regarding Gedan‘s
The WCCA must “give due weight to the compensation judge‘s opportunity to judge the credibility of the witnesses” and affirm findings supported by substantial evidence, even if “based on conflicting evidence or evidence from which more than one inference might reasonably be drawn.” Even v. Kraft, Inc., 445 N.W.2d 831, 834 (Minn. 1989). The WCCA cannot evaluate the probative value of evidence to draw a different inference from the facts. Pelowski v. K-Mart Corp., 627 N.W.2d 89, 93–94 (Minn. 2001) (affirming a decision to deny medical treatment that did not comply with parameters, which was based on “inconsistencies” in the employee‘s testimony, the medical records, and the independent medical exam).
We conclude that the compensation judge‘s findings and decision were based on substantially more than just Gedan‘s opinion and conclusions. Further, we see no
II.
The WCCA also concluded that the compensation judge erred as a matter of law in failing to consider whether Leuthard‘s case presents a rare exception to the treatment parameters. In light of evidence showing that facet joint injections relieved Leuthard‘s credible complaints of pain, and because Gedan “did not know that medial branch blocks had already been tried but had proven ineffective,” the WCCA concluded that the compensation judge should have considered whether this is a rare case that warrants an exception to the treatment limits imposed by the parameters. Leuthard, 2020 WL 3073339, at *4.
First, the Department of Labor & Industry has established criteria on which a departure from parameters that limit the duration or type of treatment can be based.
We first mentioned what has become known as the rare case exception in Jacka v. Coca-Cola Bottling Co. 580 N.W.2d at 35–36. There, we were asked to address, among other issues, how compensation judges should apply the treatment parameters. Id. at 35. After explaining the “variability and flexibility” built into the parameters alongside “a large measure of uniformity and certainty as to compensable treatment,” we noted that the parameters “cannot anticipate every exceptional circumstance.” Id. Thus, we recognized there may be “rare cases” where a compensation judge can deviate from the treatment parameters when “departure is necessary to obtain proper treatment.” Id. at 35–36; see Asti v. Nw. Airlines, 588 N.W.2d 737, 740 (Minn. 1999) (explaining that the treatment parameters do not “consider[] every possible scenario,” and rejecting the notion that “the employee‘s health” should be allowed “to decline to the point of inability to work rather than to continue an inexpensive treatment that allows continued employment“). With these general principles in mind, we now turn to the specific facts of this case.
Here, the WCCA concluded that the compensation judge erred as a matter of law because the judge should have sua sponte considered whether Leuthard‘s case is a rare exception to the treatment parameters. Leuthard, 2020 WL 3073339, at *4. ISD 912 argues that the WCCA erred in this conclusion because Leuthard did not assert before the compensation judge that her case presents rare circumstances, and therefore the claim was forfeited. Leuthard, relying on the specialized nature of the WCCA, urges us to uphold the WCCA‘s decision to address the rare case exception notwithstanding the absence of that claim before the compensation judge. We agree with ISD 912 that this claim was forfeited.
The WCCA‘s “review is limited to the issues raised by the parties in the notice of appeal.”
Leuthard did not raise the rare case exception before the workers’ compensation judge. Indeed, nothing in the record before the compensation judge suggests that she did so, and the compensation judge‘s decision is, not surprisingly, devoid of any discussion of that exception. Moreover, the findings and conclusions Leuthard listed in her appeal to the WCCA do not directly or indirectly reference the rare case exception, and she did not assert the rare case exception in her notice of appeal to the WCCA as an alternate ground for reversal. The first time this issue came up was in her brief to the WCCA.
Leuthard asserts that the WCCA can nonetheless raise or consider the Jacka rare case exception for the first time on appeal. We disagree.
Leuthard relies on the decision in Asti v. Northwest Airlines, noting our comment that “our inquiry does not end” with “the WCCA‘s conclusion that Asti failed” to show that he met the requirements for a departure from the parameters. 588 N.W.2d at 740. We made this comment, however, to explain the evidence showing that the treatment had “clearly assisted” the employee in returning to work and remaining employed. Id. Nothing in this case-specific language addresses forfeiture or the longstanding requirement for the appellant to identify the issues in an appeal to the WCCA in the notice of appeal. See Gianotti, 889 N.W.2d at 801 (stating that the specific findings listed in the notice of appeal
Nor are we persuaded by decisions from the WCCA that have considered or referred to the Jacka rare case exception.9 Conclusions of law reached by the WCCA are not binding on our court, see, e.g., Kloss v. E & H Earthmovers, 472 N.W.2d 109, 112 (Minn. 1991), and in any event, these cases do not hold that this exception must be considered by a compensation judge sua sponte.
CONCLUSION
For the foregoing reasons, we reverse the decision of the Workers’ Compensation Court of Appeals and reinstate the decision of the compensation judge.
Reversed.