KENNETH D. ZURN, Employee, v. MINER’S, INC., d/b/a SUPER ONE FOODS, SELF-INSURED/RTW, INC., Employer/Appellant.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 25, 2010
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY; MEDICAL TREATMENT & EXPENSE - SECOND OPINION; STATUTES CONSTRUED - MINN. STAT. § 176.135, SUBD. 1a. Substantial evidence supports the compensation judge’s determination that a neurosurgical consultation requested by the employee was not a “second opinion” and was reasonable and necessary.
Determined by: Stofferahn, J., Wilson, J., and Johnson, C.J.
Compensation Judge: Jerome G. Arnold
Attorneys: Thomas R. Longfellow, Longfellow Law Office, St. Paul Park, MN, for the Respondent. Joseph J. Mihalek, Fryberger, Buchanan, Smith & Frederick, Duluth, MN, for the Appellant.
DAVID A. STOFFERAHN, Judge
The employer appeals from the compensation judge’s determination that the employee is entitled to a surgical consultation. We affirm.
Kenneth Zurn, the employee, suffered low back injuries on December 5, 1998, and April 9, 2005, while employed at Super One Foods. The employee, who lives in Hibbing, received initial care for his low back with a chiropractor and with his family doctor, Dr. Mark Wagner at Duluth Clinic - Hibbing.
In December 2005, the employee’s Qualified Rehabilitation Consultant [QRC] referred him to Dr. Daniel Wallerstein at the physical medicine and rehabilitation department of St. Luke’s. Dr. Wallerstein reviewed an MRI done in October 2005 that showed degeneration and dehydration at the L3-4 and L4-5 levels with annular bulging; there was disc herniation with nerve root impingement at L5-S1. Dr. Wallerstein’s care focused on physical therapy and pain medication. Physical therapy did not result in any improvement in the employee’s condition and in March 2006 an epidural injection was done. The employee reported slight improvement in his symptoms following that procedure.
Dr. Wallerstein referred the employee for a neurosurgical consultation with Dr. Stefan Konasiewicz. Dr. Konasiewicz concluded the employee had undergone an “adequate” course of conservative care and he offered a surgical option to the employee. In May 2006, Dr. Konasiewicz performed right lumbar laminectomy and nerve root foraminotomy at L5-S1. When the employee returned to Dr. Konasiewicz in June, he reported improvement in his previous symptoms of sharp pain in his left leg but he still had numbness in his right foot and ankle as well as some numbness in his left side. Dr. Konasiewicz prescribed a course of physical therapy. In July 2006 the employee reported to Dr. Konasiewicz that he still had occasional back and leg pain.
The employee returned to Dr. Konasiewicz in February 2007 and stated that he had increasing pain in his right buttock with pain radiating down to his right toes as well as numbness in his left foot. An MRI was done on March 14, 2007, and was read as showing “degenerative disc disease and degenerative joint disease within the lumbar spine and post-operative changes . . . without evidence of recurrent disc herniation on the right to explain patient’s clinical symptoms.” Dr. Konasiewicz concluded that the employee’s symptoms were likely residual. He did not recommend surgery and instead prescribed anti-inflammatory medication. The employee’s last visit with Dr. Konasiewicz was in June 2007. Dr. Konasiewicz concluded the employee was at maximum medical improvement and he recommended ongoing work restrictions.
The employee began physical therapy in December 2007 at Dr. Wallerstein’s direction. In the initial evaluation, it was noted the employee had right low back pain and numbness in both feet. He had pain at a level of 6 on a 10 point scale. Symptoms were aggravated by lifting, exercising, and walking. The employee reported waking every two to three hours because of back pain. When Dr. Wallerstein saw the employee on January 15, 2008, he concluded, “given that he has evidence of scar formation, I am not sure that there is anything more to be done physically.” There is no record that the employee had any further appointments with Dr. Wallerstein.
In March 2008, the workers’ compensation claims adjuster authorized the employee to obtain what she characterized as a “second opinion” at Twin Cities Spine Center. The employee saw Dr. Timothy Garvey on April 28, 2008. Dr. Garvey recommended a lumbar discogram to “evaluate the level of his pathology.” The discogram was read as showing concordant pain and abnormal disc pathology at L3-4, L4-5, and L5-S1. When the employee returned to Dr. Garvey on June 16, Dr. Garvey told him that should he wish to proceed to surgery, he would recommend an anterior/posterior compression and fusion from L3 to the sacrum. Dr. Garvey’s chart note states, “Patient understands that this is a procedure of substantial magnitude. He understands that it should be perceived as a last resort. He understands that I would estimate an approximate 70% chance of significant improvement of pain.”
The employee testified that he was concerned with the extensive nature of the suggested surgery and with the loss of motion he would experience from a multi-level fusion. On July 15, 2008, he contacted a nurse at Dr. Garvey’s office to advise that he did not want to pursue fusion surgery. The employee discussed his situation with the claims adjuster and received a letter from her dated September 4, 2008. The letter referred to the employee’s lack of interest in the fusion surgery discussed by Dr. Garvey and stated, “This letter is to notify you that we are in agreement with you obtaining another opinion. We suggest you make an appointment with one of the following three doctors.” There followed a list of three orthopedic doctors, some advice about providing information to these doctors, and a request to call the adjuster when an appointment was made.
The employee saw one of the doctors on the list, Dr. John Sherman, on May 11, 2009. Dr. Sherman prefaced his report by stating that the employee was seen “per the request of his workers’ compensation carrier.” Dr. Sherman diagnosed a failed low back surgery and chronic pain syndrome. It was his opinion that “there is nothing operative that can be offered to him to decrease his symptoms. We certainly would not recommend a three level fusion.” Dr. Sherman stated that a nonpharmacologic pain clinic would be appropriate.
The employee returned to his family doctor, Dr. Wagner, on July 2, 2009. Dr. Wagner noted that the employee’s symptoms had increased since he was last seen. He recommended a neurosurgical referral and placed a 25 pound weight limit on lifting. The employee returned on September 15 and Dr. Wagner recommended imaging studies. There is no record of any such studies being done. In November, the employee returned with his QRC to discuss a job offer from the employer. Dr. Wagner concluded the “job duties do not correlate well with work restrictions.” The employee returned one more time to Dr. Wagner to discuss his care on November 24, again accompanied by his QRC.
The employee filed a medical request in August 2009, seeking an additional surgical consultation as recommended by Dr. Wagner. The employer denied the employee’s request, stating that the employee had already had two “second” opinions, and was not entitled to an additional one. The medical request was heard by Compensation Judge Jerome Arnold on February 23, 2010. In his Findings and Order of March 24, 2010, the compensation judge approved the request for a medical consultation with Dr. Thomas Bergman. The employer has appealed.
On appeal, the employer argues that the compensation judge erred in awarding the employee’s requested surgical consultation. The employer contends an employer cannot be compelled to pay for “multiple second opinions” and cites to Minn. Stat. § 176.135, subd. 1a, which provides:
Nonemergency surgery; second surgical opinion. The employer is required to furnish surgical treatment pursuant to subdivision 1 when the surgery is reasonably required to cure and relieve the effects of the personal injury or occupational disease. An employee may not be compelled to undergo surgery. If an employee desires a second opinion on the necessity of the surgery, the employer shall pay the cost of obtaining the second opinion. Except in cases of emergency surgery, the employer or insurer may require the employee to obtain a second opinion on the necessity of the surgery, before the employee undergoes surgery. Failure to obtain a second surgical opinion shall not be reason for nonpayment of the charges for the surgery. The employer is required to pay the reasonable value of the surgery unless the commissioner or compensation judge determines that the surgery is not reasonably required.
The employer argues that use of the phrase, a second opinion, and use of the word opinion rather than opinions means that the statute allows no more than one second opinion on surgery. We are not convinced.
A “second surgical opinion” under §176.135, subd. 1a, is specifically one given on the necessity of “the surgery,” i.e., one which provides a reviewing opinion about the necessity of a specific surgery which has been proposed or recommended by one of the employee's physicians. The statute does not govern referrals to a specialist, surgical or otherwise, for recommendation about possible surgical options. Here, the consultation with Dr. Garvey was not a “second surgical opinion” as no surgical recommendation had been made by another physician. Dr. Sherman did contradict Dr. Garvey's recommendation for a three-level fusion, although, as the compensation judge noted, it was not clear that Dr. Sherman understood his role as one of providing a second opinion on the three-level fusion surgery suggested by Dr. Garvey. In any event, by the time he saw Dr. Sherman, the employee was no longer contemplating the fusion surgery discussed by Dr. Garvey. However, even if we assume that the consultation with Dr. Sherman constitutes a “second opinion” on the specific surgery recommended by Dr. Garvey, the current request is for a general neurosurgical consultation with Dr. Bergman, not for the purpose of seeking his opinion on the three-level fusion which the employee has already rejected, but, instead, seeking his opinion as to whether other surgical treatment may exist that could help ameliorate the employee's symptoms.
We conclude that the question of how many “second opinions” the employee may be entitled to under this statute or whether Dr. Sherman provided a true “second opinion,” are irrelevant to the issue here. The issue, rather, is not whether the employee is entitled to the surgical consultation recommended by Dr. Wagner but whether the consultation is reasonable and necessary in light of the evidence. This issue is not determined by parsing the language of §176.135, subd. 1a, but by applying the general standard found in all cases of disputed medical treatment, including medical referrals.
An employer is obligated to provide for reasonable and necessary medical treatment for an injury. Minn. Stat. § 176.135, subd. 1. What constitutes reasonable medical treatment varies from case to case and is generally a factual determination for a compensation judge. Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993). The question in this case, which is whether a surgical consultation for the employee is reasonable and necessary, is a factual determination. The compensation judge in the present case determined that the referral of the employee for a neurosurgical consultation with Dr. Bergman was reasonable. (Finding No. 21). The question for this court is whether substantial evidence supports the compensation judge’s determination. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984). In reviewing the record, we find substantial evidence to support the compensation judge’s decision.
We note, first, that the neurosurgical consultation was the recommendation of the employee’s treating doctor, Dr. Wagner. Although the parties disputed at the hearing the question of who the employee’s treating doctor might be, in reviewing the record, we see no other provider who would meet that description. Dr. Konasiewicz had no further treatment recommendations when he last saw the employee in June 2007. When the employee last consulted with Dr. Wallerstein in December 2007, Dr. Wallerstein stated that there was not “anything more to be done physically.” Drs. Garvey and Sherman simply evaluated the employee on the question of surgery and it is clear from their records that neither contemplated providing ongoing medical care to the employee. Finally, when the question of a possible return to work came up in November 2009, the QRC and the employee consulted with Dr. Wagner on the physical appropriateness of the job duties. We believe the evidence establishes that Dr. Wagner was the employee’s treating doctor when the referral for an additional surgical consultation was made in July 2009.
The compensation judge’s decision is also supported by the absence of a clear treatment plan for the employee’s significant symptoms. The absence of any treatment plan is illustrated by the difference in opinion between Dr. Garvey and Dr. Sherman on the question of possible surgery. Dr. Garvey stated that multi-level anterior/posterior fusion surgery might be appropriate but Dr. Sherman advised against any surgery and instead recommended a pain clinic. It would appear reasonable that an employee faced with such a divergence in opinion on how to best treat his significant symptoms consult with another doctor.
The employer argues that to affirm the compensation judge’s opinion here would encourage doctor shopping by employees. We disagree. The phrase “doctor shopping” is often used to suggest that an employee is looking for extended care where no further care is needed or is seeking a particular type of medical care. Neither of those considerations is clearly evident here. The employee has had significant symptoms since the surgery in 2006. The symptoms have been verified by radiographic studies and by the discograms that have been done since that time. The question of possible surgery has been pending since the referral to Dr. Garvey in March 2008. The employee evinced a willingness to work with the employer on the question of his medical care by consulting with the claims adjuster on the consultation with Dr. Garvey and used the list of doctors suggested by the adjuster in making an appointment to see Dr. Sherman. The evidence does not indicate that in any way the employee has been seeking surgery or has been disregarding medical opinions from providers who have seen him.
More importantly, compensation judges commonly consider and address any concerns raised over possible doctor shopping as one of the considerations which enter into the determination of the reasonableness and necessity of treatment. This case is no different in that respect. We note that the concerns over “doctor shopping” were raised by the employer below and that the compensation judge was not persuaded that this was such a case.
The compensation judge’s decision is affirmed.