Summaries of Recent WCCA Cases
Leuthard v. Indep. Sch. Dist. 912 – Milaca, WC19-6290 (May 26, 2020)
Issue: Departure from Treatment Parameters
Employee appealed the compensation judge’s findings regarding the reasonableness and necessity of medical treatment related to her cervical spine symptoms. While the compensation judge ruled that treatment did improve the Employee’s ability to perform daily activities, they did not find that the rare case exception applies.
By way of background, the Employee in this case sustained a Gillette type injury in 2004 to her cervical spine. Severe stenosis was noted at C5-C6 and C6-C7. After physical therapy failed, the Employee received a medial branch block in 2008, which was also a failure. However, the subsequent fact injections were effective for one week after treatment. The Employee received sporadic facet injections from 2008 to 2013, when she began receiving facet injections every 3 months. An IME Report issued on September 25, 2017 failed to review medical records before 2013, including a medial branch block done in 2008. The IME Report concluded that the facet injections were not necessary, reasonable, or indicated treatment from a medical standpoint. The compensation judge found the Employee’s testimony on the effectiveness of facet injections credible, but also found that they exceeded the treatment parameters and did not show enough progressive improvement to support a departure from the treatment parameters. The court did not consider whether the treatment qualified under the rare case exception.
On appeal, the Workers’ Compensation Court of Appeals agreed that the Employee’s treatment did not meet the criteria required for a department from the treatment parameters. However, the W.C.C.A. also found that an analysis under the “rare case exception” was warranted. Given that the 2017 IME failed to account for the 2008 medial branch block, the only record that acknowledges the Employee’s complete medical history subsequent to the date of injury is that of her treating doctor who performed the 2008 medial branch block and facet injections. Further, the Employee’s testified credibly that the facet injections relieved her pain, if only temporarily. The apparent contradiction in the compensation judge’s findings between the Employee’s credible testimony that facet injections helped relieve her pain and the finding that said treatment was not reasonable were not reconciled. The rare case exception must be examined even if the Employee’s situation does not warrant a departure from the treatment parameters.
Summary by: Steven Halloran
Borucki Vukelich v. Rise, Inc., No. WC19-6320 (June 12, 2020 WCCA)
Issue: Is an employee’s attorney entitled to Edquist fees from the claim of an intervenor?
Holding: An intervenor who is awarded reimbursement as a result of its own efforts and risk to establish primary liability at a Parker/Lindberg hearing need not pay an Edquist fee to the employee’s attorney.
In this case, the compensation judge ordered that the intervenor, State Farm Insurance, be reimbursed for no-fault benefits it paid to the employee following injuries sustained as a result of a work-related injury. Employee’s attorney then petitioned the court for an Edquist fee payable from the intervenor’s reimbursement. Rather than proceed to hearing, the employee entered into a Stipulation for Settlement, resolving all claims on a full, final, and complete basis, including a close-out of future medical benefits. Claims of intervenors were settled as well, except for State Farm. State Farm believed the settlement offer was inadequate and chose to proceed to a Parker/Lindberg hearing.
At the Parker/Lindberg hearing, State Farm’s attorney established that the employee’s injuries were work related. The Employee’s attorney was present, but did not participate in the hearing. The compensation judge determined that although State Farm had not been excluded from the settlement, the employee’s injury was work related, and State Farm was entitled to full reimbursement of the benefits it paid to the employee. The employer and insurer then settled with State Farm to resolve its intervention claim.
The employee’s attorney filed for attorney fees seeking a $7,000.00 Edquist fee, that being 20 percent of the reimbursement awarded to State Farm. State Farm objected to the fee claim and a hearing was held. The compensation judge awarded the claimed Edquist fee, concluding that the employee had a right to be represented at the Parker/Lindberg hearing, and that Edquist fees were based upon recovery and not an attorney’s effort. State Farm appealed.
Reimbursement awarded to an intervenor may be reduced by a 20 percent fee payable to the employee’s attorney. Minn. Stat. § 176.081, subd. 1(a); Edquist v. Browning-Ferris, 380 N.W.2d 787, 38 W.C.D. 411 (Minn. 1986). State Farm argued that there should be no Edquist fee because it was represented by its own attorney and because the awarded reimbursement was a result of its own efforts and not the employee’s attorney. The WCCA has considered effort to be a relevant factor in cases involving separate representation. Here, the intervenor’s attorney, not employee’s attorney, put forth the effort and took the financial risk to establish primary liability and assert its right for reimbursement. Therefore, no Edquist fee is payable and the WCCA reversed the compensation judge’s award.
Summary by: Andrew J. Carballo
Johnson v. Darchuks Fabrication, Inc., No. WC19-6325 (June 18, 2020 WCCA)
Issue: When does the rare case exception to the treatment parameters apply?
Holding: Substantial evidence supported the compensation judge’s award of payment for medication where the employee suffered from long-term intractable pain, showed no evidence of abusing that medication, was carefully monitored by the treating physician, and experienced a reduction in pain from the medication.
In this case, the employee suffered a work-related injury in 2002 that resulted in an intractable pain condition which was treated by prescription of Oxycontin, Percocet, and methadone. In 2009, Employee’s treatment regimen was assessed by an IME on behalf of the employer and insurer. He considered the employee’s treatment to be reasonable, necessary, and causally related to the employee’s work injury and CRPS condition. In 2016, employee underwent another IME on behalf of the employer and insurer. This IME opined that the employee was not experiencing CRPS and that his current opioid medication was not prescribed properly under the treatment parameters, and that the other prescriptions were neither reasonable nor necessary to treat the employee’s chronic pain condition. Based on this report, the employer and insurer sent a letter to the employee’s treating physician, requesting compliance with Minn. R. 5221.6110, the treatment parameter governing opioid medications. The employee filed a Medical Request seeking payment for various medications. The compensation judge found that the employee’s CRPS condition had not resolved, that the medications at issue were reasonable and necessary to cure and relieve the employee of the effects of the work injury, and that the treatment parameters were not applicable. The employer and insurer appealed to the WCCA the refusal to apply the treatment parameters to the employee’s claim. The WCCA affirmed and the employer and insurer appealed to the Minnesota Supreme Court. The Supreme Court reversed the decision and remanded the case to the compensation judge for application of the treatment parameters. The compensation judge heard argument and found that the employee had not complied with the applicable treatment parameter, determined that a departure from that parameter had not been demonstrated, and concluded that the rare case exception applied. The judge awarded payment for the requested medications. The employer and insurer appealed.
The employer and insurer contend that the compensation judge made an error of law and that the claimed medication did not comply with the treatment parameters or qualify for a departure from the parameters, under the rare case exception. Analyzing a medical claim under the treatment parameters requires the correct parameter be applied to the requested treatment, the standards for departure from the parameter be assessed, and if the standards for departure are not met, the application of the rare case exception is then decided. The rare case exception applies in cases when the requested medical treatment is needed for proper treatment even though the treatment did not strictly comply with the treatment parameters. The standard to meet is substantial evidence in support.
Here, there is no dispute the employee suffers from intractable pain and the only other treatment option was amputation of the affected limb. The compensation judge noted that the use of opioids reduced the employee’s pain by half and allowed the employee to engage in activities of daily living, while being without the medication resulted in unbearable pain, stress, and anxiety. The compensation judge also found that although the treatment parameters were not strictly followed, the requested opioid treatment was needed for proper treatment of employee’s symptoms. The WCCA found there was substantial evidence in the record supporting the application of the rare case exception. The decision of the compensation judge was affirmed. It is possible that this case will again go to the Minnesota Supreme Court.
Summary by: Andrew J. Carballo
Ansello v. Wis. Cent., Ltd., No. WC20-6333 (June 19, 2020 WCCA)
Issue: What are considered reasonable attorney fees using the Irwin factors?
Holding: The compensation judge did not abuse his discretion in determining the amount of additional attorney fees awarded where he applied the Irwin factors and awarded an amount within a reasonable range given the record.
In this case, the employee’s attorney appealed the amount of attorney fees awarded by the compensation judge. The contingent fee is presumed to be adequate payment to the attorney for all benefits obtained. However, the attorney may petition a compensation judge for additional fees if the attorney believes the amount under the formula is not adequate payment. To be paid these excess fees, the attorney must explain why additional fees should be awarded.
Here, employee sustained an admitted low back injury and indemnity and medical expense payments were made under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (LHWCA), including payment for two low back surgeries in 2006 and 2009. In 2014, employee aggravated his low back at work. He then underwent previously scheduled low back fusion surgery. Wage loss benefits were paid under LHWCA but medical expenses (third back surgery) were not based on the assertion they were not reasonable or necessary. Employee filed a medical request under the Minnesota Workers’ Compensation Act (MWCA) seeking payment of medical expenses. The request was denied, the employee appealed and was successful at the WCCA and later at the Minnesota Supreme Court. The employee had the same attorney for the LHWCA and the MWCA claims.
In this case, the employee’s attorney requested additional fees for representation of the employee in his MWCA claim. In determining an award for additional fees, the compensation judge must consider the factors set out in Irwin, including “the amount involved, the time and expense necessary to prepare for trial, the responsibility assumed by counsel, the experience of counsel, the difficulties of the issues, the nature of the proof involved, and the results obtained.” Typically, the WCCA has held that double recovery of workers’ compensation benefits is to be avoided. In this instance, the LHWCA and MWCA systems. However, the compensation judge awarded additional fees with regard to additional time spent litigating activities related to the jurisdictional challenge in the case and not the actual benefits sought.
Given the facts and circumstances of this case, the WCCA could not conclude the compensation judge abused his discretion, and they affirmed the issuance of additional Irwin fees to employee’s attorney.
Summary by: Andrew J. Carballo