WARREN F. SHELTON, Employee/Appellant, v. INDEPENDENT SCH. DIST. #625, SELF-INSURED/PREFERRED WORKS., Employer/Cross-Appellant, and TWIN CITIES SPINE CENTER, Intervenor.
WORKERS' COMPENSATION COURT OF APPEALS
SEPTEMBER 17, 2001
MEDICAL TREATMENT & EXPENSE - SURGERY. Substantial evidence supported the compensation judge=s findings that the employee=s low back surgery at L4-5 was, but surgery at L5-S1 was not, reasonable and necessary treatment to cure and relieve the effects of the employee=s 1994 work injury.
Determined by: Pederson, J., Rykken, J., and Wheeler, C.J.
Compensation Judge: Paul V. Rieke
STEVEN D. WHEELER, Judge
The employee appeals from the compensation judge=s finding that surgery performed at the L5-S1 level of the employee=s spine was not reasonable and necessary treatment for the employee=s October 24, 1994 work injury. The self-insured employer cross-appeals from the finding that surgery performed at the L4-5 level of the employee=s spine was reasonable and necessary treatment for the employee=s October 24, 1994 work injury. We affirm.
The employee, Warren F. Shelton, was born on December 30, 1967. After graduating from high school, the employee first worked as a salesperson in the hardware department at a Sears department store. During this employment the employee sustained a work injury to his low back in February 1986 while lifting power saws onto a shelf in the stockroom. Following an initial period of chiropractic and physical therapy treatments, the employee began treating with an orthopedic surgeon, Dr. Daniel W. Gaither, M.D., who first saw the employee on October 23, 1987. The employee reported symptoms of pain into his leg with standing more than two hours. Dr. Gaither recommended an MRI scan to rule out a lumbar central disc herniation. (T. 19-22; Exh. 4.)
On March 7, 1988 the employee returned to see Dr. Gaither. Dr. Gaither informed him that his MRI scan had shown a disc herniation at the L4-5 level. He also told the employee that he was not a surgical candidate. (Exh. 4.)
The employee was hired as a house custodian for the employer, Independent School District #625, in April 1988. The employee testified that he continued to have some symptoms from the 1986 work injury and that he was then under restrictions from Dr. Gaither limiting him to 15-20 pounds of lifting. At the time of his hire he passed a physical examination required to qualify for this job. This job required him to clean in three portable classrooms at the St. Paul Technical Vocational Institute. His cleaning duties were primarily vacuuming, mopping, sweeping, and moving furniture. The employee testified that these duties did give his back some difficulty, but that he only infrequently was required to lift more than 20 pounds. (T. 22-23, 60-62; Exh. 4.)
In October 1988 the employee again returned to Dr. Gaither, who noted that the employee now had a good functional range of motion in his back. Dr. Gaither again informed the employee he was not a surgical candidate and recommended that the employee treat with home exercises and return on an as needed basis. (Exh. 4.)
Also in October 1988 the employee was reclassified as a Atemp[orary] custodian@ and assigned to work at the Monroe Community School. His duties remained essentially the same. The employee testified that he sometimes would experience more back pain following days when he had to move a lot of desks, but that he was able to perform the work. He continued in this job for about seven years, during which period he was reassigned to Rondo Educational Center and then to Phalen Elementary School. (T. 24-26.)
During the summer months in 1994 the employee was performing summer cleanup work in one of the employer=s school buildings. He testified that this work was heavier than his usual job and that he was having increased back pain and symptoms in connection with performing this work. On or about October 21, 1994, after being released from the summer cleanup work, the employee was stocking his janitor=s closet when he twisted and had a sudden onset of back and leg pain similar to that which he had experienced at the time of the prior injury at Sears. (T. 26-29.)
Following this injury, the employee was treated by several physicians using a variety of conservative treatment modalities including pain medication, physical therapy, facet rhizotomy surgery in 1996, facet injections and a work hardening program. The employee testified that his back symptoms continued to worsen. An MRI scan on April 16, 1996 showed two-level degenerative disc disease at L3-4 and L4-5 and degeneration of the L4-5 disc with a central annular tear and broad-based bulging of the L4-5 annulus without visible nerve root impingement. Several physicians the employee saw expressed concern over possible functional overlay or chronic pain syndrome. (Exhs. B, 8, 11, 12, 13, 15.)
By June 1995, as a result of new medical restrictions, the employee had been unable to continue performing his regular work duties, and was provided with lighter duty work assignments by the employer as an educational assistant, working as a hall monitor and office assistant. (T. 30-41.)
In December 1997, following the filing of a notice of intent to discontinue benefits by the employer and an objection to discontinuance by the employee, the parties entered into a stipulation, approved by a compensation judge by order dated December 16, 1997, in which the parties stipulated and agreed that the employee sustained an injury to the low back on October 21, 1994 arising out of and in the course of his employment with the employer. The stipulation stated that A[t]he nature and extent of the injury is the subject of a dispute, but the fact of injury is not disputed,@ and recites that the injury was accepted as compensable and that various benefits had been paid. The stipulation resolved a dispute over the employee=s weekly wage and provided for a payment to resolve an underpayment of benefits. As a part of the stipulation, the discontinuance and objection to discontinuance were dismissed. (Judgment Roll.)
On January 20, 1998 the claims administrator for the self-insured employer wrote to the employee=s attorney denying payment for further medical care for the employee. The employee filed a claim petition on February 18, 1998 seeking ongoing medical benefits. The employer filed an Answer to Claim Petition on March 6, 1998 admitting the October 21, 1994 injury but alleging that the injury was in the nature of a low back strain, that maximum medical improvement had been reached, and that any disability or need for medical treatment was not causally related to the 1994 work injury. (Judgment Roll.)
The employee began treating with Dr. Joseph H. Perra, an orthopedic surgeon at the Twin Cities Spine Center on July 31, 1998. As of that date the employee was reporting a high level of low back pain, with pain down both legs to his feet and decreased sensibility. Prolonged sitting or standing were difficult and the employee had difficulty sleeping, needing to change positions frequently. Dr. Perra=s examination revealed that the employee was able to walk but with an antalgic gait, and could not raise onto tiptoes or heels well. Forward bending and extension were both limited. Dr. Perra diagnosed chronic back pain which had failed all non-operative modalities, but told the employee that surgery would be considered only if it was possible to determine the source of the pain with reasonable certainty. He recommended that the employee undergo discography at L3-4, L4-5 and L5-S1 to assess for discogenic pain. (Exh. C.)
The employee underwent the recommended discography on September 9, 1998 at Methodist Hospital. The injections produced no pain at L3-4 but concordant pain at both the L4-5 and L5-S1 levels. However, post-discography CT scanning failed to show any annular tears at the L5-S1 level. The employee returned to Dr. Perra on October 7, 1998. Dr. Perra recommended that the employee undergo a trial of interdiscal steroid injection at L4-5 and L5-S1. He opined that the injections were worth attempting, in view of the employee=s young age and relatively good disc height, but that if that failed, the employee=s only remaining treatment options were chronic pain therapy or surgery. On December 16, 1998 Dr. Perra saw the employee and noted that the interdiscal steroid had not been of benefit and had again replicated concordant pain at both L4-5 and L5-S1. He noted hesitancy about surgical intervention, as he was not willing to take out a normal looking disc, but with unclear findings suggesting two level involvement, could not predict a high success rate for surgery at one level. He recommended that the employee see Dr. Manuel J. Pinto, another orthopedic surgeon at the Twin Cities Spine Center, for a second opinion. (Exh. 18.)
Dr. Pinto saw the employee on February 3, 1999. He recommended that the employee repeat the discography to determine whether the L5-S1 pain response was consistent, before determining whether fusion surgery at L4-5 alone or at both L4-5 and L5-S1 might be advisable. The employee underwent discography for the third time on April 7, 1999 at the Center for Diagnostic Imaging (CDI). Due to an error the discography was performed at the L2-3, L3-4 and L4-5 levels, rather than at the L3-4, L4-5 and L5-S1 levels. Concordant pain was produced at L4-5 but not at L2-3 or L3-4. Because of the error, further discography was performed at the L5-S1 level on May 13, 1999 at CDI, using multiple injections in a blinded fashion. The employee again consistently reported concordant pain from the injection. A post-discography CT scan showed minor anterior fissuring at L5-S1which the radiologist read as significant in light of the positive pain response. (Exhs. B, C.)
On July 19, 1999 Dr. Perra=s deposition was taken on behalf of the employee. Dr. Perra testified that the employee=s options were limited to chronic pain treatment or surgery. He discussed the issue of two-level surgery versus single-level surgery as follows:
. . . the clearest thing is the one-level fusion for where we know the pathology is. The fear is that once - - if you undertake a single-level fusion with his reproducible response, the risk of failure I think is quite high. And so probably you=d be looking at a two-level fusion if he wanted to proceed with this based on his reproducible response. And that=s to minimize the chance for a failure.
The loss of motion and strength and support to doing a two-level fusion versus a one-level fusion is relatively small. Its success rate is similar, but personally I still have some difficulty removing what on all other evaluations appears to be a healthy disc. I don=t have a good understanding as to why that disc is painful. . . [b]ut it could be that there=s an external tear that we - - we can=t pick up, that it=s - - the size is below the resolution of the MRI and it doesn=t communicate with the nucleus.
(Exh. D at 18-20.) Dr. Perra testified that before proceeding with surgery, he would recommend that the employee undergo Aa thorough psychological evaluation to determine whether or not there=s any other impediments to his getting better with a surgical intervention.@ He testified that he generally had such evaluations performed by Dr. John Hung. If there were no significant psychological impediment to the surgery, Dr. Perra testified that he would then give the employee the option whether to proceed with surgery. He further testified that he would leave the choice to the employee Awhether he undertakes the single-level fusion, . . or what I think would probably be the most predictable for a positive outcome, which would be the two-level fusion, despite the healthy disc at L5-S1.@ (Exh. D at 20-21.)
On July 27, 1999 the employee entered into another partial stipulation for settlement with the employer. The parties stipulated that the employee had sustained a work injury to the low back in August, September or October of 1994, agreeing on an October 21, 1994 date of injury as referring to a combination of the effects resulting from the employee=s work activities for the employer both during summer clean-up and as a specific incident on October 21, 1994. The stipulation expressly reserved the employer=s defenses that the October 21, 1994 injury was at most a temporary aggravation of the employee=s prior, 1986 injury and that the effects of said aggravation lasted no longer than December 7, 1994. In addition to a lump sum settlement in return for a full, final and complete close-out of claims for temporary partial disability compensation and a to-date close-out of claims for interest, penalties and reinstatement of sick pay and vacation pay, the employer agreed to pay certain disputed medical expenses and to pay for a psychological examination by Dr. John Hung, PhD. The stipulation also included the following provision:
15. That, with regard to his low back condition, regardless of cause, the Employee stipulates and agrees that his primary health care providers are Dr. Fongemie, as the Agate keeper@ and Dr. Joseph Perra as the consultant/surgeon.
Dr. Hung performed a psychological consultation on August 31, 1999. He concluded that
[w]ith respect to psychological factors that may influence surgical outcome, there are no indications of severe psychopathology along the lines of major depression, anxiety disorder, personality disorder or substance abuse disorder that would clearly contraindicate major surgery. On the other hand, it is difficult to ignore the findings by at least four physicians . . . of significant functional overlay and inconsistent objective findings, which certainly constitutes a significant risk factor for poor surgical outcome B or at least for the persistence of chronic pain complaints in spite of an apparently successful fusion surgery in this patient population.
(Exh. 3 at 7.)
The employee returned to Dr. Pinto on August 25, 1999. At that time he had not decided to undergo surgery. Dr. Pinto noted that, should the employee wish to consider surgery, it would be advisable to repeat the discography at L5-S1 with an injection of anesthetic into the L4-5 level to assure that the pain felt was not secondary to increased pressure on the L4-5 disc. The employee subsequently decided to proceed with the additional discography and this test was performed on November 5, 1999. The employee again experienced concordant pain on injection at L5-S1. Eventually, the employee elected to proceed with fusion surgery at both the L4-5 and L5-S1 level. Dr. Pinto reviewed Dr. Hung=s report and noted that in light of the absence of any major psychological problems as well as his own experience with the patient he was Areasonably comfortable offering surgery.@ (Exh. C.)
The employee filed a claim petition on February 18, 2000 seeking approval for the low back surgery. The self-insured employer filed its answer on March 6, 2000 admitting an October 21, 1994 work injury but denying liability for the proposed surgery on the basis that the surgery was not reasonable and necessary; that any need for surgery was unrelated to the 1994 work injury, and that Dr. Perra was designated the employee=s orthopedic surgeon under the 1999 stipulation and that Dr. Perra had not made a recommendation for surgery. (Judgment Roll.)
The employee underwent a two-level anterior-posterior discectomy and fusion on September 15, 2000. According to the employee=s testimony at the hearing below on November 9, 2000, after the surgery he no longer had pain in his legs, could again sleep though the night and awaken without pain in the middle of his back, was able to substantially decrease his reliance on pain medications, and his back pain before the surgery as compared to afterwards was Alike comparing night and day.@ (T. 53-58; Exh. C.)
At a hearing held on November 9, 2000 a compensation judge of the Office of Administrative Hearings considered the issues of whether the fusion surgery was reasonable and necessary, whether the work injury of October 21, 1994 was a substantial contributing cause for the surgery, and whether the employee=s claim for medical expenses was precluded on the basis that Dr. Pinto was an unauthorized physician. Following the hearing, the compensation judge found that the surgery at the L4-5 level was reasonable and necessary and causally related to the 1994 work injury, but that there was insufficient evidence to establish that surgery at the L5-S1 level was reasonable and necessary. The compensation judge determined that the terms of the 1999 stipulation did not preclude a change in physicians and that A[t]he employee=s decision to have the surgery performed by Dr. Pinto was not for litigation purposes and was in his best interest.@ (11/28/2000 Finding & Order.)
The employee appeals from the denial of the expenses of the surgery at the L5-S1 level and the self-insured employer cross-appeals from the award of medical expenses related to the surgery at the L4-5 level.
STANDARD OF REVIEW
On appeal, this court must determine whether the compensation judge's findings and order are "clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted." Minn. Stat. ' 176.421, subd. 1(3) (1992). Substantial evidence supports the findings if, in the context of the record as a whole, 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 the evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, "[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). Factfindings may not be disturbed, even though this 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." Id.
I. Surgery at the L4-5 Level
The compensation judge found that the surgery performed at the L4-5 level was reasonable and necessary for the treatment of the employee=s 1994 work injury. The self-insured employer appeals on several grounds.
First, the employer argues that there was evidence to suggest that the employee did not sustain a work injury on October 21, 1994, but instead injured his back at home in October 1994. We note, however, that the employer had already admitted the October 21, 1994 work injury in practice, pleadings and stipulations, and that no denial of the 1994 work injury was raised before the compensation judge. This court cannot consider issues not raised below. Therefore, we have not considered the employer=s claim, first raised on appeal, with respect to an alleged home injury in October 1994.
The employer next argues that the medical records establish that the employee=s low back injury in 1994 was merely a temporary aggravation to the 1986 work injury, and that the 1994 work injury had resolved and was not a substantial contributing factor to the employee=s low back condition and need for surgery in September 2000. The employer relies primarily on the expert medical opinion of its medical examiner, Dr. David Boxall, M.D. (Exhs 16, 17.) The compensation judge, however, accepted the opinion of Dr. Perra and Dr. Pinto, who both opined in deposition testimony that the 1994 injury was a permanent aggravation of the prior injury and was a substantial contributing cause of the employee=s condition leading to the surgery. (Exhs. D, E.) The trier of fact's choice between experts whose testimony conflicts is to be upheld on appeal unless the opinion of the expert relied on is based upon an insufficient foundation. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). After reviewing Dr. Perra=s and Dr. Pinto=s testimony on this issue, we conclude that their opinions were based on adequate foundation.
The employer further appeals from the finding that surgery at L4-5 was reasonably necessary to treat the employee=s low back condition, pointing to recommendations from some physicians, as well as that of Dr. Hung, for chronic pain treatment evaluation, and to the opinion of Dr. Boxall that surgical treatment was not reasonable or necessary. The compensation judge, however, accepted the contrary medical opinions of Drs. Perra and Pinto. The employer argues that Dr. Pinto=s opinion was insufficiently founded in that Dr. Pinto admitted that he did not heavily rely on the views of some of the other physicians; however, this is not a foundational defect but rather one of a disparity in expert opinion, as Dr. Pinto was aware of the views of these physicians. Again, we must affirm the compensation judge=s choice among divergent expert opinions. Nord, supra. The employer argues that the compensation judge erred in failing to specifically discuss the opinions of these other physicians. We do not believe the judge was required to discuss all medical opinions in detail in his findings.
Finally, the employer argues that it has no obligation to pay for the surgery in any event, portraying it as performed by an Aunauthorized physician.@ The employer points to the language of the 1999 stipulation in which the employee agreed that A[w]ith regard to his low back condition, regardless of cause, the Employee stipulates and agrees that his primary health care providers are Dr. Fongemie, as the Agate keeper@ and Dr. Joseph Perra as the consultant/surgeon.@ (Exh. 2.). The judge reasoned that it would be unreasonable to interpret the stipulation, which did not expressly forbid the employee from seeking a change of physicians, in a manner which would require a petition to vacate the stipulation in order to do so. The compensation judge held that this language did not preclude a change of physicians, and applied the standards applicable to a request for a change of physicians, finding that the employee did not undergo surgery by Dr. Pinto Afor litigation purposes@ and that the performance of the surgery by Dr. Pinto was in the employee=s best interests. The compensation judge also noted that at the time of the surgery, the employer had denied medical treatment on the basis of a primary liability denial.
This court has held that the concept of an Aunauthorized physician@ is not applicable where, as here, there has been a denial of primary liability. See Pelland v. The Gillette Co., slip op. (W.C.C.A. Oct. 25, 1995). See also Mandler v. Adaptive Control Technology, slip op. (W.C.C.A. Sept. 26, 1994); Helquist v. Kentucky Fried Chicken, slip op. (W.C.C.A. Oct. 19, 1993). The self‑insured employer denied primary liability for the employee=s medical expenses on the basis that his need for medical treatment at the time of surgery was entirely caused by the effects of a prior work injury. Accordingly, Minn. R. 5221.0430 is not controlling in this case.
In addition, a compensation judge has authority to grant a change in treating physicians under Minn. R. 5221.0430. Treatment rendered prior to approval of a change of physicians may nevertheless be compensable if and when approval of a change of physician is ultimately granted. See, e.g., Henschel v. Interfaith Social Servs., slip op. (W.C.C.A. Oct. 2, 1995). We agree with the compensation judge that the language of the stipulation does not revoke a compensation judge=s authority to grant a change of physician.
As a general rule in Minnesota, an employee has been afforded great latitude in choosing, and changing, physicians. See Maronde v. Robert Carr Constr. Co., 306 Minn. 529, 235 N.W.2d 207, 28 W.C.D. 129 (1975). Loss of faith in a doctor's skills, lack of improvement in the employee's condition, and communication breakdowns have been accepted as reasonable grounds for a request to change physicians. See, e.g., Anderson v. Main Motors, 47 W.C.D. 496 (W.C.C.A. 1992); Brown v. Farmhand, Inc., 35 W.C.D. 825 (W.C.C.A. 1982), summarily aff'd (Minn. April 18, 1983). The determination of this issue is a question of fact for the compensation judge. The standards set forth in Minn. R. 5221.0430, subp. 4(A) and subp. 4(F), reflect that the basic question is still whether a change would be "reasonable" under the circumstances peculiar to each case. Stuckey v. Crystal Cabinet Works, slip op. (W.C.C.A. May 1, 1996), citing Hernandez v. Heartland Foods, 53 W.C.D. 372 (W.C.C.A. 1995). Here, the compensation judge made findings supporting the change of physicians and those findings were supported by sufficient evidence in the record. We therefore affirm the order requiring payment of the medical expenses found to be reasonable and necessary by the compensation judge.
II. Surgery at the L5-S1 Level
The compensation judge denied payment for the surgery performed at the L5-S1 level on the basis that there was insufficient evidence to establish that the surgery at that level was reasonable and necessary. The employee argues on appeal that this determination was unsupported by substantial evidence.
We disagree. The compensation judge=s finding with respect to surgery at this level was supported by the absence of clear MRI, CT or other radiological findings of any significant abnormality at this level. It is true that the discography produced concordant pain at the L5-S1 level, but the compensation judge was not required to consider this test as definitive regarding the necessity of surgery at the L5-S1 level in the absence of further radiological findings. Dr. Perra expressed significant concern over performing surgery on the L5-S1 level. The compensation judge=s determination was also supported by the opinion of the employer=s medical examiner, Dr. Boxall. In his deposition, Dr. Boxall testified in detail why, in his opinion, the discography performed on the employee was an unreliable indicator for any problem at the L5-S1 level. Coupled with the concerns over likely functional overlay, Dr. Boxall did not believe that there was any basis for surgery at this level. (Boxall dep. at 12-21.) Although the compensation judge did not accept Dr. Boxall=s view that the surgery at L4-5 was also unnecessary, this did not preclude him from reasonably accepting the doctor=s views with respect to this other spinal level.
While the opposite conclusion was also possible on this record, we cannot conclude that the compensation judge=s finding was clearly erroneous or unsupported by substantial evidence. We therefore affirm.