MN High Court Says Injured Worker Failed to Establish Exception Allowing Long-Term Opioid Use
In a carefully crafted decision dealing with a chronic problem both within and without the workers’ compensation world—long-term opioid use—the Supreme Court of Minnesota held an injured workers treatment with Endocet, which was non-compliant with the long-term opioid treatment parameter promulgated by the state’s Department of Labor & Industry, did not qualify as a “rare exception” to the treatment parameters and was, therefore, not compensable treatment under Minnesota’s workers’ compensation system [Johnson v. Darchuks Fabrications, 2021 Minn. LEXIS 423 (Aug. 18, 2021)]. In its decision, the Court provided important guidance as to what is required to establish a “rare case” exception with regard to treatment that neither complies with applicable treatment parameters nor meets the requirements for a departure under Rule 5221.6050, subpart 8.
Background
At the direction of the state’s Legislature, the Minnesota Department of Labor & Industry developed treatment parameters that set standards for particular types of treatment of workers’ compensation injuries [see Minn. Stat. § 176.83 (2020); Minn. R. 5221.0200 (2019)]. These 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. Because the parameters establish standards for reasonable treatment, treatment that is inconsistent with an applicable parameter may be excessive under Minn. R. 5221.6050, subp. 7(A) (2019), and, therefore, no longer reasonable. Treatment that is not reasonable and necessary is not compensable.
Opioid Parameters
Minnesota Rule 5221.6110 (2019), the parameter that governs treatment through long-term use of opioid medication, requires detailed medical records, assessments, and evaluations to establish that the patient cannot function in daily living activities given the level of pain without long-term use of opioid medications. For the cases that do not fit fully within a particular parameter, a departure from a parameter that limits the duration or type of treatment may be appropriate under four circumstances outlined in Rule 5221.6050, subpart 8. But if a departure is not warranted under subpart 8, the treatment is not compensable unless the commissioner or a compensation judge determines that the level, frequency, or cost is reasonable and not excessive [Minn. Stat. § 176.83, subd. 5(c)].
The Injury
In September 2002, long before the opioid treatment parameter was promulgated, Johnson suffered a severe right ankle sprain when he stepped on a piece of scrap metal while working for Darchuks Fabrication, Inc. His ankle was casted for a brief time and then placed in a controlled-ankle-motion walking boot. Johnson experienced considerable pain, and soon afterwards, began to show signs of complex regional pain syndrome (CRPS). In an effort to control the pain, Johnson’s providers tried a number of different treatment regimens, including OxyContin, narcotic patches, steroid injections, physical therapy, and sympathetic blocks. Johnson’s pain did not respond to these forms of conservative treatment. He did not obtain relief from a pain clinic and surgical treatment was ruled out.
With no lasting relief from other treatment methods, by 2004 Johnson began treating with Endocet, a pain medication containing the opioid oxycodone. He has continued to use Endocet as part of his pain management regimen since that time. As recently as 2016, Johnson’s pain was present twenty-four hours a day, limited his physical activity, and interfered with his sleep. Medical records note, however, that there “might be alternatives to his current treatment regimen,” including a new referral to a pain clinic if Johnson was willing.
Litigation
After a May 2016 independent medical examination performed at the employer’s request, the employer asked Johnson’s provider to bring his opioid medication treatment into compliance with the the long-term opioid medication treatment parameter. When the provider did not do so, the employer denied payment for treatment related to the complex regional pain syndrome diagnosis, including Johnson’s Endocet prescription. A compensation judge found that Johnson’s CRPS diagnosis had not resolved and that the treatment with Endocet was reasonable and necessary to cure and relieve the effects of Johnson’s work injury. The judge ordered the employer to continue paying for the Endocet, concluding that the long-term opioid medication treatment parameter did not apply because the employer had disputed Johnson’s CRPS diagnosis (under Minn. R. 5221.6020, subp. 2 (2019), the parameters do not apply if an insurer denies liability for the injury).
First Appeal
On appeal, the Court reversed [see Johnson v. Darchuks Fabrication, Inc., 926 N.W.2d 414 (Minn. 2019)], concluding that the employer had disputed only the CRPS diagnosis, not liability for the injury or the treatment reasonably necessary to cure and relieve that injury. The Court remanded to the compensation judge to address the employer’s assertion that the treatment prescribed by Johnson’s provider was not reasonable and necessary because the regimen did not comply with the long-term opioid medication treatment parameter.
Remand Proceeding
Following remand, the compensation judge also found that Johnson’s Endocet use was not compliant with the long-term opioid medication treatment parameter. Specifically, the judge noted the absence of documentation that an opioid risk assessment had been performed, or that the risks and possible side effects had been discussed with Johnson. The judge also pointed to the lack of the written contract in Johnson’s medical record. The judge also found that none of the departures from the parameters that are authorized by Rule 5221.6050, subpart 8, applied.
Rare Case Doctrine
Nevertheless, the judge determined that the Endocet treatment was compensable as a rare case under our decision in Jacka v.Coca-Cola Bottling Co., 580 N.W.2d 27, 32 (Minn. 1998), because Johnson experienced unbearable pain without the Endocet and that medication reduced his pain by half, allowing him to engage more fully in the activities of daily living. The judge concluded that without the relief provided by the Endocet treatment, Johnson would be left with “virtually no quality of life.”
In Jacka, the Court 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” [580 N.W.2d at 35‒36]. This language from Jacka has been interpreted as creating an exception to the parameters under which treatment is compensable in “rare cases” even where that treatment neither complies with applicable treatment parameters nor meets the requirements for a departure under Rule 5221.6050, subpart 8.
Based on the rare case finding, the judge ordered the employer to continue paying for the treatment. The employer appealed and the WCCA affirmed, concluding that substantial evidence supported the compensation judge’s determination that a rare case exception was warranted. The employer again petitioned for review by writ of certiorari to the Court.
The Asti Decision
The Court noted that it had addressed the concept of a rare case exception on one occasion: Asti v. Northwest Airlines. 588 N.W.2d 737 (Minn. 1999). In Asti, the treatment at issue, a health club membership that allowed for an on-going exercise regimen to treat a back injury, was authorized under the relevant treatment parameter for up to 13 weeks. The Court agreed with the WCCA’s determination that Asti had not satisfied the requirements for a departure under under Rule 5221.6050, subpart 8, but the Court nonetheless reversed because it determined that it was “one of those rare cases” where a departure from the treatment parameters was necessary. The Court also noted that Asti’s ongoing exercise regimen was an inexpensive treatment that enabled him to continue his employment, and that the alternative—permitting his health to decline to the point of inability to work despite the availability of treatment that would allow him to return to work —could not have been the result intended by the drafters of the treatment parameters.
Was This a “Rare Case?”
The employer argued that the instant dispute was not such a “rare case.” The Court concluded that merely demonstrating that the treatment at issue was reasonable and necessary to cure and relieve the effects of a work-related injury was not sufficient to warrant a rare case exception to the treatment parameters. The Court said it reached this conclusion for the following reasons.
- It rejected Johnson’s contention that the only showing necessary for the rare case exception to apply is a finding that the treatment at issue is reasonable and necessary. The Court stressed that a conclusion that treatment is reasonable and necessary is required for every injury subject to workers’ compensation liability.
- Asti did not support a different conclusion. It was clear there that continuation of the health club membership beyond 13 weeks was necessary to allow Asti to continue to work. The Court assumed that the drafters of the treatment parameters did not consider “every possible scenario,” that is, whether a 13-week limit was preferable to some other, shorter or longer, limit that might cure or relieve a workplace injury to a degree sufficient enough to allow continued employment. Thus, the Court stressed, Asti establishes only that exceptional circumstances may exist when the employee demonstrates that the particular parameter requirements at issue prevent the employee from obtaining the treatment that is necessary to cure and relieve the effects of the injury. It was under these exceptional circumstances that the Court determined that some degree of non-compliance—i.e., a health club membership exceeding 13 weeks—better achieved the objectives of the workers’ compensation system than strict compliance with the parameter.
- The very purpose of the parameter at issue here, Minn. R. 5221.6110, was to address when long-term use of opioid medication was reasonable and necessary and when that particular treatment plan—long-term use that extends beyond 90 days—was no longer reasonable or necessary. The Court said that it could not conclude as a matter of law that exceptional circumstances existed to justify a departure from the parameters when there was no explanation for non-compliance with the requirements that established whether the treatment is reasonable and necessary.
The Court stressed that the reason for Asti’s non-compliance—he had already used the allotted 13-weeks of the health club membership—and the impact of allowing Asti’s treatment to exceed the parameter—he was able to return to work and “remain gainfully employed”—were clear [588 N.W.2d at 740]. The record here did not establish that Johnson’s non-compliance with the opioid treatment parameter was an exceptional circumstance not contemplated by the parameter. Nor did the record show that Johnson’s non-compliance with the parameter better
achieved the objectives of the workers’ compensation system—to cure and relieve the effects of his injury.
The Legislature had already determined that in all but the most exceptional circumstances, the treatment parameters will best achieve the objectives of the workers’ compensation system. Accordingly, the Court reversed the decision of the Workers’ Compensation Court of Appeals.