MARY S. LARSON, Employee, v. HAMPTON CARE CTR. and ACCEPTANCE INS. COS., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 20, 2005
MEDICAL TREATMENT & EXPENSE - SURGERY. Substantial evidence exists to support the compensation judge=s approval of fusion surgery for the employee.
Determined By: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Rolf G. Hagen
Attorneys: David R. Vail, Soderberg & Vail, L.L.C., Minneapolis, MN, for the Employee/Respondent. David L. Christianson, Cronan Pearson Quinlivan P.A., Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer have appealed from the compensation judge=s approval of lumbar fusion surgery requested by the employee. We affirm.
Mary Larson, the employee, injured her low back on May 9, 1994, while she was working as a cook for Hampton Health Care Center, the employer. The employee was twisting to the right while lifting a rack of cups and experienced pain in her low back. She was treated initially by her family doctor with medication, physical therapy, and restrictions of working half days with no lifting over ten pounds and no twisting or bending.
On June 9, 1994, the employee was referred by her employer to HealthSpan Occupational Medicine Group for an evaluation to determine her fitness for duty. Her work restrictions were eased and, on June 30, 1994, the employee was released to perform her usual duties with the addition of a 40-pound lifting restriction. On July 15, 1994, the employee had what she described as a heavy lifting day at work and had an increase in her low back pain. When she saw her family doctor on July 18, her medication was increased and she was taken off work. The employee was also started on a course of physical therapy. The employee was sent back to half-time work by the doctor at HealthSpan on August 2.
On August 9, 1994, the employee was referred by her treating doctors to Dr. John Bowar at the Sister Kenny Institute for a chronic pain evaluation. In the chart notes from that evaluation, a CT scan done after the employee=s injury in May 1994 was reviewed and showed marked left and moderate L5-S1 hypertrophic degenerative facet disease, mild left L5-S1 foraminal stenosis, minimal anterior peridiscal spurring at L3-4, mild right L4-5 degenerative facet disease with no evidence of disc herniation or nerve root compression. Dr. Bowar concluded the employee did not have a chronic pain syndrome and recommended an exercise program and workplace adjustments, including reduced hours.
On October 20, 1994, the employee was evaluated by Dr. Richard Grandquist on behalf of the employer and insurer. In his report, Dr. Grandquist noted that the employee was in a physical therapy program and had been working 6 hours a day until two weeks previously when she had been taken off work by her treating doctor because of increased symptoms. The employee complained of low back pain but no leg pain, paresthesis or numbness. Dr. Grandquist diagnosed mechanical low back pain syndrome with low back strain superimposed upon lumbosacral degenerative disc disease. He concluded the condition was related to her work injury and recommended continued physical therapy and work restrictions.
At about this time, the employee left her job at Hampton and found a new job as a cook at a parochial school in Golden Valley. She testified that this job was easier on her back because she had more help. The employee=s job ended when the school closed and she found a new job at New Horizon Foods as a dietary aide. The employee testified that her back continued to worsen thereafter and the medical records indicate that she continued to treat with her family medicine clinic. Treatment consisted primarily of pain medication and recommendations for exercise, conditioning, and weight loss.
On July 19, 1996, when the employee saw her family doctor, her symptoms were of persistent low back pain with less severe leg pain and anterior thigh numbness. Her doctor wanted to refer her to an orthopedist but this was disallowed by the insurer. The employee stopped working in February 1997 and started receiving Social Security disability benefits.
On June 2, 1997, the employee was referred to and saw Dr. Elmer Salovich. Dr. Salovich took a history that the employee had low back pain and, after standing for a time, she had numbness and tingling in both legs. Dr. Sadovich diagnosed low back syndrome and gave her samples of Naprelan. No other treatment recommendations were made.
Apparently there was a dispute between the employee and the insurer over the employee=s care. No records of any medical care between September 1997 and February 1999 are in evidence. On February 22, 1999, the employee consulted with Dr. Douglas Becker. He noted her primary complaint to be of low back pain with radicular pain and numbness in both legs and his impression was of degenerative disc disease, lumbar spine. Dr. Becker recommended treatment by a spine specialist and referred the employee to Dr. Richard Salib at the Institute for Low Back and Neck Care.
The employee first saw Dr. Salib on March 8, 1999, and she has treated with Dr. Salib since that time. Treatment from Dr. Salib initially was physical therapy and medication. Dr. Salib also recommended a discogram which was done on August 16, 1999. It was read as showing damage to a disc at only one level, L4-5, which had a full-thickness annular tear. In a followup chart note of October 15, 1999, Dr. Salib stated, commenting on the discogram and a subsequent CT scan, AWhat is even more impressive than the disc changes at L4-5 is the severe facet joint arthropathy at L5-S1.@
The employee did not see Dr. Salib again until May 9, 2001. In the meantime, she had returned to work part time. She worked for a time at a nursing home where she helped residents who were dining. She found she could not keep doing this job because her back pain was Areally bad@. At the time of her May 9 appointment, Dr. Salib again recommended a facet joint injection. There was a delay in approval from the insurer and the injection at the L4, L5, and S1 levels did not take place until March 29, 2002. The employee reported immediate and substantial reduction in her back pain to Dr. Salib when she saw him on June 10, 2002. AShe is now able to sleep all night which she has not done in quite a long time.@ Dr. Salib advised the employee that this procedure was likely to provide only temporary relief and he recommended either radio frequency rhizotomy of the facet nerve or consideration of fusion surgery. The facet nerve block at L4, L5, and S1 was done on December 16, 2002.
The employee reported to Dr. Salib in January 2003 that the procedure had not helped. Dr. Salib recommended a discogram to see if there had been a change in the employee=s condition. The discogram was done on April 1, 2003, and was normal with no pain. In his review of the procedure, Dr. Salib stated ATherefore, the only plausible explanation for her symptoms is the disc degeneration and facet arthropathy at the L5-S1 level.@ Dr. Salib recommended fusion surgery but noted the employee=s risk factors of obesity and smoking.
The employer and insurer had the employee evaluated by Dr. Mark Engasser on June 9, 2003. Dr. Engasser concluded the employee was not a surgical candidate despite the lumbar facet changes because of what he described as Aextreme@ risk factors of diabetes, smoking, and obesity. Dr. Engasser recommended a home back strengthening and flexibility program along with over the counter anti-inflammatory medication. In subsequent reports of October 28, 2003, and May 18, 2004, Dr. Engasser reiterated his opinion after reviewing additional records and reports.
In his report of August 26, 2003, Dr. Salib noted the concerns and risk factors identified by Dr. Engasser but stated that he could overcome those factors and that Aperforming a posterolateral fusion using autologous bone and bone morphogenic protein (BMP) can overcome those obstacles that increase the risk of failure of fusion. I have demonstrated that on many patients since BMP has been approved by the FDA.@ A second facet joint injection was done at the L5-S1 level on September 11, 2003. In his office chart notes of September 15, Dr. Salib stated that the injection had relieved the employee=s pain for eight hours, demonstrating that her pain was coming from the arthritic facet joints at the L5-S1 level. Dr. Salib again recommended a posterior fusion at L5-S1.
The employee filed a medical request which was treated as a claim petition and which was heard by Compensation Judge Rolf Hagen on June 11, 2004. In his Findings and Order served and filed on July 26, 2004, the compensation judge accepted the opinions of Dr. Richard Salib, found the proposed fusion surgery to be reasonable and necessary, and ordered the employer and insurer to pay for the surgery. The employer and insurer have appealed.
The employer is obligated to provide the injured worker with medical care which may Areasonably be required@ to cure and relieve from the effects of the injury. Minn. Stat. ' 176.135. The question of whether specific medical treatment, including surgery, is reasonable and necessary is a question of fact for the compensation judge to determine. Jones v. Walmart Stores Inc., slip op. (W.C.C.A. September 9, 2002). The question for this court is whether substantial evidence exists to support the compensation judge=s determination. If so, the decision is to be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).
On appeal, the employer and insurer argue that the compensation judge erred in failing to give sufficient weight to the risk factors named by Dr. Engasser. The employer and insurer cite two decisions by this court: Anderson v. Proforce, slip op. (W.C.C.A. April 8, 2004), in which this court affirmed a compensation judge=s denial of requested fusion surgery based on a medical opinion that surgery would not be appropriate because of the employee=s smoking, and Johnson v. Regions Hospital, slip op. (W.C.C.A. July 14, 2004), in which this court affirmed a compensation judge=s denial of requested fusion surgery based on a medical opinion that the employee had a psychological condition which needed treatment and on the employee=s lack of physical conditioning.
Neither of these cases establish a rule of law which must be applied in every case. In both cases, we affirmed factual determinations made by compensation judges, finding substantial evidence in the record to support those determinations. We have held in a number of cases that an affirmance of a compensation judge on a factual determination is of limited precedential value. Regan v. VOA National Housing, 61 W.C.D. 142 (W.C.C.A. 2000); Barros v. Scimed Life Systems, slip op. (W.C.C.A. May 5, 2004). The cases cited by the employer and insurer do not mandate a reversal of the compensation judge=s decision in this case.
We find substantial evidence in the record to support the compensation judge=s decision. Dr. Salib specifically addressed Dr. Engasser=s concerns in his August 26, 2003, report, discussed how he would take those concerns into account in his surgical procedure, and restated his opinion which recommended the fusion surgery. Dr. Salib=s opinion had adequate foundation and the compensation judge=s reliance on that opinion in reaching his decision will not be reversed. Smith v. Quebecor, 63 W.C.D. 566 (W.C.C.A. 2003). Further, in addition to considering the medical opinions in this case, the compensation judge also notes that previous conservative care had not been successful and that, in the absence of surgery, there was little likelihood of the employee=s condition improving so as to allow her to return to work.
Finally, the employer and insurer contend that there is a lack of substantial evidence to support causation. We find no merit to this argument. The question of causation is raised, according to the employer and insurer, by Dr. Engasser=s reports in which he refers to the employee=s condition as being due Ain part@ to the employee=s pre-existing condition. A work injury need not be the sole cause in the need for treatment. If the injury is a substantial contributing cause or factor, then the treatment is compensable. Swanson v. Medtronics, 443 N.W.2d 534, 42 W.C.D. 901 (Minn. 1989). Substantial evidence supports the causation determination.