MEDICAL TREATMENT PARAMETERS
Molly N. Tyroler
I.
INTRODUCTION
These materials provide an overview of both general and specific treatment
parameters and include information concerning the formation of the parameters, dates of
applicability, purpose, application to treatment requests, and recommendations on how to
handle requests. The materials also include information about the more controversial and
often litigated parameters.
II.
HISTORICAL BACKGROUND
An action plan published in 1991 by the Department of Labor and Industry first
addressed managing the consumption of medical services and cost associated with each
service by implementation of parameters to control medical costs within the workers’
compensation system.
Emergency and permanent rules were established in 1993 for the purposes of
determining “whether a provider of health care services . . . is performing procedures or
providing services at a level or with a frequency that is excessive, unnecessary, or
inappropriate based upon accepted medical standards for quality health care and accepted
rehabilitation standards.” Hirsch v. Bartley-Lindsay Co., 537 N.W.2d 480,
483 (Minn.1995).
The emergency rules were immediately challenged, and, in Hirsch, invalidated by
the Minnesota Supreme Court. As a result, the Commissioner revised the rules and issued
the Permanent Treatment Parameters, which went into effect in 1995. These treatment
parameters were also challenged, but the Minnesota Supreme Court concluded that the
revised rules did not conflict with the enabling Minnesota state statute and that the
Department of Labor and Industry did not exceed its authority in promulgating the
parameters. Jacka v. Coca-Cola Bottling Company, 580 N.W.2d 27, 34 (Minn. 1998).
III.
PERMANENT PARAMETERS
The workers' compensation treatment parameters can be found in Minnesota
Rules Parts 5221.6010 through 5221.6600. These rules have been adopted under
Minnesota Statutes 176.83 and 176.103. The specific treatment parameters are:
5221.6010
Authority
5221.6020
Purpose and Scope
5221.6030
Incorporation by Reference
5221.6040
Definitions
5221.6050
General Treatment Parameters
5221.6100
Parameters for Medical Imaging
5221.6105
Medications
5221.6200
5221.6205
5221.6210
5221.6300
5221.6305
5221.6400
5221.6500
5221.6600
Low Back Pain
Neck Pain
Thoracic Back Pain
Upper Extremity Disorders
Reflex Sympathetic Dystrophy of the Upper and Lower Extremity
Inpatient Hospitalization Parameters
Parameters for Surgical Procedures
Chronic Management
A. Applicability
The treatment parameters apply to all dates of injury and health care providers;
however they apply only to treatment that was provided after January 4, 1995. Minn.
Rule 5221.6020, Subp. 2.
The Treatment Parameters do not apply where the employer or insurer have
denied primary liability. Similarly, the Treatment Parameters do not apply to treatment
provided after the date of denial if the insurer initially admits liability, but later denies
liability alleging the employee suffered a temporary aggravation that had resolved.
Oldenburg v. Phillips & Temro Corporation, 60 W.C.D. 8 (1999), summarily aff’d, 606
N.W.2d 445 (Minn. 2000). Bryant v. Honeywell, Inc., slip op. W.C.C.A. April 25,
2003).
Practice Tip: Even if the Treatment Parameters do not apply, you may still use
the Treatment Parameters as guidance when analyzing whether the medical treatment
before you is reasonable and necessary.
B. Purpose
The purpose of the rules, as outlined in Minn. Rule 5221.6020, Subp. 1., is to
establish guidelines for reasonable and medically necessary treatment of employees with
compensable workers’ compensation injuries. The parameters are intended to prevent
excessive services, Minn. Stat. §176.135 and §176.136. The parameters were designed to
assist in the determination of whether services are performed at a level or with a
frequency that is “excessive, unnecessary or inappropriate.” Jacka v. Coca-Cola
Bottling Company, 580 N.W.2d 27, 34 (Minn. 1998). Based on the treatment
parameters, the insurer may deny payment for excessive services.
C. General Guidelines
The general parameters, as defined in Minn. Rule 5221.6050, include broad
guidelines that apply to all work-related injuries. These include (1) medically necessary
and effective treatment, (2) departure from the guidelines, and (3) procedural and notice
requirements.
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1. Medically Necessary and Effective Treatment
Under the general parameters, “all treatment must be medically necessary
treatment.” Minn. Rule 5221.6050, Subp. 1. A.
Minn. Rule 5221.6050 states that the provider must evaluate whether nonsurgical
treatment is “effective.” To be effective, the parameters require treatment results in two
of the following three improvements: (1) improvement of “subjective complaints of pain
or disability,” (2) improvement in objective clinical findings, and (3) improvement in
functional status, “especially vocational activities.” Minn. Rule 5221.6050, Subp. 1. B. If
the above results are not met, “the modality must be discontinued or significantly
modified, or the provider must reconsider the diagnosis.” Id.
Further, the health care provider is required by the parameters to use the “least
intensive setting appropriate and must assist the employee in becoming independent in
the employee's own care to the extent possible so that prolonged or repeated use of health
care providers and medical facilities is minimized.” Minn. Rule 5221.6050, Subp. 1. C.
2. Departure From the Guidelines
With regard to duration of treatment, the general Treatment Parameters allow for
departure from a parameter. Parameters are to be used by compensation judges as a
“flexible guide to determine what treatment is reasonable according to medical
standards.” Jacka gave compensation judges room to depart from the rules “in those rare
cases in which departure is necessary to obtain proper treatment.” Jacka, 35-36.
Jacka is important to remember when analyzing whether treatment is reasonable or
necessary. Departures are regularly, not “rarely,” granted by compensation judges.
There have been several decisions by the Workers’ Compensation Court of Appeals
that have exemplified their desire to expand the “rare case” rule set out in Jacka. For
example, in one case, the Workers’ Compensation Court of Appeals affirmed a
compensation judge’s departure from the treatment parameters and permitted chiropractic
treatment for a period of years after the expiration of the twelve-week passive care
rules, even though the chiropractor’s records were “not so detailed as we might have
wished” and the evidence supporting departure was only “minimally adequate.” Boisijoli
v. Lyndale Garden Center, slip op. (W.C.C.A. April 20, 1999).
As defined in Minn. R. 5221.6050 Subp. 8, departure may be appropriate in any one
of the following circumstances:


Where there is a documented medical complication (see case below for definition
of “complication”);
Where previous treatment did not meet the accepted standard of practice and the
requirements of the health care provider who ordered the treatment;
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


Where treatment is necessary to assist the employee in the initial return to work
where the employee's work activities place stress on the part of the body affected
by the work injury;
Where treatment continues to meet two of the following criteria, as documented
by medical records:
1.
the employee's subjective complaints of pain are improving,
2.
the employee's objective complaints are improving,
3.
the employee's functional status, especially vocational activity, is
objectively improving;
Where there is an incapacitating exacerbation of the employee's condition.
As noted above, the rules allow for departure from the Treatment Parameters if
there is a “documented medical complication.” A “complication” has been defined as “a
disease or diseases concurrent with another disease,” and as “the concurrence of two or
more diseases in the same patient.” A medical complication within the rule includes
situations where the work injury, in combination with a pre-existing condition, causes a
more complicated course of symptoms, disability, and treatment results. Jackson v.
Minneapolis Public Sch. Special Dist. #1, slip op. (W.C.C.A. April 8, 2010).
In 1999, the Minnesota Supreme Court explained and then expanded their
previous “rare case” rule. Asti v. Northwest Airlines, 588 N.W.2d 737 (Minn. 1999). In
Asti, the Workers Compensation Court of Appeals held that there was no evidence that
would support the conclusion that the recommended treatment could qualify as “assisting
the employee in his initial return to work,” and, therefore, this situation was not a ‘rare
case’ as specified in Jacka. at 739. While the Supreme Court agreed that there was no
evidence of “progression in activities” allowing for an additional period of treatment
under Minn. R. 5221.6600, subp. 2B (3), and noted that the employee “failed to meet the
specific requirements of departure,” they reversed the holding of the WCCA. In
justification of the reversal, the Court stated, “It cannot be legitimately asserted that the
drafters of the treatment parameter rules considered every possible scenario . . . .” Thus,
this case was one of the “rare” cases where a departure was necessary.
3. Procedural Requirements
It is the healthcare provider’s responsibility to notify the insurer of the proposed
treatment in writing or orally at least seven working days before the treatment is initiated.
Minn. R. 5221.6050, Subp. 9. A-B.
It is then the insurer’s responsibility to respond to the proposed treatment within
seven days of notification of proposed treatment from the healthcare provider, Minn. R.
5221.6050, Subp. 9. C. An insurer must respond orally or in writing to:




Approve the proposed treatment,
Request additional information,
Request a second opinion,
Request an independent medical examination, or
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
Deny authorization.
If authorization for treatment is denied, the insurer must notify the employee and health
care provider why the treatment is being denied. The written denial must also advise the
employee and provider that they have the right to a review of the denial by an appropriate
health care professional. If the treatment parameters are relied upon as a reason for
denying payment, the specific parameter must be cited.
If the insurer does not respond in one of the aforementioned ways within seven
working days, authorization for the proposed treatment is “deemed to have been given.”
(Emphasis added) Minn. R. 5221.6050, Subp. 9. C. (1).
The 45-day period contemplated by the medical treatment parameters governing
requests for non-emergency surgery is calculated by calendar days, not working days.
Paape v. City of So. St. Paul, slip op. (W.C.C.A. April 21, 2011).
4. Specific Treatment Parameters
Guidelines were established in the parameters for some of the most common
work-related injuries. The specific treatment parameters address low back pain, neck
pain, thoracic back pain, upper extremity disorders, reflex sympathetic dystrophy, and
chronic pain. The specific guidelines can be found under Minnesota Rules 5221.6200 to
5221.6600.
The specific parameters address initial nonsurgical, surgical evaluation and
chronic management phases. Each phase will not be required for every injury. The
parameters cover the same categories for each specific injury and are as follows:









Passive treatment modalities
Active treatment modalities
Therapeutic injections
Surgery
Chronic management
Durable medical equipment
Evaluation of treatment by health care provider
Medication
Additional specific parameters
IV.
MOST CONTROVERSIAL AND LITIGATED PARAMETERS
A. Passive Treatment Modalities
Passive Treatment Modalities are covered specifically in the specific permanent
treatment parameters as follows:

Low back pain – Minn. Rule 5221.6200, Subp. 3.C.(1-3),
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


Neck pain - Minn. Rule 5221.6205, Subp. 3.C.(1-3),
Thoracic pain - Minn. Rule 5221.6210, Subp. 3.C.(1-3), and
Upper extremity disorders - Minn. Rule 5221.6300, Subp. 3. C. (1-3).
The parameters under these sections allow for adjustment or manipulation of
joints, including chiropractic and osteopathic adjustments or manipulations, with a
treatment response of three to five treatments. The maximum treatment frequency
allowed by each section is up to five treatments per week for the first one to two weeks,
with decreasing frequency thereafter.
The parameters allow a maximum of twelve weeks of passive treatment.
Twelve additional visits over the course of an additional year may be allowed if all of the
following apply:
(a) the employee is released to work or is permanently totally disabled and the
additional passive treatment must result in progressive improvement in, or
maintenance of, functional status achieved during the initial 12 weeks of passive
care;
(b) the treatment must not be given on a regularly scheduled basis;
(c) the health care provider must document in the medical record a plan to
encourage the employee's independence and decreased reliance on health care
providers;
(d) management of the employee's condition must include active treatment
modalities during this period;
(e) the additional 12 visits for passive treatment must not delay the required
surgical or chronic pain evaluation required by this chapter; and
(f) passive care is inappropriate while the employee has chronic pain syndrome.
Passive treatment requested by an employee may continue beyond the additional
twelve visits if approved by the insurer, commissioner, or a compensation judge. Where
the Employee requested additional physical therapy treatment beyond an additional
twelve visits, the W.C.C.A looked to Minn. R. 5221.6200, subp 3.B.(2) and weighed the
factors including the employees’ subjective complaints of pain, functionality, and
objective findings. Larsen v. Kraft Foods, Inc. and Amunrud v. Advance United
Expressway, 2007 WL 2688585 (Minn.Work.Comp.Ct.App.) and 64 W.C.D. 204
(Minn.Work.Comp.Ct.App. 2004). The Court determined that approval of additional
physical therapy treatment was unsupported by substantial evidence. The Court looked to
the Treatment Parameters, applied them to the treatment requested, and found that
additional treatment was not reasonable or necessary.
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Because passive treatment may be allowed when a departure applies, also review
Minn. Rule 5221.6050, subp. 8, discussed above.
B. Therapeutic Injections
Therapeutic injections are also covered in the each of the specific permanent
treatment parameters:
 Low back pain – Minn. Rule 5221.6200, Subp. 5.C.(1-3),
 Neck pain - Minn. Rule 5221.6205, Subp. 5.C.(1-3),
 Thoracic pain - Minn. Rule 5221.6210, Subp. 5.C.(1-3),and
 Upper extremity disorders - Minn. Rule 5221.6300, Subp. 5. C. (1-3).
 Injections for RSD/Chronic Regional Pain Syndrome and like conditions are
provided for separately under Minn. Rule 5221.6300, subp. 2A.
Therapeutic injections can only be given in conjunction with active treatment
modalities provided to the same anatomical site. The parameters under these sections
provide specific time for treatment response, maximum treatment frequency, and
maximum treatment for each of the following: (1) trigger point injections, (2) sacroiliac
joint injections, (3) facet joint or nerve injections, (4) nerve root blocks, and (5) epidural
injections.
Healthcare providers often attempt to continue therapeutic injection treatment for
the same injury beyond the scope of the treatment parameters’ maximum treatment
requirements of “four injections to any one site,” by, for example, providing injections to
a different site.
It is noted that the use of injections for these specific injuries can extend past the
12-week limit on passive treatment modalities so long as the maximum treatment for
injections is not exceeded.
C. Lumbar Surgery and Arthrodesis
Low back surgery, including decompression procedures and arthrodesis, is
covered in Minn. R. 5221.6200, Subp. 6. This section first addresses the specific
parameters outlined for regional low back pain (Subp.11); radicular pain, with or
without regional low back pain, with no or static neurologic deficits (Subp. 12); or cauda
equina syndrome and for radicular pain, with or without regional low back pain, with
progressive neurologic deficits (Subp. 13).
These parameters provide guidance when surgical evaluation, if indicated, may
begin and where of the use of appropriate medical imaging techniques, diagnostic blocks
and injections, personality or psychosocial evaluation, or consultation with other health
care providers may be appropriate. Minn. R. 5221.6200, Subp. 11. B. (1-4).
Spinal surgery for lumbar arthrodesis, with or without instrumentation, is
addressed in Minn. R. 5221.6500, Subp. 2. C.
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Currently most controversial are the requirements necessary to establish that
surgery is reasonably required. Minn. R. 5221.6500, Subp. 2. C. (1) (a-d) requires that
one of the following conditions must be satisfied to indicate the reasonable necessity of
surgery:
1) unstable lumbar vertebral fracture, or
2) for a second or third surgery only, documented reextrusion or redisplacement of
lumbar intervertebral disc after previous successful disc surgery at the same level
and new lumbar radiculopathy with or without incapacitating back pain,
3) traumatic spinal deformity including a history of compression (wedge) fracture or
fractures, or
4) incapacitating low back pain for longer than three months, and one of the
following conditions involving lumbar segments L-3 and below is present:
a. for the first surgery only, degenerative disc disease with postoperative
documentation of instability created or found at the time of surgery, or
positive discogram at one or two levels; or
i. pseudoarthrosis,
ii. for the second or third surgery only, previously operated disc; or
iii. spondylolisthesis.
D. Morphine Pumps
A “morphine pump is indicated for a patient who has somatic pain, and is not a
candidate for any other surgical therapy, and has had a favorable response to a trial
screening period.”
5221.6200, Subp. 6. C. (2) Low Back Pain
5221.6205, Subp. 6. C. (2) Neck Pain
5221.6210, Subp. 6. C. (2) Thoracic Back Pain
The WCCA addressed the use of a trial screening prior to implantation of a
morphine pump in Feist v. Packaging of America/Tenneco, 61 W.C.D. 111
(Minn.Work.Comp.Ct.App. 2001). In Feist, the employee had treated for twelve years
without significant relief, and the option of cervical surgery was explored, but rejected.
There were no other surgical recommendations. The healthcare provider proposed a trial
period of continuous spinal morphine. If the trial period was successful, the healthcare
provider “would recommend implantation of a morphine pump.” Id. at 117.
Since there are no prerequisites for the trial screening period in the treatment
parameters, the court decided that there was substantial evidence that supported a
determination that a morphine pump was “a reasonable treatment option which should be
explored, and since it was clear that the appropriateness of this form of treatment could
not be fully evaluated until after completion of a trial screening, a trial screening was
reasonable under the circumstances.” Id. at 117.
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E. Spinal Cord Stimulators
A “dorsal column stimulator is indicated for a patient who has neuropathic pain,
and is not a candidate for any other surgical therapy, and has had a favorable response to
a trial screening period.”
5221.6200, Subp. 6. C. (1) Low Back Pain
5221.6205, Subp. 6. C. (1) Neck Pain
5221.6210, Subp. 6. C. (1) Thoracic Back Pain
The use of a trial screening period prior to implantation of a spinal cord stimulator
was similarly challenged. In the case of the spinal cord stimulator trial screening, the
employer and insurer argued that the decision of the compensation judge to allow a trial
screening period prior to implantation of a spinal cord did not satisfy the requirements of
the treatment parameters. Brown v. REM Central Lakes, and Liberty Mutual
Insurance Company, 69 W.C.D. 250 (Minn.Work.Comp.Ct.App. 2009). Unfortunately,
the Court affirmed the compensation judge’s finding to allow the trial screening period
before a second opinion was obtained or a psychological evaluation completed. The
Court continued to follow the principles in Feist, noting that the treatment parameters
concerning spinal cord stimulators do not apply to trial screenings.
F. Botox Injections
The treatment parameters dealing with therapeutic injections for the neck,
thoracic spine, and low back each provide that botulinum toxin injections are not
indicated and are not reimbursable. Nonetheless the use of Botox Injections was
addressed in a case before the Minnesota Supreme Court. Hugill v. Benton County, 64
W.C.D.220, 230 (2004). In Hugill, the employee was seeking approval of Botox
injections. The compensation judge denied the request and relied on the opinion of a
doctor who wrote, “[i]n the absence of spasm, since none has been clearly documented on
any regular occasion, I do not believe that . . . Botox injections [are] warranted.” On
appeal, the employee argued the record was “replete” with medical records establishing
the need for the injections. Ultimately, the employee cited only two medical records
mentioning spasm. Further, the treating, and recommending physician, “offered very little
explanation as to why he was recommending the injections.” The Court affirmed the
decision of the compensation judge.
Practice Tip: A denial of an Employee’s request for Botox Injection should be
based on the principle that they are not reimbursable per the Treatment Parameters. It will
then be a factual determination as to whether a departure is warranted.
G. Opioids
Minn. R. 5221.6105, Subp. 3. addresses parameters for the use of opioid
analgesics. The rule states that opioids are indicated “for the symptomatic relief of acute
and chronic pain that has been inadequately relieved by nonopioid medications.” Id. at A.
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The rule requires the health care providers’ use of generic oral opioids and
prescription of the lowest clinically effective dose of the medication. Id. at A-B.
Minn. R. 5221.6105, Subp. 3.B.(2) does not allow for use of opioids for the
symptomatic relief of acute or chronic pain, unless one-week trials of each of
hydrocodone, oxycodone, and morphine have been ineffective in reducing the patient's
pain by at least 50 percent as determined by the prescribing health care provider.
The length of use is specifically outlined in Subp. 3. C. (1-3):
1) Oral opioid analgesics prescribed within the first four weeks after the
date of injury are limited to no more than two weeks of medication per
prescription.
2) Oral opioid analgesics prescribed more than four weeks after the date
of injury may not be for more than one month of medication per
prescription.
3) Oral opioid analgesics prescribed more than 12 weeks after the injury
may be for more than one month of medication per prescription if
there has been a clinical evaluation to confirm the need for an efficacy
of the prescription and a clinical evaluation at least every six months
thereafter during continued use of opiate analgesics.
A request for a departure from the parameters regarding opioids was addressed in
Rushmeyer
v.
Lyngblomsten
Care
Center,
2006
WL
3891512
(Minn.Work.Comp.Ct.App.). In Rushmeyer, although the employee’s use of Vicodin was
found to be beyond that allowed under Minn. R. 5221.6200, Subp. 10, the Court applied
the “rare case” exception to the treatment parameters. The compensation judge explained:
This is a case where despite fusion surgery the employee continued to have
intractable pain and has had this pain for many years. The employee is not a
candidate for further surgery at this time. The employee's use of narcotics is
closely monitored by her treating physicians. There is no evidence of abuse
of narcotics. There is no alternate treatment for the employee's intractable
pain being proposed at this time that the employer and insurer are willing to
pay for.
The employer contended that this finding was unsupported by substantial evidence, that
the evidence did not support a contention the medication regimen was reasonable and
necessary, and that the facts did not support a finding of a ‘rare exception.’ The
W.C.C.A., however, found that the judge’s award was supported and upheld the
departure from the treatment parameters.
Adjusters and defense attorneys must pay attention to and analyze how a specific
treatment request is not a rare exception.
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H. Chronic Pain Treatment Modalities
Minnesota Rule 5221.6600 addresses chronic management of all physical injuries,
even not specifically governed under 5221.6200 – 5221.6500:
If a patient continues with symptoms and physical findings after all
appropriate initial nonsurgical and surgical treatment has been rendered,
and if the patient’s condition prevents the resumption of the regular
activities of daily life including regular vocational activities, then the
patient may be a candidate for chronic management.
Minn. Rule 5221.6600 Subp. 1.
The rule’s purpose is clear: (1) the employee should be made independent of
health care providers in the ongoing care of a chronic condition; and (2) the employee
should be returned to the highest functional status reasonably possible.
Personality or psych evaluation may be indicated per Subp. 1(A).
No further passive treatment modalities or therapeutic injection are indicated at
this point, except as otherwise provided by the rule. No further diagnostic evaluation is
indicated unless there is a development of symptoms or physical findings which would
warrant diagnostic evaluation. Minn. Rule 5221.6600 Subp. 1(C and D).
A chronic management program must include appropriate means by which
scheduled medications can be discontinued or severely limited. Minn. Rule 5221.6600
Subp. 1(E).
Any of the following modalities can be used singly or in combination as part of a
chronic management program per Subp. 1(B) and Subp. 2.:
a.
b.
c.
d.
e.
f.
Home-based exercise programs;
Health clubs;
Computerized exercise programs;
Work conditioning and work hardening programs;
Chronic pain management programs; and/or
Individual or group psychological or psychiatric counseling.
For each chronic management modality, except home-based exercise programs,
the health care provider must provide prior notification. Prior notification is required for
home-based exercise programs if durable medical equipment is prescribed for home use.
Insurers may not deny payment for a chronic management program previously
authorized without providing the employee and the employee’s health care provider with
at least 30 days notice of intent to apply any of the chronic management parameters in
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Rule 5221.6600 to future treatment. The notice must include the specific parameters that
will be used in determinations of compensability.
I. Durable Medical Equipment
Included in the specific parameters addressing the low back, neck, thoracic back,
and upper extremity disorders is a discussion on durable medical equipment. In each
specific parameter, the subsection (Subd. 8) concerning durable medical equipment
outlines that whirlpools, Jacuzzis, hot tubs, special bath or shower attachments, beds,
waterbeds, mattresses, chairs, recliners and loungers are not indicated for home use.
V.
CONCLUSION
The Treatment Parameters were intended to clarify the reasonableness and
necessity of treatment proposed by healthcare providers. Less clear, however, is how to
navigate the Parameters.
While the courts have issued decisions making application of the Treatment
Parameters more difficult, there is evidence of success in use of the parameters. Keep in
mind that a denial to a request for treatment must include an explanation as to why the
treatment is being denied and, if the treatment parameters are relied upon as a defense,
there must be a specific citation to the parameter that is being relied upon.
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