Leuthard v. Indep. Sch. Dist. 912 – Milaca, A20-0893

• Decision Date: 28 April 2021
• Docket Number: A20-0893
• Citation: 958 N.W.2d 640
• Parties: Margaret LEUTHARD, Respondent, v. INDEPENDENT SCHOOL DISTRICT 912 – MILACA and Berkley Risk Administrator, Relators.
• Court: Minnesota Supreme Court

958 N.W.2d 640

Margaret LEUTHARD, Respondent,

v.INDEPENDENT SCHOOL DISTRICT 912 – MILACA and Berkley Risk Administrator, Relators.

A20-0893

Supreme Court of Minnesota.

Filed: April 28, 2021

Katelyn R. Bounds, Thomas A. Klint, Midwest Disability, P.A., Minneapolis, Minnesota, for respondent.

Timothy P. Jung, Molly de la Vega, João C.J.G. de Medeiros, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, Minnesota, for relators.

OPINION

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. , 257 Minn. 313, 101 N.W.2d 200, 206–07 (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.

Next, Sabers recommended medial branch blocks to further evaluate Leuthard's pain.⁴ If the block relieved the pain, then the facet joints were the source of her pain, which might make surgical treatment viable. The blocks proved unsuccessful, leading Sabers to conclude that the source of her pain was not facet joint based.

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 Minn. Stat. § 176.155, subd. 1 (2020) (requiring an injured employee to submit to an examination by the employer's physician). Noting that facet joint injections

are not designed for long-term, repeated use, and that there was no clear indication of any objective change in Leuthard's condition from repeated injections, Gedan concluded that continued use of the injections is not reasonable, necessary, or an indicated treatment plan from a medical standpoint. Gedan noted that if relief is obtained from a facet joint injection, the next recommended step would be medial branch blocks. His report did not mention the previous consideration given to that treatment, despite medical records showing that Leuthard had undergone that procedure in 2008.

Based on Gedan's examination and opinions, ISD 912, through its insurer, notified Leuthard in November 2017 that it would no longer approve reimbursement for ongoing facet joint injections. In arriving at this decision, ISD 912 also relied on the 3-injection limit established in the treatment parameters promulgated by the Department of Labor & Industry,⁵ see Minn. R. 5221.6200, subp. 5(A)(3) (2019) (explaining that the "maximum treatment" is "three injections to any one site.").

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. Leuthard then requested a hearing before a compensation judge to determine whether ongoing injections fall within the treatment parameters, whether a rule-based departure from the parameters is warranted, and whether the injections are reasonable and necessary treatment. At the hearing before the compensation judge, Leuthard testified that the ongoing injections provide relief and allow her to do activities that she otherwise would not be able to do. The record before the compensation judge included Leuthard's medical records and Gedan's report from the independent medical exam.

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 Minn. R. 5221.6050, subp. 8 (2019) (providing the criteria for a "departure from a parameter that limits the duration or type of treatment"). In reaching these conclusions, the judge relied on Leuthard's testimony and medical records which documented little to no reduction in Leuthard's subjective levels of pain, limited improvement in the objective clinical findings, and no change in her functional status. Finally, the compensation judge concluded ongoing injections were neither necessary nor reasonable because that treatment had not provided significant or lasting relief and the evidence showed that Leuthard's symptoms continue to worsen.

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 erroneous and unsupported by substantial evidence, Leuthard asserted for the first time that an exception to the treatment parameters was warranted in her case because no other treatments are available to her and she is not a candidate for surgery.

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 Minn. R. 5221.6050, subp. 8. See id. at *4. Next, the WCCA concluded that, in light of the record, the compensation judge should have considered whether this was a rare case warranting a departure from the treatment parameters. Id. Deciding that this omission was an error of law, and because the WCCA could not otherwise reconcile the findings made regarding the credibility of Leuthard's testimony and the relief provided by the injections, the WCCA concluded that the compensation judge's decision was not supported by substantial evidence in the record.⁶ Id. at *5.

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." Minn. Stat. § 176.135, subd. 1(a) (2020). This obligation requires the employer to pay for reasonable and necessary treatment to cure and relieve the effects of a compensable injury. Gamble v. Twin Cities Concrete Prods. , 852 N.W.2d 245, 248 (Minn. 2014).

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...