HANNAH J. JAYNES, Employee, v. GOLDEN CREST NURSING HOME and AMERICAN INT=L GROUP/CONSTITUTION STATE SERVS. CO., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 13, 2005
EVIDENCE - CREDIBILITY; EVIDENCE - EXPERT MEDICAL OPINION. Where the judge=s finding as to the employee=s credibility was not irrelevant to the issues that had been before her at the hearing, and where the employee=s treating surgeon had stayed oriented to and in practical communication with the employee=s other providers over the course of four years, the compensation judge=s finding that the employee was a credible witness and her choice of medical expert were not improper for being either irrelevant or in reliance on unfounded opinion, notwithstanding the fact that the credibility finding was not important to issues still on appeal and that there was some reasonable ambiguity as to the doctor=s presumptions.
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY; RULES CONSTRUED - MINN. R. 5221.6100, SUBP. 1D; MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS. Where the employee=s presurgery imaging included both an MRI scan and an arthrogram, where, subsequent to the employee=s surgery, the employee=s surgeon sought a repeat MRI and arthrogram but only an arthrogram was conducted, where there was no evidence that the employee=s surgeon, when he later requested a repeat MRI scan and arthrogram, was unaware of the postsurgery arthrogram or any definitive evidence that he was unaware that it was unaccompanied by an MRI scan, and where Minn. R. 5221.6100, subp. 1D, expressly prohibits only repeat imaging that is conducted Awith the same imaging modality,@ the compensation judge=s conclusion that a repeat MRI scan and arthrogram was reasonable and necessary and not contrary to the Treatment Parameters was not clearly erroneous and unsupported by substantial evidence.
MEDICAL TREATMENT & EXPENSE - SURGERY; PRACTICE & PROCEDURE - PROSPECTIVE AWARD. Because it was based on evidence not yet in existence, the judge=s award of payment for surgery contingent on the recommending surgeon=s assessment of future radiological evidence was improper and was vacated.
Affirmed in part and vacated in part.
Determined by: Pederson, J., Wilson, J., and Rykken, J.
Compensation Judge: Nancy Olson
Attorneys: Steven Christensen, Roseville, MN, for the Respondent. Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Appellants.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge's award of an MRI scan and arthrogram and, conditionally, certain recommended shoulder surgery. We affirm the award of the diagnostic tests, and we vacate the award of the surgery.
On December 20, 2003, Hannah Jaynes [the employee] sustained a work-related injury to her right shoulder as she attempted to support a falling resident in the course of her work as a licensed practical nurse at Golden Crest Nursing Home [the employer]. The employee was forty-seven years old on that date and was earning a weekly wage of $454.72. The employee commenced treatment for the injury with osteopath Dr. Mitch Cardwell, who eventually, on January 29, 2004, restricted her from working and ordered a right shoulder MRI scan. The scan was conducted on February 11, 2004, and was read by radiologist Dr. D. L. Courneya to reveal post-operative changes consequent to an October 2000 surgery, but no evidence of rotator cuff tear. In his report, Dr. Courneya noted also that Amagnetic susceptibility artifact from the metallic fragments in the soft tissues status post acromioplasty does compromise today=s evaluation.@ Dr. Cardwell referred the employee to orthopedist Dr. William Schnell, who saw the employee on February 23, 2004. Dr. Schnell diagnosed posttraumatic bursitis and tendinitis, injected the shoulder with Lidocaine, and restricted the employee from working for a week, releasing her to return to work on March 1, 2004, with restrictions against lifting over ten pounds. After seeing Dr. Schnell once more on April 2, 2004, the employee returned on April 8, 2004, to see orthopedic surgeon Dr. Leonard Jennings, who had performed her October 2000 surgery, who ordered a right shoulder arthrogram and right shoulder MRI scan. The tests were conducted on April 21, 2004, and were read by Dr. Courneya as revealing an intact rotator cuff, but Dr. Courneya noted that this study also was compromised, in that this time A[p]atient motion artifact does degrade today=s examination@ and that A[t]he labrum is not well evaluated on today=s study secondary to the patient=s motion.@
On April 22, 2004, the employee returned to see Dr. Jennings, who noted that she had definite signs of impingement, finding on exam no evidence of instability but in certain configurations lots of pain. Dr. Jennings went on to state that the AMRI failed to show us any[thing] definite; however, we did not really get a good look at the labrum and not really a picture of all the ligaments, etc.@ On that note, he restricted the employee from working and recommended arthroscopy of the shoulder, possible debridement, and possible repair of a labral tear. On May 11, 2004, Dr. Jennings went ahead with the a diagnostic arthroscopy and a subacromial decompression, to correct impingement and possible instability in the employee=s right shoulder. The operative report indicates that no rotator cuff injury was discovered but that the employee had lots of inflammation and evidence of bursitis and that Dr. Jennings resected a lot of soft tissue and removed an inferior bone spur. The employee=s symptoms generally persisted subsequent to her surgery into June of 2004, and on June 17, 2004, she was given a cortisone injection and a prescription for continued physical therapy. On June 24, 2004, Dr. Jennings indicated in his treatment notes that he would Atry to get an MRI arthrogram okayed through Workman=s Comp.,@ noting that the employee might need yet another surgery.
On July 12, 2004, the employee underwent what radiologist Dr. D. S. Vechell reported to be a Aright shoulder arthrogram,@ conducted in compliance with a request for only a Aright shoulder arthrogram.@ There is no direct reference in the report to any accompanying MRI scan or any MRI component to the arthrogram. The arthrogram was read by Dr. Vechell to be negative and to be revealing of no evidence of a rotator cuff tendon tear. On July 21, 2004, Dr. Jennings reported, AMRI failed to show any real pathology. Arthrogram was done this past week.@ Noting that the employee=s A[s]houlder, however, is not improved,@ Dr. Jennings prescribed medication and specific exercises and recommended a new regimen of physical therapy. In his report on that same date, Dr. Jennings continued the employee=s release to sedentary work three hours a day, stating on that date, AI cannot see any indication for further surgery on the right shoulder.@ On July 26, 2004, the employee returned to see Dr. Cardwell, who administered a cortisone injection.
On August 18, 2004, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Stephen Barron. In his report on August 25, 2004, Dr. Barron concluded in part that the employee was able to work and to perform the duties of her usual occupation without any limitations or restrictions. He concluded also that, while the May 11, 2004, surgical intervention had been appropriate treatment for the employee=s work injury, ongoing physical therapy or other treatment was not reasonable or medically necessary, because of the lack of any significant objective findings on examination. He concluded also that the employee did not have any functional impairment under the Minnesota Workers= Compensation Schedules secondary to her work injury, that she was able to return to work at full duty without any restrictions, and that she had reached maximum medical improvement [MMI] and preaccident status with respect to her December 20, 2003, work injury.
On September 16, 2004, the employee returned to Dr. Jennings with complaints of Aa lot of pain in the shoulder,@ and Dr. Jennings noted that she Adefinitely has signs of impingement.@ Although there is no direct reference to magnetic resonance imaging in the July 12, 2004, arthrogram report, Dr. Jennings= September 16, 2004, treatment note reports that the employee Ahad an MR arthrogram since the last surgery which was essentially within normal limits.@ Concluding that she was Ahard to evaluate,@ Dr. Jennings restricted the employee from working and recommended a repeat arthroscopic surgery, noting that the employee was for now not interested in getting a second opinion.
On about October 4, 2004, the employee was served with Dr. Barron=s report of MMI. On October 8, 2004, the employer and insurer filed a Notice of Intention to Discontinue [NOID] the employee=s temporary total disability benefits, based on a conclusion that the employee had reached MMI with no need for further restrictions or medical treatment. On that same date, the employee filed a request for an administrative conference on the issue.
Dr. Jennings examined the employee again on October 14, 2004, and in his report on that date he stated the following:
[The employee=s] whole history is a little confusing in that she had two surgeries on the shoulder [and,] even though the MRI arthrogram failed to show us anything, she does have sign of impingement and/or tendonitis, etc. I still feel that [the employee] would probably benefit from arthroscopic debridement of the right shoulder. I do not believe she is capable of doing her regular job.
On October 26, 2004, Dr. Cardwell continued the employee=s medication and restricted her from working, in support of Dr. Jennings= surgery recommendation.
An administrative conference on the issue of the employer and insurer=s NOID was conducted on November 5, 2004, before Compensation Judge Jeanne E. Knight. Subsequently, on November 8, 2004, the employee filed a medical request, seeking payment for the right shoulder arthroscopic debridement surgery that had been recommended by Dr. Jennings. On November 12, 2004, Judge Knight issued an order denying the employer and insurer=s request to discontinue the employee=s temporary total disability benefits, on grounds that, in accordance with Dr. Jennings= opinion, the employee remained disabled and required further treatment. On November 18, 2004, the employer and insurer filed a medical response, refusing to pay for the treatment requested by the employee, on grounds that it was Anot reasonable and necessary, not causally related to the injury, and outside the scope of the Medical Treatment Parameters.@ They argued that the proposed surgery Afalls on the heels of another surgery, of the same type and nature, done less than six months ago, and for the same condition,@ which surgery, they argued, had no effect on the employee=s symptoms. The proposed surgery, they argued, Awould not likely provide any different result.@ In support of their position, the employer and insurer cited the August 25, 2004, IME report of Dr. Barron. On November 19, 2004, again in reliance on Dr. Barron=s report of August 25, 2004, the employer and insurer filed a petition to discontinue compensation pursuant to Minn. Stat. ' 176.238, contending that the employee had reached MMI and was capable of returning to her regular job without restrictions. By order of December 3, 2004, the employee=s medical request and the employer and insurer=s petition to discontinue were consolidated for hearing.
On January 5, 2005, the employee returned to Dr. Cardwell with complaints of continuing right shoulder pain. Dr. Cardwell diagnosed chronic right shoulder tendinitis and recommended that the employee have Aher MR arthrogram@ reread by Dr. Frank Suslavich. On January 7, 2005, Dr. Suslavich reread the employee=s April 21, 2004, MR arthrogram, concluding that the study appeared to reveal some abnormalities but should be repeated due to the motion artifact. On January 13, 2005, Dr. Jennings acknowledged that Dr. Cardwell Adid have [the employee=s] MRI reevaluated@ by Dr. Suslavich, who had in turn noted some abnormalities but had Arecommended repeat examination because the images were degraded.@ On this information, and noting that the employee Acontinues to have a lot of pain,@ Dr. Jennings recommended on that same date that Awe should either go ahead and do a repeat arthrogram MRI or just go ahead and do an arthroscopy and check for instability.@ In subsequent treatment notes, on January 24, 2005, Dr. Jennings indicated that the employee would probably require repeat surgery and Amaybe a repeat MRI arthrogram,@ noting that A[t]here is some problem with motion artifact according to the radiologist=s reading on the last one.@ In a letter to the employee=s attorney on that same date, Dr. Jennings opined that the employee=s December 20, 2003, work injury was a substantially contributing factor in her right shoulder condition and that he did not believe that the employee would improve without surgery. He reported that the employee had no obvious signs of instability but that there was a question Aon some of the MRIs@ that there may be some labral damage, that there was some motion artifact Aon the MRI@ (underscoring added), and that Athey@ felt that a repeat might be beneficial. The following day, on January 25, 2005, by letter to the Workers= Compensation Division at the Department of Labor and Industry, the employee amended her medical request to seek also payment for a repeat right shoulder arthrogram and a repeat right shoulder MRI scan. On that same date, the employer and insurer filed a Medical Response, alleging that the proposed surgery and MRI scan were not reasonable and necessary, not causally related to the work injury, and outside the scope of the Medical Treatment Parameters.
On February 8, 2005, Dr. Barron issued a supplementary report, explaining now that it was his opinion that the employee=s December 2003 work injury had Acaused a permanent aggravation of [the employee=s] right shoulder.@ It was nevertheless his conclusion, however, that the employee did not require the surgery being recommended by Dr. Jennings, because there was Anothing objective on any of the postoperative x-rays or scans which would suggest that she needs any surgery.@ Dr. Barron went on to state that, if the employee should be determined to require surgery, Athe incident on December 20, 2003 would play no role in that surgery,@ because the employee Areached the healing plateau as of August 18, 2004,@ the date of Dr. Barron=s physical examination of the employee. He explained further that he had released the employee to return to work without restrictions in spite of identifying positive impingement signs in the employee=s right shoulder Abased on the fact that she had no objective findings on her examination. In my opinion, the impingement that I found is a purely subjective observation.@ While referencing the employee=s February 11, 2004, A[m]agnetic resonance imaging scan@ and the employee=s April 21, 2004, Amagnetic resonance arthrogram,@ Dr. Barron referenced only a right shoulder Aarthrogram@ on July 12, 2004. Nor did Dr. Barron address the reasonableness of Dr. Jennings= recommendation of a repeat MRI arthrogram.
The matter came on for hearing on February 18, 2005. Issues at hearing included the following: (1) the employer and insurer=s entitlement to discontinue the employee=s temporary total disability benefits based either on the employee=s being more than ninety days post MMI or on the employee=s no longer having any physical restrictions due to her work injury; (2) the employer and insurer=s obligation to pay for a repeat MRI scan and arthrogram; and (3) the employer and insurer=s obligation to pay for the surgery recommended by Dr. Jennings. By findings and order filed February 24, 2005, the compensation judge accepted the opinions of Dr. Jennings and Dr. Suslavich, rather than that of Dr. Barron, regarding the employee=s shoulder condition, treatment options, and work restrictions. In part on that conclusion, the judge denied the employer and insurer=s petition to discontinue wage replacement benefits, finding that the employee had testified credibly regarding the pain and lack of motion in her right shoulder, that the employee had worked to the best of her abilities as long as the employer had provided work for her within her restrictions, and that, based on the opinion of Dr. Jennings and contrary to the opinion of Dr. Barron, the employee was not yet at MMI. Further, based in part on Athe opinion of Dr. Suslavich that the post surgery arthrogram and MRI were defective due to motion,@ she also awarded payment for the requested repeat MRI scan and arthrogram, concluding that Minnesota Rule 5221.6100, subpart 1D(3) did not bar the repeat imaging and that it was in fact allowed pursuant to subpart 1D(6) of that rule. Finally, the judge also awarded payment for the requested shoulder surgery, A[i]f Dr. Jennings, after review of the repeat MRI and arthrogram, still believes that the additional right shoulder surgery is reasonable and necessary.@ The employer and insurer appeal from the awards of the repeat MRI scan and arthrogram and shoulder surgery.
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.
In reliance on the medical opinions of Drs. Jennings and Suslavich, the compensation judge awarded payment for the repeat MRI scan and arthrogram and the right shoulder surgery that had been requested by the employee. The employer and insurer contend that the judge erred in these awards, in that (1) the judge wrongly couched in catch phrases of Acredibility@ and Achoice of medical expert@ a decision not relevant to the credibility of witnesses and based on expert opinions that lacked foundation; (2) repeat radiological imaging had already been conducted and paid for and read to be normal, thereby triggering preclusion of further tests under Minnesota Rule 5221.6100, subpart 1D, of the Minnesota Treatment Parameters; and (3) the judge had no jurisdiction to award payment for prospective surgery contingent on evidence not yet available.
1. Credibility and Choice of Medical Expert
Among the issues at hearing was the employee=s entitlement to temporary total disability benefits consequent to the employee=s right shoulder work injury. Relevant to this issue, the compensation judge indicated, at Finding 1 and in her memorandum, that she found credible the employee=s testimony as to her right shoulder symptoms and functionality. Also at issue at hearing was the employee=s entitlement to the diagnostic tests and surgery that are still at issue here on appeal. Relevant to these latter issues, the judge indicated at various places in her decision her reliance on the expert medical opinions of Drs. Jennings and Suslavich. The employer and insurer contend that the judge wrongly couched her decision in catch phrases of Acredibility@ and Achoice of medical expert,@ arguing that the employee=s credibility was not at issue in the case and that the judge was not entitled to this court=s normal deference to a factfinder=s choice of medical expert because the experts relied on here had insufficient foundation on which to base their opinions. We are not persuaded.
An employee is the person most familiar with the severity of her symptoms and the limitations that her injury places upon her physical activities, and therefore her testimony alone may be sufficient to support a finding of total disability, even in the face of unanimous medical opinion that the employee is capable of performing offered work. Brening v. Roto-Press, Inc., 306 Minn. 562, 563, 237 N.W.2d 383, 385, 28 W.C.D. 225, 226 (Minn. 1975). Therefore the judge=s finding that the employee was a credible witness was not irrelevant or otherwise improper, given that wage replacement was among the issues before her at hearing and notwithstanding the fact that it is no longer before us here on appeal. We acknowledge that the employee=s credibility is far less relevant to issues of the reasonableness and necessity of specific medical treatment modes, such as are before us here on appeal. However, precisely because those latter issues are essentially issues solely for trained medical experts, we may simply ignore the judge=s finding as to the employee=s credibility with regard to the issues before us. Therefore, we will not reverse the judge=s award of the medical benefits here at issue based on the judge=s finding of the employee=s credibility.
The compensation judge=s award of the medical benefits here at issue does rely on the judge=s choice of medical expert, and the sufficiency of the foundation for the opinions on which the judge relied is an issue relevant to our review. We will not, however, reverse the judge=s decision on grounds that the expert opinions on which she relied lacked sufficient foundation. Dr. Jennings had been the employee=s treating orthopedic surgeon for over four years at the time he rendered his opinions, and he had evidently also stayed oriented to and in practical communication with the employee=s osteopath and other providers during that time. While Dr. Suslavich may not have participated as long or as closely in the employee=s treatment during that time, and while acknowledging that there may be some very reasonable ambiguity as to which of the employee=s several arthrograms and other studies were in various records being referenced by Dr. Jennings, we cannot conclude that the judge=s reliance on the opinion of Dr. Jennings, supported by the opinion of Dr. Suslavich, was unreasonable. Therefore we will not reverse the judge=s decision on grounds that the judge relied on insufficiently founded medical opinion. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (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); Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
2. Repeat MRI Arthrogram under the Treatment Parameters
The employee underwent a right shoulder arthrogram and a right shoulder MRI scan on April 21, 2004, prior to her arthroscopic surgery on May 11, 2004. At Finding 3, in reliance on Athe opinion of Dr. Suslavich that the post [sic] surgery arthrogram and MRI were defective due to motion,@ the compensation judge concluded that Minnesota Rule 5221.6100, subpart 1D(3), did not bar the repeat arthrogram and MRI being requested by the employee and that those studies were allowed under Minnesota Rule 5221.6100, subpart 1D(6). The employer and insurer contend that the judge erred in this conclusion, asserting that Dr. Suslavich=s opinion was based on the employee=s April 21, 2004, studies, not on any postsurgery study, and arguing that postsurgery repeat imaging had already been conducted, on July 12, 2004, and paid for and read to be normal, thereby triggering preclusion of further imaging under the Minnesota Treatment Parameters. The respondent employee argues that the study on July 12, 2004, did not include an MRI scan, suggesting that the MRI is the component critical to Dr. Jennings= recommendation. This is a difficult issue, but we are not persuaded that the judge=s award was clearly erroneous or unreasonable.
Minnesota Rule 5221.6100, subpart 1D, provides that A[r]epeat imaging, of the same views of the same body part with the same imaging modality is not indicated except@ in any of six enumerated circumstances, the third of which is Ato follow up a surgical procedure@ and the sixth of which is Awhen the treating health care provider and a radiologist from a different practice have reviewed a previous imaging study and agree that it is a technically inadequate study.@ Minn. R. 5221.6100, subps. 1D(3) and 1D(6) (emphasis added). Dr. Courneya=s radiology report on the studies conducted on April 21, 2004, prior to the employee=s May 2004 surgery, formally identifies those studies as a Afluoroscopically guided shoulder injection/arthrogram@ and a Aright shoulder MR.@ Subsequent to the employee=s May 11, 2004, surgery, in his treatment notes for June 24, 2004, Dr. Jennings indicated that he would try to obtain workers= compensation authorization for a repeat AMRI arthrogram,@ but Dr. Vechell=s radiology report on the eventual July 12, 2004, study reports a request for and the conduct of only a Aright shoulder arthrogram.@ Minnesota Rule 5221.6100, subpart 1D, expressly prohibits only repeat imaging that is conducted Awith the same imaging modality.@ Minn. R. 5221.6100, subp. 1D. In these circumstances, we cannot conclude that it was unreasonable for the compensation judge to award the diagnostic tests at issue in agreement with the recommendation of Dr. Jennings, given that recommendation=s ultimate compliance with the Treatment Parameters and the absence of any direct contradiction of that recommendation in the opinion of Dr. Barron. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (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). Therefore we affirm the judge=s award of those tests. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
3. Contingent Award of Surgery
Among the issues identified for litigation at the hearing was whether or not the employer and insurer should be required to pay for Athe surgery recommended by Dr. Jennings.@ At Finding 8, the compensation judge concluded that, A[i]f Dr. Jennings, after review of the repeat MRI and arthrogram, still believes that the additional right shoulder surgery is reasonable and necessary, the employer and insurer will be required to pay for that surgery.@ The employer and insurer assert that A[t]he Compensation Judge did not award the surgery claimed, rather, she awarded what amounts to any type of future surgery which might be recommended as a result of medical imaging.@ They contend that A[t]his Order for payment of prospective medical treatment is beyond the jurisdiction of the Compensation Judge.@ We agree.
The compensation judge in this case was without authority to issue an order based on evidence not yet in existence. See Minn. Stat. ' 176.411, subd. 1 (A[f]indings of fact shall be based upon relevant and material evidence only, as presented by competent witnesses@). The respondent employee has argued that the prospective nature of the judge=s order was not at issue before the compensation judge and so cannot be at issue before this court, asserting further from case law that A[c]ompensation judges routinely and appropriately issue prospective orders concerning . . . requests for authorization of surgery.@ Hart v. U.S. Steel Corp., 57 W.C.D. 260, 263 (W.C.C.A. 1997). It is not, however, the prospective nature of the judge=s order that we find improper. What we find improper about the judge=s order is the fact that it is contingent on evidence not yet in existence that could present bases for defenses by the employer and insurer. We have affirmed the judge=s conclusion that the repeat MRI scan and arthrogram are reasonable and necessary diagnostic tools. As such, they should be presumed necessary toward a diagnosis of the employee=s surgical needs. To the extent that those tests might be interpreted to support a conclusion contrary to that reached by Dr. Jennings, the employer and insurer are entitled to have that radiological evidence reviewed and assessed by an independent medical expert, toward a defense against potential liability for the surgery at issue. Therefore, we vacate the judge=s contingent award of payment for the surgery at issue.
 In their notice of appeal, the employer and insurer also appealed nominally from the judge=s denial of their petition to discontinue temporary total disability benefits, but they have waived this issue in their brief on appeal.
 It appears from the medical records that the employee injured also her left shoulder in the same incident, but only her right shoulder injury is here at issue.
 On October 20, 2000, the employee had undergone a right shoulder diagnostic arthroscopy and arthrotomy, with excision of the lateral clavicle, acromioplasty, and exploration of the rotator cuff.
 See our discussion of the judge=s award of the diagnostic tests, in the section numbered 2 below.