ALAN R. CORNELL, Employee, v. ABF FREIGHT SYS., INC., SELF-INSURED, Employer/Appellant, and PHYSICIANS NECK & BACK CLINIC, CAMBRIDGE HOSP., and
CENTRAL STATES SE and SW H&W FUND, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 31, 2007
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY; MEDICAL TREATMENT & EXPENSE - SURGERY. Substantial evidence, including medical opinion, supports the compensation judge=s award of expenses incurred for treatment of the employee=s low back since June 8, 2005, and approval of the proposed surgery.
Determined by: Rykken, J., Johnson, C.J., and Pederson, J.
Compensation Judge: Bradley J. Behr
Attorneys: Joseph T. Herbulock, Hauer, Fargione, Love, Landy & McEllistrem, Minneapolis, MN, for the Respondent. Leslie M. Altman, Littler, Mendelson, Minneapolis, MN, for the Appellant.
MIRIAM P. RYKKEN, Judge
The self-insured employer appeals from the award of medical expenses and approval for the proposed surgery. We affirm.
Alan R. Cornell, the employee, sustained an admitted personal injury to his low back on June 8, 2005. At the time, he was employed by ABF Freight System, Inc., as a driver/dockman. The employer, which was self-insured for workers= compensation liability on that date, accepted liability for the employee=s injury and paid limited workers= compensation benefits, including wage loss and medical treatment expenses.
At the time of his injury, the employee was 51 years old, and had worked as a dock worker and driver in the trucking business since 1976. In 1991, he began working for the employer=s predecessor company, Carolina Trucking, and continued working for ABF Freight in 1997 or 1998, when ABF Freight acquired Carolina Trucking. Between 1976 and June 2005, the employee=s duties included driving a truck, moving individual cartons from the truck to the dock with the use of a two-wheel dolly, and unloading pallets. The employee=s job required frequent bending and twisting and heavy lifting, and he had periodically sought treatment for low back pain, dating back to at least 1979. In May 1979, the employee sought treatment for low back pain at the emergency room at Midway Hospital. He was diagnosed with a back strain. In May 1980, the employee sought emergency treatment, reporting that he pulled a muscle in the right low back and hip regions; he was diagnosed with a mild muscle pull in the pelvis, and was advised to avoid straining his low back. In May 1989, the employee again sought emergency medical treatment after noting a sharp pain in his low back while lifting; he was diagnosed as having back pain.
The employee has also periodically consulted Gary Bohnen, D.C., since at least 1997. The dates on the chart notes in the record from Dr. Bohnen=s office are not entirely legible, but do show that in early 1997, the employee reported low back pain and stiffness and leg pain, and received 12 chiropractic treatments from Dr. Bohnen. He received additional treatments from Dr. Bohnen on approximately 4 occasions in 1999, once in 2000 and once in 2001. The employee testified that at the time of his injury on June 8, 2005, however, he was not working with any physical work restrictions and had not previously consulted a surgeon for his complaints.
On June 8, 2005, the employee experienced an episode of acute low back pain, along with left leg pain, after he restacked a load of heavy flag poles in his truck. He initially sought treatment from Dr. Philip Hoversten at the Allina Medical Clinic-Coon Rapids, on June 9, 2005. Dr. Hoversten=s chart note refers to injury dates of May 25 and June 8, 2005. The employee advised Dr. Hoversten that he had experienced chronic low back and mid back pain for the last 3 to 4 years, that he had seen chiropractors Aon many occasions@ and had undergone physical therapy on several occasions. The history in Dr. Hoversten=s chart note does not refer to any specific incident on June 8, but states that employee reported that the last time he had seen a chiropractor was in February or March of 2005, and that Ahe did recover reasonably, but with lifting, bending, pushing, pulling, carrying, and twisting activities of the spine, he continues to get aching pain into the back and occasionally, he has had shooting pains into both buttocks, thighs, and even into the posterior leg and occasional to mid leg.@ The chart note also described the employee=s job duties, and states that A[the employee] is very exasperated with his ongoing back pain and seeks additional help.@ Dr. Hoversten diagnosed chronic and intermittent low back pain secondary to degenerative disc disease, and recommended work restrictions along with an exercise program and Aintensive rehabilitation@ at the Physicians Neck and Back Clinic.
On June 13, 2005, the employee obtained follow-up treatment with Dr. David Pearson, his primary care physician in Cambridge, Minnesota. Dr. Pearson took x-rays of the employee=s low back, which showed degenerative changes at the L3-4 and L4-5 vertebral levels; he diagnosed degenerative joint disease with possible degenerative disc disease and attributed the employee=s condition to his work. At Dr. Pearson=s recommendation, the employee underwent an MRI scan, which showed degenerative changes at multiple vertebral levels as well as a central disc protrusion at the L3-4 level, and a left-sided disc protrusion at the L4-5 level. Dr. Pearson later discussed several treatment options with the employee, including an epidural steroid injection and therapy at the Physicians Neck and Back Clinic. Dr. Hoversten stated that AI indicated to him that he does not have a surgical back at this point in time, and this is mostly going to be an ongoing problem. I do believe that his work is aggravating his problem as he does drive a truck, and this is giving him a lot of discomfort. When he is off work for any period of time, he feels better.@
The employee consulted Dr. Hoversten again on June 30, 2005, reporting continuing low back pain. Dr. Hoversten discussed treatment options, including a corticosteroid injection, and recommended against surgery; he again recommended the rehabilitation program at the Physicians Neck and Back Clinic, with the intention Ato return him to work and prevent a recurrence.@ The employee evidently agreed to reconsider attending that rehabilitation.
On July 8, 2005, the employee consulted Dr. Dietmar J. Grentz at the Physicians Neck and Back Clinic. Dr. Grentz diagnosed mechanical low back pain, lumbar degenerative disc changes, and deconditioning syndrome. He advised the employee that he felt surgery was not indicated, and referred the employee to a short-term, active rehabilitation program at the clinic. The employee underwent 22 sessions of physical therapy between early July and early November 2005, but later testified that he received only a limited relief from that therapy.
On September 14, 2005, at the request of the employer, the employee underwent an examination with Dr. William Simonet. At the time, he reported low back pain with pain radiating into both his legs, on the right side greater than the left. Dr. Simonet noted that the employee=s right leg pain was not concordant with the findings on the June 15, 2005, MRI scan which had shown a left-sided disc herniation at the L4-5 level. Dr. Simonet diagnosed the employee with non-radicular low back pain and multi-level age-related degenerative disc disease, obesity, and deconditioning syndrome. He characterized the employee=s June 8, 2005, injury as a temporary aggravation of his preexisting degenerative disc disease, and also concluded that the employee had reached maximum medical improvement (MMI) from his June 8, 2005, injury within three weeks after that injury. He concluded that the employee sustained a minor strain of his low back which was temporary in duration, and that the employee=s ongoing symptoms instead related to degenerative disc disease caused by age, obesity, deconditioning syndrome and cigarette smoking. Dr. Simonet recommended that the employee lift no more than 75 pounds, and also recommended that the employee cease smoking, lose weight, and participate in an exercise program.
The employee returned to work for the employer on October 1 or 2, 2005, working on the dock, and working within the restrictions assigned by Dr. Simonet of no lifting more than 75 pounds. He testified that he attempted to return to work as a truck driver, but was unable to perform the required work and so was reassigned to a dock work position. The employee continued to work on the dock, and testified that this was a lighter job than truck driving because he was able to use a forklift and he received assistance from other employees when carrying heavier freight. The employee missed no time from work between October 2005 and the hearing date of April 23, 2007.
The employee attended a follow-up appointment with Dr. Grentz on November 8, 2005, at the conclusion of his physical therapy and rehabilitation sessions at the Physician=s Neck and Back Clinic. Dr. Grentz=s chart notes reflect that the employee stated Ahis back is not doing too bad but he states that the intermittent sharp pain down the left leg >drives me nuts.= He has improved in that his back and leg symptoms are now intermittent.@ Dr. Grentz commented that if the shooting pains in the employee=s leg continue, Ait might be worthwhile seeing a surgeon for a consultation.@
According to a letter from Dr. Grentz dated December 6, 2005, Dr. Grentz attributed the employee=s pain complaints to his June 8, 2005, injury which he concluded had permanently aggravated the employee=s underlying condition. He commented that the employee=s pattern of pain and persistence of his pain had significantly changed as a result of his June 8, 2005, injury, when compared to his earlier, more episodic pain, and that he considered that injury to be a significant contributing factor in permanently aggravating the employee=s underlying condition. Dr. Grentz did not agree with Dr. Simonet=s opinion that the employee had reached MMI three to four weeks after the injury. He also recommended a surgical evaluation in view of the employee=s sharp leg pain, and the disc protrusion at L4-L5 that was shown on the MRI scan. He also commented that a Adiscogram might be useful in helping to decide if surgery would have a reasonable chance of helping or not.@ He advised the employee to indefinitely continue his home strength maintenance program, on which he had been instructed at the Physicians Neck and Back Clinic.
On March 9, 2006, the employee filed a medical request, seeking approval for a surgical consultation. The self-insured employer initially denied the surgical consultation on the basis that the employee had already been examined by Dr. Simonet; evidently the employer later agreed to another consultation, and also scheduled the employee for a follow-up appointment with Dr. Simonet on May 31, 2006.
On April 20, 2006, at the referral of Dr. Pearson, the employee was evaluated for surgery by Dr. Amir Mehbod at the Twin Cities Spine Center. He reported continued low back pain and left lower extremity pain. Based on his examination findings and the earlier MRI scan results, Dr. Mehbod diagnosed the employee with multilevel disc degeneration and two-level stenosis secondary to arthritic changes at the L3-4 and L4-5 levels. He found no neurological deficit, and recommended medication, physical therapy and an epidural steroid injection. Dr. Mehbod also advised that if those conservative treatments failed to alleviate the employee=s symptoms, he would then suggest a two-level surgical decompression at the L3-4 and L4-5 levels, with laminotomy, to alleviate the employee=s leg pain.
In a letter of May 24, 2006, Dr. Mehbod advised that when he examined the employee, he had complained of low back and left lower extremity pain, and that the employee had told Dr. Mehbod that Ahe can tolerate the back pain, but he wants to have the left lower extremity radiculopathy resolved.@ He explained the basis for his surgical opinion, in view of the employee=s examination and radiologic findings, as follows:
The surgery I have recommended would be a decompression laminotomy to alleviate the pressure placed on the nerves which would then alleviate his leg symptoms. I have not recommended any type of fusion for his back pain because I do not think he has any type of instability. Therefore, the surgery includes decompression laminotomies at L3-4 and L4-5.
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I do believe surgery is a reasonable option. It is not necessary. It is a quality of life issue, and I have discussed with him that if his quality of life is affected so much by this problem and if he has failed nonoperative measures, then it would be a reasonable option to proceed with a decompression surgery.
On May 31, 2006, Dr. Simonet reexamined the employee. He concluded that the employee=s neurological examination was normal, and he found no evidence of specific radiculopathy. He concluded that the employee=s low back condition was due to Anaturally occurring age related processes, accelerated and aggravated by risk factors, including obesity, deconditioning syndrome and cigarette smoking.@ He found nothing on the MRI scan, x-ray or physical examination results that demonstrated any injury or change in the employee=s condition. Dr. Simonet also opined that the employee had been advised to lose weight and quit smoking, but had done neither.
On the issue of surgery, Dr. Simonet advised that any surgery would not be related to the employee=s work but instead would relate to his pre-existing condition. According to Dr. Simonet=s report, the employee was scheduled for surgery for the week following his May 31, 2006, exam. Dr. Simonet commented that such a surgery was Amarginally indicated.@ He stated that
I say this given that as Dr. Mehbod correctly has advised the patient, such surgery would be expected and hoped to alleviate some of his leg pain that may be due to foraminal stenosis. Indeed that may be the case but [it] is likely the patient is still going to have the same type of back pain as he has currently. His back pain is due to degenerative disc disease which will not be addressed by decompression surgery.
I also state that the patient is a marginal candidate given that he continues to be noncompliant with weight loss and cessation of cigarette smoking and he has suffered from depression and his affect and pessimistic attitude has been noted as a factor in the patient=s recovery.
Dr. Simonet later testified at his deposition that the medical treatment provided to the employee for three weeks following his June 2005 injury was reasonable, necessary and causally related to the employee=s work injury. He opined that any medical treatment rendered thereafter was related to the employee=s pre-existing condition.
The employee=s claims were addressed at hearing on July 13, 2006. At issue were the employee=s request for approval of the proposed lumbar spine surgery, and also the employee=s claims for payment of medical expenses incurred following the employee=s June 8, 2005, injury. Following the receipt of the transcript from the post-hearing deposition of Dr. Simonet and the party=s trial briefs, the compensation judge issued his findings and order on September 20, 2006. The compensation judge concluded that the employee=s June 8, 2005, work injury was a permanent aggravation of his preexisting degenerative condition, and that the injury had substantially contributed to the employee=s need for ongoing medical treatment. He awarded payment of expenses related to the treatment provided to the employee for his low back and leg pain from June 8, 2005, through the date of the hearing. The compensation judge also concluded that the two-level decompressive laminotomy, as proposed by Dr. Mehbod, would be reasonable and necessary to cure and relieve the employee=s chronic shooting leg pain, and that the employee=s June 8, 2005, injury substantially contributed to the employee=s leg pains and his need for surgery. The self-insured employer appeals.
On appeal, the employer argues that substantial evidence does not support the compensation judge=s conclusion that the medical treatment the employee had received for his low back since June 8, 2005, and the proposed two-level surgical decompression, represented reasonable and necessary treatment for the cure and relief of the effects of the employee=s work injury. They also argue that the compensation judge committed an error of law in finding that lumbar surgery is reasonable and necessary. The primary issue on appeal, therefore, is whether the evidence in the record substantially supports the compensation judge=s findings.
It is undisputed that the employee had experienced low back pain and had received treatment for that pain since at least 1979; the compensation judge=s findings reflect that earlier medical history. The employee testified, however, that at the time of his injury on June 8, 2005, he was not working under assigned physical work restrictions related to his low back. He also testified that he had never before consulted a surgeon to obtain a surgical opinion. The employee testified that between 1997 and his 2005 injury, he had been able to perform all the physical aspects of his job, including significant lifting on a daily basis. He acknowledged that in the six-month period before his injury, he was a little Astiff@ but he was able to perform all the lifting, twisting, bending or stooping that his job required.
The employer relies on the opinion of Dr. Simonet, who examined the employee on two occasions. Dr. Simonet concluded that the employee=s symptoms on June 8, 2005, merely represented a temporary aggravation of his long-standing degenerative condition, and that this aggravation resolved within a period of three weeks. Drs. Mehbod and Grentz both concluded that the employee=s 2005 injury continued to be a substantial contributing factor to his ongoing back and leg pain, and the compensation judge found their opinions to be more persuasive than that of Dr. Simonet=s. These opinions provided the compensation judge with support for his conclusions. We note that it is the compensation judge=s responsibility, as a trier of fact, to resolve conflicts and expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).
The employer also argues that while the proposed surgery maybe Areasonable@ it is not Anecessary,@ citing to the opinions of Dr. Mehbod and Dr. Simonet. In response to the employer=s concerns, the employee argues that the surgery was a reasonable option given his level of pain. He acknowledges that surgery is not Anecessary@ in a sense of being a Alife or death@ situation but that it was a reasonable option given his level of pain. In his memorandum, the compensation judge addressed the employer=s arguments, and concluded that Ait appears that Dr. Mehbold=s comment has been taken out of context.@ The judge cited to Dr. Mehbod=s explanation of the basis for his surgical opinion, and also explained that
The employee is aware that the surgery proposed by Dr. Mehbod is intended to reduce his leg pain and will most likely have no effect on his low back pain. He feels that he will be able to tolerate his low back pain if the shooting leg pain could be reduced by surgery.
The compensation judge concluded that the employee had experienced ongoing pain since his June 2005 injury and that it was clear from the opinions of Dr. Grentz and Dr. Mehbod that the surgery was proposed solely as a means of relieving the employee=s significant ongoing pain. The compensation judge concluded that the surgery proposed by Dr. Mehbod was Areasonable and necessary to cure and relieve the effects of the employee=s 6/8/05 injury, chronic intermittent leg pain.@
An employer must furnish such medical and surgical treatment for a work-related injury Aas may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury.@ Minn. Stat. ' 176.135, subd. 1(a). It is long and well established that Acure and relieve@ means Acure or relieve@ (emphasis added). See, e.g., Hall v. Midway Hospital, slip op. (W.C.C.A. Aug. 13, 1991). Based on our review of the record as a whole, we conclude that the record contains ample support for the compensation judge=s conclusion that the proposed surgery is reasonable and necessary to cure and relieve the effects of the employee=s June 8, 2005, injury. Although the position of the self-insured employer is not an unreasonable one and there is support in the record for that position, the evidence, when viewed as a whole, amply supports the compensation judge=s finding. 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). Finding adequate evidentiary support for the judge=s conclusions, we therefore affirm the award of payment for medical expenses and approval of the surgery recommended by Dr. Mehbod.
 According to the employee=s appellate brief, the employee underwent surgery on August 15, 2006.
 The hearing was originally scheduled to address the employee=s objection to discontinuance of temporary partial disability benefits, based on the employer=s contention that the employee had reached MMI from his work injury as of June 29, 2005. At the hearing, the employee withdrew that objection, so only the employee=s medical claims were addressed at the hearing.
The employer argues that the compensation judge, when identifying the employer=s medical expert, erroneously referred to Dr. Wicklund=s opinion rather than that of Dr. Simonet. This was an obvious typographical error; there is no report from Dr. Paul Wicklund in the record. In the findings and order, stipulation numbers 5 and 6 specifically refer to Dr. William Simonet=s report. In addition, the transcript from the hearing contains numerous references to Dr. William Simonet as being the employer=s medical expert. In his memorandum accompanying his findings and order, however, the compensation judge referred to Dr. Paul Wicklund=s opinion and the employer=s reliance on that opinion. We conclude that this typographical reference does not revise the judge=s conclusions nor the underlying support for his decision.
Citing Castle v. City of Stillwater, 235 Minn. 502, 51 N.W.2d 370, 17 W.C.D. 103 (1952); Eberle v. Miller, 170 Minn. 207, 212 N.W. 190, 4 W.C.D. 272 (1927); Seesz v. Basic Builders, Inc., slip op. (W.C.C.A. Jan. 12, 1989); Richards v. Acme Heating, Sheet Metal & Roofing Co., 23 W.C.D. 41 (W.C.C.A. 1963).