OWEN B. GOSSETT, Employee/Appellant/Petitioner, v. RAMSEY EXCAVATING CO. and AUTO-OWNERS INS. GROUP, Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 13, 2012
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Substantial evidence supports the compensation judge’s decision denying the employee’s claim for the proposed hybrid disc replacement and fusion surgery.
VACATION OF AWARD - MISTAKE; VACATION OF AWARD - NEWLY DISCOVERED EVIDENCE; VACATION OF AWARD - FRAUD. The employee failed to establish sufficient cause to vacate the findings and order based on mutual mistake of fact, newly discovered evidence, or fraud.
Petition to vacate findings and order denied.
Determined by: Milun, C.J., Stofferahn, J., and Wilson, J.
Compensation Judge: Jennifer Patterson
Attorneys: Kirsten M. Tate, Osterbauer Law Firm, Minneapolis, MN, for the Appellant/Petitioner. Laura L. Myslis and Brock P. Alton, Gislason & Hunter, Minneapolis, MN, for the Respondents.
PATRICIA J. MILUN, Judge
The employee appeals the compensation judge’s denial of proposed disc replacement surgery and also petitions to vacate the compensation judge’s decision based on mutual mistake of fact, newly discovered evidence, and fraud. We affirm the compensation judge’s decision and deny the employee’s petition to vacate.
On September 14, 2009, Owen B. Gossett, the employee, sustained a work-related injury to his low back while working as a heavy equipment operator for Ramsey Excavating Company, the employer, which was insured for workers’ compensation liability by Auto-Owners Insurance Group, the insurer. The employer and insurer admitted liability and paid various workers’ compensation benefits, including medical expenses, rehabilitation benefits, permanent partial disability benefits, temporary total disability benefits, and temporary partial disability benefits.
The employee was treated conservatively with physical therapy, injections, and pain medications, with no long-term pain relief. On April 9, 2010, the employee’s physician, Dr. Steven Sabers, referred the employee to Dr. Richard Salib for a surgical consultation, noting that the employee’s young age made him an unlikely candidate for a fusion surgery. Dr. Salib evaluated the employee on May 10, 2010, and discussed treatment options with the employee, including surgery and a MedX therapy program through Physicians Diagnostic and Rehabilitation Group. The employee chose to participate in the therapy program from June 15 through September 20, 2010, but experienced no reduction in pain.
After completing the therapy program, the employee again discussed surgical options with Dr. Salib, who recommended an anterior fusion at L5-S1 and a disc replacement at L4-5. Because of a slight risk of infertility with the surgery, Dr. Salib also recommended a pre-surgical fertility consultation. Dr. Salib referred the employee to Dr. Jeffrey Pinto for another opinion on surgical options. The employee was examined by Dr. Pinto on October 29, 2010. Dr. Pinto discussed the options with the employee and indicated that if the employee chose a posterior surgical method, he would perform a minimally invasive transforaminal lumbar interbody fusion from L4 to S1. If the employee chose an anterior approach, then Dr. Salib would perform that surgery. The employee decided on an anterior fusion of the L5-S1 level and total disc replacement at L4-5.
On December 13, 2010, the employee was evaluated by Dr. Paul Cederberg at the employer and insurer’s request. Dr. Cederberg diagnosed the employee with a lumbar strain superimposed on two-level degenerative disc disease and opined that the employee’s work injury was a substantial contributing factor to that condition. Dr. Cederberg also opined that the employee’s treatment had been reasonable and necessary, but that the proposed surgery was not reasonable and necessary. Specifically, he stated in his report:
I do not think it is in [the employee’s] best interest to undergo two-level fusion surgery on his low back based on the risks that far outweigh the potential benefit for him at this point. This is quite a young gentleman to undergo a two-level procedure on his lumbar spine. Typically these procedures are pain lessening procedures at best and at worst, they can cause complications . . . . In my opinion a pre-surgical fertility clinic consult is not reasonable or necessary. I have never seen this done prior to an anterior approach to the lumbar spine; and as noted, I do not feel the surgery is a reasonable treatment option for [the employee].
On January 20, 2011, the employee filed a medical request for approval of low back surgery consisting of an anterior fusion at L5-S1 and a L4-5 total disc replacement, and a fertility consultation, which the employer and insurer denied. Dr. Cederberg’s deposition was taken on March 10, 2011. Dr. Cederberg testified at the deposition that the proposed surgery was not reasonable and necessary. Part of the basis for his opinion was his understanding that the proposed surgery with the disc replacement device was not approved by the United States Food and Drug Administration (FDA) for use in patients with degeneration at multiple spinal levels. The employee’s attorney questioned Dr. Cederberg regarding his background and his knowledge regarding the proposed surgery, but did not object to the foundation for his opinion.
In a February 8, 2011, report, Dr. Salib again recommended the combination of disc-replacement and the fusion or the posterolateral fusion as the two most appropriate procedures for the employee.
A hearing was held on March 18, 2011. The employee objected to Dr. Cederberg’s opinion based on lack of foundation at the hearing. The compensation judge found that the employee had waived this objection by not objecting at the time of Dr. Cederberg’s deposition. The compensation judge held the record open until April 8, 2011, for additional evidence. The employer and insurer submitted an August 16, 2006, letter from the FDA approving the disc replacement device proposed for the employee’s surgery “for spinal arthroplasty in skeletally mature patients with degenerative disc disease . . . at one level from L3-S1.” The employee submitted journal articles and a clinical study report. The compensation judge found that she did not have jurisdiction to order an insurer to pay for the surgery since the FDA had not approved the device at issue for use in patients with two-level disc degeneration and denied the employee’s medical request for approval of the proposed surgery and the pre-surgical consultation. The employee appealed the compensation judge’s decision on May 25, 2011, and on July 21, 2011, filed a petition to vacate the findings and order.
STANDARD OF REVIEW
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. 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. Fact findings are clearly erroneous if the reviewing court, looking at the entire evidence, is left with a definite and firm conviction that a mistake has been committed. 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.”
The employee appeals the compensation judge’s finding that a workers’ compensation judge has no jurisdiction to order an insurer to pay for a hybrid disc replacement and fusion surgery when the surgery involves hardware regulated by the United States Food and Drug Administration and departs from the FDA-approved uses of that hardware. The employee also argues that the compensation judge erred by determining that the employee is not a candidate for the surgery without analyzing its reasonableness and necessity. The employee further claims that the compensation judge erred by finding that the employee waived his objection to the foundation for Dr. Cederberg’s opinions by not objecting on this basis at the time of Dr. Cederberg’s deposition.
At Dr. Cederberg’s deposition, the employee’s attorney did not object specifically to the foundation for the doctor’s opinion. The judge found that the employee had waived any objection to Dr. Cederberg’s opinion based on inadequate foundation by not objecting on this basis at the deposition. The judge also stated that even if the employee had not waived his right to object to Dr. Cederberg’s opinion based on competency, the objection would have been overruled based upon Dr. Cederberg’s background.
To be of evidentiary value, an expert medical opinion must be based on adequate foundation. The competence of a witness to render expert medical testimony depends upon both the degree of the witness’s scientific knowledge and the extent of the witness’s practical experience with the matter at issue. The employee argues that since Dr. Cederberg has never performed a disc replacement surgery, has not performed a lumbar spine fusion surgery for at least ten years, and has stated that he would never recommend the proposed surgery, he has disqualified himself from rendering an opinion on the reasonableness and necessity of that surgery. We disagree. As noted by the compensation judge, Dr. Cederberg is a board-certified orthopedic surgeon licensed to practice orthopedic surgery in Minnesota since 1984. He has remained informed on developments in orthopedic surgery by participating in conferences and reading medical journals. Dr. Cederberg reviewed the employee’s medical records, took his history, and examined the employee. As a general rule, this level of knowledge establishes a doctor’s competence to render an expert opinion. Dr. Cederberg had adequate foundation for his medical opinion. The employee’s arguments go to the weight to be given to Dr. Cederberg’s opinion, not to the lack of foundation for the opinion.
The employee appeals from the judge’s findings that the employee is not a candidate for the proposed hybrid disc replacement and fusion surgery and claims that the compensation judge did not analyze the reasonableness and necessity of the surgery. The judge determined that she had no jurisdiction to order an insurer to pay for a hybrid disc replacement and fusion surgery when the surgery involving the hardware regulated by the FDA departs from the FDA-approved uses of that hardware. The compensation judge found that the preponderance of the evidence failed to establish that the employee is a candidate for an anterior fusion at L5-S1 with disc replacement at L4-5. The employee argues that this finding is clearly erroneous and unsupported by substantial evidence in the record. We disagree.
The employee underwent MRI scans, discograms and injections. The judge found the results of these tests along with the opinions of Dr Salib, Dr. Pinto, and Dr. Cederberg support the conclusion that both the L4-5 and the L5-S1 levels of the employee’s back were causing symptoms including low back pain and right leg pain. This conclusion was supported by the opinion of Dr. Cederberg that the employee was not a candidate for the recommended surgery. The judge found the expert medical opinions offered in support of the combined surgery were unpersuasive. A disagreement between medical experts is generally resolved by the judge’s choice between medical opinions. The judge adopted the medical opinion of Dr. Cederberg.
The employee argues that Dr. Cederberg’s opinion is based on inaccurate information on the FDA procedure. We disagree. The argument is essentially based on the disagreement between the two medical experts on the scope of FDA approval. The employer’s medical expert stated that the FDA had not approved this specific disc replacement device in patients with two-level disc degeneration. In support of this opinion, the employer provided the FDA approval letter indicating that the device was approved for spinal arthroplasty in patients with degenerative disc disease at one level from L3-S1. The employee took a contrary position, arguing the L5-S1 anterior fusion with disc replacement at L4-5 as recommended by Dr. Salib was reasonable and necessary medical treatment.
The employee argues that if this procedure was truly prohibited for the reason that the combined surgery departs from the FDA-approved use of the hardware, then the compensation judge would not have approved the same surgery in Moore v. Cal Spas of Minn. In Moore, the issue on appeal was entitlement to Roraff fees. At the hearing in that case, there was no dispute on the reasonableness or necessity of surgery since the insurer had agreed to pay for the surgery if the employee quit smoking. The only dispute before the compensation judge was whether the employee needed to cease smoking before undergoing surgery. In other words, the compensation judge was not asked to consider whether the surgical procedure met FDA approval. In this case, the compensation judge was asked to analyze the reasonableness of the surgery given the scope of FDA approval.
The evidence offered by the employer and insurer directly contradicted the evidence offered by Dr. Salib. The judge considered the opinions contained in Dr. Salib’s reports and letters and the opinion of Dr. Cederberg, and determined that Dr. Cederberg’s opinion that the surgery was not reasonable and necessary was more persuasive. The compensation judge explained in her memorandum that she considered the fact that Dr. Cederberg has not performed a disc replacement surgery and found that fact went to the weight of Dr. Cederberg’s opinion, not its foundation. Where there is adequate foundation for the opinion adopted by the judge, this court generally upholds the compensation judge’s choice among medical experts. The compensation judge considered the reasonableness and necessity of the proposed surgery based on her analysis of the medical opinions and evidence presented. We conclude that substantial evidence supports the compensation judge’s decision. We therefore affirm.
Petition to vacate
The employee also filed a petition to vacate the compensation judge’s findings and order. The Workers’ Compensation Court of Appeals has broad discretion in determining whether to vacate an award. This court has jurisdiction to set aside an award upon a showing of good cause. “Cause” is limited to a mutual mistake of fact, newly discovered evidence, fraud, or a substantial change in medical condition since the time of the award that was clearly not anticipated and could not reasonably be anticipated at the time of the award. The employee based his petition to vacate on grounds of (1) mutual mistake of fact concerning whether the disc replacement had been FDA-approved for the proposed surgery; (2) newly discovered evidence exists in the form of a second opinion recommending the proposed surgery; and (3) fraud based upon his claim that the employer and insurer gave a false statement of fact by arguing to the judge that the proposed replacement hardware was not FDA-approved for the recommended surgery.
A mutual mistake of fact occurs when opposing parties to a dispute both misapprehend a material fact. A mutual mistake requires a “clear showing of a misunderstanding, reciprocal and common to both parties, with respect to the terms and subject matter of the contract, or some substantial part thereof.” The employee claims that the finding that the proposed surgery was not approved by the FDA is a mistake, based on his interpretation of the evidence. There is no allegation of a mutual mistake. The employee’s contentions do not support a finding that a mutual mistake of fact was made.
The employee submitted another medical opinion in support of his petition to vacate. In some cases, vacation is justified based on “[t]he development of new facts about the injury after the award, or . . . the subsequent discovery of facts in existence but unknown at the time the award was made.” Evidence that is not relevant and admissible, is cumulative or duplicative, or is not likely to have a probable effect on the outcome of the litigation, is not generally sufficient to justify vacation of a decision. The employee was evaluated by Dr. Amir Mehbod on June 20, 2011, after the hearing in this matter. Dr. Mehbod recommended surgical options for the employee, including the option recommended by Dr. Salib. This evidence is cumulative and does not support vacation of the compensation judge’s decision.
The employee also claims that the employer and insurer committed a fraud on the court by arguing that the FDA had not approved the proposed surgery. Fraud under Minn. Stat. § 176.461 requires an intentional effort to mislead a party by another party. First, the employee is not arguing that the employer and insurer made any misrepresentations or fraudulent statements to him, the other party, which he relied on to his detriment. Also, the employer and insurer presented their interpretation of the evidence submitted regarding the issues in the case to the compensation judge, and there was evidence in the record to support their arguments. We conclude the employee has not established fraud.
The employee has failed to show cause sufficient to vacate the findings and order, therefore the employee’s petition to vacate the April 26, 2011, findings and order is denied.
The employee was 27 years old at the time of the hearing.
 Appellant’s Ex. 2.
The judge cited Weis v. Clinton Elec. Co., slip op. (W.C.C.A. Oct. 10, 1997) (failure to object to expert medical opinion submitted at a hearing waived objection on appeal).
Respondent’s Ex. 5.
Minn. Stat. § 176.421, subd. 1.
Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
 Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
See Welton v. Fireside Foster Inn, 426 N.W.2d 883, 41 W.C.D. 109 (Minn. 1988).
 Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983).
 See Grunst v. Immanuel-St. Joseph’s Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1988); Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978).
 Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).
68 W.C.D. 498 (W.C.C.A. 2008).
 Roraff v. State, Dep’t of Transp., 288 N.W.2d 15, 32 W.C.D. 297 (Minn. 1980).
 See Ruether v. State, Mankato State Univ., 455 N.W.2d 475, 477, 42 W.C.D. 1118, 1121 (Minn. 1990).
 Nord, 360 N.W.2d at 342-43, 37 W.C.D. at 372-73.
 Since we have affirmed the compensation judge’s decision on the basis of the lack of reasonableness and necessity for the surgery, we need not address the employee’s appeal of the judge’s finding that she did not have jurisdiction to award the surgery.
 Monson v. White Bear Mitsubishi, 663 N.W.2d 534, 539, 63 W.C.D. 337, 344 (Minn. 2003).
 Minn. Stat. § 176.461.
 See Shelton v. Schwan’s Sales Enters., 53 W.C.D. 110 (W.C.C.A. 1995), summarily aff’d (Minn. Sept. 5, 1995).
 Carpenter v. Vreeman, 409 N.W.2d 258, 261 (Minn. App. 1987).
 Monson v. White Bear Mitsubishi, 663 N.W.2d 534, 539-40, 63 W.C.D. 337, 344 (Minn. 2003) (citing Dudansky v. L.H. Sault Constr. Co., 244 Minn. 369, 372, 70 N.W.2d 114, 116, 18 W.C.D. 286, 289 (1955)).
 Gruenhagen v. Larson, 310 Minn. 454, 459, 246 N.W.2d 565, 569 (1976); Greenwood v. Kamps, Inc., 68 W.C.D. 1 (W.C.C.A. 2008).
 To vacate a decision on the basis of fraud, the petitioner must provide evidence of: (1) a false representation of facts; (2) the representation must deal with a past or present fact; (3) the fact must be susceptible of knowledge; (4) the representing party must know the fact is false; (5) the representing party must intend that another be induced to act based on the false representation; (6) the other party must in fact act on the false representation; and (7) the misrepresentation must be the proximate cause of actual damages. Green v. Setterholm Fairway Foods, 42 W.C.D. 907, 909 (W.C.C.A. 1989); Weise v. Red Owl Stores, Inc., 286 Minn. 199, 202, 175 N.W.2d 184, 187 (1970).
 See Strande v. Woman’s Club of Minneapolis, 50 W.C.D. 527 (W.C.C.A. 1994), affirmed 518 N.W.2d 555, 50 W.C.D. 532 (Minn. 1994).