DIANE V. CROCKETT, Employee, v. DELANO HEALTH CARE CTR. and AMERICAN HOME ASSURANCE, adm’d by CONSTITUTION STATE SERVS. CO., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
FEBRUARY 6, 2008
MEDICAL TREATMENT & EXPENSE - SURGERY; EVIDENCE - MEDICAL RECORD. The compensation judge’s award of surgery in the nature of a one-level fusion is vacated, as the specific procedure awarded by the compensation judge has not been recommended by any physician and therefore the record includes no medical opinion or evidence to support the award.
Affirmed in part and vacated in part.
Determined by: Rykken, J., Stofferahn, J., and Wilson, J.
Compensation Judge: James F. Cannon
Attorneys: Paul L. Pond, Reed & Pond, Mound, MN, for the Respondent. Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Appellants.
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal from the compensation judge’s finding that surgery in the nature of a one-level fusion at the L5-S1 level would constitute reasonable and necessary medical treatment that is causally related to the employee’s work-related back injury of September 6, 2005. We affirm in part and vacate in part.
On September 6, 2005, Ms. Diane Crockett [employee] was employed as a certified nurse assistant [CNA] at Delano Health Care Center [employer]. Her duties were varied, and included lifting and transferring non-ambulatory residents from bed to wheelchair to a toilet. Although she had access to the use of a Hoyer lift, such a lift did not eliminate all of the lifting, manual labor and physical maneuvering of the residents while working as a CNA. The employee experienced an onset of low back symptoms by late May 2005, while lifting residents. She consulted Dr. Melissa Mohrenweiser, at Ridgeview Delano Clinic, who prescribed her medication for back pain and later prescribed physical therapy, pain medication and muscle relaxants. An MRI scan of the employee’s lumbar spine, taken on July 1, 2005, showed a shallow central disc protrusion at the L5-S1 level, and a mild annular bulge at the L2-3 level, without central or foraminal stenosis. At a July 5, 2005, appointment, Dr. Mohrenweiser determined that the employee’s low back pain had resolved, and allowed the employee to return to work for the employer with no restrictions.
On September 6, 2005, after working a particularly busy shift, the employee sustained a low back injury. She developed severe stabbing pain above her tail bone that extended into her right side but not into her legs. The employee consulted Dr. Fabio Vasquez at the Ridgeview Delano Clinic, who prescribed pain medication and physical therapy. The employer and its workers’ compensation insurer admitted liability for this injury, and paid the employee workers’ compensation benefits, including medical expenses. The employee continued working for the employer, but for one week in October when she remained off work. Due to her continued symptoms, the employee eventually was referred to an orthopedic surgeon, Dr. David Labadie, who provided her with an epidural injection in the low back. That injection provided one to two weeks of relief.
On December 1, 2005, Dr. Labadie advised the employee that there was nothing further he could do for her, and therefore referred her for treatment recommendations to another orthopedic surgeon, Dr. Richard Salib, at the Institute for Low Back and Neck Care. At an examination on December 15, 2005, Dr. Salib diagnosed a degeneration of the L5-S1 disc which, in his opinion, made the disc more susceptible to injury in both torsion and flexion. He initially prescribed Celebrex to treat the employee’s symptoms and outlined his recommendations for an intra-articular injection to the facet joint for both diagnostic and therapeutic purposes. The employee underwent that injection on January 3, 2006, and felt pain relief for approximately one week. On February 3, 2006, again at Dr. Salib’s recommendation, the employee underwent a bilateral radial frequency neurotomy at the L5-S1 level. As of that same date, February 3, Dr. Salib restricted the employee from returning to work, and she has not worked since.
Dr. Salib later reported that the employee noted a 50 percent reduction in her low back pain as a result of the neurotomy, and referred her to Physicians’ Diagnostics and Rehabilitation for a structured strengthening exercise program. He also commented that if the employee felt able to return to work in two months, he would release her to return to work. He also commented that if she was still limited at that point, he would consider a surgical option of either a fusion at the L5-S1 level or a disc arthroplasty. In response to an inquiry from the employee’s medical case manager, Dr. Salib advised that the employee would never be able to return to her former job as a nursing assistant, and that he anticipated she would have permanent physical restrictions as a result of her injury.
The employee’s low back symptoms initially abated, but later returned. On April 19, 2006, the employer offered the employee a return to work at her previous position; the employee did not accept that offer, based on Dr. Salib’s restrictions from work. As of May 1, 2006, Dr. Salib restricted the employee from work on an indefinite basis.
On April 4, 2006, Dr. Joseph Tambornino conducted an independent medical examination of the employee. She reported continuous pain in her lower back with pain radiating to her right buttock down to her knee and also reported some weakness in her right leg. Dr. Tambornino concluded that the employee had sustained a soft tissue strain to her lower back while assisting with lifting residents at the employer’s nursing home on September 6, 2005. He explained that, in his opinion, the mild degenerative change at the L5-S1 level did not indicate a serious back problem. Dr. Tambornino concluded that the effects of the employee’s injury had resolved within approximately six weeks of the injury, and that she was capable of performing her former job without restrictions, as long as she utilized proper mechanics for lifting and performed regular flexion exercises for her lower back. Dr. Tambornino recommended no ongoing orthopedic or other treatment for the employee’s low back condition, basing his opinion on the lack of objective examination findings, and concluded that the employee reached maximum medical improvement from her work injury within six weeks of the injury.
On May 5, 2006, the employee underwent an additional MRI scan of her lumbar spine, which showed “Mild broad based disc bulge at the L5-S1 level, resulting in mild bilateral foraminal narrowing, left slightly greater than right.”
On July 18, 2006, the employer and insurer filed a petition for discontinuance, contending that the employee’s temporary total disability benefits should be terminated because her work-related injury represented a temporary aggravation of her preexisting condition, which had resolved within six weeks of her injury. The petition was also based on the employee’s refusal of the offered job that the employer and insurer contended she was able to perform.
In a report dated August 14, 2006, Dr. Salib issued a report expressing his opinion that the employee’s September 6, 2005, work injury continued to be a significant contributing factor to her low back pain and this condition. He recommended additional diagnostic and therapeutic treatments, and stated that
It is my belief, to a reasonable degree of medical certainty, that the work activities of 9/5/05 were significant contributing factors to the development of her pain and disc problem. That the original injury was that of a tear in the annulus resulting in a central herniation of the disc, this occurred in conjunction with pre-existing degenerative changes to the L5-S1 disc. She has subsequently persisted in having pain related to the permanent aggravation of that condition.
On August 31, 2006, a hearing was held before a compensation judge to address the petition to discontinue. In his findings and order of September 20, 2006, the compensation judge denied the employer’s request to discontinue benefits. He concluded that the employee had not reached maximum medical improvement from her injury on September 6, 2005, and that her work injury remained a substantial contributing factor to her current condition and diagnosis. No appeal was taken from that decision.
On October 5, 2006, the employee underwent a lumbar discogram at three levels, as well as a lumbar CT scan. The CT scan showed bilateral subarticular tears at the L4-5 and L5-S1 levels, anterior and lateral tears at the L5-S1 level and mild bilateral foraminal narrowing at the L5-S1 level. Dr. Salib interpreted the lumbar discogram and CT scan as showing a painful and degenerative disc at the L5-S1 level. He acknowledged that the L4-5 disc level showed an annular tear although it was not painful, and that the L4-5 disc had appeared normal on the earlier MRI scan. In his chart note of October 12, 2006, Dr. Salib proposed either one of two types of surgery: either an anterior spinal fusion at the L5-S1 level, or an anterior total disc replacement at the L5-S1 level with ProDisc.
Dr. Salib preferred the second alternative, explaining that he would prefer to perform a total disc replacement at the L5-S1 level rather than a fusion, even though a fusion could be considered as an alternative treatment, because there could be a slightly higher risk of transferring stress to the L4-5 disc if he performed a fusion. At his deposition held on April 19, 2007, however, Dr. Salib recommended a different type of surgery; he testified that his October 12, 2006, chart note contained a typographical error in that he had, instead, intended to recommend either a fusion at the L5-S1 level with a disc replacement at L4-5, or, a two-level fusion at the L4-5 and L5-S1 levels.
On December 16, 2006, Dr. Tambornino reexamined the employee. At that time, she reported continued and worsened pain since his initial examination in April 2006. She also reported being unable to drive due to her symptoms, and that her only comfortable position was lying flat. She also reported some intermittent weakness in her right leg. Dr. Tambornino again diagnosed a mild soft tissue strain of the low back that, in his opinion, was mild and would have healed within ten to 21 days following the injury. He concluded that the employee had not been disabled as a result of her September 6, 2005, injury, and that she would not require any further treatment other than performing regular gentle stretching exercises and incorporating proper back mechanics in all her activities. Dr. Tambornino recommended against surgery, explaining as follows:
In my opinion, the spinal surgery for [the employee] would have somewhat of a reduced level of confidence in obtaining a curative result. My reason for that is that she has multiple red flags such as chronic and repeated episodes of lower back pain both at work and other activities. She also was a smoker. Furthermore, there have been no objective abnormal findings on my examination or by any other examiner which would indicate that there is sciatic nerve involvement or any evidence of neurological deficit. Additionally, imaging studies have not shown any evidence of nerve root compression in the lumbar region even though there have been multiple studies performed.
On February 5, 2007, the employee filed a medical request for low back surgery, attaching as medical support Dr. Salib’s October 12, 2006, chart note. The employer and insurer objected to the request, contending that the employee sustained only a strain/sprain that has since healed, and that the proposed surgery was not causally related to the employee’s September 2005 injury. The employer and insurer also contended that the surgery would not be reasonable and necessary, and that the employee would be able to obtain symptomatic relief through other conservative treatments.
Depositions were taken of both Drs. Salib and Tambornino. Dr. Salib testified about the surgery he proposed for the employee. He explained that he had exhausted all means of nonsurgical care and that the only other treatment option he could recommend was surgery. He explained that the employee’s pain originated at her L5-S1 level, but that she also had an injury to the L4-5 level, which he could not definitively identify as being related to her work injury. He concluded, however, that because a fusion surgery at the L5-S1 level would place pressure on the adjacent L4-5 disc, he recommended one of two approaches:
1. An anterior fusion at the L5-S1 level and an anterior total disc replacement with Prodisc at the L4-5 level, or
2. An anterior/posterior fusion surgery of the L5-S1 and L4-5 levels.
Dr. Tambornino explained why he recommended against surgery for the employee. He based his opinion on his physical examination findings which included no evidence of neurological deficit, an essentially normal MRI scan of the lumbar spine and CT scan showing no evidence of nerve root compression or lumbar nerve root compression, and that the employee had been a long-term smoker which could result in difficulty with healing. He listed the factors that typically would indicate the necessity of surgery, none of which he found on examination.
On May 16, 2007, a hearing was held before a compensation judge to address the employee’s medical request for low back surgery. In his findings and order served and filed on July 17, 2007, the compensation judge found that the employee’s work-related injury of September 6, 2005, remains a substantial contributing factor in her low back condition. In his findings, the compensation judge addressed three alternative surgical procedures, and concluded that two types, as alternatively proposed by Dr. Salib, would not constitute reasonable, necessary and causally-related treatment. He therefore denied the employee’s claims for authorization for either one of those surgeries. The employee did not appeal from those findings.
The compensation judge, however, found that a third type of surgery - - a single level fusion at the L5-S1 level - - would represent reasonable and necessary treatment for the cure or relief of the employee’s September 5, 2006, work injury. The employer and insurer appeal from that finding.
The employer and insurer appeal from the compensation judge’s authorization for surgery in the nature of a one-level fusion at the L5-S1 vertebral level.
The sole claim addressed at the hearing was the employee’s request for authorization to proceed with surgery to her lumbar spine. In his findings and order, the compensation judge addressed three types of surgery, the first two of which had been recommended by Dr. Salib and a third that he had not specifically recommended:
1. An anterior fusion at L5-S1 and anterior total disc replacement with a ProDisc at L4-5;
2. A two-level fusion at L4-5 and L5-S1; and
3. A one-level fusion at L5-S1.
The compensation judge denied the claims for the first two listed procedures, but concluded that a single level fusion at the L5-S1 level would represent reasonable and necessary treatment for the cure or relief of the employee’s September 5, 2006, work injury. At Finding No. 7, he concluded that:
The mentioned but not yet recommended surgery, in the nature of a fusion of the L5-S1 alone, constitute[s] medical treatment that is reasonable and necessary due to, and causally related to, the employee’s work-related back injury of September 5, 2005.
It is from that finding that the employer and insurer appeal. They argue that this particular type of surgery was not at issue at the hearing, and that the compensation judge cannot award treatment that was not at issue at the hearing and is prospective in nature. The employer and insurer argue that the employee’s medical request was limited solely to the type of surgery recommended by Dr. Salib in his October 12, 2006, report - - a one-level disc replacement at the L5-S1 level. They argue that it was error for the judge to address a type of surgery neither requested by the employee nor recommended by the employee’s treating surgeon, as that was an improper expansion of the agreed-upon issues.
This litigation commenced with the employee’s medical request, filed on February 1, 2007. Attached to that medical request was the October 12, 2006, chart note of Dr. Salib, in which he recommended two alternative surgical procedures. At the hearing, during discussions between the compensation judge and the parties’ counsel, the compensation judge and counsel did not specifically delineate the issues to be addressed at the hearing. However, during the opening statements presented by counsel, the employee’s attorney advised the judge that the “issue before the Court is whether or not Diane Crockett is a low back surgical candidate,” and that “[t]he only thing we’re here on is to decide whether or not Diane Crockett is entitled to surgery, reasonableness and necessity of the surgery and whether she can have it as outlined in the deposition of Dr. Salib.” Counsel for the employer and insurer responded that “[i]t is the position of the employer and insurer that the surgery requested in this matter is neither causally related to the work injury nor reasonable and necessary,” and also referred to two types of surgeries that Dr. Salib proposed during his deposition.
At the hearing, therefore, the employer and insurer had notice of the employee’s request for surgery and the parties were aware of the alternative recommendations made by Dr. Salib. He had clarified his surgical recommendations during his pre-hearing deposition, expanding on the information outlined in his earlier chart notes. There was no improper expansion of the issues, as alleged by the employer and insurer. The compensation judge did not err by addressing various types of surgery recommended by Dr. Salib other than the one listed in his October 12, 2006, chart note.
The remaining issue is whether the compensation judge erred by awarding a surgery that neither Dr. Salib nor any other physician has recommended, which he described as “[t]he mentioned but not yet recommended surgery, in the nature of a fusion of the L5-S1 alone” (Finding No. 7; emphasis added). The compensation judge explained that
it is determined that a medical recommendation for surgery, in the nature of a fusion of the L5-S1 alone, would constitute medical treatment that is reasonable and necessary due to, and causally related to, the employee’s work-related back injury of September 6, 2005. Therefore, if Dr. Salib recommends that the employee proceed with fusion surgery solely at L5-S1, then the employee and insurer shall pay the surgery as and for medical treatment that is reasonable and necessary due to, and causally related to, the employee’s work-related back injury of September 6, 2005.
(Memo. p. 5 (emphasis added).)
The judge concluded that the employee’s current back problem is due to her work injury of September 6, 2005, adopting as support Dr. Salib’s opinion that the employee’s L5-S1 condition is causally related to that work injury. The compensation judge also referred to factors that demonstrate the need for surgery, including the employee’s findings on radiographic studies and the course of conservative treatment she already has pursued with no significant relief. We recognize that the record contains medical support for surgical procedures other that the one granted by the compensation judge. Absent a medical opinion recommending a single-level fusion, however, the compensation judge’s contingent award for that type of surgery is premature and unsupported by medical evidence, and must be vacated. See Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). We therefore vacate Finding No. 7 and Order No. 3. The employee is free to again request surgery at a future time.
 “ProDisc” is a type of disc replacement, which, according to Dr. Salib, was approved by the FDA in the autumn of 2006. (Salib depo., p. 7.)
 In their Notice of Appeal, the employer and insurer also appealed from the finding that, in accordance with the findings and order served and filed on September 20, 2006, the effects of the employee’s September 6, 2005, injury remain a substantial contributing factor to her current back symptoms. The employer and insurer did not address that specific finding in their appellate brief, and therefore we have not addressed that portion of the appeal. See Minn. R. 9800.0900, subp. 1 (“Issues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be decided by the court.”).
 It appears that the compensation judge may have limited his award to a single-level fusion procedure at the L5-S1 vertebral level because earlier radiographic studies had shown disc degeneration at that level. In addition, during his deposition, Dr. Salib referred to the causal relationship between the employee’s work injury and her L5-S1 vertebral disc level, and also testified that he could not determine the cause of the annular tear at the L4-5 level.
 As we noted earlier, Dr. Salib testified that the reference to surgery in his October 12, 2006, chart note contained a typographical error and that he had intended to recommend either a fusion at the L5-S1 level with a disc replacement at L4-5, or, a two-level fusion at the L4-5 and L5-S1 levels.