ROSS H. TAMMINEN, Employee, v. RYAN CONTRACTING CO., and SFM MUT. INS. CO., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 26, 2008
PRACTICE & PROCEDURE - RIPENESS; PRACTICE & PROCEDURE - PREMATURE FINDING. Where the employee had not actually requested a surgical recommendation from his doctor, where the doctor had not made a surgical recommendation, and where no request for a surgical consultation was at issue before the judge, the compensation judge erred in awarding a surgical consultation and prospective surgery based on any surgical recommendation proceeding from that consultation.
Determined by: Pederson, J., Rykken, J., and Johnson, C. J.
Compensation Judge: Harold W. Schultz, II
Attorneys: Norbert Cuellar, Cuellar Law Office, Minneapolis, MN, for the Respondent. Steven Scharfenberg, Lynn, Scharfenberg & Assocs., Bloomington, MN, for the Appellants.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge=s award of an examination and prospective surgery. We vacate the judge=s decision.
Ross Tamminen [the employee] sustained a work-related injury to his low back on June 4, 2002, while employed by Ryan Contracting Company [the employer]. On April 26, 2006, the employee underwent a three-level lumbar anterior/posterior fusion performed by Dr. Timothy Garvey. He was discharged from the hospital a week later with instructions to follow up with Dr. Garvey in four to six weeks.
The employee was seen by Dr. Garvey in follow-up on June 5, 2006. He reported to the doctor that a few weeks after returning home from the hospital he had started to develop buttocks pain, much greater on the left than on the right, but that since the surgery he had been able to feel his legs, which he had not been able to do before. Dr. Garvey noted that the employee was very early status post extensive anterior posterior decompression and fusion from L3 to the sacrum, and he recommended that the employee engage in walking as his primary exercise and avoid bending, twisting, and lifting activities.
On July 31, 2006, the employee returned to Dr. Garvey, again complaining of bilateral buttocks symptoms, but now greater on the right side. He reported the that distal leg pain and the paresthesias that he had prior to surgery were less. X-rays of the lumbar spine revealed an L3 to sacrum anterior posterior construct with pedicle screw fixation. Dr. Garvey noted early bone formation but found it premature to talk about solidarity. He felt that the employee was making slow progress from his fusion and recommended continued restrictions and walking as his primary exercise. The doctor stated also that, if the employee had significant buttocks symptoms, he would recommend obtaining a myelogram CT scan to exclude any type of postoperative complication from persistent compressive pathology or fracturing around instrumentation. He did not believe that the employee was capable of gainful employment.
Dr. Garvey evidently ordered a CT myelogram on August 16, 2006, but the test had not yet been performed when the employee returned to see him on October 9, 2006. On that date, the employee complained of a severe flare-up of symptoms, which he related to Ajust getting up from the couch@ about a month earlier. The employee reported that the pain was as bad as it had been before his surgery. X-rays did not reveal any obvious fracture. Dr. Garvey concluded that the fusion appeared to be consolidating but that it was unlikely that the employee had a solid arthrodesis as of yet. He again recommended the myelogram CT scan to look for new pathology.
The employee underwent the recommended myelogram CT scan at Fairview Red Wing Medical Center on October 19, 2006. The radiologist interpreted the study as revealing a prior anterior and posterior fusion with posterior instrumentation from L3 to S1, and he noted that Athere is no definite bony bridging between the L4 and L5 vertebral segments.@
About four months later, on February 12, 2007, the employee returned to see Dr. Garvey with continued complaints of low back and leg pain. He reported 50% back pain and 50% leg pain, split equally from right to left. He told Dr. Garvey that he was perhaps mildly better than when last seen. The employee indicated that he could only walk for about a block before needing to sit down with increasing pain. He reported also a burning pain in his anterior thigh, which precluded him from lying on either side. The doctor noted that, A[h]e tells me he is not certain he is at the point he would want to contemplate further surgical management.@ X-rays were again taken, and Dr. Garvey noted, A[h]e appears to have a solid arthrodesis at L5-S1 in the posterolateral position bilaterally and proximally the posterolateral fusion appears to be consolidating nicely now. The interbody fusion at L5-S1 does appear to be consolidated . . . although 4-5 and 3-4 one cannot say for certain are healed.@ After discussing options with the employee, Dr. Garvey reported as follows:
If he felt the quality of his life was so terribly affected day in and day out because of his symptoms, our plan would be to remove the segmental fixation, directly inspect the posterior fusion, and do revision decompression if necessary. My suspicion is that he may have delayed union or pseudoarthrosis proximally. We have discussed this would be a procedure of smaller magnitude than he had previously.
Dr. Garvey concluded by stating, A[a]t this point we are going to continue observation.@
On April 2, 2007, the employee filed a claim petition seeking Aapproval of removal of segmental fixation and revision decompression surgery.@ In support of his claim, the employee attached Dr. Garvey=s office note from February 12, 2007. The employer and its insurer, SFM Mutual Insurance Company [the insurer], filed a formal answer on April 19, 2007, denying the requested surgery, alleging affirmatively that a diagnosis of pseudoarthrosis had not yet been advanced.
Sometime after the filing of the employer and insurer=s answer, the employee contacted Dr. Garvey to request an additional CT scan. In a letter to the employee on May 21, 2007, Dr. Garvey stated:
I do not believe that the study is contra-indicated, but as outlined in my office note unless it is going to change our medical management, I cannot order the study. You certainly may have the study and it is your choice to do so and perhaps your workers= compensation people will order the test.
As noted in my notes, if we are at the point of making a decision with the information then the test should be ordered.
The employer and insurer arranged for the employee to be examined by orthopedist Dr. John Dowdle on July 9, 2007. In light of Dr. Garvey=s refusal to order a CT scan, Dr. Dowdle ordered the scan instead. In a report on the lumbar CT scan dated June 15, 2007, Dr. William Mullin reported in part that the L3-4 and L4-5 fusions were solid, with no instrumentation complications. The interior interbody fusion at L5-S1 had not yet solidly healed to S1, but he reported Athere is abundant solid dorsolateral fusion at this level.@
In a letter directed to the employee=s attorney on July 7, 2007, Dr. Garvey briefly outlined his treatment of the employee. He explained that he had initially been reluctant to contemplate a lumbar fusion for the employee, given his large size and the fact that one cannot guarantee the outcome of procedures. By September 2005, however, Dr. Garvey indicated, the employee had felt that if something could be done surgically he wished it to be done, given that he had had symptoms for over three years. The doctor noted that discography was performed, followed by the fusion procedure in April 2006 that did not produce a good long-term outcome. With respect to the revision decompression discussed with the employee on February 12, 2007, Dr. Garvey stated, Athe imaging will have to be restudied with the patient present and clinical correlation done to decide if revision decompression will be necessary.@
Dr. Dowdle examined the employee on July 9, 2007, and issued a written report on July 13, 2007. His impression was that the employee had mechanical back pain, had degenerative disc disease at L3-4, L4-5, and L5-S1, and was status post anterior and posterior fusion. He stated that the most recent CT scan showed evidence of a solid fusion at L5-S1. He explained that there was an area at the inferior portion of the graft that was not solidly incorporated, but a solid fusion was present dorsally that kept that segment motionless. Dr. Dowdle did not believe that the employee was in need of additional surgery to accomplish fusion. He stated that he was not certain what revision surgery was being contemplated and that he would have to review Dr. Garvey=s most recent recommendation to have an opinion on that issue.
The employee=s claim for revision surgery came on for a hearing before a compensation judge on July 19, 2007. The judge identified the issue as A[w]hether the treatment proposed by Timothy Garvey, M.D., is reasonable and necessary in an attempt to cure and relieve the employee from the effects of the June 4, 2002 personal injury.@ Evidence presented to the judge at hearing included medical records jointly offered by the parties and the employee=s testimony, and the record was left open post hearing for receipt of deposition testimony from Dr. Dowdle and a supplementary report from Dr. Garvey.
Dr. Dowdle testified by deposition on July 23, 2007, essentially reiterating opinions that he had stated in his report of July 13, 2007. In a letter to the employee=s attorney dated August 8, 2007, Dr. Garvey reiterated his opinion that removal of the segmental fixation with direct inspection of the fusion mass was very reasonable. Dr. Garvey concluded his letter, however, by stating, AAs relates to scheduling surgery for Ross, he has not been seen since February of 2007 and he will need to be seen with a current history and physical examination and review of his imaging studies at that evaluation for me to give an exact surgical recommendation at this point in time.@ The record closed on August 15, 2007, upon the judge=s receipt of Dr. Garvey=s report.
In a Findings and Order issued September 11, 2007, the compensation judge concluded at Finding 17 as follows:
The preponderance of the evidence is that another examination by Dr. Garvey is reasonable and necessary in the attempt to cure and relieve the employee from the effects of the personal injury and that additional surgery at the L5-S1 level is reasonable and necessary, if that is recommended by Dr. Garvey.
On that conclusion, the judge ordered the employer and insurer to Apay for an additional examination of the employee by Dr. Garvey, for hardware removal and for additional surgery at the L5-S1 level, if that is performed by Dr. Garvey.@ The employer and insurer appeal.
The employer and insurer argue that the surgery issue presented to the judge was not ripe for a determination and did not present a justiciable controversy. After review of the file, we agree.
The employee has not been examined or seen by Dr. Garvey since February 12, 2007. At the time of that examination, surgical options were discussed with the employee, but no recommendation for surgery was made. The employee advised the doctor that he was uncertain whether he wished to consider further surgical management, and the plan on that date was still to continue observation. It is evident from Dr. Garvey=s refusal to order an additional CT scan in May 2007 that the employee had not advised him of a renewed interest in surgical management. Dr. Garvey noted specifically that, Aif we are at the point of making a decision with the information then the test should be ordered.@ The employee not only did not request a further surgical consultation with Dr. Garvey, he did not return at all. In both his letter of July 7, 2007, and his letter of August 8, 2007, Dr. Garvey emphasized that the employee had not been seen since February 12, 2007, and that the employee would need to be seen with a current history and physical examination and review of his imaging studies before a surgical recommendation could be made. The judge=s findings and order also reflect the prospective and hypothetical nature of the employee=s claim. The judge found that another examination by Dr. Garvey was reasonable and necessary, although that was not part of the employee=s claim. The judge was undoubtedly aware that Dr. Garvey needed to see the employee again before surgery could be recommended. As it stood at the time of trial, the employee had never communicated to Dr. Garvey his interest in the surgery that he was asking the judge to award. Again, the hypothetical nature of the employee=s request is reflected in the judge=s finding that Aadditional surgery at the L5-S1 level is reasonable and necessary, if that is recommended by Dr. Garvey@ (emphasis added).
We conclude that until the employee actually requests a surgical recommendation from Dr. Garvey, and until such a recommendation is made, the issue is not ripe, and no benefits are at stake. Cf. Katezenmeyer v. M.T.S. Systems, Inc., slip up. (W.C.C.A. Apr. 4,1995) (where no doctor had recommended surgery and the employee did not wish to pursue surgery at the time of hearing, the compensation judge properly concluded that the issue as to approval of surgery was not ripe for determination). We therefore vacate the decision of the compensation judge as premature.