JO M HYINK, Applicant
RUPP BROTHERS INC, Employer
WILSON MUTUAL INS CO, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
The applicant injured her back in December 2003, when she lifted a keg of beer at her father's tavern. She eventually underwent surgery, a two-level fusion, but contends that she continues to have back pain. The disability issues have been settled by compromise and the only issue now before the commission is the compensability of medical expense.
1. Discussion
a. Perforated diverticulitis/constipation.
Some of the claimed medical expenses arise from emergency abdominal surgery to repair an acute perforated diverticulitis in the applicant's colon. The applicant required both a sigmoid resection and colostomy on an emergency basis in January 2009, followed by a colostomy closure procedure a few months later in May 2009. One of the doctors who treated her for this condition, Badri N. Ganju, M.D., stated:
During her first admission to the hospital for acute abdomen, she gave history of severe constipation which was, in part, secondary to her narcotic use for management of her low back pain. Use of narcotics resulted in severe constipation and I believe severe constipation had some role in her developing perforated sigmoid diverticulitis. (See Exhibit A).
An opinion from another doctor, Steven G. Santino, M.D., stated that the pain medicines the applicant took for her back pain "have the potential for causing constipation issues in patients." The applicant's pain clinician, Catherine M. Best, M.D., further reports that the applicant's chronic narcotic use has caused chronic constipation.
The employer and its insurer (collectively, the respondent), however, rely on an expert medical opinion from J. Jay Goodman, M.D., who offered a report at Exhibit 3 dated October 31, 2011. He states that the formation of diverticula is related to aging and that two-thirds of Americans will develop colonic diverticula by the time they are 80 years old. According to Dr. Goodman, there has been an increase in the condition due to the decrease in the amount of fiber that North Americans and Western Europeans consume. Of course, the applicant does not just have diverticula which can simply be benign, but diverticulitis, which means that the diverticula have become inflamed and symptomatic. Still, however, Dr. Goodman opines:
In the situation of Jo M. Hyink, it is my opinion, to a reasonable degree of medical probability, that the sigmoid colon perforation secondary to acute diverticulitis was not caused by opioids. Prior to the sigmoid colon perforation, there was no significant history of the development of diverticular disease and there was no history of treatment for diverticular disease and, of course, no history of hospitalization for diverticular disease. Constipation does not cause the development of colonic diverticula. Ms. Hyink was on at least 37 different medications since 1998, many of which may interact with each other and many of which are related to constipation.... There are no significant articles in the medical literate that I have reviewed that show any correlation between the use of these type of medication individually or in combination with opiates and the development or progression or aggravation of colonic diverticula. Certainly, smoking has been known to affect sigmoid diverticula relative to development and may directly affect the area of vascular penetration of the colonic wall where the diverticula do develop and herniate. Ms. Hyink has been smoking cigarettes since she was 9 years old and certainly this is a major factor in her overall health issues, including diverticular disease.
Dr. Goodman concluded his report by opining flatly that "Ms. Hyink's diverticulosis and subsequent complication of diverticulitis and perforation is not causally related to her low back problem, nor is it related to her chronic use of opiates." Indeed, noting that the applicant did not report constipation during her treatment before the emergency treatment for the diverticulitis in January 2009, Dr. Goodman opined that the applicant's medications prescribed for the work injury did not cause constipation.
The applicant responds that she complained of chronic constipation when she first treated for the diverticulitis in January 2009, and consistently reported to her doctors thereafter that she had been chronically constipated at the time of her diverticulitis surgery. However, the record contains little or no
post-surgery mention of recommendation for treatment for constipation by the doctors who treated her diverticulitis, other than notations by Dr. Best indicating that the constipation was controlled by Miralax. The commission must conclude that if the applicant's constipation caused or contributed to her perforated ulcer, the doctors treating that condition would have recommended more aggressive treatment to prevent constipation following her surgery, and that constipation would have received more prominent mention in their treatment notes. Dr. Ganju, again, opined only that he believed that the applicant's constipation played "some role" in her developing sigmoid diverticulitis. The commission therefore adopts as most credible Dr. Goodman's opinion that the applicant's back injury, and the medicines she took to treat it, did not result in the development, progression, or aggravation of her colonic diverticula and resulting diverticulitis.
While the commission cannot conclude that constipation caused the applicant's diverticulitis, the commission is satisfied that the applicant probably did suffer constipation related to her use of opiate medication to treat the pain for the work injury. Therefore, the applicant is entitled to recover the medical expense related to her treatment of constipation generally, but not for the treatment of her diverticulitis.
b. Depression.
The next issue is the applicant's treatment for depression. On this point, the applicant relies on the opinion of her pain clinician, Dr. Best, who opined at Exhibit E that the applicant's chronic pain made her depression more difficult to treat. The respondent, on the other hand, relies on the expert medical opinion of Calvin Langmade at Exhibit 1. Dr. Langmade did not actually examine the applicant but he did go through her treatment notes and concluded that
her depression complaints are no different than what required her to take Zoloft and Wellbutrin dating back many years prior to her claimed work injury date in 2003.
Other than Dr. Best's generalized statement that the chronic pain made her depression more difficult to treat, the commission sees little evidence that her psychological condition advanced in any material way after the work injury. Consequently, the commission denies the applicant's claims for that expense as well.
c. Edema.
The next issue is the applicant's treatment for edema. As the applicant points out, while Dr. Best says the edema is related to her injury, the respondent has provided no expert medical opinion that it is not. The commission therefore concludes the applicant is entitled to recovery of the medical expenses associated with the treatment of edema as well.
d. Intrathecal pump.
The final issue is the payment for the intrathecal pump to treat her chronic back pain. The applicant contends that records from a prior hearing which were incorporated by reference established that Arvind Ahuja, M.D., opined that an intrathecal pump was warranted in 2008. In addition, Dawn Nehls, P.A., who saw the applicant under the supervision of Donald Harvey, M.D., has stated that the applicant would benefit greatly from an intrathecal pump. (See exhibit G; see also: Nehls notes dated July 16, 2010 and January 2, 2011).(1)
The respondent asserts that Ms. Nehls had earlier said the applicant was not a candidate for the pump. (Exhibit 4.) More directly, however, the respondent relies on the report of Mark Aschliman, M.D., when asked if the applicant required placement of an intrathecal pump to treat her condition, stated:
In my opinion she does not. Placement of an intrathecal pump in my opinion would represent an egregious error in patient selection. While intrathecal pain pumps have proven to be of benefit in the treatment of malignancy pain, treatment of pain in non-malignancy cases is much less predictable. It has been documented that individuals that have certain conditions do not respond well at all to the pain pump. These include individuals with evidence of symptom magnification, persistent narcotic dependency and poorly controlled depression. Additionally, active legal claims also bode poorly for the outcome of intervention. Ms. Hyink has these contraindications and in my opinion represents an individual for whom intrathecal pain pump placement would be an inappropriate medical decision.
However, the applicant has credible complaints of ongoing pain and her treating providers have recommend placement of the intrathecal pump as an appropriate treatment for her continuing complaints following her conceded work injury and subsequent spinal fusion surgery. Pursuant to Wis. Stat. § 102.18(1)(b), then, the commission directs the respondent to pay for the implantation of an intrathecal pump recommended by Ms. Nehls and Dr. Harvey, if the applicant undergoes the procedure.
2. Conclusion
To sum up, the applicant is entitled to recover the treatment expenses for her constipation and edema conditions, as well as an order directing the respondent to pay for implantation of an intrathecal pump as recommended by Dr. Harvey and Ms. Nehls if the applicant undergoes that procedure. All other claimed expenses, including specifically those for treatment of her perforated diverticulitis and depression are denied.
The applicant shall submit to the respondent and the department a Medical Treatment Statement on form WKC-3, or similar document, itemizing the specific claimed treatment expenses that are compensable under this decision. The respondent shall pay those expenses within 30 days unless it does not agree that the claimed items were incurred to treat the constipation and edema conditions as discussed above. This order shall be left interlocutory to permit further orders and awards to determine which specific items of claimed expenses are related to the conditions for which the applicant is entitled to recover medical expense, in the event the parties cannot agree.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
Within 30 days of the receipt of a statement from the applicant identifying the expenses that are compensable under this decision, the employer and its insurer shall pay the expenses, or contest them as provided in this decision.
Pursuant to Wis. Stat. § 102.18(1)(b), the employer and its insurer shall pay for the implantation of an intrathecal pump, if the applicant undergoes the procedure.
Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.
Dated and mailed
August 30, 2012
hyinkjo . wrr : 101 : 5 ND6 3.33 ; 9.24
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
A credibility conference was unnecessary because the commission's modification of the ALJ's order was based on a different impression of the credibility of the medical experts, none of whom testified before the ALJ. See Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998).
cc:
Attorney Anthony Resimius
Attorney David Piehler
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