RITA M. MERSCHMAN, Employee, v. WHISPERING PINES GOOD SAMARITAN CTR. and SENTRY INS. GROUP, Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 17, 2007
EVIDENCE - EXPERT MEDICAL OPINION; MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. The compensation judge was entitled to rely on the opinion of the employee=s treating surgeon regarding the employee=s need for sacroiliac joint fusion surgery, despite the fact that the doctor=s diagnoses and treatment recommendations had changed over time and despite the fact that the doctor had at one point ruled out sacroiliac joint dysfunction as the source of the employee=s symptoms.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: James F. Cannon
Attorneys: David B. Kempston, Law Office of Thomas D. Mottaz, Anoka, MN, for the Respondent. Kirk C. Thompson and Ted A. Johnson, Cronan, Pearson, Quinlivan, Minneapolis, MN, for the Appellants.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the compensation judge=s decision granting the employee=s request for approval of proposed sacroiliac joint fusion surgery. We affirm.
On August 15, 2004, the employee sustained a work-related low back injury while employed as a certified nursing assistant by Whispering Pines Good Samaritan Center [the employer]. Symptoms following the injury consisted primarily of low back pain, right leg pain, and right hip or buttock pain. When the employee=s symptoms failed to improve with chiropractic care, an MRI scan was performed, revealing degenerative disc disease at L4-5 and L5-S1, with annular tears and small disc protrusions.
The employee was subsequently seen by a number of physicians, including Drs. George Adam, Kimberly Aho, Thomas Kowalkowski, Thomas Falloon, and Matthew Monsein. In addition to chiropractic care, conservative treatment included physical therapy, use of a TENS unit and medication, therapeutic injections, and an in-patient chronic pain program. When the employee continued to experience significant pain despite participation in the chronic pain program, Dr. Monsein referred her to Dr. Richard Salib, a neurosurgeon, for another opinion as to whether she might benefit from surgery.
Dr. Salib ultimately recommended a two-level fusion. Dr. John Dowdle, the employer and insurer=s independent examiner, concurred, and the procedure was performed in December of 2005. Medical records indicate that the employee subsequently experienced a significant reduction in her low back and right leg pain; however, she continued to complain of right hip and/or buttock pain.
Dr. Salib considered and investigated several possible causes of the employee=s continuing complaints, including sacroiliac [SI] joint injury, trochanteric bursitis, and malpositioned fusion hardware. Neither surgery to remove the hardware nor steroid injections into the employee=s right hip alleviated her symptoms. Finally, after a repeat diagnostic injection into the employee=s right SI joint in September of 2006, Dr. Salib concluded that the employee=s continuing pain was the result of SI joint pathology, a diagnosis he had previously considered but rejected. To treat the SI joint condition, Dr. Salib has proposed another surgery, an SI joint fusion.
At the suggestion of Dr. Paul Cederberg, the employer and insurer=s most recent independent examiner, the employee underwent a CT scan. The reviewing radiologist did not note any findings relating to the employee=s right SI joint, and Dr. Cederberg similarly saw no such findings on his review of the scan. Because he found no objective evidence of SI joint dysfunction, and because he viewed SI fusion as Aan old operation with an unpredictable curative rate,@ Dr. Cederberg concluded that the proposed surgery was not reasonable or necessary. Dr. Salib, on the other hand, reported seeing evidence of SI joint inflammation in one view on the CT scan, and he continued to recommend that the employee undergo an SI joint fusion.
The matter came on for hearing before a compensation judge on May 31, 2007. In his decision of July 17, 2007, the judge concluded that the proposed SI joint fusion was reasonable, necessary, and causally related to the employee=s August 15, 2004, work injury. The employer and insurer appeal.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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 (2006). Substantial evidence supports the findings if, in the context of the entire record, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
The employer and insurer contend that the compensation judge erred in accepting Dr. Salib=s opinion regarding the employee=s need for an SI joint fusion, because Dr. Salib had earlier rejected the SI joint as the source of the employee=s pain, based on previous SI joint injections, and because no other provider has recommended the surgery. As the employer and insurer view the matter, the judge=s decision is not really even supported by Dr. Salib=s opinion, but only by Dr. Salib=s Alatest opinion,@ which, they contend, was based on Aa haphazard and unreliable diagnostic approach.@ We are not persuaded.
When the employee continued to experience right buttock pain even after the hardware removal surgery, Dr. Salib again turned his attention to the possibility of SI joint injury, writing in an August 18, 2006, treatment note as follows:
Rita is in today. Her back is drastically improved as a result of removing of the hardware; however, it has had no effect at all on the pain in her right buttocks. I reviewed her history with her again and she was originally diagnosed as having the back problem and an SI joint problem. I think it is quite unusual to have both sacroiliac injury and a spine injury at the same time, but her pain now is so specifically located over the sacroiliac joint that I think it is very reasonable to think she may have a sacroiliac problem on the right side. She has had physical therapy for the SI joint. That has not helped. Therefore, the only option we have is to inject the SI joint on the right side. This was injected prior to her hardware removal, however, because she was having so much pain from the hardware itself, she was not able to appreciate any difference. I think now that her back is actually feeling good, and the only pain she has is over the buttock on the right side, if it is her SI joint, pain relief should be obtainable with an injection of interarticular local anesthetic.
Following the SI joint injection of September 22, 2006, the employee reported relief of 75% of her pain, and Dr. Salib recommended the SI joint fusion, later further explaining his opinion as follows:
Injuries to the sacroiliac joint are frequently ignored in the face of injuries to the disc and most surgeons, including myself, would typically not consider looking at the SI joint if we felt confident that adequate pathology had been identified within the lumbar spine discs. However, if the buttock and radicular pain is not relieved, it has been my experience that those symptoms are commonly the result of the sacroiliac joint pathology. Pain arising from the sacroiliac joint is frequently diagnosed by physical therapists, because they are trained and specifically skilled in assessing abnormal motion at the sacroiliac joint. Physicians, including myself and Dr. Cederberg, are not trained to evaluate the sacroiliac motion in the same way that physical therapists have been taught, and therefore, frequently surgeons do not consider the sacroiliac joint a significant or even potential source of symptoms. Physical therapists find just the opposite - - that it is frequently a source of symptoms that is overlooked by surgeons. Physical findings have proven unreliable in the hands of surgeons. That is, there are no objective physical signs of pain arising from the sacroiliac joint. The only way that symptoms relate[d] to the sacroiliac joints have been shown to be diagnosable is through diagnostic and therapeutic injections. Rita has undergone an injection into the right sacroiliac joint, performed on September 22, 2006. I saw her immediately after that procedure, and she indicated 75 percent relief of all of her symptoms as a result of the anesthetic injection into the joint. I did not anticipate that she would have any sustained pain relief, since the test was simply a diagnostic procedure.
I believe that Rita=s response to the injection is valid, because she has had other injections, such as trochanteric bursa injection, which did not relieve her pain. She had also had facet joint injections earlier that had not relieved her pain, and therefore, a positive response to the sacroiliac joint injection is felt to be a valid indication that the sacroiliac joint is the source of at least 75 percent of the remaining symptoms. The cause of her remaining 25 percent at this time would remain unknown, but she has been asked if the symptoms that were relieved by the injection could be relieved, would she be satisfied, and no longer seek medical care. She has indicated to me that she would.
Therefore, it remains my belief, to a reasonable degree of medical certainty, that Rita=s original injury not only involved damage to the L4-5 and L5-S1 disc, but soft tissue injury to the ligament that [supports] the sacroiliac joints on the right side. Ligaments cannot be accurately scanned by MRI or CT. In fact, if her MRI or CT would have shown degeneration or arthritic changes of the joint, that might have been an indication that the SI joint problems were not related to the injury at all. However, the relief that she did get from the SI joint not only proves that the SI joint is the source of her symptoms, but the fact that there is no radiographic degeneration of that joint confirms that there must have been an injury to the ligaments to cause that pain.
All of the employer and insurer=s arguments to the contrary notwithstanding, the compensation judge was entitled to accept this opinion. Medicine is not always an exact science, either as to diagnosis or treatment, and physicians frequently proceed by trial and error. The fact that Dr. Salib may have been mistaken in the past was a factor for the compensation judge to weigh and provides no grounds for reversal. The judge=s decision is therefore affirmed.
 In a chart note from April 3, 2006, Dr. Salib wrote that the lack of immediate effect from injection of anesthesia Aexcludes the sacroiliac joint as the source of her pain.@