SHIRLEY PETERSON, Employee, v. MARSHALL MANOR GOOD SAMARITAN CTR. and SENTRY INS. GROUP, Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 24, 2012
No. WC12 -5423
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, primarily the employee’s testimony and medical records, supported the compensation judge’s decision authorizing surgery.
Determined by: Wilson, J., Stofferahn, J. and Milun, C.J.
Compensation Judge: Adam Wolkoff
Attorneys: Jeffrey W. Hane, Brink, Sobolik, Severson, Malm & Albrecht, Hallock, MN, for the Respondent. Kirk C. Thompson, Cronan Pearson Quinlivan Thompson, Minneapolis, MN, for the Appellants.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the compensation judge’s decision allowing the employee to change physicians and finding recommended surgery reasonable, necessary and causally related to the employee’s work injury. We affirm.
The employee sustained a work-related injury to her low back on October 31, 2009, while employed as a nursing assistant for Marshall Manor Good Samaritan Center [employer]. Initial conservative treatment failed, and an MRI performed on December 10, 2009, revealed a large left-sided herniation at L4-5, causing compression of the central thecal sac and left L4 nerve root.
On January 18, 2010, the employee was seen by Dr. Sunny Kim, who recommended an epidural steroid injection. The injection was performed on January 27, 2010. The next day, the employee reported that her pain level was a 5 on a scale of 1 to 10. On March 19, 2010, Dr. Kim reported that the employee had not benefited from the epidural injection and that she continued to have left-sided leg pain. He therefore recommended that the employee undergo an L4-5 discetomy with L4-5 posterolateral fusion.
The employee was seen by Dr. Paul Cedarburg on April 2, 2010, at the request of the employer and insurer. Dr. Cedarburg agreed that the employee had an extruded L4-L5 disc with left leg radiculitis and recommended a microdisectomy on the left at L4-5. He disagreed with Dr. Kim’s recommendation for a fusion because the employee was 68 years old and the “increased operative time and potential for complication seems to pose more risk for her.”
When the employer and insurer refused to pay for fusion surgery, the employee underwent a left L4 hemilaminectomy and excision of left L4-5 disc, which was performed by Dr. Mickey Syrquin on May 12, 2010. The operative report indicated that the employee had been admitted secondary to left-sided leg pain. The employee testified that she subsequently had constant back pain with numbness in her left leg. She allegedly treated with Dr. Syrquin for a year after the surgery.
The parties participated in a mediation session, and, in a mediation resolution/award filed on November 4, 2010, it was agreed that the employee would be paid $17,500 in full, final, and complete settlement of any and all past, present, and future claims for benefits, with the exception of reasonable and necessary medical benefits.
The employee was seen at Dr. Kim’s office again on July 22, 2011. At that time, she reported continuing low back pain with radiation into the left hip and numbness into the left leg. A CT myelogram performed on August 15, 2011, was read as showing severely degenerated discs at L1-2, L2-3, L4-5 and L5-S1. Broad-based disc protrusions were noted at those levels and also at L3-4, and there was bilateral spondylolysis at L4-5 and L5-S1, with impingement on the L5 and S1 nerve roots on the right at the L5-S1 level.
The employee was seen by Dr. Kim on August 19, 2011, about a month later. He noted that the CT myelogram showed a recurrent residual disc herniation at L4-5 on the left and spondylolisthesis from L3 to S1. Dr. Kim recommended that the employee undergo decompression at L4-5 and L5-S1 and fusion from L3 to S1. His office notes reflect that the “levels other than L4 L5 had to be fused due to listhesis.”
The employee was examined by Dr. Richard C. Strand on February 28, 2012, at the request of the employer and insurer. In his report of March 2, 2012, Dr. Strand noted that the employee’s current complaints consisted of constant pain in the lumbar area and aching in her left leg. On exam, Dr. Strand noted that deep tendon reflexes of the legs were equal, with no atrophy. In his opinion, the lumbar myelogram revealed severe degeneration, with every disc space from L1 to S1 involved. He diagnosed spinal stenosis with severe degenerative disc disease, degenerative spondylosis with spondylolisthesis L4 on L5, and status post L4-L5 decompression for herniated disc. According to Dr. Strand, the employee’s degenerative changes were “naturally occurring based on her age” and not related to her work injury. It was also his opinion that the employee was an extremely poor candidate for any further surgical procedures, noting that she was neurologically intact, that she was currently taking large amounts of narcotics, and that she had diabetes. He further opined that the work injury was not the cause of her need for medical treatment at that time.
Dr. Jeffrey Dick performed a medical records review on behalf of the employer and insurer on February 28, 2012. It was his opinion that the employee’s current symptoms were “likely to be coming from the crack in the pars interarticularis on the right at the L5 level. There may also be a component coming from the foraminal stenosis on the right at L5-S1.” While agreeing that a decompression and fusion was reasonable, he did not recommend fusion at the L3-4 level. He also opined that the work injury had resulted in a disc herniation on the left side at L4-5, in that the symptoms that the employee experienced after the injury were predominantly in her left leg, and he indicated that those left leg symptoms had been relieved by the left L4-5 discectomy. In his opinion, the proposed surgery was necessitated by a crack in the L5 pars on the right side and that this crack and the spondylolisthesis of L4-5 and L5-S1 were preexisting conditions unrelated to the work injury.
The employee filed a medical request seeking a change of treating doctor and requesting the surgery recommended by Dr. Kim. The matter proceeded to hearing, and, in findings and order filed on March 21, 2012, the compensation judge authorized the fusion and allowed the employee to change doctors. The employer and insurer appeal.
On appeal this court 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 (2012). The employer and insurer contend that the judge’s order allowing the proposed surgery must be reversed because there is no medical opinion of record stating that the work injury caused the need for fusion surgery or that the surgery is reasonable and necessary.
A detailed report from Dr. Kim would have been useful in deciding this case. Failure to introduce a clear causation opinion, or an opinion as to reasonableness and necessity, presents a risk for any claimant. However, these concerns notwithstanding, we find the evidence adequate to compel affirmance of the judge’s decision.
The employee sustained an admitted work injury on October 31, 2009. She was diagnosed with a left-sided disc herniation at L4-5. Dr. Kim proposed an L4-5 discectomy and fusion. Dr. Cederburg, the employer and insurer’s examiner, proposed a microdiscectomy at L4-5 and stated that the employee’s work injury was a significant causative factor in the onset of the employee’s back and left leg symptoms and need for treatment. The employer and insurer refused to pay for the fusion, and the employee instead underwent a left hemilaminectomy and excision of the left L4-5 disc, performed by Dr. Syrquin. The employee testified that she continued to treat with Dr. Syrquin for a year after the surgery for ongoing low back pain and left leg numbness but obtained no relief. The compensation judge found her testimony credible.
The employee returned to Dr. Kim in 2011, and he diagnosed a recurrent residual disc herniation at L4-5 on the left. This is the same disc that was treated by surgery in 2010. He has recommended a “repeat decompression” at L4-5 and fusion at multiple levels. Dr. Dick stated that “it appears that the disc herniation on the left side at the L4-5 level occurred with the October 31, 2009, work injury.” Substantial evidence supports the judge’s finding that the work injury is a substantial contributing cause of the employee’s ongoing low back and left leg symptoms.
It is undisputed that the employee had advanced degenerative changes in her lumbar spine that preexisted her work injury. An MRI performed on December 10, 2009, showed degenerative changes at L1-2 and L2-3 and spondylolisthesis at L4-5 and L5-S1. The CT scan and myelogram of the lumbar spine done in August of 2011 revealed severe degeneration in those same levels. The less comprehensive surgery performed in 2010 did not alleviate the employee’s symptoms. The degenerative changes in her spine have worsened, and Dr. Kim now proposes fusion at L4-5 and additional levels. Dr. Dick opined that “considering the magnitude of her symptoms . . . I agree that a decompression and fusion is reasonable.” While Dr. Dick opined that the employee’s current symptoms are coming from a crack at L5 on the left, the compensation judge could reasonably conclude that the symptoms are related to the L4-5 recurrent disc herniation superimposed on the severe degenerative changes of the spine. A medical opinion on causation may not be necessary in cases involving the commoner afflictions. Bender v. Dongo Tool Co., 509 N.W.2d 366, 367, 49 W.C.D. 511, 513 (Minn. 1993). In the present case, the employee’s testimony and the medical records showing continued low back pain and left leg symptoms provide substantial evidence.
Finally, the judge accepted the opinion of Dr. Kim, recommending fusion at L3 to S1, over that of Dr. Dick, who recommended that L3-4 not be fused because it is the employee’s healthiest disc. A judge’s choice between expert opinions is generally 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, 37 W.C.D. 364 (Minn. 1985). The judge’s choice between doctor’s opinions is affirmed.
2. Change of Physician
As a general rule, employees are allowed great latitude in choosing and changing doctors. See Maronde v. Robert Carr Constr. Co., 306 Minn. 529, 253 N.W.2d 207, 28 W.C.D. 129 (1975). Lack of confidence in a doctor and lack of improvement in the employee’s condition are reasonable grounds to change physicians. See Roland v. Search Resources, slip op. (W.C.C.A. Nov. 23, 1998).
In the present case, the employee has requested a change of doctors from Dr. Syrquin to Dr. Kim. The only record we have from Dr. Syrquin is his operative report, which shows that he did not perform the fusion at L4-5 that Dr. Kim had recommended in 2010. We also have the employee’s testimony that she has had continuing low back and left leg symptoms since that surgery and that the only treatment Dr. Syrquin has offered her is medication. In his report, Dr. Strand noted that the employee had been taking Oxycontin two to three times a day since the May 2010 surgery, without any change in her pain, and that he did not recommend the chronic use of narcotics.
Doctors Kim and Dick have recommended decompression and fusion surgery as a reasonable treatment for the employee’s ongoing symptoms. The employee’s testimony and the medical records provide substantial evidence to support the judge’s finding that the employee had a reasonable basis to change physicians. We therefore affirm the judge’s finding and order on this issue.
 Dr. Syrquin’s records were not introduced into evidence at the hearing.
 We note here that it would have been advisable for the employee to have submitted Dr. Syrguin’s records into evidence.
 Surgery with a decompression at L4-5 but without a fusion at that level.