ARMAND MALECHA, Employee, v. ABC BUS CO. and CNA INS. CO., Employer-Insurer/Appellants, and BLUE CROSS/BLUE SHIELD OF MINN., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 31, 2007
CAUSATION - MEDICAL TREATMENT; MEDICAL TREATMENT & EXPENSE - SURGERY. Substantial evidence in the form of a well-founded medical opinion supports the compensation judge=s decision that the requested SI fusion surgery was causally related to the work injury and was reasonable and necessary medical treatment.
Determined by: Stofferahn, J., Rykken, J., and Pederson, J.
Compensation Judge: William R. Johnson
Attorneys: Norbert Cuellar, Cuellar Law Office, Minneapolis, MN, for the Respondent. Mark A. Kleinschmidt and Vincent A. Petersen, Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The compensation judge found the SI fusion surgery requested by the employee to be causally related to the employee=s work injury and also determined the surgery to be reasonable and necessary. The employer and insurer appeal. We affirm.
Armand Malecha injured his low back on April 4, 1988, while working for the ABC Bus Company. At the hearing which is the subject of this appeal, he claimed the work injury was a substantial contributing factor in his need for an SI joint fusion and requested approval of the surgery. ABC and its insurer, CNA, while accepting liability for the 1988 injury, denied the surgery was appropriate or related to the work injury.
Mr. Malecha treated with a chiropractor right after the 1988 injury and then saw Dr. William Laney at the Orthopedic and Fracture Clinic in Faribault. He was referred to Dr. John Stark, who saw Mr. Malecha for the first time on October 20, 1988. On December 16, 1988, Dr. Stark performed surgery. The procedure done was an L-5, S1 fusion using Steffe plates. The diagnosis at the time of surgery was L5, S1 spondylosis. Mr. Malecha reported that the surgery helped his symptoms for a time but later he developed increasing pain in his low back. In 1995, he had surgery to remove the instrumentation inserted with the fusion. When the 1995 surgery was done, the fusion was reported as being solid.
Mr. Malecha had only minimal relief from the 1995 surgery and in February 1996, he contacted Dr. Stark with complaints of pain throughout his body but especially in his low back. Dr. Stark recommended a rheumatology consult which was done at the University Clinics. The conclusion there was that the employee was suffering from mechanical back pain. When Mr. Malecha returned to Dr. Stark in September 1996, Dr. Stark=s impression was of Aleft peritrochanteric pain which may be either facet in origin or abductor tendinitis.@ Mr. Malecha was provided with a cortisone injection at that time. In February 1997, Mr. Malecha returned to the Orthopedic and Fracture Clinic and saw Dr. Robert Shepley. Dr. Shepley concluded Mr. Malecha had chronic pain with a possible component of degenerative disc disease and recommended the back program at OFC Back Care Center in Faribault. Mr. Malecha was in the back program for 18 sessions between March and June 1997. His condition was basically unchanged at the end of the program.
Mr. Malecha returned to Dr. Shepley in June 1998. Dr. Shepley noted that Athe patient complains of pain in the lower back along with bilateral leg pain. The pain is always worse in the left than the right. The pain is primarily over the lateral aspect of the hips.@ Dr. Shepley concluded the only option, other then doing nothing, was to consider surgery. A surgical consultation was done by Dr. James Schwender at Twin Cities Spine Center in August 1998. An MRI was recommended to assist in the diagnosis of the employee=s condition, but it appears the scan was not done.
Mr. Malecha did not treat again for his low back until 2006. In the interim, he treated for other conditions, including left shoulder surgery in July 2004. Mr. Malecha has not worked since 1999, a situation which he has attributed to his low back pain.
Mr. Malecha returned to Dr. Stark on March 28, 2006, the first time he had seen Dr. Stark since September 1996. Dr. Stark noted that the pain was Aprimarily left hemi-pelvic and assessed Amechanical back pain, left gluteal area clinically suggestive of SI, but without confirming findings.@ Dr. Stark ordered x-rays and, when they were not of diagnostic help, he ordered a cortisone injection.
The procedure was done at the Center for Diagnostic Imaging on April 18, 2006, and was identified as Aleft sacroiliac joint arthrography and therapeutic injection.@ Dr. Blake Johnson, the physician at CDI who administered the injection, concluded that the Ainitial therapeutic response to injected local anesthetic is rated R1 (partial relief of pain symptoms rated at 90%).@ Dr. Stark also saw Mr. Malecha on April 18, after the injections, and reported that Mr. Malecha had 90% relief from the procedure. Dr. Stark recommended an SI fusion and stated Athis is a direct result of his previous two-level fusion.@ ABC/CNA denied liability for the proposed surgery and Mr. Malecha filed a claim petition seeking surgery approval.
Dr. Mark Friedland performed an IME on October 17, 2006. In his report and later in his deposition, Dr. Friedland stated the 1988 work injury and L5, S1 fusion was not related to Mr. Malecha=s ongoing symptoms. Further, he was not convinced that the symptoms were due to any SI joint dysfunction and, accordingly, did not believe that SI joint fusion surgery was reasonable and necessary medical treatment.
In response to Dr. Friedland=s opinion, Dr. Stark issued a report on November 16, 2006. Dr. Stark stated that Mr. Malecha=s situation was one of the failure modes of a previously successful lumbar fusion. AThe suggestion of sitting tolerance, the very low lateral nature of his pain, suggested to me that the sacroiliac joint may in fact be failing. It is not uncommon, in my experience, when the physical examination fails to adequately bring out the SI complaints even when it is strongly suspected.@ Dr. Stark restated his opinion that the need for the SI fusion Ais a direct result of the altered spinal mechanics imposed by the work-related operation performed in 1988.@
The claim petition was heard by Compensation Judge William Johnson on November 21, 2006. In his Findings and Order, the compensation judge determined the proposed SI joint fusion was causally related to the 1988 work injury and was reasonable and necessary medical treatment. The employer and insurer were ordered to pay the reasonable costs associated with the SI fusion surgery. This appeal followed.
The questions for the compensation judge were: 1) the causal relationship between the 1988 injury and the proposed SI fusion, and 2) the reasonableness of the fusion surgery as treatment. The compensation judge had two competing medical opinions to choose between in answering those questions. The compensation judge adopted Dr. Stark=s opinion and set out his reasons for doing so in his decision and memorandum. Generally, this court will affirm a compensation judge=s decision which is based upon a properly founded medical opinion. Voshage v. State (MNSCU), Winona State Univ., 65 W.C.D. 167 (W.C.C.A. 2004).
ABC/CNA recognize this general rule but argue that Dr. Stark=s opinion lacked adequate foundation. Specifically, they contend that Dr. Stark based his opinion, in substantial part, on a belief that Mr. Malecha had significant relief from the April 2006 therapeutic injection. In fact, according to this argument, Mr. Malecha reported that his reaction to the injection was total numbness in his left leg with no substantial improvement in his pain. Dr. Friedland found this stated reaction to be a significant reason in concluding that the SI joint was not involved in Mr. Malecha=s condition.
Dr. Stark was aware of Mr. Malecha=s statements, however, and was also aware of Dr. Friedlund=s reliance on those statements. He addressed this issue in his November 2006 report. The issue raised by ABC/CNA goes to the weight to be given to Dr. Stark=s opinion and not to the foundation for that opinion. The compensation judge clearly considered all of the evidence in this matter, and we conclude it was not error for the compensation judge to rely on Dr. Stark=s opinion.
ABC/CNA also contend that there is Ano credible evidence@ connecting the 1988 work injury to Mr. Malecha=s current condition, even if one were to conclude that the condition was an SI joint dysfunction. We disagree. Dr. Stark explained at some length his opinion that SI joint dysfunction is a recognized consequence of a two-level fusion, a process he referred to as transitional level failure. A description of the anatomical process involved in the failure is not necessary for foundation for his opinion. While Dr. Friedland stated that Mr. Malecha=s SI joint dysfunction Aif anything@ was due to Mr. Malecha=s self-employment in auto body work, the compensation judge was not required as a matter of law to accept that opinion.
The compensation judge=s decision is affirmed.