CHRISTOPHER D. STORDAHL, Employee/Appellant, v. ADVANCED COMMUNICATIONS, INC., and CNA INS. COS., Employer-Insurer, and MN DEP=T OF LABOR & INDUS./VRU, MIDWEST SPINE INST., L.L.C., J.W. HUTTON, INC., BLUE CROSS & BLUE SHIELD OF MICH., PHYSICIANS NECK & BACK CLINICS, and NORAN NEUROLOGICAL CLINIC, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 26, 2007
TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Where the record did not establish that the employee had any wage loss for purposes of temporary partial disability, the compensation judge did not err in denying that claim.
MEDICAL TREATMENT & EXPENSE - SURGERY. Where, on the date of hearing, the employee was only 33 years old, was less than six months post-injury, had not followed up on recommendations for weight loss and active rehabilitation, and had only minimal disc disruption on discogram, and where the only physician recommending surgery did not explain why he was no longer recommending conservative care, the compensation judge did not err in denying the employee=s request for approval of fusion surgery.
Determined by: Wilson, J., Stofferahn, J., and Pederson, J.
Compensation Judge: Gary P. Mesna
Attorneys: David W. Blaeser, Woodbury, MN, for the Appellant. Nathan O. Krahn, Edina, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the judge=s denial of temporary partial disability benefits and requested anterior/posterior fusion surgery. We affirm.
The employee was working for Advanced Communications Inc. [the employer], as a cable installer on January 25, 2006, when he fell from a ladder and injured his low back. He was 32 years old at the time. The employee treated that day at Regions Hospital emergency room, where he was diagnosed with a back strain and released with medications. X-rays taken that day revealed no fractures and no significant degenerative changes.
On February 15, 2006, the employee was seen by Dr. Boris Beckert at the Stillwater Medical Group. Dr. Beckert noted that the employee was undergoing physical therapy and was subject to work restrictions. At that time, the employee reported that he still had low back pain and that he would like to try chiropractic care. Dr. Beckert authorized three chiropractic treatments.
The employee was seen by Dr. David J. Wilson, D.C., on February 16, 2006. Dr. Wilson treated the employee from February 16, 2006, through March 9, 2006.
A lumbar MRI performed at Lakeview Hospital on February 28, 2006, was interpreted as showing no fractures or acute disc protrusion. However, the radiologist noted multilevel Amild desiccative disc changes, lower thoracic region predominantly, with some Schmorl=s node development.@ The MRI also showed a mild bulge at L4-5 and facet degenerative changes L4-5 bilaterally and on the left side at L5-S1. A small synovial cyst-type formation was noted at L5-S1.
The employee continued to treat with Dr. Wilson, who on March 14, 2006, took the employee off work for six days. He also recommended restrictions of no lifting and no sitting or standing for more than three hours. On March 20, 2006, Dr. Wilson apparently released the employee to return to work and modified his restrictions. The employee continued to treat with Dr. Wilson from March 14, 2006, through April 28, 2006.
The employee was examined by independent medical examiner Dr. Stephen Barron on March 23, 2006. In a report dated March 27, 2006, Dr. Barron opined that the employee had sustained a lumbar sprain on January 25, 2006, and that, as of the date of his exam, the employee had no objective findings and was not in need of future medical treatment. Dr. Barron further opined that the employee had reached maximum medical improvement [MMI], had sustained no permanent partial disability, and was capable of returning to full-duty work without any restrictions.
On March 28, 2006, the employee was apparently seen by Dr. Paul Spilseth, who released the employee to work with limitations. Dr. Spilseth also referred the employee to St. Croix Orthopedics, where he was apparently seen on March 29, 2006, by Dr. Daniel Hanson. Dr. Hanson stated that the employee was able to work with restrictions.
On April 3, 2006, the employee was seen by Dr. Soren Ryberg, at Noran Neurological Clinic, on referral from Dr. Wilson. At that time, the employee indicated that his average pain level was anywhere from 5 to 7 out of 10. On examination, Dr. Ryberg noted that the employee was 72 inches tall and weighed 245 pounds. It was his impression that there were no focal neurologic deficits and that the employee=s history and exam were consistent with a musculoligamentous injury. He also noted that the employee=s pain behaviors were rather pronounced and that no disc herniations were identified.
The employee was seen by a physician=s assistant, Steve Lawson, on April 5, 2006, at the Midwest Spine Institute. At the time of that examination, the employee was complaining of bilateral arm pain to the hands, low back pain, and bilateral leg pain to the feet. He described his low back pain as a constant dull ache, at a level of 5 to 6 out of 10. Mr. Lawson noted that the employee was working full duty for the employer at that time, and he diagnosed a significant aggravation of an underlying degenerative process related to the work injury. He recommended that the employee continue to treat conservatively. Because the employee wanted to do something more definitive, Mr. Lawson recommended diagnostic facet injection towards the left side. Mr. Lawson also informed the employee that he could not be cured by surgery or by simple decompression of the synovial cyst. Mr. Lawson took the employee off work at that time.
On that same date, the employee filed a claim petition seeking temporary total and temporary partial disability benefits, out-of-pocket medical expenses, and mileage and rehabilitation benefits.
On April 17, 2006, the employee underwent diagnostic medial branch facet nerve blocks at L4 and L5 in the medial branches bilaterally. His back and leg pain were not relieved with this procedure. He was then seen by Dr. Thomas Rieser at Midwest Spine Institute on April 25, 2006. Dr. Rieser recommended a discogram, which was performed on April 26, 2006, by Dr. Louis Saeger. Dr. Saeger opined that
The L4-5 level showed evidence of minimal early internal disc disruption and a faint trace of radial extension of contrast. Pressurization at this level at relatively low pressures produced 9/10 highly concordant back pain indicating that this is a chemically sensitive disc with minimal internal disc disruption.
L5-S1 showed a slightly greater degree of irregularity to the nucleus, although it was still relatively well contained. There was no gross annular disruption, but there was some slight irregularity posteriorly and laterally. This level also at relative low pressures produced 8-9/10 highly concordant pain and was clearly a chemically sensitive disc producing concordant symptoms with a minimal degree of internal disc disruption structurally.
Dr. Saeger recommended consideration of an IDET procedure at the L4-5 and L5-S1 levels, Aas a minimally invasive approach for managing his discogenic pain related to very minimal internal disc disruption with chemical sensitivity.@
The employee returned to Mr. Lawson on May 3, 2006, complaining of Adifficulty with pain in the back and activities of daily living.@ The employee reported an inability to work due to pain, and Mr. Lawson kept him off work and recommended continued conservative treatment. In his office notes, Mr. Lawson wrote,
At this point, he is not interested in conservative treatment and would like to do something more definitively. . . . Fusion is by no means the best option for him, and certainly at five months and considering age, more time would be beneficial.
On May 9, 2006, Dr. Rieser recommended that the employee lose weight and be seen at Physicians Neck and Back Clinics, stating, A[i]f he can make some significant improvement with therapy and with weight loss, I think that would be his best bet.@
The employee was evaluated by Dr. Caroline Mason at Physicians Neck and Back Clinics on May 15, 2006. On that date, the employee described his pain as being at level 7 out of 10. Dr. Mason diagnosed mechanical low back pain and deconditioning syndrome, and she recommended that the employee enroll in an active rehabilitation program, twice a week. The employee was advised that it would take an estimated 9-12 weeks to restore optimal functioning and that there might be some initial increase in his discomfort as the active rehabilitation began.
On May 23, 2006, after attending only one session of the recommended program, the employee returned to Dr. Rieser, complaining that his pain was worse after the session, that he was tired of living with the pain, and that
he would like to proceed with something that would be more definitive. . . . The only option I really have would be an anterior/posterior fusion. I would stage it because of his size and ability to get better lumbar lordosis. I would do the posterior procedure first followed by the anterior fusion two weeks later.
On June 1, 2006, the employee amended his claim petition to include a claim for the anterior/posterior fusion.
In a letter to the employee=s attorney on June 19, 2006, Dr. Rieser wrote that the employee had sustained a significant and permanent aggravation to his low back and that the work injury of January 25, 2006, was a substantial contributing cause of the employee=s current condition and need for medical treatment, including the proposed fusion. Dr. Rieser went on to state,
Mr. Stordahl has failed to improve despite various conservative treatment, including medications, physical therapy, chiropractic care and steroid injections. I have recommended an anterior/posterior fusion of L4-5 and L5-S1. . . . A posterior fusion has been scheduled for July 3, 2006, and two weeks following that, he will have an anterior fusion.
Dr. Barron reviewed additional medical records and issued a supplementary report, dated June 26, 2006, wherein he opined that the proposed surgery was not reasonable, necessary, or causally related to the employee=s January 25, 2006, work injury.
The claim petition proceeded to hearing on June 28, 2006, at which time counsel for the employee indicated that he was claiming temporary total disability benefits continuing from April 10, 2006; temporary partial disability benefits from January 25, 2006, to April 9, 2006; medical expenses; a rehabilitation consultation; and approval for the recommended anterior/posterior fusion.
In findings and order filed on July 20, 2006, the compensation judge found that the employee=s low back condition was causally related to the January 2006 work injury and that the employee was entitled to the claimed temporary total disability benefits, the medical expenses incurred to date, and a rehabilitation consultation. The judge further found that the employee had not proven entitlement to temporary partial disability benefits and that the proposed surgery was not reasonable and necessary. The employee appeals from the latter two findings.
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).
Temporary Partial Disability
The employee contends that, because the parties reached an agreement at hearing as to the employee=s average weekly wage, a number of wage loss records and exhibits were not submitted as evidence, and, Aduring this process the Employee=s temporary partial disability documentation was inadvertently not introduced into evidence.@
On appeal, this court 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 (2006). In this case, the judge found that the employee did not prove entitlement to temporary partial disability benefits because no earning records were submitted to show that he earned less than he did at the time of injury.
The employee acknowledged in his brief and at oral argument that he submitted no records that would establish a wage loss during the period claimed. In addition, the employee testified only vaguely to having to leave work early at times because of back pain. At no point did the employee testify as to the specific period during which this occurred or whether he had sustained any wage loss because of these actions. Accordingly, substantial evidence supports the judge=s finding that the employee did not prove entitlement to the temporary partial disability benefits claimed at hearing.
The compensation judge found that the two-level fusion proposed by Dr. Rieser was not reasonable and necessary as of the hearing date. In his memorandum, the judge explained that
[the employee] has not followed through on some of the recommendations for conservative care, especially weight loss, physical therapy, and exercise. He discontinued physical therapy because it increased his low back pain. However, he is overweight and deconditioned, and he was told to expect some initial increase in discomfort. The findings on the MRI scan were relatively mild and Dr. Ryberg noted rather pronounced pain behaviors that were out of proportion to expectation. Dr. Rieser and his physician=s assistant, Mr. Lawson, were initially quite reluctant to recommend fusion surgery, considering it as a last resort. There has been no significant worsening in the employee=s condition. It appears that Dr. Rieser recanted only because he had nothing else to offer the employee in light of the employee=s disinterest in conservative care.
The employee contends that the compensation judge rejected Dr. Barron=s opinion that the employee had no objective findings on examination and that he was as at MMI, yet apparently accepted Dr. Barron=s opinion that the proposed fusion surgery was unreasonable and unnecessary. A compensation judge is free to adopt all or any portion of any expert opinion so long as that opinion has adequate foundation. Klasen v. American Linen, 52 W.C.D. 284 (W.C.C.A. 1994). However, it appears that the compensation judge did not accept Dr. Barron=s opinion so much as he simply found Dr. Rieser=s opinion to be unpersuasive.
The employee also contends that his condition and symptoms worsened significantly in the first few weeks of April, which led Dr. Rieser to change his recommendation from conservative treatment to anterior/posterior fusion, and that this worsening is reflected in the medical records and the employee=s testimony. We are not persuaded.
The employee=s medical records do not describe a significant worsening of the employee=s condition in the first few weeks of April or at any other time. Rather, the records show that the employee made similar complaints of pain from and after the date of his injury. From April 3, 2006, on, the employee rated his pain at 5-7 on a scale of 1-10. While the employee complained on May 23, 2006, of increased pain, he had just participated in a rehabilitation session at Physicians Neck and Back Clinics, and he had been advised that this therapy might cause an increase in pain because he was so deconditioned.
While the employee did testify to a worsening of his symptoms during the five or six days he worked full duty in early April, there is no medical substantiation of the alleged increase in symptoms, and the compensation judge could reasonably conclude, based on the records, that the employee=s condition has not significantly worsened since the work injury. Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the compensation judge=s findings are to be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 60, 37 W.C.D. 235, 239 (Minn. 1984).
Dr. Rieser was the only doctor to recommend an anterior/posterior fusion. On May 3, 2006, Physician=s Assistant Lawson had opined that it was too early to consider surgery, and on May 9, 2006, Dr. Rieser himself had opined that losing weight and getting in shape was the employee=s Abest bet.@ Similarly, Dr. Mason had opined on May 15, 2006, that the employee Awould definitely benefit from active therapy. He is very deconditioned and has limited range of motion.@
Dr. Rieser did not explain why his recommendation changed from conservative treatment on May 9, 2006, to anterior/posterior fusion in two stages on May 23, 2006, other than to state that the employee Awants to proceed with something more definitive.@
As of the date of hearing, the employee was only 33 years old, was less than six months post-injury, had not followed up on recommendations for weight loss and active rehabilitation, and had demonstrated only minimal internal disc disruption with chemical sensitivity on discogram. Under these circumstances, substantial evidence supports the judge=s conclusion that anterior/posterior fusion was not reasonable and necessary medical treatment at the time of hearing. The fact that the employee chose to undergo the surgery, shortly after the hearing, does not alter the analysis. The judge=s decision is affirmed.
 Those physical therapy records were not submitted at trial, but subsequent doctors= records suggest that the employee attended only two physical therapy sessions.
 The records covering the employee=s attendance at active rehabilitation were not submitted at hearing, but counsel for the employee indicated at oral argument that the employee had attended only one session.
 We assume, absent any explanation in the record, that this case was not litigated as a treatment parameters case because the employer and insurer were denying that the employee=s condition after March 23, 2006, was causally related to the admitted work injury. Pursuant to Minn. R. 5221.6020, subp. 2, the medical treatment parameters Ado not apply to treatment of an injury after the insurer has denied liability for the injury.@ A denial of liability includes both a denial of primary liability and a denial of medical causation for subsequent symptoms or conditions. Mattson v. Northwest Airlines, slip op., (W.C.C.A. Nov. 29, 1999).