PANDA R. OLSON, Employee,
v.
ALLINA HEALTH SYS., SELF-INSURED, Employer/Appellant,
and
VAX-D INST. OF MINN., and OCCUPATIONAL REHABILITATION CTR., Intervenors.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
February 5, 1999
HEADNOTES
MEDICAL
TREATMENT & EXPENSE - TREATMENT PARAMETERS; RULES
CONSTRUED - MINN. R. 5221.0050, SUBPS. 8.D. AND 9. The
compensation judge erred in concluding that the
employee's chiropractic care qualified for a departure
under the permanent treatment parameters, where the
employee's chiropractor failed to provide the
notification of proposed treatment required by the rules.
MEDICAL
TREATMENT & EXPENSE - REASONABLE & NECESSARY; MEDICAL
TREATMENT & EXPENSE - FEE SCHEDULE. Substantial
evidence supported the compensation judge's award of
expenses for vertebral axial compression, under case law
standards, and, because the procedure is not listed in the
medical fee schedule, the judge properly allowed the provider
to charge 85% of the usual and customary fee for the
treatment.
MEDICAL
TREATMENT & EXPENSE - REASONABLE &
NECESSARY. The compensation judge erred in awarding one
portion of expenses for treatment rendered by Occupational
Rehabilitation Consultants where that treatment was passive
and did not meet the requirements of the permanent treatment
parameters, including the departure rules, but the remainder
of treatment expenses awarded was affirmable on substantial
evidence grounds. The compensation judge's award of
treatment expenses for a pain evaluation by a psychologist
was not inconsistent with the applicable treatment
parameters.
Affirmed
in part and reversed in part.
Determined by Wilson, J., Johnson, J., and Pederson, J.
Compensation Judge: John E. Jansen.
OPINION
DEBRA
A. WILSON, Judge
The
self-insured employer appeals from the compensation
judge's decision as to the compensability of the
employee's chiropractic care, treatment at the Vax-D
Institute of Minnesota, treatment at the Occupational
Rehabilitation Center, and evaluation by psychologist Ronald
Berk. The employer also contends that the compensation
judge erred in his decision as to the appropriate billing
rate, under the medical fee schedules, for Vax-D
treatment. We affirm in part and reverse in part.
BACKGROUND
On July
2, 1996, the employee sustained an injury to her low back
while moving a patient in the course and scope of her
employment as a labor and delivery nurse with Allina Health
System, Inc. [the employer]. The following day, she
sought treatment for low back and right leg pain from Dr.
Leanne Warner, D.C., who took her off work and began
providing chiropractic care four or five times a
week. An MRI scan performed on July 17, 1996, was read
to reveal degenerative disc disease at L4-5, "with a
central and right-sided disc herniation . . . producing mild
central spinal stenosis and extend[ing] laterally into the
intervertebral nerve root canal to produce mild impingement
on the post-ganglionic portion of the right L4 nerve as it
exits the canal." The employee was then seen by Dr.
Ronald Tarrel, D.O., of the Noran Neurological Clinic, who
concluded that she was suffering from "a true L4
radiculopathy," prescribed medication, and advised her
to continue treatment with Dr. Warner.
Despite
chiropractic care, medication, and epidural steroid
injections, the employee continued to complain of low back
and right leg pain, and Drs. Warner and Tarrel therefore
referred her for treatment at the Vax-D
Institute. Vax-D, which stands for vertebral axial
decompression, is an FDA-regulated machine, the purpose of
which is to create negative pressure within a herniated
disc. The machine is computerized to regulate the extent
of decompression and must be monitored by a technician
trained on the device. According to Dr. J. P. Bertsch,
who with his brother owns the institute, Vax-D is different
from traction, which does not create negative pressure within
the disc but instead only stretches the muscles. Dr.
Bertsch also testified that he paid $125,000 for the Vax-D
machine and that there is only one such machine in Minnesota.
The
employee began undergoing a series of about twenty Vax-D
treatments on September 9, 1996. Each treatment
apparently concluded with electrical muscle stimulation and
ice. During the same period, and sometimes on the same
day, the employee received chiropractic treatment from Dr.
Warner. At about the same time, in early September 1996,
the self-insured employer notified Dr. Warner that it would
not pay for additional chiropractic treatment beyond
September 24, 1996, pursuant to the twelve-week limit on
passive care contained in the applicable treatment
parameters. Dr. Warner nevertheless continued to provide
ongoing treatment, three to four times a week.
While
the employee testified that the Vax-D treatment substantially
improved her right leg symptoms, treatment records are
somewhat equivocal in this regard. In any event, in
mid-October of 1996, Dr. Warner released the employee to
return to work, with various restrictions, on a part-time,
gradually increasing schedule.
In
December of 1996, a representative of the employer suggested
that, since her symptoms were continuing, the employee should
seek a second opinion. The employee then found
Occupational Rehabilitation Center [ORC] in the telephone
book and arranged for a referral there.
The
employee was seen initially by Dr. Seth Rosenbaum of ORC on
December 30, 1996, but she did not begin actual treatment
there until early March of 1997. In the interim, the
employee continued to receive chiropractic care, at least
once or twice a week, from Dr. Warner. Treatment at ORC,
from March through July 1997, consisted of exercise
instruction; use of a Med-X machine, an isokinetic exercise
device; and myofascial release therapy. Also in March of
1997, the employee returned to the Vax-D Institute for
several more treatments, and she continued to see Dr.
Warner. Dr. Warner testified that she released the
employee to treat on an as-needed rather than
regularly-scheduled basis in May of 1997.
On July
10, 1997, the employee underwent another MRI scan, which,
according to the radiologist, was "essentially unchanged
compared to the previous study." In a report dated
July 16, 1997, Dr. Tarrel wrote to Dr. Warner that there was
really "no choice but to consider repeating some of the
therapies that have been marginally beneficial in the
past." Oral steroids were reinstituted, and the
employee continued to treat with Dr. Warner.
On
August 19, 1997, the employee was seen by Dr. Greg Dyste for
a surgical consultation. Noting complaints suggesting
that the employee had developed foot drop, Dr. Dyste
scheduled an EMG and also a myelogram/CT. The EMG was
normal, and the post-myelographic CT scan was interpreted by
Dr. Dyste to show "some minimal irregularity of the L4-5
disc space" but "no clear cut disc herniation [or]
nerve root impingement at that site." Dr. Dyste
later noted, on examination on September 2, 1997, that the
employee had some weakness of the L5 innervated musculature,
but, given the normal EMG, he did not believe that the
employee was then a candidate for surgery.
In late
September of 1997, Dr. Rosenbaum referred the employee for
pain counseling to Ronald Berk, a psychologist, who saw the
employee on two or three occasions in October of
1997. Mr. Berk's October 31, 1997, report indicates
that the purpose of his evaluation was "for use in the
preparation of a comprehensive treatment plan."...
