DOUGLAS W. HENDRICKSON, Employee, v. UNIVERSITY OF MINN. N. CENT. RESEARCH CTR., SELF-INSURED/SEDGWICK CLAIMS MGMT., Employer/Appellant, and MINNEAPOLIS CLINIC OF NEUROLOGY and GRAND ITASCA CLINIC & HOSP., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 18, 2007
EVIDENCE - EXPERT MEDICAL OPINION. Where the expert medical opinions on which the judge relied were not ambiguous and tentative as argued and were not without proper foundation for failing to sufficiently address the employee=s work activities, his preexisting condition, or an expert ergonomic evaluation of his employment, the compensation judge=s conclusion that the employee=s work caused Gillette-type injuries to his arm and wrist was not clearly erroneous and unsupported by substantial evidence for being without sufficient medical support.
CAUSATION - GILLETTE INJURY. Where it was supported by adequately founded expert medical opinion, the compensation judge=s finding of a work-related Gillette-type injury to the employee=s arm and wrist was not clearly erroneous and unsupported by substantial evidence as a result of any inability of the employee to articulate a connection between his work and his injuries, any lack of repetition in the employee=s work activities, the nondominance of the employee=s injured hand, or any inconsistencies in the employee=s testimony.
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS; MEDICAL TREATMENT & EXPENSE - SURGERY. Where the self-insured employer had denied primary liability for the employee=s Gillette-type arm and wrist injuries, rendering inapplicable on a legal basis the treatment parameters= requirement of twelve weeks= conservative care prior to carpal tunnel surgery, where it was not unreasonable to conclude that the employee=s condition had substantially deteriorated over the course of the seven weeks between his carpal tunnel diagnosis and his surgery, and where application of the treatment parameters on a factual basis by analogy had not been directly argued before the judge, the compensation judge=s award of payment of medical expenses associated with the employee=s carpal tunnel surgery was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Johnson, C. J., and Wilson, J.
Compensation Judge: Jerome G. Arnold
Attorneys: Thomas R. Longfellow, Longfellow Law Office, St. Paul, MN, for the Respondent. Roderick C. Cosgriff and Elizabeth Chambers-Brown, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Appellant.
WILLIAM R. PEDERSON, Judge
The self-insured employer appeals from the compensation judge's finding of a work-related Gillette-type injury and from the judge=s finding that the costs of the employee=s treatment for carpal tunnel syndrome were reasonable and necessary. We affirm.
Douglas Hendrickson [the employee] has worked for the University of Minnesota North Central Research Center [the employer] in Grand Rapids since November of 1979, initially as a swine herdsman and, beginning in early 1996, as an automotive mechanic. On December 6, 2004, the employee was seen by his family physician, Dr. Michael Liebe, with complaints of a substernal burning sensation in his chest and of a Anumbness@ in his left forearm. About five months later, on May 18, 2005, the employee and his supervisor signed a AWorkers= Compensation Employee Incident Report,@ and the supervisor prepared a ASupervisor Incident Investigation Report@ and a AFirst Report of Injury,@ all referencing an injury to the employee in the nature of A[n]umbness in fingers and palm of left hand@ reported to have occurred Aabout 4 wks@ earlier, on A[a]pprox. 4/20/05.@ The injury was reported to have occurred A[i]n [the employer=s] Farm Shop and other [of the employer=s] Automotive Mechanic work locations,@ and, as to the mechanism of the injury, they stated, ADon=t know pulling on wrenches.@ The employee had been forty-five years old on April 20, 2005, and had been earning a weekly wage of $801.20, and the employer had been self-insured against workers= compensation liability.
On the day following the report of the injury, May 19, 2005, evidently at the direction of the employer, the employee saw general practitioner Dr. Timothy Pehl, to whom he complained of numbness in the fingers of his left hand for about the past month, Aworse when he bumps his elbow at work.@ The doctor reported that the employee could not recall any specific injury to his elbow or wrist. Upon examination, Dr. Pehl diagnosed hand paresthesias and, concluding that the distribution was consistent with an ulnar neuropathy, ordered an EMG and released the employee to return to work without restrictions. On June 6, 2005, the employee completed an AEmployee=s Workers= Compensation Report,@ on which he indicated in part that his injury had been to Atwo small fingers & palm of left hand@ and that it Ajust came on at the end of April,@ although he had Ahad problems with tennis elbow in the past,@ having Aworked in the hog barn for 16 yrs that was hard on the arms, with feed scoops and handling pigs.@ The EMG ordered by Dr. Pehl was conducted on June 13, 2005, and was read to reveal Aa mild to minimal left carpal tunnel syndrome@ and Aa slightly more prominent ulnar neuropathy,@ with no evidence of cervical radiculopathy. On June 24, 2005, the employee returned in follow-up to Dr. Pehl, who concluded that the employee=s ulnar nerve entrapment Adoes not plausibly seem to be a work-related injury@ but that his lesser carpal tunnel condition Adoes, however, fit with a work-related injury.@ Given, however, his finding that the carpal tunnel condition was Avery mild at this point,@ Dr. Pehl Awould not recommend any further interventions unless his symptoms worsen.@ He did, however, refer the employee for an orthopedic consultation for consideration of an ulnar nerve release.
On June 30, 2005, the employee saw orthopedic surgeon Dr. Daniel Lister, to whom he complained of significantly increasing left hand numbness and weakness over the past couple of months, still reportedly Anot aware of any particular activity or an injury which may have precipitated onset of these symptoms.@ Dr. Lister noted, however, that the employee Adoes have to do a lot of repetitive grasping and gripping activities@ in his work as a heavy equipment mechanic and that the employee had indicated that, on occasion, Ahe will in the course of these work related activities bump his elbows up again[st] heavy machinery and this seems to also aggravate the symptoms especially on the left.@ Upon physical examination of the employee, Dr. Lister made A[f]indings consistent with chronic left cubital as well as carpal tunnel syndrome with the cubital tunnel syndrome being more advanced.@ On these findings Dr. Lister concluded that the employee=s work Aat the very least . . . would be an aggravating factor@ in his left arm condition. On this conclusion, Dr. Lister referred the employee for hand therapy, to include consideration of protective splinting if possible, and back to Dr. Pehl for continued conservative treatment with possible anti-inflammatory medication. Dr. Lister also indicated, however, that he would be happy to see the employee again in follow-up A[i]f despite this course his symptoms are progressive and he elects to take the risks associated with operative intervention.@ On July 12, 2005, Dr. Pehl restricted the employee to light duty work subject to a wrist brace, with only occasional pushing and pulling with the left arm or motion with the left hand.
On July 21, 2005, the employee saw Dr. Liebe, with complaints that A[h]e does not feel that he can wait to go through physical therapy.@ Dr. Liebe noted that Athere is some question whether this is work related or not,@ but he went on to note also that the employee Ais a heavy equipment operator and mechanic for [the employer]. He works with sledgehammers. He works with wrenches.@ Concluding that A[c]ertainly this is probably likely related to his employment and certainly aggravated by his employment,@ Dr. Liebe referred the employee for another orthopedic appointment. The employee saw Dr. Lister again on July 28, 2005, and informed him that he wanted to go ahead with surgery Ain view of [the] progression of his symptoms and the chronicity of his condition,@ and Dr. Lister agreed to schedule it. On August 10, 2005, under a diagnosis of A[c]hronic left cubital and carpal tunnel syndrome,@ the employee underwent left elbow surgery in the form of a subcutaneous anterior ulnar nerve transposition with debridement and repair of the flexor tendon origin, together with left wrist surgery in the form of endoscopic - - versus open - - carpal tunnel release. Subsequent to his surgeries, the employee was temporarily totally disabled and on paid leave from the employer through September 8, 2005. The employee had an excellent result from his surgeries and returned to his job on September 22, 2005, first with light duty restrictions and eventually, by October 6, 2005, to full, unrestricted duty.
On October 17, 2005, the employee filed a claim petition, alleging entitlement to temporary total disability benefits from August 10, 2005, to September 8, 2005, to permanent partial disability benefits A[o]f an amount to be determined for the three surgical procedures,@ and to certain medical benefits in an amount A[t]o be determined,@ all consequent to a work injury on April 20, 2005. In its answer to the employee=s claim petition, filed November 1, 2005, the employer denied the employee=s claim, on grounds specifically that the employee=s alleged condition was not work-related, that it was the result instead of a preexisting condition or of a superseding intervening injury, and that the employee had not given timely notice of the injury. On November 30, 2005, the employee filed a medical request, seeking payment of $6,548.66 in surgical and other medical expenses, and on December 12, 2005, the employer denied that request, in part on grounds that it was improperly venued in light of the employee=s pending claim petition and the employer=s pending denial of primary liability.
On May 17, 2006, the employee was examined for the employer by orthopedic surgeon Dr. William Call. In his report on June 8, 2006, Dr. Call concluded that the employee was subject to minimal left ulnar neuropathy of the arm, resolved mild to moderate left ulnar neuropathy of the elbow, and resolved minimal left carpal tunnel syndrome. He concluded tentatively that neither the ulnar neuropathy nor the carpal tunnel syndrome nor the surgery performed on August 10, 2005, nor its resulting disability was work related, reserving final opinion pending receipt of information as to the amount of time that the employee=s job required him to spend in acute left wrist flexion and leaning on his left elbow. He stated further and specifically that the employee=s Aleft carpal tunnel surgery was not indicated, reasonable or necessary@ and that A[t]he State of Minnesota Permanent Treatment Parameters for carpal tunnel syndrome, which are best practices for carpal tunnel syndrome, were completely disregarded@ in the performance of that surgery. He concluded that, had the employee instead received a cortisone injection for his wrist and undergone a period of nonoperative treatment with splinting and anti-inflammatories and Vitamin B6 for his elbow, the employee might well have not felt any need for the surgery. In the event that the issues should be found relevant, Dr. Call concluded that the employee had reached maximum medical improvement with regard to his condition as of October 6, 2005, subject to a related 0% permanent partial disability rating under Minnesota Rules 5223.0460 and 5223.0470 and subject to no work restrictions.
On March 22, 2007, physical therapist Mark Netzinger performed for the employer an ergonomic evaluation of the employee=s worksite at the employer. In his report to the employer on April 11, 2007, Mr. Netzinger concluded in part that the employee=s job as an automotive mechanic was classifiable as routinely light-to-medium and only rarely medium-to-heavy work. Mr. Netzinger concluded also that the job entailed Ano work tasks that require the [employee] to rest his elbows or forearms on any surface during repair or maintenance of the equipment,@ that it did Anot require any extreme supination, pronation, flexion or extension of the elbow to complete maintain or repairs [sic],@ and that A[b]ecause the work is so varied, no individual work task or series of work activities can be considered repetitive.@ The following day, on April 12, 2007, upon reading Mr. Netzinger=s report, Dr. Call opined conclusively that the employee=s job with the employer Adid not lead to a Gillette injury to the left hand, wrist, forearm or elbow@ (emphasis in the original).
The employee=s claim petition and medical request had been consolidated for hearing, and the matter came on before a compensation judge on April 13, 2007, two days after issuance of Mr. Netzinger=s report. Issues at hearing included (1) whether, and if so when, the employee had suffered a Gillette-type injury in the nature of left elbow and arm ulnar neuropathy and left carpal tunnel syndrome consequent to his work for the employer and (2) whether the employee=s medical treatment for his carpal tunnel syndrome was reasonable and necessary. The parties stipulated at hearing that all medical treatment for the employee=s left ulnar neuropathy had been reasonable and necessary and that, in the event that the condition were found to be the result of a Gillette-type work injury, the employee was entitled to temporary total disability benefits for the period August 10, 2005, through September 8, 2005. The employee testified at hearing in part that his job with the employer entailed regular work with wrenches and other hand and power tools, including electric drills and pneumatic wrenches. He testified that he performed his work with both his right and his left hand and that many of his tasks were performable only with his left hand. He testified also that his work entailed frequent leaning on his left elbow and forearm and that he had Ahit my elbows a lot over the years.@ He testified with regard to Mr. Netzinger=s job site analysis that he
didn=t think the man knew what he was talking about and he couldn=t evaluate my job in 20 minutes standing in my brand-new shop. He had no idea what I did for the past 27 years, so I didn=t put much credibility into his - - what he was trying to analyze in my job site.
By findings and order filed May 3, 2007, and expressly rejecting many of the opinions of Dr. Pehl and Dr. Call as to causation and the necessity of the employee=s surgeries, the compensation judge concluded in part as follows: (1) that the employee had sustained Gillette-type injuries on April 20, 2005, in the nature of left cubital tunnel syndrome and left carpal tunnel syndrome as claimed; (2) that, as a direct result of his left elbow injury, the employee had undergone reasonable and necessary surgery and was entitled to related temporary total disability benefits as claimed; (3) that, as a direct result of his work-related left carpal tunnel injury, the employee had undergone surgery that was reasonable and necessary; and (4) that intervenor Grand Itasca Clinic and Hospital had intervened for payment of $6,548.06 to the hospital and of $605.00 to the clinic, both of which amounts were reasonable and necessary and causally related to the employee=s work injury. The judge expressly indicated in his memorandum that he had adopted the opinions of Drs. Liebe and Lister in finding the employee to have suffered the Gillette-type injuries at issue. The employer 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.
At Finding 22, and in express rejection of Dr. Call=s opinion to the contrary, the compensation judge found that, A[a]s a direct result of employee=s bumping his elbows, repetitive grasping and other repetitive activities as an automotive mechanic . . . , the employee developed left cubital tunnel syndrome and left carpal tunnel syndrome Gillette injuries culminating on or about April 20, 2005.@ The employer contends that the judge erred first as a matter of law in reaching that conclusion, in that the medical opinions of Drs. Lister and Liebe upon which the judge relied were (1) ambiguous and tentative and (2) without proper foundation, in that they (a) contained no detailed account of the employee=s work activities, (b) demonstrated no awareness of the employee=s history of tendonitis, and (c) demonstrated no awareness of the conclusions of Mr. Netzinger=s ergonomic evaluation. The employer contends further that, even were the judge not inclined to credit instead the contrary opinion of Dr. Call, the judge=s conclusion as to causation is unsupported by substantial evidence, particularly in light of (1) the employee=s inability to articulate a connection between his work and his injuries, (2) the lack of repetition in the employee=s work activities, (3) the nondominance of the employee=s injured hand, and (4) inconsistencies in the employee=s testimony. We are not persuaded.
a. Credibility and foundation for the opinions of Drs. Lister and Liebe. The employer suggests initially that the medical opinions of Drs. Lister and Liebe upon which the compensation judge relied were less than substantial for being offered only in the form of office notes rather than in the form of narrative reports or deposition testimony. We are aware of no law, however, that suggests that an expert medical opinion is disqualified of credibility by the mere fact that it is offered in a form other than a narrative report or a deposition, nor will we disqualify these opinions on that basis. The employer asserts further that the offered office notes were Aambiguous and tentative@ and Ado not contain any sort of detailed account of the nature and extent of the employee=s physical work activities sufficient@ to demonstrate adequate foundation for the doctor=s opinion. The employer acknowledges that Dr. Lister=s notes for June 30, 2005, do report Athat the employee=s work activities included a lot of repetitive grasping and gripping with occasional direct trauma to his elbow,@ but it argues that such information was insufficient foundation for a causation opinion, in that those same June 30, 2005, notes report that the employee was Anot aware of any particular activity or an injury@ that may have precipitated his symptoms. Contrary to the employer=s suggestion, however, we see no reason why, so long as the employee had reported a work context for his symptoms and had made his doctor reasonably informed of his work activities, the employee should have been expected to draw what is essentially a medical conclusion about the specific cause of his symptoms. Nor does an employee have any legal obligation to do so. See Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994) (A[w]hile [an employee=s documentation of the progression of his condition relative to his work activities] may be helpful as a practical matter, . . . the question of a Gillette injury primarily depends on medical evidence@). The mere fact that the employee=s ability to make that essentially medical connection might have been Ahelpful@ to him in proving his claim, id., does not render such an ability essential to proving his claim.
The employer argues that Dr. Liebe=s opinion was similarly unfounded, for being less than definitive in finding the employee=s problem only Aprobably@ related to his employment in light of Anumerous episodes of trauma@ which the doctor alleges without describing. The employer suggests that Dr. Liebe=s opinion appears to be based on an improper Apresumption@ of work-relatedness, in light of the doctor=s statement that he Acould not find any specific documentation that says this is definitely not work related.@ We note, however, that Dr. Liebe had been the employee=s treating doctor at least five months prior to the date of injury here at issue and was manifestly aware that the employee was Aa heavy equipment operator and mechanic for [the employer]@ who Aworks with sledgehammers@ and Aworks with wrenches.@ Given this context, it was not unreasonable for the compensation judge to infer in the doctor sufficient familiarity with the employee=s work activities to possess proper foundation for his opinion that the employee=s left arm condition was work related. Nor must a medical opinion be stated in terms other than probability to be credited as substantial evidence. See Boldt v. Jostens, Inc., 261 N.W.2d 92, 30 W.C.D. 178 (Minn. 1977) (an expert's opinion need not be expressed in terms of absolute certainty, only in terms of a reasonable degree of medical probability, which does not turn on the use of any particular term or phrase).
The employer argues further that the causation opinions of Drs. Lister and Liebe were insufficiently founded also in that neither of those experts was apparently aware either of Athe employee=s history of tendonitis in both elbows dating back to 1992" or of the ergonomic evaluation performed by Mr. Netzinger. We find in the medical evidence of record, however, no reference to any diagnosed Atendonitis,@ the only reference to such a condition being in the employee=s own lay testimony. Moreover, it is clear from his office notes of December 6, 2004, that at least Dr. Liebe was expressly aware that the employee was experiencing Aleft arm numbness@ at least five months prior to his alleged work injury and that already then the employee had Ahad episodes like this in the past.@ The term Atendonitis@ as used by the employee in his testimony is very reasonably construable as a generic lay reference to the same sort of symptoms as those eventually diagnosed here as ulnar neuropathy, one of the conditions upon which the employee has based his Gillette claim for disability compensation. As for the absence of Mr. Netzinger=s ergonomic findings from the opinions of the treating doctors, we would note that Mr. Netzinger=s report was not issued until two days before the hearing in this matter and that the employee=s objection to it as hearsay, to its timeliness, and to Mr. Netzinger=s unavailability for cross-examination was noted by the compensation judge. On that record, and noting further that an expert need not be made aware of every relevant fact for his or her opinion to have evidentiary value, see Bossey v. Parker Hannifin, slip op. (W.C.C.A. Mar. 14, 1994), we conclude that the treating doctors= causation opinions are not unfounded either for failing to reference a preexisting Atendonitis@ or the report of Mr. Netzinger.
b. Other substantial evidence issues as to causation. The employer=s argument as to the employee=s failure to connect his work activities to his symptoms has already been addressed above with reference to the Steffen decision. The employer=s argument in this regard, moreover, is mistaken in finding inconsistency in the employee=s Atestimony as to his work activities,@ which was adopted by the compensation judge, and the employee=s inability Ato say what caused his symptoms@; those two concepts are not comparable.
Nor are we persuaded by the employer=s argument that Athe employee performed such a wide variety of activities that no reasonable person viewing the record as a whole could have concluded the employee=s work activities were repetitive in nature so as to cause a Gillette injury.@ Both doctors opining causation in this case were clearly aware that the employee worked at the general tasks of an automotive mechanic, and, particularly in light of the employee=s own accounts and testimony as to his work, it would not have been unreasonable for either the opining doctors or the compensation judge to presume that the employee=s work activities were primarily manual. Whether or not wrenching and other manual activities typical of an automotive mechanic=s work might rise to a level of repetition sufficient to cause a Gillette-type arm and wrist injury is a medical question in answering which the judge was entitled to rely on the opinions of medical experts. This is true notwithstanding the opinion of Mr. Netzinger, which the judge admitted into evidence and evidently considered over the objection of the employee.
Nor are we persuaded by the employer=s suggestion that, simply because they were in his nondominant arm, Ano reasonable person could conclude that the symptoms in [the employee=s] left non-dominant arm were work-related.@ It is clear, from his office notes of June 30, 2005, that at least Dr. Lister was well aware that the employee was right-handed, and we find no reason why the compensation judge, in reliance on the doctors= opinions and on the employee=s testimony that he performed his activities equally with both of his arms and sometimes had no choice but to use his left, could not find a work-related injury to the employee=s nondominant left arm notwithstanding the fact that the employee evidently suffered no similar injury in his dominant right arm.
Finally, the employer contends that the compensation judge erred in crediting the employee=s testimony despite what they characterized as Amaterial, blatant and irreconcilable inconsistencies@ between the employee=s hearing testimony and his January 10, 2006, deposition testimony on three issues. They argue that at hearing the employee testified that his leaning on his arm during his work-related driving activities contributed to his left arm symptoms, whereas in his deposition he had testified that his driving had not contributed to his symptoms. They argue that at hearing the employee testified that he had also had problems in his noninjured right hand ever since 1992, whereas in his deposition he had denied any such problems since reporting his left hand symptoms in April 2005. And they argue finally that the employee had Aattempted to assert@ at hearing that he had given notice of an injury to his left arm as early as 1992 but that, when confronted with his deposition testimony, he had admitted not giving any such notice. We are not convinced that any of these apparent inconsistencies is either Ablatant@ or clearly Airreconcilable,@ but, more importantly, we do not find any of them particularly Amaterial,@ contrary to the contention of the employer. The employer acknowledges that driving activities did not constitute more that a fourth of the employee=s work, and it would not have been unreasonable for the compensation judge to find an injury to the employee=s arm based solely on the employee=s more manual mechanic=s tasks, without the leaning during driving. Moreover, we see little relevance in the issue of whether the employee may or may not have recalled any symptoms in his right arm since reporting the left arm injury that has compelled his claim. Nor do we find material the issue of whether or not the employee was able to recall with any clarity whether he may have complained at work about symptoms already developing in his left arm thirteen years before they became finally disabling.
Because it was neither clearly erroneous nor factually unreasonable, and because it is supported by adequately founded expert medical opinion, we affirm the compensation judge=s conclusion that the employee=s left arm and wrist conditions are causally related to his work for the employer as alleged. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
2. Medical Treatment
At Findings 24 and 25, the compensation judge concluded that the employee=s left carpal tunnel surgery and related treatment were reasonable and necessary treatment for a work-related injury, and he awarded medical benefits accordingly. In his memorandum, the judge supported his conclusion in part by explaining that Aonly one period of disability would occur with both [the carpal tunnel and the ulnar nerve] surgeries being done at the same time.@ The employer contends that the judge=s award of these medical benefits was erroneous, in that, at the time of his surgery, the employee=s treating doctors had only recently recommended continued conservative treatment and Athe mere fact that the employee chose to undergo surgery does not make it reasonable and necessary.@ Further, while acknowledging that the treatment parameters do not strictly apply in cases such as this, where the employer has denied primary liability, the employer contends also that the employee=s carpal tunnel surgery was not performed in keeping with the Minnesota Permanent Treatment Parameters, which the employer argues have been held to represent current medical consensus as to what is reasonably necessary treatment. We are not persuaded.
a. Recent more conservative recommendations. On June 24, 2005, Dr. Pehl found that the employee=s carpal tunnel symptoms were Avery mild at this point,@ and he indicated that he Awould not recommend any further interventions unless [the employee=s] symptoms worsen.@ When Dr. Lister saw the employee less than a week later, on June 30, 2005, Dr. Lister continued the employee=s conservative management and referred the employee for physical therapy, indicating that he would be glad to reconsider A[i]f . . . [the employee=s] symptoms are progressive and he elects . . . operative intervention.@ The employee had reported Asignificantly increas[ing]@ numbness and weakness in his left hand already on that date, however, and about two weeks later, on July 12, 2005, Dr. Pehl saw reason to increase the employee=s restrictions, to light duty work subject to a wrist brace, with only occasional pushing and pulling with the left arm or motion with the left hand. About a week later, on July 21, 2005, the employee indicated to Dr. Liebe that he A[did] not feel that he [could] wait to go through physical therapy,@ and about three weeks after that, on August 10, 2005, Dr. Lister performed endoscopic carpal tunnel release surgery on the employee=s left wrist in the context of performing also an ulnar nerve transposition in the employee=s left elbow. Given this sequence of events, it would not have been unreasonable for the compensation judge to conclude that the employee=s symptoms had worsened in the seven weeks after Dr. Pehl=s recommendation against surgery Aunless . . . symptoms worsen@ and in the six weeks after Dr. Lister=s offer to reconsider surgery A[i]f . . . [the employee=s] symptoms are progressive. It is clear, moreover, that it was Dr. Lister himself, who had earlier recommended against the surgery, who consented to and performed the surgery in August 2005, and there is nothing in any of his office notes or operative report at the time of the surgery that would suggest that the surgery remained counterindicated in his mind.
We conclude that it would not have been unreasonable for the compensation judge to infer from the employee=s statement to Dr. Liebe on July 21, 2005, that he A[did] not feel that he [could] wait@ that the employee=s symptoms had grown more severe. Nor would it have been unreasonable for the judge to infer from Dr. Lister=s performance of the surgery that it was no longer counterindicated in his mind, particularly in light of the increased medical efficiency of doing both of the left arm surgeries at the same time, thereby potentially saving expense in the process, the carpal tunnel surgery endoscopically as opposed to openly.
b. Treatment parameters analogy. Minnesota Rules 5221.6300, subparts 13A and 13B, provide respectively that nonsurgical management Amust be the first phase of treatment@ and that only if symptoms persist Aafter 12 weeks of initial nonsurgical management@ is surgery appropriate. Minn. R. 5221.6300, subps 13A and 13B. Minnesota Rules 5221.6020, subpart 2, provides that AParts 5221.6010 to 5221.6600@ - - the Minnesota Treatment Parameters - - Ado not apply to treatment of an injury after an insurer has denied liability for the injury.@ The employer, which has denied liability for the employee=s injuries, acknowledges this rule, but it cites case law to the effect that the parameters are nevertheless Arules based on generally accepted medical standards,@ which Arepresent current medical consensus as to what treatment is reasonably required.@ Given this court-generated characterization of the treatment parameters, the employer argues that the compensation judge erred in not acknowledging at least the practical relevance of the rules= restriction on surgery prior to twelve weeks after commencement of conservative treatment. However, although Dr. Call did reference, in very nonspecific terms, the surgery=s potential conflict with the treatment parameters, this argument of the employer was not posed to the compensation judge at hearing, and we will not address it here, given especially that it may have only minimal factual bearing at best and no legal bearing, in light of the employer=s general denial of liability. See Malinoski v. North Am. Cable Sys., slip op. (W.C.C.A. Dec. 14, 1989) (an issue raised for the first time on appeal is not properly before the court and will not be addressed).
Because it was neither clearly erroneous nor factually unreasonable, we affirm the compensation judge=s award of payment for the surgeries and related medical expenses here at issue. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.