BRIAN BRANSTAD, Employee/Appellant, v. FEDEX FREIGHT EAST, SELF-INSURED, Employer, and BRUCE BARTIE, M.D., and INSTITUTE FOR LOW BACK AND NECK CARE, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 11, 2009
MEDICAL TREATMENT & EXPENSE - SURGERY. Substantial evidence, in view of the record as a whole, supports the compensation judge’s denial of the employee’s claim for approval of the proposed disc arthroplasty surgery.
Determined by: Rykken, J., Johnson, C.J., and Pederson, J.
Compensation Judge: Peggy A. Brenden
Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Appellant. James S. Pikala and Christine L. Tuft, Arthur, Chapman, Kettering, Smetak, & Pikala, Minneapolis, MN, for the Respondent.
MIRIAM P. RYKKEN, Judge
The employee appeals from the compensation judge’s denial of his claim for approval of surgery. We affirm.
The employee, Brian Branstad, began working as a diesel mechanic for the employer, FedEx, in July 2001. His work for the employer included repairing trucks, and required physically taxing work, including mechanical work and tire changing, which involved bending and lifting. On October 23, 2006, the employee was injured while moving a truck tire off a stack of tires. As he shifted the tire, which he estimated weighed 200-250 pounds, he felt a popping sensation in his lower back and pain extending down his right leg. The employer, which was self-insured at the time of the employee’s injury, admitted primary liability for the injury.
The employee sought medical treatment that same day with Dr. Terry G. Domino, at MultiCare Associates, who diagnosed an acute right lumbar strain and referred the employee for six sessions of physical therapy. Dr. Domino also prescribed ibuprofen and Robaxin to treat the employee’s pain, and outlined physical restrictions for the employee to follow while at work. The employee chose to undergo chiropractic treatment, and received about ten treatments through December 2006. According to the employee’s testimony, he obtained relief from the treatments and was able to continue working.
The employee has undergone treatment for low back symptoms in the past. In the late 1990s, he sustained a work-related injury to his low back while working for a baking company. He felt a popping sensation in his low back and felt some low back pain while lifting heavy bread dough into a hopper. He underwent chiropractic treatment for three or four weeks, and his symptoms later resolved. In 2002, while he was changing a truck tire at FedEx, the employee bent over and felt a popping sensation in his mid-back at the belt line. He underwent physical therapy and chiropractic treatment, remained off work for a period of time, and later resumed his full duties, without restrictions, as a diesel mechanic. Since that incident, he has occasionally noticed stiffness in his mid-back and buttock area, which he has typically treated with stretching and application of ice. The employee also has a colitis condition, and in the past has been unable to treat his back pain with medications, other than Tylenol, as those have caused difficulties with his stomach and gastrointestinal system.
The employee’s low back symptoms subsided following his chiropractic treatments in late 2006, but those symptoms gradually returned, and he again consulted Dr. Domino in January 2007, reporting a recurrence of his stiffness and soreness, particular in his right lower back area. Dr. Domino referred him for six physical therapy sessions, and continued his restrictions on his work activities. The employee received physical therapy in January and February 2007; Dr. Domino continued to monitor his progress. By early March, the employee had completed his physical therapy and, according to Dr. Domino’s chart note, had “plateaued at that level of care and ha[d] met all of his exercise tolerance goals.” The employee remained stiff and needed to be careful with bending and lifting, as his back continued to feel weak. Dr. Domino referred the employee for an evaluation at the Physician’s Neck and Back Clinic (PNBC) for a strengthening program. He also continued the employee’s work restrictions, which at that point included no lifting over 50 pounds, no pushing or pulling over 25 pounds, and a limitation to occasional bending, stooping and twisting at the waist.
On March 16, 2007, Dr. John Knutson evaluated the employee at PNBC. The employee reported that his back pain was moderate in intensity, that he would rate his pain at “5” on a scale of 1 to 10, and that his back pain prevented him from lifting anything heavy off the floor. He also reported that his pain intensified after sitting 45-60 minutes, and increased with physical activity, but that walking and standing did not present a problem for him. Dr. Knutson took x-rays of the employee’s lumbar spine; those x-rays revealed no abnormalities. Dr. Knutson also conducted an Oswestry disability index, described in the record as a questionnaire completed by an individual to assess pain. Dr. Knutson diagnosed mechanical low back pain and deconditioning syndrome and recommended a short term active rehabilitation program for the employee, to restore him “to optimal functioning in those areas identified by the [employee] as significantly sub-optimal.”
Upon recommendation from Dr. Knutson, the employee participated in 20 sessions at the rehabilitation program at PNBC. According to a PNBC discharge summary prepared on May 22, 2007, by Dr. Gloria Peterson, the employee reported an improvement in his function and a resolution of his low back and leg pain. Dr. Peterson concluded that he had reached maximum medical improvement (MMI), with no permanent impairment and recommended that the employee continue his home exercise program indefinitely. Her final diagnosis of the employee was the same as had been diagnosed earlier: mechanical low back pain and deconditioning syndrome. In a chart note dated May 29, 2007, the employee’s treating doctor, Dr. Domino, also advised that the employee had reached MMI, and could return to his full duties at FedEx.
The employee found, however, that over the next two or three months, his low back, right leg and buttock symptoms gradually returned to his pre-physical therapy treatment level. He eventually sought another medical opinion, and, on January 15, 2008, underwent an evaluation with Bruce Bartie, D.O., at St. Croix Orthopedics. At that time, the employee complained of low back pain with pain radiating into his right buttock, and reported that his symptoms were aggravated by his work as a diesel mechanic, by sports, and by lifting, sitting, and stooping in the morning. He also advised Dr. Bartie that he had not received long-term relief from his rehabilitation treatment at PNBC. Based on the employee’s physical examination and testing, Dr. Bartie assessed a mild to moderate disability, and diagnosed low back ache with degenerative disk disease with likely lateral recess narrowing at the L4-5 or L5-S1 vertebral levels, causing predominantly right buttock pain “typically of the L5 distribution.”
At Dr. Bartie’s referral, the employee underwent an MRI scan on January 21, 2008, which revealed moderate disk space narrowing and desiccation with a shallow central disk extrusion at the L5-S1 level with mild bilateral facet arthrosis at that level but no definite nerve root impingement and no stenosis. The findings at the L3-L4 and L4-L5 levels included minor disc bulging and marginal spurring, and mild bilateral arthrosis. Based on his examination and testing, and his review of the MRI scan, Dr. Bartie suggested two options for the employee to consider for additional treatment: a fusion or arthrodesis, or a disc arthroplasty, with a “new mobile disc substitute” such as Synthes ProDisc placed in the employee’s spine.
The employee sought a second opinion from Dr. Richard Salib at the Institute for Low Back and Neck Care. At the time of his examination on March 13, 2008, the employee reported daily pain, worsened by lifting, bending, sitting, coughing, sneezing and straining. He also reported that his work as a mechanic aggravated his pain. The employee underwent a CT scan of the lumbar spine on that date, which showed a broad-based central and slightly asymmetric right-sided disc bulge at the L5-S1 level that contacted both S1 nerve roots without significant displacement or compression. James Kearin, physician assistant to Dr. Salib, assessed the employee as having degenerative disc disease at the L5-S1 level, and stated that the employee was a candidate for a total disc arthroplasty at the L5-S1 level and that the employee had elected to proceed with that type of surgery. At his deposition, Dr. Salib testified that, in his opinion, the employee was a candidate for a fusion or disc replacement, because he had experienced “pain for longer than a year and has been a retractor to conservative treatment.” He also testified that the employee’s responses to the two questionnaires that he provides to each of his patients, a visual analogue pain scale and an Oswestry disability index, demonstrated the employee’s high level of pain.
On May 27, 2008, Dr. Edward Szalapski examined the employee on behalf of the self-insured employer. The employee reported a daily back ache, and explained that 75% of his symptoms were in his back and 25% were in his right lower extremity. Dr. Szalapski advised that the employee should continue a consistent home exercise program to “keep his back in shape,” and recommended against surgery as a treatment option. Dr. Szalapski expressed concern over a significant chance that the employee “would be worse off after surgery than he is now,” and that “it would be unlikely that [the employee] would return to his work as a diesel mechanic” post-surgery. In summary, Dr. Szalapski stated that “[i]t is my opinion that his current symptoms are extremely mild, and that a major intervention such as fusion or disc replacement would be ill-advised for this individual.” Dr. Szalapski also noted that the employee’s degenerative disc disease predisposes him to further exacerbations over time, whether or not he continued to work as a diesel mechanic, and that he should use mechanical devices to perform heavy lifting at work whenever possible.
The employee again consulted Dr. Salib on July 8, 2008, and discussed Dr. Szalapski’s assessment, with which Dr. Salib disagreed. In his chart note of that date, Dr. Salib stated that the employee’s objective and validated questionnaires had shown a high level of disability. Dr. Salib concluded that the employee’s test result “clearly falls within the realm of a surgical indication for any patient in any FDA study that has ever been performed regarding fusion or total disc replacement,” and that he maintained that the employee is a candidate for either a one-level total disc replacement or a one-level fusion.
In July 2008, the employee filed a claim petition seeking approval for a total disc arthroplasty at the L5-S1 vertebral level and payment for expenses related to his consultations with Drs. Bartie and Salib. The employer disputed the need for the surgery and medical treatment, and the matter was heard before a compensation judge on October 3, 2008. In her findings and order, the compensation judge awarded payment for the employee’s consultations with Drs. Bartie and Salib, concluding that the employee’s decision to seek opinions from those doctors was reasonable in view of his lack of lasting improvement from conservative treatment. The compensation judge, however, found that the disc arthroplasty was not reasonable or necessary at the present time, and denied the employee’s request for approval of the surgery. The employee appeals from the compensation judge’s denial of his request for authorization for surgery.
The compensation judge denied the employee’s request for surgery, concluding that the evidence failed to establish that, at the present time, a disc arthroplasty would be reasonable or necessary medical treatment. Although both Drs. Salib and Bartie recommended either a fusion or disc arthroplasty, the compensation judge did not adopt those recommendations, and instead considered surgery to be premature, in part because the employee’s doctors had not yet considered or ruled out pain management and medication options, and, in part, because she concluded that the employee’s condition did not yet warrant surgery. The issue on appeal, therefore, is whether the evidence in the record substantially supports the compensation judge’s findings.
The employee argues that the compensation judge’s denial of his request for surgery is not supported by substantial evidence. He argues that the judge relies on neither the expert opinions rendered by Dr. Bartie and Dr. Salib, nor on the opinion rendered by Dr. Szalapski, but instead substituted “her own medical judgment.” In particular, the employee argues that the compensation judge’s conclusion - - that it is unreasonable for the employee to proceed with surgery without first considering the possibility of pain control through medications - - was not based on a suggestion or recommendation by any of the doctors, and that it was unacceptable for the compensation judge to substitute her own medical judgment for that of the examining physicians. In the past, the employee has experienced negative effects on his colitis condition after taking pain medication, and has limited his intake of pain medication to Tylenol, and he argues that it is “unreasonable to expect him to attempt chronic pain management via medication therapy given that any such therapy would cause a significant exacerbation of his colitis symptoms and is contraindicated by his treating physician.”
In reviewing the compensation judge’s findings and order as a whole, however, we conclude that her findings are supported by the record. The employee testified about adverse effects of pain medication on his colitis condition, but he also testified that he has not discussed with his doctors the option of pain management through medication and how that might work with his colitis condition. (Transcript at 71.) The record does not include information from the employee’s treating doctors vis-à-vis the adverse effects of pain medication on his colitis condition, although there are references in the employee’s medical records to medication the employee had been prescribed to treat his inflammatory bowel disease, and references to the employee’s concern about taking any medication other than plain Tylenol due to that disease. We recognize that the adverse effects from pain medication on the employee’s colitis condition support his argument that pain management through medication is not a viable option when compared to surgery. We conclude, however, that it was not unreasonable for the judge to determine that surgery, at this point, is premature, in view of the absence of consideration of alternative pain management options.
The employee also argues that the compensation judge’s second reason for rejecting the treatment options proposed by Dr. Bartie and Dr. Salib, that the employee has yet to reach the point where surgery is warranted, is not supported by the evidence of record. The employee argues that his testimony and his report of symptoms to Drs. Bartie and Salib substantiated his position that surgery is reasonable and necessary. He also contends that his limited function, his self-restriction of activities at work and at home, his daily chronic pain, and his inability to fully engage in his occupational activities, all support the conclusion that the employee has reached the point where surgery is warranted. The employee also argues that Dr. Szalapski failed to take into meaningful consideration the results of two pain tests, the vision analogue pain scale and the Oswestry index, and he disputes Dr. Szalapski’s opinion, because Dr. Szalapski paid “little to no attention to the results of this testing.” The employee suggests that the compensation judge should have afforded less weight to Dr. Szalapski’s opinion than she did, because of Dr. Szalapski’s failure to consider the level of the employee’s pain.
Dr. Szalapski reviewed the employee’s medical records in conjunction with his examination of the employee, and referred to the employee’s mobility on examination and the employee’s report on the level of his functioning. Based on those factors, Dr. Szalapski concluded that the employee did not have “disabling” pain that would merit surgical treatment. Dr. Szalapski also expressed his opinion that the results of the pain questionnaires that had been assessed by Drs. Bartie and Salib were “tools” and did not “in and of themselves constitute the whole rationale for whether or not [to] do a disc replacement.” Dr. Szalalpski addressed the employee’s reports of pain, in his report and deposition testimony, and it was not error for the compensation judge to rely on his opinion in reaching her conclusion.
Finally, the employee argues that Dr. Szalapski does not have experience with the type of surgery being contemplated or in the underlying tools used to determine if an individual is a candidate for that surgery, and therefore has inadequate foundation for his opinion regarding the employee’s disability and the need for disc replacement surgery. We disagree. Although Dr. Szalapski testified that he does not perform the type of disc arthroplasty surgery proposed by Drs. Bartie and Salib, he is board-certified as an orthopedic surgeon, he examined the employee and took a history from him, and reviewed his medical records, all of which establishes his competence to render an expert medical opinion. See Karakash v. Superior Rock Bit Co., slip op. (W.C.C.A. May 3, 2001), citing Grunst v. Immanuel-St. Joseph Hosp., 424 N.W. 2d 66, 68, 40 W.C.D. 1130, 1132-33 (Minn. 1988).
When faced with conflicting medical opinions, it is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld. Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). Based on all of the medical records in evidence and based upon testimony taken at the hearing, the compensation judge could reject the opinions of Drs. Bartie and Salib and instead adopt the opinion of Dr. Szalapski that the employee is not a candidate for surgery. We find no error in that conclusion.
Although the position of the employee is not an unreasonable one and although there is support in the record for his position, the evidence, when viewed as a whole, supports the compensation judge’s findings. Dr. Szalapski’s opinion and his recommendation against surgery, in part due to his concern about the potential adverse effects from the surgery and a potential lack of pain relief, provide the compensation judge with support for her denial. Finding adequate evidentiary support for the judge’s conclusions, we therefore affirm the denial, at this time, of the employee’s claim for approval of the surgery recommended by Drs. Bartie and Salib. See Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 549, 37 W.C.D. 235, 239 (Minn. 1984).
 The record does not contain records documenting the chiropractic treatment; references to that treatment are contained in the employee’s testimony and medical chart notes.