CRISTIAN P. KLINEFELTER, Employee/Appellant, v. QUICKSILVER EXP. COURIER and SAFECO INS. CO., Employer-Insurer, and NORTH RIVER INS. CO. and CENTER FOR DIAGNOSTIC IMAGING, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 6, 2003
MEDICAL TREATMENT & EXPENSE - SURGERY. Substantial evidence, including expert opinion, supported the compensation judge=s decision that fusion surgery was not reasonably required to treat the effects of the employee=s work-related injury.
Determined by Wilson, J., Rykken, J., and Pederson, J.
Compensation Judge: Jennifer Patterson.
DEBRA A. WILSON, JUDGE
The employee appeals from the compensation judge=s decision that the employee=s degenerative disc disease at L5-S1 is not causing his low back pain and that the employee does not need fusion surgery at present. We affirm.
The employee sustained a work-related injury to his low back on January 20, 2000, while employed as a courier for Quicksilver Express Courier [the employer]. He treated with Dr. Michael Goertz from January 21 through March 31, 2000. Dr. Goertz diagnosed a back strain and prescribed medications and physical therapy. The employee received 30 physical therapy treatments from January 27, 2000, through June 2, 2000.
Dr. Goertz referred the employee to orthopedic surgeon Dr. Richard Strand, who ordered an MRI. The MRI performed on April 11, 2000, revealed degenerative disc disease at L5-S1 with a small to moderate-sized left-sided posterolateral disc herniation at the L5-S1 level. The radiologist concluded that the herniation abutted the thecal sac and the left S1 nerve root without nerve root compression.
The employee continued to work for the employer after the work injury in a modified courier position. On April 11, 2000, Dr. Strand released the employee to return to work without restrictions. The employee began work for Interstate Diesel as a service writer in May 2000, a job that paid more than his previous job with the employer. In April of 2001, the employee began work for US Auto Leasing as an auto broker, and in February of 2002 he opened his own repair shop.
Dr. Strand prescribed a lumbar epidural cortisone injection, which was performed on April 20, 2000. When seen again by Dr. Strand on May 4, 2000, the employee had little pain, his neurologic exam was normal, and his straight leg raising was negative, but, by May 11, 2000, he again had significant pain in his left buttocks down to the left calf. At that time, his neurologic exam was again normal but his orthopedic exam revealed decreased range of motion on flexion-extension and lateral bending. Dr. Strand restricted the employee=s work activities. On August 10, 2000, the employee reported to Dr. Strand that his symptoms were as bad as they had been before the cortisone injection, and Dr. Strand prescribed another injection. On August 24, 2000, the employee returned to Dr. Strand, reporting some pain in the low back but no leg pain after the second injection. Again his neurologic examination was normal, and Dr. Strand recommended continued ibuprofen and exercise, stating specifically that the employee was not a candidate for surgery. The employee last saw Dr. Strand on September 21, 2000, at which time the employee reported that he was feeling significantly better, with no leg pain. Dr. Strand reported that, A[w]ith a normal exam and limited changes on his imaging, I think we will just continue him working, and I will see him back in the office in 3 months.@ The employer=s workers= compensation insurer, Safeco Insurance Company [Safeco], paid for all of the employee=s medical treatment through September 21, 2000.
The employee did not return to Dr. Strand but decided to see a neurologist and went to Dr. Steven Trobiani. The employee did not request a change of physician or notify Safeco that he intended to change doctors. Dr. Trobiani examined the employee on October 27, 2000, at which time the doctor diagnosed lumbar discogenic pain syndrome and prescribed 21 sessions of myofascial release therapy. Those treatments resulted in a shift of symptoms from the left to the right side of the employee=s back. Dr. Trobiani subsequently prescribed additional therapy and a Med-X program. When the Med-X program increased the employee=s pain, Dr. Trobiani ordered another lumbar epidural steroid injection. Before that injection could be done, however, the employee contacted Dr. Trobiani, complaining of increased pain and requesting a surgical evaluation. He was referred to Dr. Bruce Bartie.
Dr. Bartie examined the employee on May 24, 2001, diagnosed discogenic pain syndrome, and opined that Aonly if his symptoms are lasting beyond two years, would we give consideration to more interventional care such as consideration for a fusion.@ Dr. Bartie recommended a swim and exercise program..
In January of 2002 Dr. Trobiani ordered a repeat MRI, which revealed no changes. Dr. Trobiani ordered facet blocks at L4-5, which gave the employee no relief from his low back pain.
In February of 2002, at the recommendation of Dr. Bartie, the employee underwent discography, which produced no pain at L4-5 but 9.5/10 concordant pain at L5-S1. Because the employee was two years post injury, with ongoing pain, Dr. Bartie opined Athat a fusion would be of some benefit.@
The employee was re-examined by independent medical examiner Stephen Barron on May 20, 2002. Dr. Barron diagnosed degenerative disc disease of the lumbar spine at L5-S1, without objective findings. It was his opinion that the employee had no objective findings on examination, that the work injury had temporarily aggravated the pre-existing degenerative disc disease, and that the employee did not need fusion surgery. It was also Dr. Barron=s opinion that the employee=s treatment after September 20, 2000, was related to the employee=s size and the pre-existing degenerative disc disease.
Dr. Trobiani examined the employee again on May 29, 2002, at which time the employee continued to complain of pain in the lumbar region. In unappealed findings, the compensation judge found that the employee had no positive findings on clinical examination at that time and no neurologic findings. In spite of the lack of positive findings, Dr. Trobiani agreed with Dr. Bartie that the employee was a candidate for fusion surgery.
On April 2, 2002, the employee filed a medical request for authorization for the fusion surgery recommended by Dr. Bartie. The request came on for hearing before a compensation judge of the Office of Administrative Hearings, and, in a decision filed on July 2, 2002, the judge found, in relevant part, that the employee had sustained a lumbar sprain on the date of injury, which had healed by April 23, 2001; that the degenerative changes disclosed on MRI at L5-S1 were not causing the employee=s low back pain; and that the employee was not presently in need of fusion surgery to treat his work injury. The employee 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.
Causation for medical treatment rendered after September 21, 2000, including the proposed fusion, was an issue at the time of trial. It is apparent from the judge=s decision that she found that the employee had sustained a lumbar sprain at the time of the January 2000 work injury, that he had recovered from the strain by April 23, 2001, and that, while the employee has degenerative changes at L5-S1, those degenerative changes are not causing his ongoing symptoms. The compensation judge expressly relied on the opinions of Dr. Barron in making these findings. While the employee appealed from these findings, he addressed only the issue of degenerative changes in his appellate brief.
The employee contends that Dr. Barron=s opinions are lacking in foundation, pointing specifically to the brevity of the doctor=s examinations of the employee and the doctor=s failure to acknowledge the nerve root impingement disclosed by the April 11, 2000, MRI scan and the positive discogram. We are not persuaded.
A trier of fact=s choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). First, the duration of a medical examination may be a factor for a compensation judge to consider when evaluating expert opinion but provides no basis for reversal on appeal. Second, there is no compelling evidence that the April 2000 MRI scan showed impingement on the nerve root. While the Ainterpretation@ portion of that report stated, Aherniation, which produced mild impingement on the traversing left S1 nerve root,@ the Aconclusion@ portion of that same report noted degenerative disc disease and herniated disc at L5-S1 Awithout nerve root compression.@ In addition, a second MRI was performed on January 21, 2002, and both the Ainterpretation@ and Aconclusion@ portions of that report reflect that no nerve root impingement was seen. Dr. Barron noted the findings of the January 21, 2002, MRI in his May 20, 2002, report and also acknowledged the discogram performed in March of 2002. Given the lack of evidence of nerve root impingement on MRI, the lack of positive findings on Dr. Barron=s two examinations of the employee, and the lack of findings by Dr. Trobiani on examination in May of 2002, substantial evidence supports the judge=s finding that the degenerative changes at L5-S1 are not causing the employee=s low back pain.
In addition to finding that the employee had sustained a lumbar sprain at the time of injury that had since healed, and finding that the degenerative disc condition at L5-S1 is not causing the employee=s low back pain, the judge found that the employee=s low back condition was not Aincapacitating@ as required for a lumbar fusion under the treatment parameters. The employee contends that he is Aat least partially incapacitated@ and that Kappelhoff v. Tom Thumb Food Markets, 59 W.C.D. 479 (W.C.C.A. 1999), establishes that less than total disability may satisfy the rule at issue. While we agree that Aincapacitating@ does not mean that the employee must be totally disabled from work, it should be noted that Kappelhoff was an affirmance of the compensation judge=s decision based on substantial evidence. As such, the case does not dictate any particular result here.
A determination as to Aincapacitating low back pain@ is a fact finding within the province of the compensation judge. In the instant case, where the compensation judge found that the employee=s lumbar sprain had healed, where the employee testified to only two days of total disability in the four jobs he has worked post-injury, where he did not testify to any need for pain medications to perform his work, and where he testified that he is still able to play recreational volleyball, there is substantial evidence to support the judge=s finding that the employee=s low back pain is not Aincapacitating@ for purposes of meeting the requirements for fusion surgery under the parameters. Accordingly, we affirm the compensation judge=s findings in their entirety.
 The doctor variously described it as a thoracic strain, a thoracolumbar strain, a lumbar sprain, a lumbar strain, and persistent low back pain.
 Dr. Barron had originally examined the employee on May 15, 2001, at which time he opined that the employee=s diagnosis was a healed lumbar sprain with no objective findings.
 Because that finding was not appealed, it is binding on this court. We note, however, that there was at least a minimal positive finding on examination, as straight leg raising was 80 degrees on the left while it was 90 degrees on the right.
 The medical request also sought a change of physician and payment of numerous medical bills.
 The judge also denied the employee=s claims for payment of medical expenses and found that the employee=s switch from Drs. Goertz and Strand to Dr. Trobiani was unauthorized.
 At Finding 25 the judge found, Ait is unlikely that the degenerative changes in the employee=s L5-S1 disc are causing his low back pain,@ but in her memorandum, she clarified, A[a]s supported by the opinion of Dr. Barron, the degenerative changes at the L5-S1 level of the employee=s spine are not causing his ongoing low back pain.@
 See Finding 17 and memorandum.
 See Finding 25 and memorandum.
 Issues raised in the notice of appeal but not addressed in the brief shall be deemed waived. Minn. R. 9800.0900, subp. 1.
 See Minn. R. 5221.6500, Parameters for Surgical Procedures
Subp. 2. Spinal surgery.
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C. Lumbar arthrodesis with or without instrumentation.
(1) Indications: one of the following conditions must be satisfied to indicate that the surgery is reasonably required:
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(d) incapacitating low back pain . . . for longer than three months, and one of the following conditions involving lumbar segments L-3 and below is present:
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i. 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. . . .
 The employee testified that he missed the day after the injury and the day after the first epidural injection. In addition, intervenor=s exhibit 5 reflects that the employee also missed time from work to attend medical appointments.