MIKE I. HAYES, Employee/Appellant, v. DEY APPLIANCE SERV., INC., and TRAVELERS GROUP, Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 14, 2010
EVIDENCE - EXPERT MEDICAL OPINION; MEDICAL TREATMENT & EXPENSE - SURGERY. Where the sole issue before the judge was the reasonableness and necessity of certain proposed surgery, where the judge’s denial of the employee’s request for that surgery was supported by expert medial opinion, and where the employee raised no dispositive legal challenges to that opinion but rather simply reiterated fact-based arguments made to the judge at the hearing below, the compensation judge’s denial of certain proposed surgery was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Jennifer Patterson
Attorneys: Steven M. Bradt, Bradt Law Offices, Grand Rapids, MN, for the Appellant. Richard C. Pranke, John G. Ness & Assocs., Minneapolis, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge’s conclusion that the employee was not a reasonable candidate for certain proposed surgery. We affirm.
On June 17, 2004, Michael Hayes sustained a work-related injury to his low back while carrying some cartons up some stairs in the course of his employment with Dey Appliance Service, Inc. Mr. Hayes [the employee] was forty-three years old on that date and was earning a weekly wage of $460.00. On June 24, 2004, a week after his injury, the employee was treated for back pain and spasms at the Duluth Clinic, where he was diagnosed with acute low back pain and was prescribed anti-inflammatory medications. The employee continued to treat conservatively for about a year and a half thereafter, with injections, chiropractic adjustments, hot and cold packs, stretching exercises, various prescription medications at various dosages, use of a TENS unit, and physical therapy. While undergoing such treatment, he several times lost time from work and frequently returned to work at restricted duties. Dey Appliance Service, Inc. [the employer], and its workers’ compensation insurer acknowledged liability for the injury and commenced payment of benefits.
On March 4, 2005, occupational medicine specialist Dr. Jed Downs reiterated the employee’s ongoing diagnosis of mechanical back pain, noting that the employee’s “[p]ain generated at this time is not fully clear,” and he ordered a lumbar MRI scan. The scan was conducted on March 18, 2005, and was read to reveal a right lateral disc protrusion at L2-3 that was encroaching on the right neural foramen, a mild broad-based disc bulge at L1-2, and a mild asymmetric disc bulge at L4-5 on the left. The following month, the employee was referred for a discogram CT scan, which was conducted on June 21, 2005, and was read to reveal concordant pain at the L1-2, L2-3, and L3-4 levels, with the pain at L2-3 being the worst and most concordant. The scan also revealed a left pars defect at L5 and a mild broad-based posterior disc bulge at L5-S1, and the employee was referred for further physical therapy. The employee’s low back pain subsequently began radiating into his right leg, and on August 12, 2005, he underwent a right L5-S1 transforaminal epidural steroid injection for that pain, which provided some relief but only for a short time. On September 13, 2005, the employee underwent a repeat MRI scan, which was evidently read to reveal mild degenerative changes but no prolapse or stenosis.
On September 29, 2005, the employee was examined by neurosurgeon Dr. James Callahan, who diagnosed an L5 pars defect without movement, together with sclerosis on the right at the L4-5 pars interarticularis, and he ordered a bone scan, which was conducted on October 14, 2005. The scan was read to reveal a small bit of uptake in the left L5 area, and on October 18, 2005, Dr. Callahan recommended surgery to decompress the L5 and S1 nerve roots, together with an instrumented fusion from L5 to the sacrum. In November of 2005, while reaching to take a book from a shelf at work, the employee felt a popping sensation in his low back and an increase in pain so severe that he sought relief at an emergency room, where he was given morphine and instructed to follow up with his personal physician. The employee’s physician restricted him from working, and the employee has not worked for the employer since that time.
On December 12, 2005, the employee underwent an L5 Gill procedure with bilateral L5 nerve root decompression, together with a posterior L5-S1 fusion with instrumentation and allograft bone, performed by Dr. Callahan. Three days later, On December 15, 2005, the employee required a second procedure, also performed by Dr. Callahan, to repair a cerebral spinal fluid leak, apparently consequent to the earlier surgery. On January 26, 2006, the employee reported increasing pain similar to his pain before the first surgery, with a burning numbness and tingling in the back of his thigh and calf, extending to the top of his right foot. A CT scan conducted on February 23, 2006, revealed minimal discitis at L2-3, and the employee’s fusion instrumentation appeared intact, with no canal or foraminal encroachment by the pedicle screws. But the employee continued to have numbness and paresthesias in his right leg, and on March 17 and April 6, 2006, he underwent right lumbar sympathetic blocks, which briefly reduced his leg pain. His pain continued, however, and, on a presumption that he might have an element of reflex sympathetic dystrophy [RSD], he was referred for treatment at a pain clinic.
On July 19, 2006, the employee was examined by psychologist Dr. Julie Lunde, who diagnosed adjustment disorder with mixed anxiety and depressed mood. On that same date, on referral from Dr. Callahan, the employee underwent a pain management consultation with certified nurse practitioner Donna Anderson at the Duluth Clinic Pain Management Center, where he was diagnosed with complex regional pain syndrome of the right lower extremity, degenerative disc disease of the lumbar spine, pain disorder with depression and anxiety, and failed back surgery syndrome. His prognosis was considered fair on that date, and subsequently, largely under the care of Dr. David Hyjek, he received positive results from his treatment and training in physical therapy, weight therapy, stretching exercises, therapeutic pool exercises, relaxation and breathing techniques, individual and family counseling, and body mechanics for performing daily activities. Following his discharge from the Pain Management Center program in November of 2006, the employee evidently undertook a program of water resistance exercises at a YMCA, but he eventually stopped attendance at these because, although he felt better while in the pool, his symptoms usually returned by the time he had driven the twenty miles back to his home. On January 8, 2007, under a diagnosis of complex regional pain syndrome, lumbar degenerative disc disease, and depression and anxiety, the employee was examined by psychologist Todd Heggestad, who concluded that the employee was a fair candidate for implantation of a dorsal column stimulator.
On February 2, 2007, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Paul Cederberg. In his report on February 15, 2007, upon physical examination of the employee and review of his medical history, Dr. Cederberg diagnosed lumbar strain superimposed on mild multilevel degenerative disc disease of the lumbar spine, status post L5-S1 decompression and L5 to S1 fusion. Dr. Cederberg indicated that he had found no leg atrophy or other symptom in the employee’s leg consistent with a diagnosis of RSD under Minnesota Rules 5223.0430, subpart 6, and it was his opinion that the employee could be working full time at sedentary employment, with restrictions against lifting over twenty pounds and with permission to sit and stand as tolerated. He indicated that he had found numerous inconsistencies on examination and that he believed the employee’s physical abilities to be much greater than the employee had led Dr. Cederberg and other examining doctors to believe. Dr. Cederberg rated the employee’s total permanent partial disability at 15% of the whole body under Minnesota Rules 5223.0390 - - 10% for a lumbar radicular syndrome under subpart 4.C.(3) of the rule and an additional 5% for a lumbar fusion under subpart 5.A. of the rule.
On February 7, 2007, the employee was examined by pain specialist Dr. Michael Espeland, who diagnosed complex regional pain syndrome and recommended a trial spinal cord stimulator, noting that the employee had undergone a psychological assessment in anticipation of that treatment. On February 28, 2007, Dr. Espeland installed the trial stimulator, but the electrical stimulation actually increased the employee’s symptoms, and on March 7, 2007, the leads of the device were removed and the employee was concluded to be not a candidate for a permanent nerve stimulator implant. In that same month, the employee was referred by Dr. Callahan also to pain specialist Dr. Hal Heyer, whom the employee saw on March 21, 2007, for an evaluation as to the employee’s candidacy for an implanted narcotic pump. Dr. Heyer eventually recommended the implant, and on May 23, 2007, Dr. Callahan performed the operation. The implanted device, which does not have an external port, is refilled periodically by injections, and the employee’s dosage and prescription were subsequently increased regularly and then changed, respectively, to adjust for his fluctuating medication tolerance and medical needs. The pump medications were also supplemented with various oral prescription narcotic medications, in various dosages, and the employee has also taken the antidepressant medication Cymbalta for most of the time since not long after his work injury.
The employee’s pain level only increased over the course of the year following implantation of his narcotic pump, and on May 27, 2008, he underwent a myelogram and CT scan. The scan was read to reveal minimal postoperative degenerative changes in the employee’s spine, and by June 26, 2008, the employee had been referred for a surgical consultation. On August 12, 2008, the employee was examined by orthopedist Dr. Kevin Mullaney, who diagnosed lumbosacral back pain and right lower extremity dysesthetic pain consistent with complex regional pain syndrome, with no sign of classic radiculopathy. He noted the employee’s “[t]wo previous lumbar procedures with intraoperative dural laceration requiring repair,” noting also that the employee’s CT scan on that same date showed pseudoarthrosis and facet impingement from the L5 pedicle screws. After “a long, very frank discussion” with the employee regarding expectations, Dr. Mullaney concluded that the employee was “believable” in his need for alternative treatment, and he saw no signs of symptom amplification. He noted that the employee had indicated that a 20% reduction in his back pain would constitute a successful surgery in his opinion, and on that basis the doctor recommended proceeding with an anterior-posterior spinal fusion and removal of instrumentation, with re-instrumentation from L4 to the sacrum. He indicated also that he had discussed the risks of the surgery with the employee and that the employee had opted to proceed with it.
On October 22, 2008, the employee was examined for the employer and insurer by orthopedic surgeon Dr. John Sherman. In his report on that date, Dr. Sherman, upon physical examination of the employee and review of his medical records, diagnosed chronic pain syndrome and likely pseudoarthrosis of the employee’s L5-S1 fusion. He noted further that the employee “at this time, demonstrates marked symptom magnification,” and he “strongly disagree[d] with Dr. Mullaney’s assessment that this is not present.” Given what he called the “abysmal failure” of the employee’s “multiple attempts at treatment, both surgical and nonsurgical,” Dr. Sherman concluded that the employee was not an appropriate candidate for further surgical intervention. It was his opinion that “the probability of a positive clinical outcome even with a technically successful surgical treatment is vanishingly small and cannot be recommended.” The employer and insurer ultimately declined to pay for the surgery recommended by Dr. Mullaney.
On December 24, 2008, in a letter to the employee’s attorney, Dr. Heyer opined that the employee was totally disabled and was “having maximal treatment with his intrathecal narcotic pump.” He indicated that “any additional treatment, testing, or therapy [he] might recommend would only be to follow through with [the employee’s] neurosurgical consultation at some point.” In April of 2009, Dr. Heyer contacted Dr. Mullaney regarding another surgical consultation and anticipated getting another MRI scan of the employee’s low back. On July 2, 2009, the employee returned for a follow-up consultation with Dr. Mullaney, who recommended a discogram with Dr. Heyer. On August 11, 2009, the employee underwent the discogram, which revealed extreme concordant pain at L4-5. In light of this information, on September 2, 2009, Dr. Mullaney recommended again a second surgical procedure, to address the employee’s post-operative failed back syndrome by repairing the pseudoarthrosis, with the objective of obtaining a solid fusion from L4 through S1. On October 22, 2009, the employee filed a request for medical assistance, alleging entitlement to the two-level anterior-posterior fusion recommended by Dr. Mullaney, consequent to his work injury on June 17, 2004.
The employee was examined again by Dr. Sherman on December 17, 2009. In his report on that date, Dr. Sherman reiterated his earlier diagnoses of chronic pain syndrome and probable pseudoarthrosis at L5-S1. He concluded that the employee “continues to demonstrate strong contraindications to the need for surgery,” including the failure of various previous interventions, the presence of what he called “incongruency signs,” a history of “escalating complaints of pain in other areas, including neck pain and headaches,” and “a longstanding history of depression” for which he said the employee was currently receiving treatment. He disregarded the reliability of discography in the case of chronic pain patients like the employee as being “essentially without value.” Finally, he recommended that the employee should be weaned off his narcotics and should “continue to be treated for his underlying depression.”
On January 26, 2010, Dr. Heyer indicated in a letter to the employee’s attorney that, in his opinion, there was a good chance that the proposed surgery would help the employee and that “[d]oing nothing is really not an option at this time with [the employee’s] crescendoing symptoms.” He indicated also that he had “definitely” not seen any evidence of malingering, functional overlay, or drug seeking behavior in the employee. He indicated further that it definitely seemed that the previously installed hardware in the employee’s lumbar spine, together with the pseudoarthrosis of his fusion, was the generator of the employee’s pain. Dr. Heyer indicated that he did not anticipate removal of the employee’s pain pump even after the surgery, because of the degree of the employee’s symptoms, quoting Albert Schweitzer to the effect that “pain is the worst lord of mankind, even worse than death itself.”
In a report issued February 1, 2010, Dr. Mullaney indicated that the employee had repeatedly hoped for a twenty percent reduction in his low back pain and that such a goal was realistic and attainable via the surgical procedure that he was recommending. He indicated further that the procedure might also allow decreased dosages of prescription narcotic pain medication for the employee. The doctor indicated further that he had discussed the objectives of the surgery with the employee and that the employee understood that the surgery was indicated to alleviate a portion of his low back pain “and not that of any other symptoms that he may be having regarding his total body,” including RSD, thoracic back pain, or neck pain. Dr. Mullaney found it “interesting to note” that Dr. Sherman in his report had made “absolutely no mention of the L5 pedicle screws entering into the adjacent L4-5 motion segment.” He noted also Dr. Sherman’s focus on rebuttal of Dr. Mullaney’s request for discography, admitting that, while it may not be a perfect test, discography in the setting of this complicated case only further supports the need for revision surgery.
In a report dated February 17, 2010, for which the record was held open post-hearing, Dr. Sherman responded to the final reports of Dr. Heyer and Dr. Mullaney. He indicated there that those reports did not change his previously rendered opinions. He indicated that, contrary to the opinion of Dr. Mullaney, the possibility of significant clinical improvement by removal and repositioning of the L5 pedicle screws in conjunction with a two-level fusion would be, in the employee’s case, “vanishingly small.” It was his further opinion that the failure of the employee’s multiple previous interventions was “an extremely positive predictor for further failure,” as were the employee’s dependence on large doses of narcotic pain medications, his multiple incongruency signs, and his history of depression, even if the recommended procedure were technically successful. The risk of the procedure, he opined, was particularly not justified when the expectation of even a good outcome would be only a twenty percent improvement in the employee’s back pain and would not, by Dr. Mullaney’s own acknowledgment, address the employee’s other elements of dysfunction, such as RSD, complex regional pain syndrome, or thoracic back or neck pain.
The matter came on for hearing on February 12, 2010. The sole issue at hearing was whether the employee was currently in need of the two-level anterior-posterior fusion at L4-S1 recommended by Dr. Mullaney. While contesting the issue of the surgery’s necessity, the parties stipulated at hearing that the requested surgery was causally related to the employee’s June 17, 2004, work injury and that a claim for Roraff attorney fees was reserved. Evidence admitted at hearing included the testimony of the employee, who testified in part that he wants to undergo the surgery at issue because his low back pain is his main symptom and he believes that he may be able to return to more activities if he has a good result from the surgery. He indicated that he understands that infection and other standard surgical risks are a possibility but that he wants to undergo the procedure nevertheless. He also indicated that he still receives benefit from his pain management program, including application of the body mechanics that he was taught, the knowledge to self-limit himself more appropriately, the ability to “breath into the pain” and to use other relaxation techniques, and the knowledge of certain simple stretching and strength-building exercises. On cross examination he testified also that he did not realize that he could actually be in more pain after the recommended second surgical procedure.
By findings and order filed March 30, 2010, the compensation judge concluded in part that the employee’s 2005 surgery and all of his care since then have, at best, provided only minor temporary relief of his symptoms, which have worsened over time. At Finding 15, the judge noted also as follows:
[I]n addition to low back and right leg symptoms, the employee has developed a variety of symptoms in other body parts including cervical and thoracic pain, migraine headaches, left leg symptoms, and RSD-like symptoms in his legs. The employee leads an extremely restricted life, walks with a cane, lives in the country and does not feel comfortable walking outside because the ground is uneven. H[e h]as given up almost all recreational activity, is awakened at night by pain and has trouble sleeping more than 3 1/2 hours total, and has difficulty sitting long enough to have dinner with his family. The employee suffers greatly from pain in much or most of his body on a daily basis and leads a very limited life.
Having acknowledged these circumstances, and in express reliance on the opinion of Dr. Sherman, the compensation judge concluded at Finding 18 that the employee was not a candidate for the proposed L4-S1 fusion at issue, emphasizing in Finding 19 that her denial pertained only to the specific two-level fusion at issue and not to any other potential procedure. The employee appeals.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers’ Compensation Court of Appeals must determine whether “the 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. Substantial evidence supports the findings if, in the context of the entire record, “they 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, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Northern States Power Co. v. Lyion Foods Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.” Id.
In Findings 15 and 18, the compensation judge cited numerous medical and conditioning problems of the employee additional to his work-related low back problems, noting also his poor results from previous procedures and his admittedly very modest hopes with the recommended surgery. In her memorandum, the judge explained,
The potential risk of the proposed surgery, when balanced against the minimal potential relief for only one of the employee’s body parts when he experiences daily pain in many body parts, together with Dr. Sherman’s opinion, support the conclusion that the employee is not a current candidate for the surgery recommended by Dr. Mullaney.
The employee contends that the judge’s denial of the proposed surgery is clearly erroneous and unsupported by substantial evidence. On a statutory and case law basis, he argues that, under the statute, the employer of a work-injured employee is required to furnish any medical treatment that is reasonably required to cure or relieve the effects of the employee’s work injury and, citing Brening v. Roto-Press, Inc., 306 Minn. 562, 563, 237 N.W.2d 383, 385, 28 W.C.D. 225, 226 (1975), that the employee is the person most familiar with the severity of his symptoms and the limitations that they place on his physical activities. Citing additional case law, he argues further that the employer has an obligation to return the employee as nearly as possible to his or her pre-injury state of wellness, citing Hirsch v. Bartley-Lindsay Co., 537 N.W.2d 480, 486 (Minn. 1995), and that this obligation extends to the application of palliative measures to prevent pain and discomfort even though the treatment cannot effect greater cure, citing Hopp v. Grist Mill, 499 N.W.2d 812, 814 (Minn. 1993), citing Castle v. City of Stillwater, 51 N.W.2d 370 (1952).
Proceeding on an evidentiary basis, the employee contends that the trial record does not support the compensation judge’s conclusion that the employee is not a candidate for the recommended surgery. He goes on to assert that this issue “may actually be more accurately phrased as: Whether it is reasonable and necessary to offer the Employee a chance to regain some semblance of a normal and active lifestyle through the proposed surgery.” He argues that “both Dr. Heyer and Dr. Mullaney recognize the devastating impact which pain has had on [the employee’s] life” and that “[t]he trial record does not support the compensation judge’s conclusion that the employee’s [physical problems unrelated to his work injury] are so significant as to disqualify him as a surgical candidate.” In fact, the employee notes, one of those problems - - the employee’s liver problem - - is actually a consequence of the narcotics that he must currently take to control his unmitigated low back pain, which he hopes to be diminished by the surgery at issue. He argues also that the twenty percent reduction in his low back pain that he hopes to result from the surgery is not at all a minimal reduction in the context of his overall disability and that it would be enough to make his currently extreme pain manageable. The employee argues further that the proposed therapy is not simply a new idea in a string of efforts to relieve his pain but, rather, is a repair of a previously failed surgery, necessary to correct a pseudoarthrosis, with pedicle screws currently impinging on the facet joints. Finally, the employee argues that Dr. Sherman’s opinion, on which the compensation judge relied, contains “broad and sweeping psychological/psychiatric diagnoses” that Dr. Sherman was not qualified to render. We are not persuaded.
The narrow issue before the compensation judge - - the necessity of the proposed surgery - - was primarily one of medical judgment. The major elements of evidence presented to the judge in that regard were the expert medical opinions that were submitted by both parties. It is clear and express, from both her Finding 18 and her memorandum, that the compensation judge, in deliberating toward her decision, found the expert medical opinion of Dr. Sherman more persuasive than the opinions of Drs. Heyer and Mullaney. The supreme court indicated in Nord v. City of Cook that “the 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.” Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985). The employee has not contended that the opinion of Dr. Sherman was based on any false premises, nor do we find any evidence that that is the case. The employee’s only challenge of Dr. Sherman’s opinion is his assertion that that opinion depends too materially on Dr. Sherman’s assessment of the employee’s psychological condition, Dr. Sherman being an orthopedist and not a psychiatrist. We see no dispositive over-reliance by Dr. Sherman on the employee’s psychological weaknesses as a basis for his conclusion that the employee is not a good candidate for further surgery.
It appears to us that the employee has, for the most part, simply reasserted here on appeal evidence that he presented to the compensation judge at the hearing below - - evidence that might well, in coordination with expert medical opinion, have substantially supported a contrary decision by the judge. The issue on appeal, however, is not whether there exists substantial evidence to support a decision contrary to that reached by the judge but whether there exists substantial evidence to support the decision actually reached by the judge. See Land v. Washington County Sheriff’s Dep’t, slip op. (W.C.C.A. Dec. 23, 2003). Given especially the highly medical nature of the issue before the judge, given the judge’s express and reasonable reliance on expert medical opinion in such a context, and given that we can identify no foundational weakness in Dr. Sherman’s opinion or any evidence that it was made in overreliance on the doctor’s observations concerning the employee’s psychological history, we must defer to the judge’s conclusion under the rule in Nord. See Nord, 360 N.W.2d at 342-43, 37 W.C.D. at 372-73.
We would note in conclusion, with reference to the employee’s argument as to the severity of his pain and his need for relief of it, that the judge’s decision in this proceeding pertains expressly to the very particular surgical procedure at issue before the judge and not to any other treatment options. Concluding that it was not unreasonable and was supported by expert medical opinion, we affirm the compensation judge’s denial of the proposed surgery at issue. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 See Roraff v. State, Dep't of Transp., 288 N.W.2d 15, 32 W.C.D. 297 (Minn. 1980).
 The statute reads “cure and relieve,” Minn. Stat. § 176.135, subd. 1.(a) (underscoring added), but this language has long been construed to mean “cure or relieve,” see, e.g., Castle v. City of Stillwater, 235 Minn. 502, 51 N.W.2d 370, 17 W.C.D. 103 (1952); Eberle v. Miller, 170 Minn. 207, 212 N.W. 190, 4 W.C.D. 272 (1927); Seesz v. Basic Builders, Inc., slip op. (W.C.C.A. Jan. 12, 1989); Richards v. Acme Heating, Sheet Metal & Roofing Co., 23 W.C.D. 451 (W.C.C.A. 1963).