Supreme Court Rejects Rare Case Exception in Treatment Parameters Case

August 19, 2021

In a decision filed on August 18, 2021, the Minnesota Supreme Court breathed life into the long-term opioid treatment parameter, reversing the lower courts' determinations that the "rare case" exception applied, thereby determining that the employee's use of long-term opioid pain medication was not compensable. The Supreme Court considered this case for the second time in Johnson v. Darchuks Fabrications, Inc., File No. A20-0963.

Underlying Facts

The employee sustained an admitted injury in September 2002 involving a severe right ankle sprain. He was subsequently diagnosed with complex regional pain syndrome (CRPS). Medical treatment included opioid medications, steroid injections, physical therapy, and sympathetic blocks, but the employee’s pain did not respond to that conservative treatment, and surgical treatment was ruled out. He was never able to return to work, and continues to report numerous symptoms, including constant pain. Since 2004, he has been treated with Endocet, an opioid pain medication. Regardless, his pain remains present constantly, limits his physical activity, and interferes with his sleep.

The case settled in 2004, with medical expenses being left open. Thereafter, the insurer continued to pay for medical treatment on an ongoing basis, including opioid pain medications.

In May 2016 an independent medical evaluator questioned the diagnosis of CRPS. Thereafter, the insurer forwarded Minn. Rule 5221.6110 (relating to long-term opioid medication usage) to the employee's treating provider, asking him to come into compliance with the treatment parameter. When the provider did not do so, the insurer denied payment for treatment related to the CRPS diagnosis, including the opioid pain medication.

Initial Litigation

The employee filed a Medical Request seeking ongoing approval for the Endocet. The insurer argued that the employee no longer had CRPS, that treatment with Endocet was not reasonable and necessary, and that treatment with Endocet was not in accordance with the treatment parameter for long-term usage of opioid pain medication. The compensation judge determined that the employee continued to have CRPS, that treatment with Endocet was reasonable and necessary, and the treatment parameters were inapplicable, as the insurer had disputed the employee's CRPS diagnosis. The Workers’ Compensation Court of Appeals (WCCA) affirmed that decision.

First Supreme Court Appeal

The Supreme Court reversed the lower courts’ decisions, concluding that the insurer disputed only the CRPS diagnosis, not liability for the underlying injury or the treatment reasonably necessary to cure and relieve that injury. Therefore, the treatment parameters were applicable to the case. The Court remanded the case to the compensation judge to address the issue as to whether the ongoing use of Endocet complied with the long-term opioid medication treatment parameter. See Johnson v. Darchuks Fabrication, Inc., 926 N.W.2d 414 (Minn. 2019).

Remand

On remand, the compensation judge determined that the ongoing use of Endocet was reasonable and necessary. He further found that the employee's use of Endocet was not compliant with the long-term opioid medication treatment parameter. He found that none of the departures authorized by Minn. Rule 5221.6050, subp. 8 applied. Nevertheless, he determined that the Endocet medication was compensable as a "rare case" exception to the treatment parameters. See Jacka v. Coca-Cola Bottling Company, 580 N.W.2d 27 (Minn. 1998); Asti v. Northwest Airlines, 588 N.W.2d 737 (Minn. 1999). The judge ordered the insurer to continue paying for the Endocet medication. The WCCA affirmed that decision.

Second Appeal to Supreme Court

The insurer appealed the case to the Supreme Court. Justice Moore, writing for the unanimous court, reversed the decision on remand.

The Court initially addressed the concept of the Minnesota Workers’ Compensation treatment parameters. Pursuant to Minn. Stat. § 176.135, subd. 1, the workers’ compensation system requires employers to furnish such treatment "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." At the direction of the Legislature, the Department of Labor and Industry developed the treatment parameters, setting forth standards for particular types of treatment for injuries. The parameters are used "to determine whether a provider … is performing procedures or providing services at a level or with a frequency that is excessive, unnecessary, or inappropriate." Minn. Stat. § 176.83, subd. 5.

Minn. Rule 5221.6110 was developed to address the long-term use of opioid medication, and it requires detailed medical records, assessments, and evaluations to establish that the employee cannot function in daily living activities given the level of pain without long-term use of opioid medications. The rule sets forth a number of requirements on the employee and his treating provider, including documentation in the medical record of the patient selection criteria, assessments performed, potential contraindications, elements of the treatment program, a written treatment contract, ongoing objective assessment of the success of the treatment, and results of periodic monitoring and testing. In situations where the employee was already using opioid pain medication at the time of the creation of the rule in 2015, it requires the prescribing provider to, upon receipt of written notice of the rule from the insurer, come into compliance with the requirements of the parameter within three months after receipt of the notice to comply. The treatment parameters include Rule 5221.6050, subp. 8, which sets forth four circumstances under which a departure from the treatment parameter may be appropriate.

The Court then commented on its earlier decision in Jacka, noting that it had recognized that "the treatment parameters cannot anticipate every exceptional circumstance," and, thus, compensation judges "may depart from the rules in those rare cases in which departure is necessary to obtain proper treatment." Compensation judges are permitted to create an exception to the parameters in "rare cases" even where the treatment neither complies with the applicable treatment parameters, nor meets the requirements for a departure under the rule.

In this case, the insurer argued that the judge erred in concluding that the employee's case is compensable as a "rare case" exception, as neither he nor his provider have tried to comply with the treatment parameters. It further argued that the employee's ongoing use of opioid pain medication, even without gaining substantial relief or progress, is "exactly the type of situation anticipated by the treatment parameters" and, therefore, not an exceptional case. It concluded that allowing a departure would eviscerate the treatment parameters and render them meaningless. The employee argued that any treatment that is reasonable and necessary satisfies the threshold requirement in the statute for compensation, and that the rare case exception necessarily applies when the treatment is found to be reasonable and necessary, even if it exceeds the treatment parameters and regardless of whether the treatment qualifies for a departure under Rule 5221.6050. The Court noted, however, that the employee did not offer any explanation as to why he could not comply with the long-term opioid medication treatment parameter, why the specific requirements in the rule had not been met, nor any reason why the treatment could not be compliant with the parameter. His argument was basically that the long-term opioid medication treatment parameter is "onerous" and "cumbersome" and that the Endocet treatment had adhered to the "spirit" of the parameter, as there was no evidence that he had misused the medication.

The Court rejected the assertion that merely demonstrating the treatment at issue is reasonable and necessary to cure and relieve the effects of the injury is sufficient to warrant a rare case exception. The Court concluded that acceptance of the employee's argument would eviscerate the treatment parameters. The Court cannot adopt an interpretation of the law that would so completely undermine the clear legislative intent to establish standards for medical care in the treatment parameters. The Asti case does not support a different conclusion. That case established only that exceptional circumstances may exist when the employee demonstrates that the particular parameter requirements at issue prevent him from obtaining the treatment that is necessary to cure and relieve the effects of the injury. That is not present in this case. The very purpose of Minn. Rule 5221.6110 is to address when long-term use of opioid medication is reasonable and necessary and when that particular treatment plan is no longer reasonable or necessary. The rule guides the assessment of whether long-term opioid medication treatment is reasonable and necessary and requires the provider to regularly revisit that assessment. The Court cannot conclude as a matter of law that exceptional circumstances exist to justify a departure from the parameters when there is no explanation for non-compliance with the requirements that establish whether the treatment is reasonable and necessary. Therefore, this case is distinguishable from Asti. The record here does not establish that the employee's non-compliance with the opioid treatment parameter is an exceptional circumstance not contemplated by the parameter. Further, the employee’s non-compliance with the parameter does not better achieve the objectives of the workers’ compensation system to cure and relieve the effects of his injury.

Near the end of its decision, the Court commented on several observations that it found relevant, although it noted that none were essential to its decision. First, the medical provider had indicated that alternative treatment options were available to the employee, but there was no indication that any of those alternatives had been investigated. It further noted that the compensation judge had suggested that the employee or his provider had found the requirements of the treatment parameters to be onerous and draconian, and that that was an acceptable justification for non-compliance with the parameter. The Court noted that an unwillingness to comply with the parameters based on disagreement with or dislike of a particular parameter cannot justify a departure from that parameter.

Finally, the Court commented on the fact that the promulgation of the parameter at issue was expressly required by the Legislature when an epidemic of opioid use was underway across the country. It cited to the Statement of Need and Reasonableness (SONAR) for the rule at the time it was promulgated. It noted that the employee's arguments would render meaningless the parameter, which was intended to specifically address the significant and serious concerns with ongoing opioid medication usage. Second-guessing the merits of a policy decision made by the Legislature and the Department of Labor and Industry under these circumstances is not an appropriate role for the Court.

The Court concluded that there was no justification for why the treatment was not compliant with the long-term opioid medication treatment parameter, and therefore, the lower courts erred as a matter of law in concluding that non-compliance could be excused under the rare case exception recognized in Jacka. The employee's treatment with opioid medication is, therefore, not compensable treatment.

In a footnote, the Court indicated that the employee is not necessarily barred from pursuing compensation for future use of Endocet. It would have to be assumed, based on the decision, that such future use would have to be in compliance with the treatment parameter.

If you have any questions regarding this decision, please do not hesitate to reach out to the Arthur Chapman Workers Compensation Practice Group.