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Hilpert v. Maid Pro and Auto Owners Insurance Group, No. WC20-6348 (Dec. 23, 2020)
Jennifer Fitzgerald andParker Olson of Cousineau, Waldhauser, and Kieselbach prevailed on appeal at the Minnesota Workers’ Compensation Court of Appeals (WCCA) on December 23, 2020, when the WCCA affirmed the Compensation Judge’s denial of a request for implantation of a spinal cord stimulator.
In this case, the Employee originally sustained an injury to her low back in July 2010. The parties entered into a settlement agreement in October 2011. That settlement closed out a number of medical treatments/benefits, including a two-level fusion surgery that had been recommended, along with any psychological treatment.
The Employee continued to treat for ongoing low back symptoms, primarily through a pain clinic. Ultimately, three different treating physicians recommended consideration of a fusion surgery, with the most recent opinion coming in September 2018.
In April 2019, one of the Employee’s physicians recommended a psychological consultation for possible implantation of a spinal cord stimulator. The Employee filed a medical request seeking approval of a psychological or psychiatric consultation to assess whether she would qualify for a spinal cord stimulator trial and potential permanent implantation of that device.
At hearing, the Employer and Insurer maintained that a spinal cord stimulator was not reasonable and necessary treatment based on multiple IME opinions and the argument that the Employee did not meet the qualification requirements of the medical treatment parameters for spinal cord stimulators. Minn. R. 5221.6200, subp. 6(C) states that spinal cord stimulators have very limited application, and those devices are indicated only if the treating health care provider has determined that a trial screening is indicated because an employee (1) has intractable pain, (2) is not a candidate for another surgical therapy, and (3) has no untreatable major psychological or psychiatric comorbidity that would prevent the patient benefiting from the treatment.
The Compensation Judge decided in favor of the Employer and Insurer. The Compensation Judge found that the Employee did not meet the requirements of Minn. R. 5221.6200, subp. 6(C), in part because the Employee was a candidate for the fusion surgery that had been recommended by multiple treating physicians.
On appeal, the Employee argued that the Compensation Judge erred in determining that she was a candidate for the surgical procedures. The Employee also argued that she was unlikely to undergo the surgery because she had closed out her claims for a fusion surgery in the 2011 settlement.
The WCCA, however, affirmed the Compensation Judge’s choice of expert opinion and the determination that the Employee was a candidate for the fusion surgery. The WCCA stated, “in recommending surgery for the employee, her treating physicians clearly found her suited to be chosen for it.” As such, the Employee met the definition of candidate “even if she is unlikely to choose to undergo the procedure.” The WCCA also noted that the question of whether a patient is a surgical candidate is a medical question that “does not depend on personal considerations, as opposed to medical ones, regardless of who pays for the surgery.”
Ultimately, this case reaffirms the very limited application of spinal cord stimulators, as outlined in Minn. R. 5221.6200, subp. 6(C), and it clarifies that the medical questions involved with these cases depend on analysis of the objective medical evidence presented and not the Employee’s personal or payment considerations.
If you have questions about this case or any of the issues involved, please feel free to reach out to Jen and Parker any time.