SHAWN HIGGINBOTHAM, Employee/Appellant, v. CHARTER COMMC’NS, INC., and AIG INS. CO. OF PA./BROADSPIRE, Employer-Insurer, and CENTER FOR PAIN MGMT., Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
DECEMBER 14, 2009
No. WC09 -154
MEDICAL TREATMENT & EXPENSE - SURGERY; APPEALS - SCOPE OF REVIEW; VACATION OF AWARD. Where the employee underwent the requested low back surgery the day after the compensation judge had issued a decision denying it prospectively, where the employee appealed from the judge’s decision and requested a remand for reconsideration on grounds that the surgery had been amazingly successful in relieving his pain, where, in his appellate brief, the employee had abandoned all issues raised in his notice of appeal and instead had petitioned for vacation of the judge’s decision on grounds of newly discovered evidence and substantial change in condition, the court affirmed the judge’s decision on grounds that the employee had not addressed his appeal in his brief, and it dismissed the petition to vacate without prejudice on grounds that there was nothing to preclude the employee from bringing his new evidence in support of a new claim for the medical benefit at issue at a later date.
Petition to vacate findings and order denied.
Determined by: Pederson, J, Johnson, C. J., and Stofferahn, J.
Compensation Judge: Jennifer Patterson
Attorneys: John W. Person, Breen & Person, Lit., Brainerd, MN, for Appellant Employee. Jay T. Hartman & Adam J. Brown, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, P.A., St. Paul, MN, for Respondents Employer and Insurer.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge’s denial of his claims for implantation of a spinal cord stimulator and for temporary total disability benefits continuing from October 15, 2008. The employee also petitions this court to vacate the findings and order of the compensation judge pursuant to Minnesota Statutes section 176.461. We affirm the decision of the compensation judge, and dismiss without prejudice the employee’s petition to vacate.
Shawn Higginbotham [the employee] sustained a work-related low back injury on March 8, 2007, when he slipped while descending stairs in the course of his employment as a service technician with Charter Communications, Inc. [the employer]. The employee stopped working, and the employer’s workers’ compensation insurer commenced payment of benefits. On the date of injury, the employee was thirty-five years old and was earning a weekly wage of at least $615.45.
The employee initially received medical treatment at the Brainerd Medical Center and, because of his severe low back pain and pain radiating down his right leg, his doctor ordered an MRI scan performed on March 28, 2007. The scan demonstrated degenerative disc disease at L3-4, L4-5, and L5-S1, with a large right-side focal disc herniation at L5-S1. Surgery was recommended to treat the employee’s disc herniation, and neurosurgeon Dr. Jeffrey Gerdes performed an L5-S1 hemilaminectomy and discectomy on August 1, 2007.
The employee continued to experience back and leg pain following his surgery, and he was referred to physiatrist Dr. Leslie Hillman on October 5, 2007. Dr. Hillman diagnosed right lumbar radiculopathy, neuropathic pain, low back pain, vocational issues, and spinal deconditioning. She recommended physical therapy with a focus on strengthening, a trial of medications, and continued restriction from all work.
The employee’s leg pain reportedly was not improving with conservative measures, and Dr. Hillman referred him to Dr. Timothy Olson at the Center for Pain Management in Sartell, Minnesota. The employee saw Dr. Olson on March 12, 2007, complaining of “shooting, dull, aching, and tingling pain that radiates down the posterolateral aspect of the right lower extremity all the way down into the ankle and occasionally into the foot, where it is accompanied by some paresthesias and numbness.” He told Dr. Olson that he currently rated the severity of his pain at a level two or three on a scale of one to ten and that it infrequently interrupted his sleep. Upon physical examination, Dr. Olson reported that the employee had a trace paralumbar tenderness, no tenderness over the SI joints, negative findings on straight leg raising tests, and full range of motion and normal reflex, motor, and sensory findings in his legs. He recommended a transforaminal epidural steroid injection at the L5-S1 level and a referral for cognitive behavioral therapy, noting that future considerations would include a spinal cord stimulator trial.
Dr. Olson administered the first of two transforaminal epidural steroid injections into the employee’s back on April 10, 2008, and on May 7, 2008, the employee reported that he may have experienced some short-term relief as a result of the injection. On physical examination, Dr. Olson found normal strength, mildly diminished sensation to light touch over the lateral aspect of the right foot, and no significant paralumbar or SI joint tenderness. The employee received a second injection on June 3, 2008, and in follow-up on July 9, 2008, he reported about twenty-four hours of pain relief. On physical exam, Dr. Olson found that the employee walked without difficulty, had good strength in right hip flexion and knee extension, and had no obvious sensory changes. At that visit, Dr. Olson prescribed an alternative analgesic, Tramadol, and trial of spinal cord stimulation.
On July 3, 2008, the employee was examined at the request of the employer and insurer by orthopedist Dr. Richard Strand, who had previously examined the employee for the employer and insurer on July 24, 2007. The doctor obtained a history and reviewed the employee’s medical records, in addition to performing a physical examination. While finding the employee’s work injury a substantial contributing factor in the employee’s condition at that time, Dr. Strand did not believe that the employee had significant objective findings that correlated with his subjective complaints. He diagnosed multi-level degenerative disc disease status post L5-S1 laminectomy, with a failed lumbar laminectomy syndrome. He found that other factors, such as the employee’s morbid obesity and long-term heavy smoking, were factors contributing to that diagnosis. Dr. Strand did not recommend any additional medical treatment or diagnostic testing but instead recommended that the employee lose 120 pounds, stop smoking, and recondition his body. The doctor concluded that the employee did not require significant restrictions due to his laminectomy but did have physical limitations related to his obesity and his multi-level degenerative disc disease, concluding that the employee had reached maximum medical improvement [MMI] with regard to his work injury.
The employee filed a Medical Request on July 14, 2008, seeking approval for the behavioral therapy evaluation and spinal cord stimulator procedure recommended by Dr. Olson. By Medical Response filed August 7, 2008, the employer and insurer denied that behavioral therapy and implantation of a spinal cord stimulator were reasonable or necessary.
On September 10, 2008, the employee was seen by clinical neuropsychologist Jeffrey Kearney on referral from Dr. Olson. Dr. Kearney did not find any “significant psychological contraindications” to the employee’s undergoing the pain management procedure proposed by Dr. Olson.
The employer and insurer filed a Notice of Intention to Discontinue the employee’s temporary total disability benefits on October 15, 2008, ninety days post service of Dr. Strand’s MMI opinion. By that date, the insurer had paid eighty-five weeks of total disability benefits to the employee.
On November 5, 2008, Dr. Strand issued a supplementary report regarding the proposed spinal cord stimulator procedure. He indicated that he did not believe that the employee would be helped by any further surgical or invasive treatment. In his opinion, “a spinal cord stimulator is not useful and has such a low success rate that [it] is something that is not worth doing.” He added that he never recommends such a procedure to his own patients with chronic pain.
On November 13, 2008, in a letter to the employee’s attorney, Dr. Olson cited several studies supportive of his recommendation of spinal cord stimulator implantation for the employee. Dr. Olson reported that the procedure “is frequently very effective and in many cases life changing.” He acknowledged that the procedure is initially expensive, but he explained that it can be cost-effective in the long term with appropriate patient selection.
On December 15, 2008, the employee’s Medical Request and Objection to Discontinuance were consolidated for hearing, and the matter was heard by a compensation judge on February 5, 2009. In a findings and order issued March 5, 2009, the compensation judge accepted Dr. Strand’s opinion that the employee is not a current candidate for implantation of a spinal cord stimulator on either a trial or a permanent basis. The judge found also that Minnesota Rules 5221.6200, subpart 6C, requires a second medical opinion confirming that an implanted spinal cord stimulator is an appropriate form of treatment. Through the date of hearing, she found, only Dr. Olson recommended the spinal cord stimulator. Consequently, the judge denied the employee’s medical request and his claim for temporary total disability benefits from and after October 15, 2008. The employee appeals.
On March 2, 2009, three days before the judge issued her findings and order on the employee’s surgical request, the employee underwent a trial of spinal cord stimulation under the direction of Dr. Olson. On March 6, 2009, the day following the judge’s decision denying his claim, the employee proceeded with permanent placement of a spinal cord stimulator. As part of this notice of appeal filed April 3, 2009, the employee submitted an affidavit in which he claimed that he had experienced amazing relief as a result of his spinal cord stimulator surgery. The employee also attached to his appeal notice copies of Dr. Olson’s operative reports and the doctor’s office note dated March 16, 2009. In addition to appealing from specific findings and orders of the judge, the notice of appeal raised an issue as to “whether new evidence per the attached affidavit of Employee justifies a remand in the interests of justice and to duly consider the best evidence on the issue in dispute.”
In his appellant’s brief submitted to this court on May 29, 2009, the employee has abandoned the issues raised in his notice of appeal. Instead, he has petitioned this court to vacate the judge’s findings and order on grounds of newly discovered evidence and substantial change in medical condition since the filing of the findings and order. Pursuant to Minnesota Rules 9800.0900, subpart 1, issues raised in the notice of appeal but not addressed in the brief shall be deemed waived. Minn. R. 9800.0900, subp. 1. In his brief on appeal, the employee has not addressed the specific findings and orders identified in his notice of appeal. Nor has he clearly addressed his request to remand the matter to the compensation judge for reconsideration of evidence developed following the hearing. Finding no compelling reason to remand for reconsideration the limited issues here presented, and finding that the employee has failed to brief the issues raised in his notice of appeal, we affirm the decision of the judge in its entirety.
The employee’s petition to vacate in this case raises issues almost identical to those considered by this court in Pinc v. Stepping Out, Inc., No. WC09-161 and No. WC09-185 (W.C.C.A. Nov. 3, 2009). In Pinc, a compensation judge had denied the employee’s request for approval of right shoulder surgery. Following the judge’s decision denying the surgery request, the employee underwent the proposed surgery and then petitioned to vacate the judge’s findings and order on grounds of newly discovered evidence. The obvious procedural consideration for the employee was the potential res judicata effect of the judge’s findings and order. This court held that it would not be necessary to vacate the findings and order in order to forestall a finding of res judicata were the employee to bring a new claim for the surgery. We find the same to be true in this case. To the extent that the employee should again seek to litigate entitlement to surgery, based on factual circumstances subsequent to the earlier hearing, the prior determination is res judicata only with respect to the period considered in the former hearing. Pinc, at p. 7, citing Saenger v. Liberty Carton Co., 316 N.W.2d 737, 34 W.C.D. 499 (Minn. 1982). We will not vacate an award unless there is reason to do so. Because the employee may proceed with a new claim based upon factual circumstances subsequent to the prior hearing, we therefore dismiss without prejudice the employee’s petition to vacate.