JOSE A. RODRIQUEZ, Employee, v. JBS USA, LLC, and ZURICH AM. INS. CO./ SEDGWICK CMS, Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
DECEMBER 18, 2012
EVIDENCE - EXPERT MEDICAL OPINION. The opinion of the employee’s treating surgeon recommending microdiscectomy surgery at the L4 and L5 levels was adequately founded where the doctor examined the employee, obtained a history from the employee, and reviewed his medical treatment records including MRI scans. That the doctor had not seen the employee’s EMG study prior to recommending surgery does not render his opinion without foundation, but goes to the weight to be afforded the opinion by the compensation judge.
Determined by: Johnson, J., Wilson, J., and Milun, C.J.
Compensation Judge: Paul V. Rieke
Attorneys: Vincent A. Peterson, Law Offices of Donald F. Noack, Mound, MN, for the Respondent. Eric S. Hayes and Nicholas J. Micheletti, Brown & Carlson, Minneapolis, MN, for the Appellants.
THOMAS L. JOHNSON, Judge
The employer and insurer appeal the compensation judge’s finding that a recommended surgery is a reasonable and necessary medical procedure to cure and relieve the employee from the effects of his personal injury. We affirm.
Jose Rodriquez, the employee, sustained a personal injury to his low back on July 12, 2009, arising out of his employment with JBS USA, LLC, the employer. The employer and its insurer admitted liability for the employee’s injury and commenced payment of workers’ compensation benefits, including wage loss and medical benefits.
The employee sought treatment for his low back on July 13, 2009, at the Sanford Clinic in Worthington, Minnesota. The diagnosis was a lumbar strain without evidence of radiculopathy. The employee returned to the Sanford Clinic in October 2009 complaining of continued low back pain with radiation into the right leg. An MRI scan noted spinal stenosis at L4-5 due to a moderate central herniation of the disc and a disc herniation at L5-S1 with possible impingement of the right S1 nerve root.
Dr. Christopher Janssen at Sanford Neurosurgery and Spine saw the employee in October 2009 and diagnosed right S1 radiculopathy, lumbar degenerative disc disease at L4 and L5, and discogenic pain at L4-5. The doctor prescribed physical therapy, recommended epidural steroid injections, and assigned work restrictions. The employee followed with Dr. Janssen whose diagnosis remained unchanged. In February 2010, the doctor released the employee to return to work without restrictions. In May 2010, the employee returned to see Dr. Janssen complaining of increased back and right leg symptoms. The doctor recommended a neurosurgical consultation and again placed the employee on a 50 pound lifting restriction.
In August 2010, the employee began treating with Dr. Troy Gust at Sanford Neurosurgery. The employee gave a history of low back pain with pain, tingling, and numbness in his lower right leg. The doctor diagnosed right leg pain consistent with an S1 radiculopathy and disc herniations at L4-5 and L5-S1 with associated degenerative disc disease. The doctor recommended epidural steroid injections and physical therapy, but stated that if these measures failed, the employee might be a candidate for a decompressive discectomy as well as a possible fusion. Dr. Gust reexamined the employee in October 2010, and again recommended epidural steroid injections prior to consideration of surgery. The doctor stated a decompressive discectomy would alleviate the employee’s leg pain but would not address his back pain.
Dr. Ross Paskoff, an orthopedic surgeon, examined the employee in February 2011 at the request of the employer and insurer. The doctor diagnosed an S1 radiculopathy due to an L5-S1 disc herniation caused in substantial part by the employee’s July 12, 2009, injury. Dr. Paskoff opined the employee had not reached maximum medical improvement.
Dr. Gust ordered a repeat lumbar MRI scan that was obtained in December 2011. The scan showed disc protrusions at L4-5 and L5-S1 with displacement of the left S1 nerve root, foraminal narrowing, and spondylosis. In February 2012, Dr. Gust noted that, despite physical therapy and epidural steroid injections, the employee continued to experience back and leg pain. On examination, a straight leg raising test was positive on the right. His diagnosis remained lumbar radiculopathy, degenerative disc disease, and disc herniations at L4-5 and L5-S1. Dr. Gust stated the employee should not have a spinal fusion but needed to decide whether he wished to proceed with the discectomy to relieve his leg pain.
Dr. John Dowdle examined the employee in February 2012 at the request of the employer and insurer. On examination, Dr. Dowdle found an absent right Achilles reflex, decreased sensation in the lower right leg, and a positive straight leg raising test on the right. The doctor diagnosed mechanical low back pain, degenerative disc disease from L4 through S1, a right-sided disc herniation at L5-S1, and mild intermittent S1 radiculopathy on the right. Dr. Dowdle noted the L5-S1 disc herniation was consistent with the employee’s right leg complaints. Dr. Dowdle opined surgery was not necessary and stated the employee should follow conservative treatment including physical therapy and epidural injections.
Dr. Henk Klopper, a neurosurgeon, examined the employee in February 2012. The doctor reviewed the employee’s MRI scan which he stated demonstrated an L5-S1 disc protrusion causing mild right-sided foraminal stenosis. Dr. Klopper diagnosed back and right leg pain. Following a normal EMG, the employee returned to see Dr. Klopper, who concluded that with continued physical therapy, the employee had a good prognosis. Dr. Klopper stated that he did not see any surgical indication.
By a report dated June 25, 2012, Dr. Gust stated his diagnosis of the employee’s condition was lumbar disc herniations at L4-5 and L5-S1. The doctor recommended microdiscectomy at both levels to treat the employee’s condition.
The employee filed a claim petition requesting approval for the surgery recommended by Dr. Gust. Following a hearing, the compensation judge found that a microdiscectomy at the L4 and L5 levels was reasonable and necessary medical treatment to cure and relieve the employee from the effects of his personal injury. Accordingly, the compensation judge granted the employee’s request for approval of the surgery. The employer and insurer appeal.
The employer and insurer claim the compensation judge erroneously relied on the surgical recommendation of Dr. Gust, contending his opinion lacked foundation and was not supported by substantial medical evidence. The appellants acknowledge that Dr. Gust, Dr. Paskoff, and Dr. Dowdle all found the employee had a positive straight leg raising test. However, they argue the test is subjective and is insufficient to establish that the employee had radicular symptoms necessitating surgery. Rather, the appellants contend the normal EMG study definitively rules out any radicular symptoms. The appellants argue that, absent any radiculopathy, the surgery recommended by Dr. Gust is neither reasonable nor necessary. Further, they assert the opinion of Dr. Gust is inadequately founded because he had not seen the employee’s EMG study prior to recommending surgery. For these reasons, the appellants assert the compensation judge’s approval of the recommended surgery must be reversed.
The competency of a medical expert to provide an expert opinion depends upon both the extent of the scientific knowledge of the expert, and the expert’s practical experience with the matter that is the subject of the expert opinion. Drews v. Kohl’s, 55 W.C.D. 33 (W.C.C.A. 1996) (citing Reinhardt v. Colton, 337 N.W.2d 88 (Minn. 1983)). Dr. Gust obtained a history from the employee, reviewed his medical records, and performed physical examinations. This level of knowledge is sufficient to afford foundation for the opinion of the medical expert. See, e.g., Caizzo v. McDonald’s, 65 W.C.D. 378 (W.C.C.A. 2005). That Dr. Gust did not consider the EMG does not render his opinion without foundation. Rather, that fact goes to the weight to be afforded his opinion by the compensation judge. See, e.g., Hatfield v. Mark J. Lenort, 69 W.C.D. 285 (W.C.C.A. 2009).
Dr. Klopper opined the employee had back and right leg pain but concluded surgery was not indicated. The doctor did not, however, state that the normal EMG study ruled out the existence of any radicular-type symptoms. Contrary to the appellants’ assertions, the normal EMG study, standing alone, is not a basis to reverse the compensation judge’s decision.
Ultimately, the resolution of this case depends upon a choice between conflicting medical opinions. Dr. Gust opined that a microdiscectomy at the L4-5 and L5-S1 levels was reasonable and necessary medical treatment. Dr. Dowdle and Dr. Klopper disagreed. Each of these medical opinions was adequately founded and plausible, but the judge ultimately adopted the opinion of Dr. Gust. On appeal, this court must determine whether the findings of fact 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).
The opinion of Dr. Gust together with medical records and testimony of the employee provide substantial evidentiary support for the compensation judge’s decision. Accordingly, the findings and order of the judge are affirmed.
 The employee’s name is listed as Jose A. Rodriquez in the court files. It is variously listed as Jose Rodriquez, Jose A. Rodriguez, Jose L. or Luis Rodriguez, and Jose Luis Rodriguez-Aguilar in documents submitted to the court. The employee’s signature appears as Jose Luis Rodriguez A.
 Formerly Swift & Company d/b/a Swift Pork Company in Worthington, Minnesota.