DIANE ORENSTEIN, Employee, v. DAYTON HUDSON CORP., SELF-INSURED/ASU RISK MGMT., Employer/Appellant, and CONSULTING RADIOLOGISTS, LTD., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 5, 2000
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee=s ongoing disability was causally related to her work-related low back injury.
MEDICAL TREATMENT & EXPENSE - IDET. Substantial evidence, including expert opinion, supported the compensation judge=s decision approving an investigational procedure to treat the employee=s work-related low back condition.
Determined by Wilson, J., Rykken, J., and Pederson, J.
Compensation Judge: Gary P. Mesna
DEBRA A. WILSON, Judge
The self-insured employer appeals from the compensation judge=s approval of proposed intradiscal electrothermal therapy, contesting both medical causation and reasonableness and necessity. We affirm.
The employee initially began working for Dayton Hudson Corporation [the employer] in 1973, later going on to work for several other retail establishments before returning to the employer, in furniture sales, in 1990. All of the employee=s various retail jobs required lifting, bending, and stooping, which the employee evidently performed without difficulty.
In September of 1996, the employee sought treatment for low back and radiating leg pain apparently unrelated to any specific incident or injury. Medical records from Park Nicollet Medical Center indicate that she was treated with physical therapy and medication for right-side low back and buttock pain into the fall of 1996, that she was off work for several days due to her symptoms, and that she called in to her doctor for a refill of her muscle relaxant medication as late as November 29, 1996. However, the employee testified that, by late 1996 or early 1997, she had no more symptoms and was able to perform her job and recreational activities without any restrictions.
On September 20, 1997, the employee allegedly injured her low back at work while lifting a 70-pound rack of leather samples. She reported the injury to her supervisor but completed her shift. Three days later, on September 23, 1997, the employee sought treatment again for low back pain and leg pain extending to her right knee. Dr. Michael McGrail, the same physician who had treated the employee a year earlier, recommended restrictions and advised the employee to use heat and ice. Despite physical therapy, medication, and back strengthening exercises, the employee=s symptoms continued, and she ultimately underwent several diagnostic imaging procedures, including a lumbar CT scan and two MRIs. These tests showed, among other things, degenerative disc disease at two levels.
Dr. McGrail eventually referred the employee to Dr. Charles Burton, a neurosurgeon, who became the employee=s primary treating physician in the spring of 1998. After additional conservative care and testing, including discography, Dr. Burton recommended that the employee undergo a procedure called intradiscal electrothermal therapy [IDET], an investigational, minimally invasive nonsurgical treatment for discogenic pain. The employer refused to pay for the proposed treatment, contending, based on the opinion of Dr. William Simonet, that the alleged September 1997 work injury was at most a temporary aggravation of the employee=s preexisting condition, ending within a month of the injury, and that IDET was not in any event reasonable and necessary treatment.
The matter came on for hearing before a compensation judge on May 3, 2000. In a decision issued on June 7, 2000, the compensation judge found that the employee=s September 20, 1997, work injury was a substantial contributing cause of the employee=s ongoing disability and that the proposed IDET procedure was reasonably required to treat the employee=s work-related condition. The employer appeals.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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, Athey 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, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless 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.@ Id.
The employer contends initially that substantial evidence does not support the judge=s decision that the employee=s ongoing disability and need for treatment is causally related to her September 1997 work injury. In support of this argument, the employer notes that it is undisputed that the employee had a preexisting low back condition, evidenced in part by medical treatment from September through November of 1996. The employer also points to Dr. Simonet=s opinion that the employee=s condition is the result of predictable age-related degeneration, which the September 1997 work injury aggravated for a month at most. Finally, the employer argues that the judge erred by failing to address the factors contained in McClellan v. Up North Plastics, slip op. (W.C.C.A. Oct. 18, 1994), in determining whether the employee=s work injury was in fact permanent as opposed to merely temporary. However, after review of the record, we conclude that the judge=s decision is amply supported by substantial evidence.
The primary evidence supporting the compensation judge=s decision on causation is the opinion of Dr. Burton, the employee=s current treating physician. Dr. Burton testified that the employee has a congenital condition that predisposes her to low back problems, but he nevertheless concluded that her September 20, 1997, injury was Athe most significant causal factor@ in her ongoing condition, because the injury Adestabilized a situation that was basically stable.@ It may be true, as the employer argues, that Dr. Burton first issued a causation opinion without knowledge of the employee=s September 1996 nonwork-related low back symptoms and treatment; however, the doctor=s causation opinion remained essentially the same when he was given the missing information at his deposition. We see no defect in Dr. Burton=s understanding of the employee=s condition or history that would require rejection of his opinion. As for the employer=s arguments based on McClellan, nothing in that case requires a compensation judge to analyze each and every listed factor in determining whether an injury is temporary or permanent.
The employee had low back symptoms and treatment for several months about a year prior to her work injury, but she testified that those symptoms resolved, leaving her able to pursue her normal work and leisure activities without restrictions, and there is no evidence of any treatment for at least nine months prior to the work injury. Following the work injury, the employee had extensive ongoing care, and she testified that she was never again symptom-free. A work injury need not be the sole cause but only a substantial contributing cause to support compensability, see, e.g., Swanson v. Medtronics, Inc., 443 N.W.2d 534, 536, 42 W.C.D. 91, 94-95 (Minn. 1989), and the compensation judge in any event clearly considered the employee=s preexisting symptoms and treatment history in rendering his decision. Because the record as a whole, particularly the opinion of Dr. Burton, supports the judge=s decision that the 1997 work injury was a substantial contributing cause of the employee=s ongoing disability, we affirm his decision on this issue.
IDET is a relatively new technique for treating discogenic pain through placement of a catheter in the targeted disc or discs and then raising the temperature of the catheter, and consequently the disc collagen, to a specific temperature range. The procedure is classified as investigational by the FDA, and there are no long-term studies as to either safety or effectiveness. However, Dr. Burton testified that IDET is used routinely by neurosurgeons and orthopedists in Minnesota as well as nationally. Dr. Burton also testified that the employee is a reasonable candidate for the procedure, which is considered nonsurgical and only minimally invasive, and that, without IDET, the employee might well require fusion surgery. In contrast to Dr. Burton, Dr. Simonet testified that the employee was not a candidate for IDET for several reasons, including the confused results of her discogram, which elicited nonconcordant pain responses implicating discs higher in the employee=s back than the abnormal discs shown on MRI. In resolving the issue in the employee=s favor, the compensation judge wrote as follows:
Dr. Burton has recommended an interdiscal electrothermal (IDET) procedure at L4-5 and L5-S1. The IDET procedure is rather new and so it does not have a long track record to prove its effectiveness, especially in the long term. The preliminary results have been good, however, and it has been approved by the FDA. Considering that the procedure is both less invasive and cheaper than surgery, it seems like a reasonable treatment option for the employee, especially since various other forms of conservative treatment have been unsuccessful. The condition of the employee=s low back, including the findings on MRI scan, make her a good candidate for the procedure, generally consistent with the articles submitted in Exhibit H.
In their appeal on this issue, the employer argues that surgery Ais not reasonable and necessary to resolve pain where no objective findings support the complaints,@ citing Spriggs v. University Health Care Ctr., slip op. (W.C.C.A. July 15, 1999), as support for this proposition. However, again, IDET is not surgery. Moreover, Spriggs was merely an affirmance, on substantial evidence grounds, of a compensation judge=s denial of surgery. As we have said repeatedly, such cases have little or no value as precedent, and nowhere in Spriggs did we state, imply, or suggest that objective verification of symptoms is a legal condition precedent for approval of a proposed procedure or treatment. We would also note that the employee=s MRI results are Aobjective,@ and Dr. Burton testified that those scan results correlate with the employee=s complaints. As for the employer=s argument that the employee=s discogram elicited only nonconcordant pain responses, Dr. Burton explained that, because pain is so subjective, the pain provocation component of discography is one of the least useful elements of that test.
Dr. Burton gave a reasonable explanation as to the nature of the IDET procedure and his basis for proposing it to treat the employee=s pain. While Dr. Simonet disagreed with Dr. Burton=s reasoning, it was the compensation judge=s responsibility to weigh the evidence and choose between these conflicting opinions. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Because we find no basis to substitute our judgment, we affirm the judge=s decision in its entirely.
 Also called intradiscal electrothermal coagulation or intradiscal electrothermal annuloplasty.
 In McClellan, the court wrote as follows:
Several factors may be considered when determining whether an aggravation of a pre-existing condition is temporary or permanent, including: (1) the nature and severity of the pre-existing condition and the extent of restrictions and disability resulting therefrom; (2) the nature of the symptoms and extent of medical treatment prior to the aggravating incident; (3) the nature and severity of the aggravating incident and the extent of restrictions and disability resulting therefrom; (4) the nature of the symptoms and extent of medical treatment following the aggravating incident; (5) the nature and extent of the employee=s work duties and non-work activities during the relevant period; and (6) medical opinions on the issue. AWhich of these factors are significant in a particular case and the weight to be given to any factor is generally a question of fact for the compensation judge.@ Wold v. Olinger Trucking, Inc., slip op. (W.C.C.A. August 29, 1994).
 The employer also asks us to overturn the compensation judge=s implicit conclusion that the employee=s testimony was credible, citing Aa distinct lack of memory as to the issues in the case during her cross examination@ and the fact that the employee did not Aaccurately relate the nature of her prior back problems to her physicians and during her testimony.@ However, a compensation judge is generally free to accept all or any part of a witness=s testimony. City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980).
 Heat apparently modifies the annular collagen and coagulates the nerve endings contained in the collagen.
 Dr. Simonet also characterized IDET as Aexperimental,@ for spines, at least. Dr. Simonet has used IDET for certain shoulder conditions.