JAMES PETTY, Employee, v. ZAYRE SHOPPERS CITY and CRAWFORD & CO., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
FEBRUARY 2, 2009
EVIDENCE - EXPERT MEDICAL OPINION. Where the independent examiner’s opinion was based on his review of the medical records and his examination of the employee, the opinion had adequate foundation and the compensation judge erred in failing to consider that opinion.
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Where the evidence presented by the employee did not address, and the compensation judge’s decision failed to consider, any of the factors set forth in Horst v. Perkins Restaurant, 45 W.C.D. 9 (W.C.C.A. 1991) and related cases, substantial evidence does not support the compensation judge’s determination that the chiropractic care at issue was reasonable and necessary.
Vacated and reversed.
Determined by: Stofferahn, J., Johnson, C.J., and Rykken, J.
Compensation Judge: Peggy A. Brenden
Attorneys: Gregory S. Walz, Walz Law Offices, St. Cloud, MN, for the Respondent. Jay T. Hartman and Adam J. Brown, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The compensation judge determined the chiropractic care received by the employee in 2004 and 2005 was causally related to the employee’s 1977 work injury and was reasonable and necessary treatment. The employer and insurer appealed. We vacate the finding of causation and reverse the determination of reasonableness.
James Petty sustained a work injury to his low back on November 28, 1977, while he was employed by Zayre Shoppers City as a meat cutter. His initial care was with a chiropractor, Dr. Darrell Metcalf, in St. Cloud. According to a history the employee gave to an independent examiner in 2006, his pain was at 9 on a 10 point scale when he began treating with Dr. Metcalf and he had left leg numbness. His symptoms improved after treatment and completely resolved after a few weeks. After a couple of months, however, his low back pain returned and he treated with Dr. Metcalf on an intermittent basis until 1980 or so. Dr. Metcalf’s records were not in evidence at the hearing.
Mr. Petty continued to work as a meat cutter for Zayre until the store closed in approximately 1980. Mr. Petty then became self-employed, opening a meat shop in Annandale with his brother. He has been self-employed in that setting ever since with duties of cutting and selling meat in a retail store.
Mr. Petty did not treat for his low back after 1980 until he consulted with Dr. John Geiser, an orthopedist in St. Cloud, on May 4, 1981. He provided a history to Dr. Geiser of the onset of low back pain in December 1977, when he picked up a 40 pound container of ground beef. He also experienced some mild radiation of pain into his left buttock. He received chiropractic care and “eventually this pain syndrome resolved.” The employee’s consultation with Dr. Geiser was brought about by persistent low back and left buttock pain which had been present ever since a long car trip about three months previously. Dr. Geiser diagnosed a probable herniated/bulging disc at the L4-5 level which “represents a continuum of his original injury sustained in 1977.” Dr. Geiser recommended decreased activity and referred him to physical therapy.
When the employee returned to Dr. Geiser in June 1981, he reported that “with decreased activity he has noted marked improvement in his symptoms and he is essentially asymptomatic at this point except for times when he lifts too much, and so on.” Mr. Petty returned to Dr. Geiser two more times. He continued to have pain and left sciatica primarily associated with increased activity. At his last visit in April 1982, Dr. Geiser concluded that the employee had some minimal permanent partial disability and he recommended that the employee continue with a back care program.
The employee and employer entered into a stipulation for settlement in 1983. The employee was claiming 20 percent permanent partial disability of the spine and the settlement was a “to-date and extent of dispute” agreement. In the stipulation, the employer agreed to continue to pay for reasonable and necessary medical expenses related to the 1977 work injury.
Mr. Petty’s next treatment for his low back was with Dr. A. R. Watts, a neurosurgeon in St. Cloud. He first saw Dr. Watts on December 22, 1983, and reported low back and left leg pain that had gotten increasingly worse since April. Dr. Watts had a CT scan done and diagnosed a “L5-S1 disc extrusion with migration of the fragment medially and inferiorly to impinge on the medial aspect of the S1 root.” There apparently was some discussion of surgery; the employee testified that Dr. Watts recommended surgery, but no recommendation is in Dr. Watts’ records. The employee contacted in Dr. Watts in January 1984 to say that he did not want to proceed with surgery because his symptoms had improved. On January 16, 1984, Mr. Petty told Dr. Watts that he had “no further left lower extremity pain.” Examination showed a “very markedly depressed left ankle jerk,” but since the employee was asymptomatic, no active treatment was recommended.
On November 19, 1984, Mr. Petty returned to Dr. Watts with a complaint of severe low back pain but no leg pain. He was placed on Fiorinal and Roboxin. On his return in December, Mr. Petty reported he was “markedly improved.” His prescription for Roboxin was continued. A repeat CT scan was ordered by Dr. Watts in January 1985 and was read as showing a diminution in the amount of extruded material. Mr. Petty last saw Dr. Watts on April 3, 1985, and reported “he is feeling fine.” He had some back pain in the morning which generally resolved by 10:00 a.m., and had no leg pain. The exam was negative in all respects and Dr. Watts concluded by stating, “I am pleased with James’s current status.”
Mr. Petty did not seek any further treatment for his low back for more than 19 years. He testified that during this time, 1985-2004, he continued to have low back pain and periodic left buttock and leg pain. Mr .Petty stated at the hearing that he did not seek any care for his back because of insurance concerns. Because he was self-employed, Mr. Petty applied for individual health insurance coverage and he testified that he was denied coverage because of his preexisting back condition. He was apparently advised that if he submitted no claims for his back for 5 years to 7 years that he could probably be covered for his back by another insurer.
Mr. Petty began treating with Dr. Cole Lucier at Wright County Chiropractic on October 4, 2004. He testified that his wife actually scheduled the first appointment for him because of her concern about his continuing complaints. Mr. Petty reported to Dr. Lucier that he had burning pain in his low back which radiated into both legs. These symptoms were present 50-75 percent of the time and precluded activities of daily living. Mr. Petty also reported pain in the left side of his neck which radiated to his left shoulder, which occurred 50-75 percent of the time, and which seriously diminished his ability to carry out daily activities. Dr. Lucier did an examination, took x-rays of the cervical and lumbar spine, and diagnosed spondylosis and degeneration in the lumbar spine and spondylosis and degeneration in the cervical spine.
Mr. Petty treated 35 times at Wright County Chiropractic between October 14, 2004, and February 16, 2005. According to the billing, the treatment was the same at each session and consisted of posture pump, NMR/TheraBall/PNF, and “spinal manipulation 3-4 regions.” Total charges were $6,999.00. Dr. Lucier wrote a report of February 19, 2007, in which he attributed Mr. Petty’s condition to his 1977 work injury and in which he stated that Mr. Petty was in need of continued chiropractic care to “maintain his work function.”
Mr. Petty testified that he stopped treating with Dr. Lucier because of the distance to Dr. Lucier’s office in Buffalo. On April 15, 2005, Mr. Petty began treating with Dr. Mitchell Uecker, a chiropractor at Family Chiropractic Clinic in Annadale. Mr. Petty presented with a history of chronic lumbar pain and right leg pain that he attributed to his 1977 work injury. He treated 18 times between April 15 and July 15, 2005, with charges totaling $1,511.00. The records indicated Mr. Petty received treatment for both neck pain and low back pain. There is no report in evidence from Dr. Uecker providing a rationale for the care.
Mr. Petty was evaluated for the employer and insurer by Dr. Rick Reidt, a chiropractor, on March 16, 2006. Dr. Reidt took a history from Mr. Petty that included a statement from Mr. Petty that his symptoms resolved after treatment with Dr. Metcalf shortly after the 1977 work injury. Dr. Reidt also reviewed Mr. Petty’s medical records and conducted a physical examination. Dr. Reidt’s conclusion was that the 1977 injury was a temporary injury and was not related to Mr. Petty’s continued low back complaints. Dr. Reidt did not specifically address whether chiropractic care was reasonable or necessary.
Mr. Petty’s claim for payment of chiropractic bills was heard by Compensation Judge Peggy Brenden on June 5, 2008. The issues at the hearing were whether the chiropractic treatment was causally related to the 1977 work injury and whether the treatment was reasonable and necessary. In her findings and order of June 25, 2008, the compensation judge found the treatment to be causally related to the 1977 work injury. She found some of the care at both clinics not to be reasonable and necessary, but awarded the majority of the claimed expenses.
The compensation judge found the chiropractic care received by the employee in 2004 and 2005 to be causally related to the 1977 work injury. In doing so, she stated in her memorandum that she considered, “Dr. Reidt’s opinions to lack adequate foundation.” On appeal, the employer and insurer argue that the compensation judge erred in finding Dr. Reidt’s opinions to be without foundation and in failing to consider his opinion. We agree.
Adequate foundation is a threshold issue for consideration of an expert opinion. Adequate foundation may be established by personal knowledge of the case, testimony heard during the trial, or facts presented in a hypothetical question. Scott v. Southview Chevrolet, 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978). In the present case, Dr. Reidt took a history from the employee, conducted an examination, and reviewed the existing medical records. This is generally considered to be sufficient information to establish foundation. Henchal v. Federal Express Corp., No. WC07-212 (W.C.C.A. Jan. 30, 2008)
In her conclusion on this issue, the compensation judge read Dr. Reidt’s report as concluding that the employee had no persistent low back symptoms between 1985 and 2004 and that the employee’s symptoms had quickly resolved after the 1977 injury. We note first that Dr. Reidt specifically said in his report that the employee “has lived with his pain that has been almost constant” since his 1977 injury. Secondly, in his comments about resolution of symptoms in 1977, Dr. Reidt was simply restating the history given to Dr. Geiser by the employee in 1981. We conclude the compensation judge erred in her interpretation of Dr. Reidt’s report, but, in any event, these statements would not deprive Dr. Redit’s opinion of foundation, but would instead go to the persuasiveness of his opinion. Dehn v. Honeywell, Inc., No. WC06-119 (W.C.C.A. May 25, 2006).
The compensation judge erred in failing to consider Dr. Reidt’s opinion in considering causation. We vacate findings 6 and 7 on causation. Ordinarily, we would remand for further consideration of this issue because of discussions at the hearing that the employee would be presenting additional chiropractic bills, but we will not do so here because of our decision on the question of reasonableness and necessity.
Reasonableness and Necessity
With the exception of ten treatments at Wright County Chiropractic and five treatments at Family Chiropractic Clinic, the compensation judge found the employee’s chiropractic care to be reasonable and necessary. The employer and insurer contend on appeal that the compensation judge’s determination is not supported by substantial evidence.
The employer and insurer first argue that the treatment was not reasonable under the treatment parameters set forth in Minn. R. 5221.6200. We agree with the compensation judge, however, that the treatment parameters are not applicable in the present case. The employer and insurer in this matter have consistently denied a causal relationship between the work injury and the treatment at issue. This court has previously held that the treatment parameters do not apply where the employer and insurer contend that the work injury was temporary, had resolved, and did not cause the need for the treatment. Schulenburg v. Corn Plus, 65 W.C.D. 237 (W.C.C.A. 2005).
Although the treatment parameters do not apply in the present case, we conclude that substantial evidence does not support a determination the chiropractic care received by the employee was reasonable and necessary.
The question of whether chiropractic care is reasonable and necessary is more than whether the employee experiences temporary relief. In a number of cases, this court has identified factors which should be considered in determining whether chiropractic treatment is reasonable and necessary. Horst v. Perkins Restaurant, 45 W.C.D. 9 (W.C.C.A. 1991); Selander v. Healey Ramme Co., slip op. (W.C.C.A. July 14, 1993); Bordeau v. Green Touch Indus., No. WC06-131 (W.C.C.A. Aug. 31, 2006). The factors vary depending on the facts of each case, but generally include documentation of the details of the treatment, including evidence of a reasonable treatment program; frequency and duration of treatment, showing treatment on an “as needed” basis instead of a on a set schedule; degree and duration of the relief obtained; appropriate referral to other providers; the effect of the treatment on the employee’s employability; and the cost of the treatment in light of the relief provided.
In the present case, the employee’s injury was 26 years old when he began treatment in October 2004. The employee did not find it necessary to seek any care for his low back for more than 19 years. His medical records from Dr. Geiser and Dr. Watts show a pattern in his condition of flare-ups with resolution after minimal treatment, raising the question of what benefit was actually provided by chiropractic care. Dr. Uecker’s records from May 23, 2005, indicate that the employee’s “low back has improved dramatically with exercises.” The employee continued to be employed between 1985 and 2004 and there was no testimony that his work injury prevented him from remaining self-employed or caused any inability to work. No treatment plan or rationale was provided by either chiropractor and both seemed to assume that care for the work injury included care for the neck. There is no indication that either chiropractor reviewed the employee’s prior medical records when treatment was provided. The employee was seeking payment for 53 chiropractic treatments with charges totaling more than $8,500.00.
The compensation judge did not consider any of the factors in Horst, Selander, or similar cases. It is the employee’s obligation to establish by preponderance of the evidence that the treatment at issue was reasonable and necessary. Atkins v. University Health Care Ctr., 405 N.W.2d 231, 39 W.C.D. 898 (Minn. 1987); Cuevas v. Rainbow Foods #51, slip op. (W.C.C.A. March 25, 2004). The evidence presented by the employee on this issue was simply that the employee experienced temporary relief of symptoms during the chiropractic treatment. Substantial evidence does not support a determination that the chiropractic care of 2004 and 2005 was reasonable and necessary to treat the effects of the 1977 work injury. We reverse the compensation judge’s determination on this issue.
 The employee did not claim at the hearing that his neck problems were related to his 1977 work injury. It was his thought that these symptoms were likely due to an auto accident in 1998 or 1999.
 Dr. Uecker’s records state that this history of right leg pain was “no different than the past” but the medical records between 1981 and 1985 do not mention right leg pain.