CAROLYN O'CONNOR, Employee/Appellant, v. JERRY'S ENTERS. d/b/a CUB FOODS and STATE FUND MUT. INS. CO., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 27, 2000
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY; MEDICAL TREATMENT & EXPENSE - SURGERY. Where it was reasonably based on expert medical opinion, the compensation judge=s conclusion that the employee=s proposed exploratory surgery was not reasonable and necessary was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Rykken, J., and Wheeler, C.J.
Compensation Judge: William R. Johnson
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge=s finding that the employee did not meet her burden of proving that proposed exploratory surgery is reasonable and necessary. We affirm.
Carolyn O=Connor [the employee] sustained an admitted injury to her low back on May 22, 1997, while working for Jerry=s Enterprises, d/b/a Cub Foods [the employer]. The employee was thirty-nine years old at the time and had worked for the employer as a cashier for about three months. She initially obtained treatment from a Dr. Yutangco, a specialist in occupational medicine. Dr. Yutangco evidently diagnosed a lumbosacral strain and treated the employee with medication and physical therapy between May 23, 1997, and July 3, 1997.
On July 10, 1997, the employee came under the care of orthopedic surgeon Dr. John Dowdle. Dr. Dowdle diagnosed mechanical low back pain and left sacroiliac joint inflammation and administered an SI joint injection. The employee did not improve with the injection and was referred for an MRI scan on July 24, 1997. The scan showed single-level degenerative disc disease with moderate dehydration at L5-S1. On August 19, 1997, the employee underwent a discogram that was interpreted as showing 7/10 concordant low back and left buttock pain. The disc morphology was abnormal. On August 25, 1997, Dr. Dowdle reported that the employee continued to be quite uncomfortable. Given the employee=s positive MRI and discogram results and her continuing back pain, Dr. Dowdle recommended an anterior lumbar fusion at the L5-S1 level, with a BAK device.
Prior to surgery, the employee was seen for a psychological evaluation by Jon D. Boller, Ph.D., and the employer and insurer arranged for a medical evaluation by orthopedist Dr. David Holte. In a report dated September 15, 1997, Dr. Boller concluded that the employee was psychologically capable of undergoing surgery, but he stated that his interview of the employee had revealed Aa somewhat histrionic approach to dealing with stressors and with pain.@ Dr. Boller noted also that the employee=s MMPI-2 revealed a conversion V profile Asuggestive of a potential for somatizing, for exaggerating physical complaints.@ In a report dated October 24, 1997, Dr. Holte recommended continued non-operative treatment. He stated that the employee exhibited numerous signs of symptom magnification on examination and that her symptoms and signs appeared to be significantly out of proportion to her radiographic imaging studies.
Notwithstanding Dr. Boller=s and Dr. Holte=s opinions, the recommended surgery was performed on February 2, 1998. The employee did not obtain any long term benefit from the surgery, but she continued treating with Dr. Dowdle thereafter on a regular basis. Dr. Dowdle provided the employee with pool therapy, medications, and periodic SI joint injections. On June 22 and October 18, 1999, the employee received facet joint injections bilaterally at L5-S1. Dr. Dowdle explained that the facet joint injections had both a therapeutic and a diagnostic purpose. He testified that, Ahopefully they confirm or help you confirm whether there is a pain generator and being able to isolate the pain generator.@ The employee testified that she obtained about two or three days of relief from the facet injections. The records from the Center for Diagnostic Imaging indicate, however, that the employee had not yet described any improvement in her pain symptoms thirty minutes after either set of injections.
On October 26, 1999, the employee agreed with Dr. Dowdle=s recommendation that they explore the employee=s fusion to determine whether it was solid and, if it was not, augment the fusion posteriorly. Dr. Dowdle later testified that in his experience a small percentage of patients who undergo the BAK anterior fusion continue to have persistent mechanical symptoms. He stated that the residual pain improves dramatically for these patients following augmentation of the fusion posteriorly.
On December 6, 1999, the employee filed a Medical Request seeking approval of the exploratory surgery recommended by Dr. Dowdle. The employer and insurer denied the request and arranged for an independent medical evaluation with Dr. John Sherman on December 28, 1999. Dr. Sherman diagnosed chronic low back pain syndrome and stated, AI think it is very unlikely that exploratory surgery to determine if an arthrodesis has been successfully achieved, would prove efficacious.@ Dr. Sherman indicated that, even if one had been obtained, he doubted that a solid arthrodesis would result in significant resolution of the employee=s symptoms. He pointed out that the employee did not obtain any relief, even transiently, of her back symptoms following the fusion surgery. He also stated that AWadell signs were notable for being positive at 4/5 with significant tenderness, simulation, nonphysiologic regional neurologic exam as well as significant over-reaction.@ He felt the employee=s Wadell signs would be a Astrong negative predictor@ for a positive clinical result in this case. Dr. Sherman recommended treatment through a pain management program.
The employee=s Medical Request came on for hearing before a compensation judge of the Office of Administrative Hearings on May 31, 2000. In a Findings and Order issued on June 16, 2000, the compensation judge adopted the opinions of Dr. Sherman and denied the employee=s request for an exploration and possible augmentation surgery. The employee appeals.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted." Minn. Stat. ' 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate." Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
The employee argues that the judge=s denial of the requested exploratory procedure by Dr. Dowdle is clearly erroneous and unsupported by substantial evidence. The employee primarily contends that the judge improperly focused on the efficacy of the employee=s L5-S1 BAK fusion rather than the reasonableness of the procedure to evaluate the integrity of the fusion site. She further argues that the judge=s reliance on Dr. Boller=s psychological evaluation, conducted prior to the fusion surgery and addressing an entirely different procedure, is misplaced.
In his Findings and Order, the compensation judge specifically adopted the opinion of Dr. Sherman to the effect that there are many factors which indicate that the employee=s problems would not be resolved by further surgery. One of the significant factors considered by Dr. Sherman was that the employee did not obtain any significant relief of her back symptoms following her fusion surgery. The compensation judge noted that this factor seemed to validate the concerns raised by Dr. Boller and Dr. Holte prior to the fusion surgery. The judge further noted that the employee continued to present positive Wadell signs when examined by Dr. Sherman on December 28, 1999. We do not believe that the judge=s reference to the reports of Dr. Boller and Dr. Holte evidences an improper focus on the fusion surgery, but rather that it underscores what Dr. Sherman referred to as Astrong negative predictors@ for a positive result from the exploratory procedure and possible augmentation. Nor do we believe that the judge misread Dr. Boller=s report or placed Agreat significance@ on his assessment. Dr. Boller did conclude that the employee was psychologically capable of undergoing the fusion surgery, but he also expressed concern relative to the employee=s conversion V profile on the MMPI-2 and her histrionic approach to dealing with stressors and with pain. It was not unreasonable for the judge or Dr. Sherman to consider this evidence in evaluating the necessity of the proposed surgery.
The compensation judge also took into consideration the employee=s reported lack of pain relief from the facet injections administered at CDI. Although Dr. Dowdle testified that the lack of pain relief following a facet injection does not necessarily mean the patient is not going to get relief with the exploration and augmentation, it was not unreasonable for the compensation judge to also consider the employee=s recorded responses to the injections.
The employee also argues that the compensation judge=s conclusion that the employee=s fusion is solid is clearly erroneous. The compensation judge, however, did not make a specific finding that the employee=s fusion surgery was solid. In a memorandum attached to his findings, the judge merely stated that Athe x-rays appear to show a solid fusion@ (emphasis added). This statement, qualified as it is, is not untrue in light of the evidence. On August 25, 1998, Dr. Dowdle noted that the employee=s x-rays showed her implants to be in good position, with no evidence of any loosening or problems. Later he testified that the x-rays showed no radiolucency around the implants, which would be evidence of instability. The employee argues that both Dr. Dowdle and Dr. Sherman agree that radiological testing is not a good indication of whether a fusion is solid and that Dr. Dowdle has stated that the only way to establish whether or not a fusion is solid is to explore the fusion site. However, given Dr. Dowdle=s assessment of the x-rays, we cannot agree that the judge=s comment in his memorandum, that the x-rays appeared to show a solid fusion, is clearly erroneous or undermines the judge=s ultimate conclusion that the proposed surgery was neither reasonable nor necessary.
We cannot conclude that the compensation judge=s factual determination was unreasonable or clearly erroneous, based on the evidence of record. It is the responsibility of the compensation judge, as trier of fact, to resolve conflicts in expert testimony. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The compensation judge accepted the expert medical opinion of Dr. Sherman over that of Dr. Dowdle. Generally, this court will not reverse the compensation judge=s choice between opposing expert medical opinions unless the facts relied on by the expert are unsupported by substantial evidence. Id., 360 N.W.2d at 342-43, 37 W.C.D. at 372-73. In this case, there is no evidence or claim that the opinions of Dr. Sherman were based on any false premises or were otherwise without proper foundation. Although the record in this case is subject to differing interpretations, we cannot say that the judge=s decision to rely upon the opinion of Dr. Sherman is clearly erroneous or unsupported by substantial evidence. Accordingly, the determination of the compensation judge in this case is affirmed. Hengemuhle, 358 N.W.2d 54, 37 W.C.D. 235.
 The employee received nine such injections between April 21, 1998, and April 7, 2000.