CURTIS H. RADEMACHER, Employee/Appellant, v. CARLSON LAVINE, INC., and TRAVELERS GROUP, Employer-Insurer, and TWIN CITIES SPINE CTR., and CENTER FOR DIAGNOSTIC IMAGING, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JULY 11, 2008
CAUSATION - MEDICAL TREATMENT; MEDICAL TREATMENT & EXPENSE - SURGERY. Where it was not unreasonable for the judge to conclude from the medical record that the employee=s 2002 neck injury was resolved long before his cervical degeneration problems came to require fusion surgery in 2007, where that conclusion was clearly supported by expert medical opinion, where expert medical opinion also supported the judge=s denial of payment for lumbar fusion surgery in 2007 related to the employee=s 2005 low back injury and there was no clear medical opinion to the contrary, the compensation judge=s denial of payment for the employee=s recommended cervical and lumbar fusion surgeries was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Harold W. Schultz, II
Attorneys: Denise D. Lemmon, Lemmon & Tanasychuk, Eagan, MN, for the Appellant. Barbara L. Heck, John G. Ness & Assocs., St. Paul, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge=s finding that his work-related injuries of June 6, 2002, and July 8, 2005, are not substantial contributing factors in the need for proposed surgeries to his cervical spine and lumbar spine. We affirm.
Curtis Rademacher [the employee] began working for Carlson Lavine, Inc. [the employer], in 1989. The employer is in the business of commercial construction, and the employee was employed as a working supervisor performing carpentry and other duties. On June 6, 2002, the employee sustained an injury in the course of his work for the employer, when he struck his head on a water pipe after a co-worker unexpectedly moved a scaffold that the employee was standing on. The employee, who was fifty-nine years old at the time, experienced neck pain immediately following the incident, but he decided to Atough it out@ rather than to seek medical attention. When his pain did not subside, however, the employee elected to obtain treatment with Dr. Orrin Mann at Multicare Associates, whom he saw on July 29, 2002. The employee reported to Dr. Mann that he had been wearing a hard hat at the time of his injury and that he had smacked the top of his head on a horizontal beam. He stated that it had felt like his neck Acompressed about 2 inches.@ The employee reported that his pain was localized in his neck and head and did not radiate into his arms or legs or torso. He had no prior history of any neck or head injuries or treatment to any level of his spine, but he did relate a history of migraine headaches for which he continued to take medication. Neck x-rays revealed degenerative changes of the cervical spine, but no acute abnormality, and Dr. Mann diagnosed closed head injury, cervical strain, cervical segmental dysfunctions, and possible occult cervical disc injury. He recommended physical therapy and a follow-up visit, but he did not prescribe medications or work restrictions.
The employee completed twelve sessions of physical therapy at NovaCare as recommended by Dr. Mann, and on October 1, 2002, his therapist reported that the employee=s cervical range of motion, cervical strength, and upper extremity strength and range of motion were all within normal limits.
On October 28, 2002, the employee returned to see Dr. Mann, who reported the following history:
[The employee] feels that he is 80% to 85% recovered but he is still having episodes of headaches that are ultimately ablated by Zomig, although he tries to avoid using it . . . . He really is not sufficiently impaired by the symptoms that he feels he needs medical care, and the main reason he came in is to simply have it documented in the chart that he is still having these symptoms, and he is o.k. with the plan as below. Frequency of headaches has improved and he has no arm pain, numbness, tingling, weakness, and no significant neck pain unless he has a bad headache. He is doing his normal job. He has finished his therapy. I haven=t seen him since July.
Although the employee was continuing to experience symptoms, Dr. Mann noted that the employee had full and pain-free range of motion of the cervical spine and negative cervical compression, cough, and Spurling=s maneuver for radicular pain. He concluded that the employee=s best clinical course seemed Ato be for gradual fading away,@ and he did not think that additional treatment or testing was indicated, concluding also that the employee had reached maximum medical improvement [MMI] with 0% permanent partial disability [PPD]. The employer and its insurer, Traveler=s Group [the insurer], admitted liability for the employee=s injury and paid for the medical care rendered in 2002. The employee did not sustain any wage loss as a result of the injury.
On December 18, 2003, the employee was seen at Allina Medical Clinic by Dr. Byron Holth, complaining of pain in his shoulders and left thumb, made worse with lifting over his head, and of headaches that over the past month had been occurring at a frequency of three a week. Dr. Holth diagnosed shoulder strain, thumb strain from overuse, and migraine headaches. Regarding the shoulder, Dr. Holth recommended medication, exercises, and a recheck if the employee did not experience improvement.
The employee continued to perform his usual job with the employer and sought no further treatment until July of 2005. On July 8, 2005, he felt a Asnapping@ or Apopping@ in his low back while moving a wheelbarrow full of debris at one of the employer=s jobsites. Following this incident, the employee continued to work without any wage loss, but he did evidently obtain about three months of chiropractic treatment from Dr. Martin Eng, D.C., who ordered diagnostic testing and evidently made several referrals.
On July 27, 2005, the employee was seen at the request of Dr. Eng by orthopedist Dr. David Edwards. On that date, the employee presented with an eleven-day history of Aleft shoulder upper arm pain and weakness in the hand,@ referencing no specific injury to the neck or shoulder area. He related that he had had the onset of his left scapular pain following chiropractic treatment that he had been receiving for a July 8, 2005, low back injury. The employee went on to report that he had
variable pain in the left fore quarter including the scapular pain, upper arm pain, forearm pain and weakness in grip. When he is busy i[t] does not bother him, but at rest he is quite troubled at times by the pain. Although, today he is feeling much better. He has tried some pain medication without substantial relief. He has had some intermittent neck pain and did report that he had a work comp injury to his neck approximately 5 years ago when he jammed his neck. It feels like he has a pinched nerve in his left arm, he reports.
Dr. Edwards concluded that the employee=s symptoms were consistent with a possible cervical radiculopathy, but he recommended only Aobservant management@ for another few weeks before considering an MRI.
About six weeks later, on September 10, 2005, Dr. Eng referred the employee for an MRI of the cervical spine. At that time, the employee reported left-side neck and left shoulder pain with left arm numbness. The scan was interpreted as showing the following: 1) a moderate sized extruded and cranially extended left posterolateral C6-7 disc herniation, which filled the entrance zone of the nerve root canal, significantly compressing the left C7 nerve roots; 2) mild degenerative subluxation at C3-4, with degenerative facet arthropathy and severe bilateral chronic foraminal stenosis; 3) significant right C4-5 hypertrophic facet arthropathy with corresponding chronic right foraminal stenosis; and 4) an intrinsically normal cord, without myelomalacia or syrinx and with normal flow-voids in the vertebral arteries.
On October 18, 2005, the employee was seen at Minnesota Occupational Health by Dr. Vijay Eyunni. The employee gave Dr. Eyunni a history of his injury at work on July 8, 2005, and complained of a dull ache in his low back with radiation into the left hip that came and went. X-rays of the lumbosacral spine showed some degenerative changes along with spondylolisthesis at L4-5. Dr. Eyunni diagnosed chronic lumbar pain and degenerative disc disease and recommended an MRI study of the lumbar spine.
On October 20, 2005, before the lumbar MRI was conducted, the employee was seen at the request of Dr. Eng by neurosurgeon Dr. Edward Hames. Dr. Hames was asked to evaluate the employee=s symptoms of cervical radiculopathy in the left arm. The employee advised the doctor of his 2002 neck injury at work, and, regarding his more recent history, he reported that
[a]bout three months ago, [he] began developing substantial pain radiating from the left paracervical area into the left shoulder. He found the only way he could assume relief of the pain was to abduct the left arm. Gradually the shoulder pain began to abate, but he began developing significant tingling into the left arm predominately toward the area of the left thumb. The numbness and tingling have persisted and appear to be aggravated by neck movements. Accompanying that, as well, he feels weakness in the intrinsic capacities of the left hand.
Dr. Hames assessed Athe potential for cervical radiculopathy,@ and he recommended obtaining an EMG of the left upper extremity and a myelogram/CT scan.
The employee obtained the MRI of his lumbar spine on October 21, 2005. The radiologist reported the following Amajor findings@: (1) advanced lumbosacral facet degeneration on the left with medially projecting facet spurs causing left S1 impingement centrally; (2) grade I degenerative L4-5 spondylolisthesis, with gross segmental instability, severe central spinal canal stenosis, and compressed neural structures; (3) a small lateral annular tear in the L4-5 disc on the right, lying immediately beneath the vertically compressed right L4 ganglion; (4) bilateral L4-5 foraminal stenosis, greater on the right than on the left; (5) a small lateral-foraminal tear without herniation in the L3-4 disc; (6) a bulging disc at L2-3; (7) a small tear and protrusion in the L1-2 disc; and (8) facet joint effusion at L3-4 on the left and L2-3 on the left. Three days later, the employee underwent the cervical myelogram, post-myelogram CT, and EMG of the left arm requested by Dr. Hames. The EMG was interpreted as normal. The CT showed a small extradural mass in the left foramen at C6-7 likely representing disc herniation, degenerative osteophyte formation and degenerative facet disease resulting in mild to moderate bilateral foraminal narrowing at C3-4, mild right foraminal narrowing at C4-5 and C6-7, and mild central canal narrowing at C3-4. Dr. Hames saw the employee again on October 27, 2005, and reviewed with him his history and diagnostic studies. He reassured the employee and his wife that he found nothing that would merit surgical treatment.
About this time, in October of 2005, the employee formally retired and began collecting his union pension. Because union retirement rules allow an individual to work up to 480 hours in a 12-month period, the employee has elected to continue to work for the employer on a part-time basis.
The employee returned to see Dr. Eyunni regarding his low back pain on November 8, 2005. He complained primarily of low back pain and denied having any leg pain, tingling, numbness, or other radicular symptoms. Dr. Eyunni diagnosed low back pain with significant lumbar degenerative disc disease and spinal stenosis, and he recommended trying a Medrol Dosepak. When he returned in follow-up on November 29, 2005, the employee reported only temporary relief from the Medrol Dosepak and continued to complain of pain in the back. Dr. Eyunni recommended ultrasound and traction at physical therapy for about six visits, concluding that A[o]therwise he can return to his job.@
On December 12, 2005, the employee commenced physical therapy at NovaCare, primarily for his low back pain. Two days later, he was seen for a second opinion by Dr. James Schwender at Twin Cities Spine Center, primarily regarding his neck symptoms. At this visit, the employee advised Dr. Schwender of his work-related injury in 2002, with resulting headaches and neck pain. The employee reported that he had seemed to have his symptoms under control using medications but that Asix months ago he started getting left arm pain and left shoulder pain,@ with radiating pain down into his thumb. Dr. Schwender reviewed an MRI of the cervical spine and assessed a C7 disc herniation with radiculopathy. He recommended physical therapy as well as traction and medications, anticipating the possible necessity of a nerve root injection in the cervical spine. The remainder of the employee=s therapy at NovaCare was thereafter directed to the employee=s cervical and lumbar spine.
On June 19, 2006, the employee was examined at the request of the employer and insurer by orthopedist Dr. Jeffrey Nipper. Dr. Nipper obtained a history from the employee, reviewed relevant medical records, and performed a physical examination. In a report dated July 6, 2006, Dr. Nipper concluded that the employee=s incident at work on June 6, 2002, had resulted in a closed head injury and cervical strain/sprain that resolved several months later. He noted that this conclusion was also confirmed by Dr. Mann=s note in October of 2002. Dr. Nipper opined also that the degenerative changes revealed on x-rays in July of 2002 were ones which cannot occur over a short period of time. It was Dr. Nipper=s opinion that there was a degenerative process already occurring in the employee=s cervical spine at the time of his incident at work on June 6, 2002. He went on to state that A[t]hat process has continued such that [the employee] has been experiencing more symptoms of pain and manifestation of degenerative disc disease in the spine as of late. This is part of the natural history of this disease process and is independent of the event of June 6, 2002.@ Similarly, with respect to the incident of July 8, 2005, Dr. Nipper concluded that the wheelbarrow/lifting incident resulted in a lumbar strain/sprain that had resolved. Noting pre-existing pathology in the lumbar spine, including spondylolisthesis and degenerative change, Dr. Nipper stated, AWe know from our literature that the natural disease process typically will continue with or without the contribution of an event such as the wheelbarrow event. Therefore, I consider that event to be irrelevant in the propagation of that disease process.@
On August 2, 2006, the employee was seen regarding low back and left hip pain by Dr. Garry Banks at Advanced Spine Associates, P.A. He reported that his pain had begun on July 8, 2005, and that since then he had had constant low back pain which had been progressive. Dr. Banks reviewed the employee=s October 21, 2005, lumbar MRI and diagnosed (1) lumbar degenerative disc disease, (2) L4-5 severe bilateral facet arthrosis with degenerative spondylolisthesis and foraminal and central stenosis, (3) chronic neck pain, and (4) low back pain. He concluded, AIt appears likely that [the employee=s] pain is secondary to the lumbar degenerative changes, which was aggravated by his work injury as well as pain from the L4-5 stenosis, facet arthrosis, and degenerative spondylolisthesis, again, which was aggravated by his work injury.@ Dr. Banks concluded that, given the degree of stenosis and degenerative changes, it would be unlikely that steroid injection would provide long-term relief.
The employee was seen in follow-up by Dr. Schwender on September 20, 2006, with complaints of severe back pain radiating into his lower extremities with activity. Dr. Schwender assessed Aspondylolisthesis L4-5 with stenosis and classic symptoms@ and recommended epidural injections for non-operative care. If the proposed epidural injections proved unsuccessful, Dr. Schwender anticipated that Aa decompression arthrodesis L4-5 would be appropriate.@ The employee returned to see Dr. Schwender about two months later, on November 21, 2006, reporting that he continued to have activity-related low back pain and lower extremity symptoms. He felt that his low back was doing fairly well after his injection, but he reported experiencing increasing neck pain. Dr. Schwender noted that the employee had a history of disc herniation at C6-7 and chronic left upper extremity radiculopathy, and he recommended an epidural injection at C6-7.
The employee saw Dr. Schwender again on May 3 and 31, 2007, at which time he discussed surgical treatment for both his cervical spine and his lumbar spine. Dr. Schwender recommended at that time that the employee undergo an anterior cervical discectomy, decompression, and fusion using allograft and anterior plating at C6-7. He also suggested that the employee have a transforaminal interbody fusion with decompression at L4-5 of his low back. On June 4, 2007, the employee filed a claim petition seeking authorization for the surgeries recommended by Dr. Schwender.
The employer and insurer arranged for a second evaluation by Dr. Nipper on September 12, 2007. Dr. Nipper again reviewed the employee=s medical records and obtained a history and performed a physical examination of the employee. He agreed with Dr. Schwender that the employee is an appropriate candidate for the proposed cervical and lumbar surgeries, but he did not believe that the employee=s work-related injuries of June 6, 2002, and July 8, 2005, were substantial contributing factors in the need for those procedures. Dr. Nipper explained that
degenerative spondylosis, cervical disc disease, lumbar disc disease, stenosis, facet hypertrophy, and all related entities such as this are the result of a chronic long-standing degenerative process in an individual such as Mr. Rademacher. Certainly there have been insults from time to time during his lifetime, but none of those events in particular have propagated, exacerbated, or potentiated the cervical spine or lumbar spine conditions to any substantial degree.
The matter came on for hearing on September 28, 2007. The issue presented to the judge for determination was whether the employee=s injuries of June 6, 2002, and July 8, 2005, were substantial contributing factors in necessitating the surgeries recommended by Dr. Schwender. Evidence submitted at hearing included the employee=s medical records and his testimony. The employee testified that he had not sustained any injuries to his neck before his work injury of June 6, 2002, and that since that injury he had never been pain free. Similarly, the employee testified that he had sustained no injuries to his low back prior to July 8, 2005, and had had unrelenting and worsening back pain since that time. By findings and order filed November 15, 2007, the compensation judge concluded that the employee=s work injuries were not substantial contributing factors in the need for the surgeries proposed by Dr. Schwender, and he denied the employee=s request that the employer and insurer pay for those surgeries. The employee appeals.
STANDARD OF REVIEW
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 (2008). 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, 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 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).
In a memorandum accompanying his findings and order, the judge explained that he accepted Dr. Nipper=s opinion that the employee sustained only temporary strains/sprains as a result of the two work-related incidents. He found Dr. Nipper=s opinions to be well-founded and considered them Ato be the more accurate and consistent with the facts of the case.@ In addition, the judge found that the employee had submitted Aminimal evidence@ on causation from the treating physicians. He stated:
No doctor documented that the employee sustained a permanent aggravation of a pre-existing condition on June 6, 2002 or July 8, 2005. If anything, the treating physicians refer to the history of the two injuries and offer no explanation as to the relationship of those injuries and the need for the surgeries. After the two incidents the employee continued with his employment. That is not consistent with a permanent aggravation of the pre-existing degenerative disc disease/ spondylolisthesis. He did retire near the end of 2005 but continued with intermittent work after that. Eventually, his degenerative disc disease progressed to the point at which cervical and lumbar spine surgery is needed.
The employee contends that the judge=s finding that the injuries of June 6, 2002, and July 8, 2005, are not substantial contributing factors in the proposed surgeries is clearly erroneous and unsupported by substantial evidence in the record as a whole. He argues that he had no history of neck or low back problems prior to those injuries and that he has never been symptom-free following them. Moreover, because he was a high wage earner in the construction trade, he argues, it was not inconsistent with the severity of his injuries for him to continue working with pain. He contends that the judge=s conclusion is contrary to this, his own personal testimony, and to the weight of the medical evidence. We are not persuaded.
As early as October 2002, only four months after the employee=s June 2002 neck injury and over four and a half years prior to Dr. Schwender=s recommendation of the cervical fusion here at issue, the employee=s physical therapist was reporting the employee=s cervical range of motion, cervical strength, and upper extremity strength and range of motion to be all within normal limits, and the employee=s treating physician, Dr. Mann, was reporting the employee to be over eighty percent recovered, testing negative on all indices of radicular pain, and no longer needing or desiring any further medical care. When he sought treatment with Dr. Holth in December of 2003, it was for shoulder pain and headache, not for neck pain. Subsequent to his July 2005 low back injury, the employee continued to work without any wage loss apparently up to his retirement three months later. Although his MRI scan in October 2005 was clearly revealing of degeneration at nearly all levels of his lumbar back, his pain was still not radicular when he saw Dr. Eyunni in November of 2005. Moreover, only Dr. Banks has opined that the degeneration evident on the MRI scan has been Aaggravated by [the employee=s] work,@ concluding that the employee=s pain also stems Afrom the L4-5 stenosis, facet arthrosis, and degenerative spondylolisthesis.@ Meanwhile, Dr. Nipper has twice issued very unambiguous opinions discounting any substantial causational relationship between the employee=s June 2002 and July 2005 neck and low back injuries and his need in 2007 for the proposed cervical and lumbar fusion surgery.
We conclude that it was not unreasonable for the compensation judge to conclude from the medical record referenced above that the employee=s June 2002 neck injury was essentially resolved and still resolving long before his cervical degeneration problems came to reverse that pattern and to make necessary the recommended fusion surgery here at issue. Moreover, this conclusion is clearly supported by the causation opinions of Dr. Nipper. While the issue with regard to the employee=s low back may be a closer one, we conclude there also that the judge was entitled to rely on the clear opinions of Dr. Nipper, particularly given the fact that, as noted by the judge, no doctor opined that the employee sustained a permanent aggravation of a pre-existing condition on July 8, 2005. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (a trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence). The employee has simply not proven his case on either issue, and the judge=s decision was not unreasonable. Therefore we affirm. Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 Dr. Eng=s office records are not part of the record before us.