JACQUELINE C. FRIES, Employee, v. INDEPENDENT SCH. DIST. #47 - SAUK RAPIDS, SELF-INSURED/RIVERPORT INS. CO., Employer/Appellant.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 17, 2013
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. The judge properly considered factors relevant to the issue of the reasonableness and necessity of fusion surgery proposed by the employee’s treating orthopedic surgeon, and substantial evidence supports the compensation judge’s finding that the proposed decompression and fusion from T11 to L4 was reasonable and necessary.
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including medical expert testimony, supported the compensation judge’s determination that the proposed surgery was causally related to the employee’s April 25, 2002, work-related low back injury.
Determined by: Milun, C.J. Wilson, J. and Hall, J.
Compensation Judge: Paul V. Rieke
Attorneys: Lorrie L. Bescheinen, Fishman, Carp, Bescheinen, Bolter & Van Berkom, Minneapolis, MN, for the Respondent. Michael J. Koshmrl and Pamela B. Dodds, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Appellant.
PATRICIA J. MILUN, Chief Judge
The self-insured employer appeals the compensation judge’s award granting the employee’s request for approval of a decompression and fusion surgery. We affirm.
Jacqueline Fries, the employee, sustained an admitted low back injury arising out of her employment with Independent School District #47 - Sauk Rapids, the self-insured employer, on April 25, 2002. On May 7, 2002, the employee was seen at St. Cloud Orthopedic Associates reporting right-sided low back pain and pain radiating down the right leg. X-rays showed scoliosis with a 20 degree curve to the right from T12 to L4 and sacralization of the L5-S1 vertebral segment. An MRI scan, taken the same day, showed a disc herniation at L4-5 with probable right L5 nerve impingement. Conservative treatment did not improve her symptoms, and on May 20, 2002, the employee underwent an L4-5 hemilaminectomy and discectomy. The employee initially experienced some relief of her symptoms, although she continued to have some aching pain in the right leg and occasional left leg pain.
In July 2002, the employee’s right leg pain increased substantially. A repeat MRI scan on July 25, 2002, showed a recurrent disc herniation at L4-5. Additional conservative treatment did not provide relief, and the employee underwent a second L4-5 hemilaminectomy and discectomy on October 2, 2002. The employee did not obtain significant improvement with this surgery, and continued to experience low back pain with right leg pain and numbness.
The employee sought a second opinion from Dr. Timothy Garvey, an orthopedic surgeon, in February 2003. The employee described predominantly low back pain along with lower extremity pain and numbness, right greater than left. Dr. Garvey diagnosed lumbar post laminectomy syndrome with advanced spondylosis at L4-5, and recommended a revision decompression and fusion from L4 to S1 with a laminectomy and foraminotomy at L4-L5. Dr. Garvey performed the surgery on May 21, 2003. The employee did not improve following the surgery, and over the next several months reported things were getting worse. In an attempt to improve the situation, Dr. Garvey, in April 2004, removed segmental hardware, but the employee’s low back pain and bilateral leg pain and numbness did not improve. In October and November 2004, the employee participated in a chronic pain program at Sister Kenney Institute, and was weaned off narcotic pain medication.
The employee returned to Dr. Garvey on March 3, 2005. She described persistent pain, predominantly low back, with leg pain and numbness. Radiographic imaging obtained on March 11, 2005, showed moderate to advanced degeneration at L1-2, no remnant neurologic compression at L4-5 and L5-S1, and lateral listhesis of L3 on L4. Surgery was discussed in April 2005, and Dr. Garvey stated that with the employee’s scoliosis and L1-2 degeneration, the only realistic surgery would be a multi-level fusion from at least T10-L4. Dr. Garvey viewed such surgery as a procedure of last resort and it was not recommended at that time. Dr. Garvey advised the employee to continue her conditioning exercises, use Ultracet, heat and ice as needed, and restrict aggravating physical activities.
The employee was seen next by Dr. Garvey in January and February 2006. She continued to have primarily low back pain with persistent aching and numbness into the legs. Radiographic imaging showed progression of the employee’s scoliosis with a 28 degree curvature from T12 to L4, and a lateral listhesis of 14 millimeters at L3 on L4 to the right. Treatment options were again discussed, including use of a TLSO brace, conditioning exercises, and use of non-narcotic pain medications. The employee was encouraged to stay with non-operative strategies. The employee was seen once more by Dr. Garvey in May 2006. The doctor diagnosed lumbar stenosis and made no change in the employee’s treatment regime.
On April 9, 2009, the employee returned to see Dr. Garvey stating she felt things were markedly worse, including problems breathing and more problems walking. An MRI scan on May 13, 2009, showed significant left-sided foraminal stenosis at L3-4 with lateral listhesis at L3-L4, and moderate spondylosis with anterior collapse at L1-2. The employee returned on October 8, 2009, reporting she was not doing well with pain throughout her lower back and into her legs. Dr. Garvey felt her symptoms were consistent with lumbar spinal stenosis with lateral listhesis at L3-4, and again discussed surgical management with the employee. The employee requested pain medication and a prescription for Norco was provided. The employee testified at the hearing that she was not ready to have surgery at that point and she did not seek additional medical treatment from Dr. Garvey for over a year. The employee continued to be seen at her family clinic in St. Cloud, using medications to treat her chronic pain.
The employee returned to Dr. Garvey on October 28, 2010, and January 24, 2011, again reporting predominantly back pain with buttocks and leg pain right greater than left. She stated she was ready to proceed with surgery. Dr. Garvey recommended an L3-4 decompression and fusion, stating, however, that since this was the apex of her scoliotic curve, he would not recommend stopping the arthrodesis at that level, but continue up to approximately T12. Dr. Garvey opined the employee had progressive degenerative stenosis at L3-4 that was directly related to the work injury as the level adjacent to the L4-S1 fusion, and stated further that if the L3-4 fusion were added without more, there would be a very high chance of rapid decompression and progression of the scoliotic curve.
The employee was seen by Dr. Rick Davis on December 14, 2011, at the request of the employer and insurer. Dr. Davis diagnosed work-related adjacent segment degeneration and lateral listhesis at L3-4, low back pain and bilateral leg pain, and non-work-related thoracolumbar scoliosis. The doctor stated the proposed fusion surgery from approximately T11 or T12 to L4 and decompression appeared to be a reasonable surgical strategy given the junctional degeneration at L3-4 and the employee’s scoliosis. However, Dr. Davis did not believe that surgical intervention would have a significant impact on the employee’s pain and functional level. The doctor noted the employee consistently reported back and leg pain with no improvement despite multiple surgeries over time, and he did not believe the employee’s reported symptoms were consistent with the radiographic findings.
In his deposition, Dr. Garvey maintained the proposed surgery is reasonable and necessary to cure and relieve the effects of the employee’s work-related injury. The doctor noted the employee had attempted long-standing, non-operative management that did not relieve her symptoms. Dr. Garvey stated the employee now has marked lateral listhesis at L3-4, with a quarter to a third dislocation, which he opined directly relates back to the original fusion due to stress on the vertebral segment adjacent to the fusion. Dr. Garvey further opined the work injury aggravated or accelerated the employee’s scoliosis from L4 to T12. The doctor testified the employee is a good candidate for surgery, stating the employee’s symptoms are consistent with pseudoclaudication, and that given her stenosis, progressive lateral listhesis, and increasing scoliosis, her condition is anatomically appropriate for such surgery. Dr. Garvey testified there is a fair chance that, with the surgery, the employee will have a substantial decrease of her back and leg pain, with increased standing and walking tolerance, though not completely resolved.
Independent medical examiner, Dr. Rick Davis, agreed in his deposition that the employee had radiographic adjacent segment degeneration and lateral listhesis at L3-4, but opined it was more likely the employee’s scoliosis accounted for the L3-4 changes, not the prior L4-S1 fusion. He disagreed the employee’s work injury or surgeries aggravated or accelerated the employee’s scoliosis, relating the curve change to the natural progression of scoliosis. Dr. Davis again stated he did not believe the proposed surgery at L3-4 would alleviate the employee’s complaints with respect to her back or right leg pain. The doctor opined the employee is not a good surgical candidate, pointing out that the employee has had two decompression surgeries, a fusion, and a hardware removal without any real improvement in her symptoms or complaints. He opined the employee’s symptoms don’t correlate with her radiographic findings and the proposed surgery. Dr. Davis did agree that if the fusion were extended to include the L3-4 level alone, the fusion has the potential, over time, to increase or accelerate the scoliotic curve in her low back.
A hearing was held on June 27, 2012, on the employee’s request for approval of the proposed surgery. The compensation judge found the degeneration of the employee’s spine at L3-4 was significantly caused by the employee’s work injury and previous surgeries; that due to the risk of scoliotic curvature progression, it would be reasonable and necessary to proceed with the recommended T11-L4 fusion, and that such surgery is related to the work injury; and that the proposed surgery is reasonable and necessary to cure and relieve from the effects of the employee’s work injury. The self-insured employer appeals.
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.”
1. Reasonableness and necessity
Citing Torgerson v. ELO Engineering, the self-insured employer contends the compensation judge committed an error of law in failing to address certain specific factors in determining whether the surgery recommended by Dr. Garvey is reasonable and necessary to cure and relieve the effects of the employee’s low back condition. We are not persuaded.
First, Torgerson involved an affirmance, based on substantial evidence, of a compensation judge’s finding that a fusion surgery was not reasonable and necessary where the judge concluded the treating surgeon had performed the surgery without adequate consideration of the employee’s past treatment history, diagnostic test results, consideration of treatment alternatives, or an evaluation of the employee’s emotional and psychological fitness for surgery. As such, Torgerson has little precedential value.
In Torgerson, this court cited Field-Seifert v. Goodhue County[11 ] which lists factors that a compensation judge may take into consideration in determining whether medical services are reasonable and necessary. Appropriate factors vary from case to case depending upon the unique circumstances of each situation. The significance of the Field-Seifert factors and the weight to be given the factors is a question of fact for the compensation judge. While the compensation judge did not specifically enumerate the Field-Seifert factors, in his findings and memorandum the judge addressed the employee’s past treatment history, diagnostic test results, consideration of treatment alternatives, and the likelihood of a successful result. The judge concluded:
[T]he clear degeneration of the L3-4 spinal level with stenosis, the aggravation of the employee’s stenosis condition, the radiographic findings demonstrating the progression of the spinal degeneration, the location in the spine of the stenosis, the conservative and thoughtful deliberation concerning the appropriateness of the surgery over an extended period of time, and the worsening of the employee’s condition provide the support for the Court’s conclusion.
Ultimately, the resolution of this case depends on the compensation judge’s choice between conflicting medical expert opinions. The compensation judge specifically accepted the opinions of Dr. Garvey in finding the proposed decompression and fusion surgery reasonable and necessary to treat the employee’s work-related injury. Dr. Garvey believed the proposed surgery would likely decrease the employee’s back and leg pain and improve her functional abilities. Dr. Davis disagreed. It is the compensation judge’s responsibility, as the trier of fact, to resolve conflicts in expert testimony. Where there is adequate foundation for the expert’s opinion, the findings of the compensation judge are to be upheld. We find no legal or factual basis to reject Dr. Garvey’s opinions. We, accordingly, affirm.
The self-insured employer contends that substantial evidence does not support the compensation judge’s finding that the proposed surgery is causally related to the employee’s April 25, 2002, work injury. The appellant argues, relying on the opinion of Dr. Davis, that the employee’s low back and leg symptoms attributable to the 2002 work injury relate solely to the L4-5 and L5-S1 disc levels, and that the degenerative changes at L3-4 and the levels above are due to the employee’s pre-existing, non-work-related scoliosis.
There is no dispute the employee has had scoliosis since her teenage years. Nor is there any dispute that the employee’s initial symptoms and treatment following the work injury were at the L4-5 and L5-S1 levels. Following the fusion from L4 to S1 performed by Dr. Garvey in March 2003, the employee did not significantly improve, and complained of persistent predominantly low back pain along with bilateral pain and numbness into the legs, right greater than left. Dr. Garvey concluded the employee’s post fusion symptoms were consistent with lumbar stenosis, lateral listhesis at L3 on L4, and spondylosis at L4-5 and L5-S1, with pseudoclaudication pain and symptoms, and that this condition was directly related to the employee’s work injury and subsequent surgeries. He further concluded that the instability and degeneration in the employee’s lower lumbar spine accelerated or aggravated the employee’s pre-existing scoliosis.
Dr. Davis disagreed, concluding the lateral listhesis and degenerative changes at L3-4 were instead related to the progression of the employee’s thoracolumbar scoliosis, and that the percentage of change in the employee’s scoliosis was not significant and was related to the normal, non-work-related progression of the employee’s scoliotic condition.
Again, the matter comes down to a choice between the conflicting opinions of medical expert witnesses. The employer asserts that Dr. Garvey failed to provide any basis for his opinion that the work injury aggravated the employee’s scoliosis; however, an expert medical opinion does not lack foundation because the doctor fails to explain the mechanism of injury or the underlying reasons for the opinion. There is no contention that Dr. Garvey lacked foundation for his opinions. In such a circumstance, this court must uphold the compensation judge’s choice between medical experts. We, therefore, affirm the compensation judge’s award granting approval for the fusion surgery proposed by Dr. Garvey.
 Spondylosis refers to degenerative changes in the spine due to osteoarthritis. Dorland’s Illustrated Medical Dictionary 1684 (29th ed. 2000).
 Lateral listhesis refers to the collapse and sideways slip of one vertebra over another. (Employee’s Ex. D, Deposition of Dr. Timothy A. Garvey, pp. 9-10, discussing the condition.)
 Spinal stenosis is the narrowing of the spinal vertebral canal, nerve root canals, or intervertebral foramina of the lumbar spine caused by encroachment of bone upon the space due to spinal degeneration. Dorland’s at 1698.
 Norco consists of acetaminophen and hydrocodone and is used to relieve moderate to severe pain.
 Pseudoclaudication, also referred to as neurogenic claudication, refers to a complex of symptoms characterized by pain and weakness in the back, buttocks, and legs when standing or walking, and relief of the symptoms with rest, due to mechanical degenerative changes. Dorland’s at 361.
 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).
 Torgerson v. ELO Eng’g, slip op. (W.C.C.A. Mar. 16, 1994).
 See McDonel v. Andersen Windows, slip op. (W.C.C.A. Mar. 21, 2003).
 Field-Seifert v. Goodhue County., slip op. (W.C.C.A. Mar. 5, 1990). Field-Seifert involved a denial of payment for chiropractic care. Relevant considerations in determining whether such care was reasonable and necessary included (1) evidence of a reasonable treatment plan, (2) documentation of the details of the treatment, (3) the degree and duration of relief resulting from the treatment, (4) the frequency of treatment, (5) the relationship of the treatment to the goal of returning employee to suitable employment, (6) potential aggravation of underlying conditions, (7) the duration of the treatment, and (8) cost.
 Fuller v. Naegele/Shivers Trading, slip op. (W.C.C.A. Apr. 14, 1993).
 Memorandum at 4-5.
 See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
 Goss v. Ford Motor Co., 55 W.C.D. 316 (W.C.C.A. 1996).
 Nord, 360 N.W.2d at 342, 37 W.C.D. at 372.