RUSSELL M. O'NEIL, Employee, v. NELSON ROOFING, INC., and CNA INS. CO., Employer-Insurer/Appellants, and THE DULUTH CLINIC, LTD., Intervenor.

 

WORKERS' COMPENSATION COURT OF APPEALS

JUNE 19, 2000

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - SURGERY.  Substantial evidence, including medical records, lay testimony, and expert medical opinion supported the compensation judge=s finding that the employee=s anterior fusion surgery was reasonable and necessary.

 

MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS; RULES CONSTRUED - MINN. R. 5221.6500, SUBP. 2.C.  Minn. R. 5221.6500, subp. 2.C.(2), which provides that lumbar arthrodesis is contraindicated as the first primary surgical procedure for a new, acute lumbosacral disc herniation under certain circumstances, applies, in contradistinction to subpart 2.C.(1), to cases involving arthrodesis performed shortly after the onset of a new and acute herniation, thus distinguished from those cases in which initial conservative treatment has failed to ameliorate an employee=s incapacitating pain for at least three months.

 

Affirmed.

 

Determined by Johnson, J., Wilson, J., and Wheeler, C.J.

Compensation Judge:  Donald C. Erickson

 

 

OPINION

 

STEVEN D. WHEELER, Judge

 

The employer and insurer appeal from an award of reasonable and necessary medical expenses for the employee=s fusion surgery, and from an award of attorneys= fees to the employee=s attorney.   We affirm.

 

BACKGROUND

 

The employee, Russell O=Neil, sustained an admitted injury to the low back on August 6, 1997 as he was assisting in the lifting of a 1500-pound hoist while working as a roofer for the employer, Nelson Roofing.  (10/26/98 F & O: Findings 2, 4.)

 

The employee was seen the same day by Dr. Robert Chalgren for his severe low back pain.  Dr. Chalgren reported finding muscle spasm and positive straight leg raising.  The employee was referred to a chiropractor, Dr. Abel, who treated him through September 3, 1997.  (10/26/98 F & O: Findings 5, 6.)

 

On September 12, 1997 the employee was seen by Dr. Basil LeBlanc at the St. Cloud Medical Group.  The employee had complaints of persistent groin and buttocks pain.  Dr. LeBlanc recommended an MRI, cessation of chiropractic care, and an aggressive program of physical therapy.  He released the employee to work with a 20-pound lifting restriction.  (10/26/98 F & O: Finding 7.)

 

The employee tried a return to light duty work but was unable to continue due to pain.  On October 2, 1997 he was seen by Dr. Lynn Quenemoen at the Duluth Clinic.  He complained of constant right-sided low back pain aggravated by sitting, bending or twisting.  On examination, the employee=s lumbar range of motion was significantly limited and straight leg raising was positive on the right at 20 degrees.  Significant spasm was present in the right lower paraspinals.  Dr. Quenemoen diagnosed right-sided low back and pelvic pain with a possible disc injury.  An MRI and physical therapy was ordered.  The MRI showed degenerative disc disease at several levels and a disc bulge at the L4-5 level.  (10/26/98 F & O: Findings 8, 9; Exh. B: 4/24/98 at 2.)

 

The employee began treating with Dr. John E. Downs on November 20, 1997.  Dr.  Downs recommended continued physical therapy and bilateral SI joint injections.  SI joint injections were performed at both the right and left side but the employee stated that these improved his symptoms by less than 10 percent for only a few hours.  When seen by Dr. Downs on January 5, 1997, the employee was complaining of significantly worse right groin pain.  He had decreased strength with dorsiflexion of the ankle and with dorsiflexion of the great toe.  Hip adduction and internal rotation caused an increase in buttocks pain.  Dr. Downs opined that the employee=s annular tear at L4-5 had progressed, and he referred the employee to Dr. Scott Dulebohn, a neurosurgeon, who saw the employee the next day.  Dr. Dulebohn ordered a repeat MRI, which was essentially unchanged, and referred the employee to a general surgeon to rule out a hernia.  (10/26/98 F & O: Findings 11-12; Exh. B: 4/24/98 at 2.)

 

The employee underwent examination by Dr. David Boxall, an orthopaedic surgeon, on April 23, 1998 on behalf of the employer and insurer.  Dr. Boxall found some spasm in the employee=s low back muscles, as well as reduced range of motion on flexion, extension and side bending.  Straight leg raising was positive on the right in both seated and supine positions.  However,  Dr. Boxall also noted evidence of symptom magnification and functional overlay manifested by discrepancies in the employee=s examination findings and complaints.  Dr. Boxall opined that the employee had sustained a temporary aggravation of a pre-existing degenerative disc disease condition in August 1997 which had since resolved without permanent disability.  He considered the employee to have reached maximum medical improvement and to be in need of no further treatment or work restrictions.  (Exh. B: 4/24/98.)

 

On May 20, 1998 the employee was seen by Dr. Downs who found right leg weakness which affected dorsiflexion of the great toe and ankle and extension of the knee.  Dr. Downs ordered discography accompanied with an enhanced CT scan to attempt to clarify the source of the employee=s pain, which was felt to be atypical.  However, the employee was unable to afford the discography at that time.  (10/26/98 F & O: Findings 15, 17.) 

 

The employee was seen by Dr. Stephen Marchuk, a general surgeon, on May 28, 1998.  Dr. Marchuk found that the employee did not have an inguinal hernia.  In his opinion, the employee=s groin pain was due to changing his walking mechanics to compensate for his low back pain.  (10/26/98 F & O: Finding 16.)

 

On a date not apparent in the judgment roll the employer and insurer filed a notice of intent to discontinue benefits, alleging that the employee had reached maximum medical improvement (AMMI@) without any residual disability from the 1997 injury.  The discontinuance issue was heard by a settlement judge at the Department of Labor and Industry on June 11, 1998.  On June 18, 1998 the settlement judge served and filed an Order on Discontinuance denying the proposed discontinuance and finding that the employee continued to experience residual disability from the injury.  The settlement judge did not make any findings concerning whether the employee had reached MMI.  These issues were heard by a compensation judge of the Office of Administrative Hearings on September 9, 1998.  Following the hearing the judge determined that the employee remained unable to work without restrictions, and had not yet reached MMI Aat least, until he has had the diagnostic discography and enhanced CT scan as recommended by Dr. Downs and Dulebohn.@  (Judgment Roll; 10/26/98 F & O: Findings 18, 20.)

 

The employee=s attorney was granted a one-time award of attorney fees totaling $513.00 for representation of the employee at the administrative hearing on discontinuance and was granted an additional one-time award of $738.00 in attorney fees following the hearing at the Office of Administrative Hearings.  (Judgment Roll: 3/5/98 Order Determining Attorney Fees; 2/9/99 Order Awarding Attorney Fees.)

 

The employee underwent the discography on November 25, 1998.  Dr. Robert E. McGeachie, who performed the discography, recorded the following findings:

 

Pain reproduction of low back pain and posterior leg pain to above the knee that appeared to partially simulate the patient=s pain and was rated severe in nature was obtained at L4-5.  This shows central radial posterior tear and mild bulge or prolapse similar to that seen on MRI.  L3-4 shows diffuse bulging and degeneration with considerably lesser pain response.  L5-S1 is essentially normal radiographically with much lesser pain response.

 

(Exh. 4)

 

In a letter from Dr. Dulebohn to Dr. Chalgren on December 29, 1998, Dr. Dulebohn discussed his recommendations based upon the results of the discography:

 

In my opinion, the patient has primarily L4-5 pathology, based on his diskogram and the fact that he states that the pain there was so much worse with the injection than at any other level.  He does have some annular tear and so forth at the L3-4 level.  This is a much more complex level to operate on, and the pain was not as significant there.  At L5-S1, the pain was present but only a 6 out of 10 with baseline 4 out of 10 pain.  So, his pain scale based on his report to Dr. McGeachie would be 10+ at L4-5, 8 at L3-4, and 6 and L5-S1

 

I therefore feel it would be reasonable to consider an anterior lumbar interbody fusion for him at the L4-5 level.  I may want to review the films, and if we think we can get work done at L3-4 without significant problem, we would consider doing that.  At this time, I think if his goal is to have a 50 percent reduction in his pain, I do believe we may be able to help him with that.  As you know, with pain now for almost two years, I really am not confident that we will be able to help him with all his difficulties.

 

(Exh. 4: 12/29/98.)

 

The employer and insurer sent the employee back to Dr. Boxall for another examination in light of the proposed surgery.  Dr. Boxall saw the employee on March 16, 1999.  Dr. Boxall diagnosed a small disc protrusion at L4-5 and continued evidence of symptom magnification and functional overlay.  He was of the opinion that the 1997 work injury was not a factor in the employee=s ongoing back pain, which he considered to be wholly functional in origin.  Dr. Boxall considered the discogram results discrepant due to the employee reporting pain at each level injected.  He continued to opine that the employee had previously reached MMI and required no further medical treatment or work restrictions.  He disagreed with the recommendation for surgery.  (Exh. B: 3/16/99.)

 

On March 1, 1999 and again on March 23, 1999 the employer and insurer notified Dr. Dulebohn that they would object to the proposed surgery as not reasonable, necessary or appropriate.  The employee filed a medical request on April 12, 1999 seeking approval for the surgery, and the employer and insurer filed a medical response refusing to pay for the treatment on April 19, 1999.  On June 28, 1999 the insurer again advised the employee that it would not approve the surgery, which had now been scheduled for July 1, 1999.  (Findings 8, 9 [unappealed.]; Exh C.)

 

The employee underwent an anterior complex L4-5 diskectomy with L4-5 anterior athrodesis on July 1, 1999.  Due to the location of the iliac vein and vena cava, Dr. Dulebohn was not able to also operate on the L3-4 spinal level.  During the surgery at L4-5, the posterior longitudinal ligament was noted to have been disrupted, and a loose  piece of disk material was removed from beneath it.  The level was too loose for placement of a 13 mm BAK cage, and 15 mm cages were instead used.  (Exh. 2: 7/1/99 operative report.)

 

On July 13, 1999 a hearing was held before a compensation judge of the Office of Administrative Hearings on the employee=s medical request.  The employer and insurer took the position that the surgery had not been reasonable or necessary treatment, and that the surgery was contrary to the workers= compensation medical treatment parameters.  Following the hearing, the compensation judge found that the surgery was reasonable and necessary treatment and that it was appropriate under the applicable treatment parameters.  The compensation judge ordered the employer and insurer to pay for the costs of the surgical treatment, and further awarded attorney fees to the employee=s attorney, to be based upon the 25/20 contingency fee formula applied to the value of the contested medical services.  The employer and insurer appeal.

 

STANDARD OF REVIEW

 

On appeal, this court must determine whether the compensation judge's findings and order are "clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1(3) (1992).  Substantial evidence supports the findings if, in the context of the record as a whole, 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).  Where the evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, "[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed."  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Factfindings may not be disturbed, even though this 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."  Id.

 

Question of Law

 

The issues on appeal in this matter also involve the interpretation and application of case law to undisputed facts.  While this court may not disturb a compensation judge's findings of fact unless clearly erroneous and unsupported by substantial evidence in the record as a whole, Minn Stat. ' 176.421, subd. 1(3) (1992), a decision which rests upon the application of the law to undisputed facts involves a question of law which this court may consider de novo.

 

DECISION

 

Reasonableness and Necessity of Surgery

 

The compensation judge accepted the opinion of Dr. Dulebohn, the employee=s treating physician, over that of Dr. Boxall, the employer and insurer=s expert medical examiner, on the issue of whether the employee=s surgery was reasonable and necessary treatment.  Generally, this court will affirm a finding which rests upon the compensation judge=s choice between the conflicting opinions of medical expert witnesses unless the opinion relied upon was without adequate foundation.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). 

 

The employer and insurer primarily argue that the opinion of Dr. Boxall should have been preferred to that of Dr. Dulebohn on the basis that the employee reported at least some worsening of his pain at each of three levels injected in discographic testing.  They claim that this fact, in addition to various prior examination findings showing some inconsistency in the employee=s symptoms and radiologic findings, renders Dr. Dulebohn=s reliance on the discographic findings unreliable.  However, this argument does not go to the foundation for Dr. Dulebohn=s opinions, but to a difference in medical judgment in the interpretation of the discography and the employee=s medical history.  Dr. Dulebohn was clearly aware of the details of the employee=s discography results and the evidence reveals he was also aware of some inconsistencies in the employee=s reported symptomology.  However, in Dr. Dulebohn=s medical judgment, the discography and medical history supported the surgical recommendation.  Thus, the issue was entirely one of a difference in expert medical opinion, and we affirm the compensation judge=s determination based on his choice between the divergent opinions.

 

Treatment Parameters

 

In Finding 11, the compensation judge found that the employee=s surgery was allowed pursuant to Minn. R. 5221.6500, subp. 2.C(1)(d)(i), which the judge concluded was the treatment parameter applicable to the employee=s low back condition.  Rule 5221.6500, subp. 2.C(1) deals with indications for lumbar arthrodesis surgery, and subpart (d)(i) of that rule provides that such surgery is indicated in the case of:

 

(d) incapacitating low back pain . . . for longer than three months, and one of the following conditions involving lumbar segments L-3 and below is present:

 

i. for the first surgery only, degenerative disc disease . . . with postoperative documentation of instability created or found at the time of surgery, or positive discogram at two levels.

 

We note that substantial evidence in the record supports the judge=s implicit findings that the employee had experienced incapacitating low back pain for longer than three months, that the employee had degenerative disc disease, and that instability was found at the time of surgery, or in the alternative that the employee=s discogram was positive at two levels. 

 

The employer and insurer, however, argue on appeal that the applicable treatment parameter is that contained in Minn. R. 5221.6500, subp. 2.C(2), which provides that lumbar arthrodesis is contraindicated Aas the first primary surgical procedure for a new, acute lumbosacral disc herniation with unilateral radiating leg pain in a radicular pattern with or without neurological deficit.@  They further argue that if this is the applicable treatment parameter, it was error for the judge to award reimbursement for the expenses of the surgery without a showing by the employee of a basis for a departure from the parameters.

 

We, however, agree with the compensation judge and conclude that this part of the rule, in contradistinction to subpart 2.C(1), applies only to cases involving arthrodesis performed shortly after the onset of a new and acute herniation, thus distinguished from those cases in which initial conservative treatment has failed to ameliorate an employee=s incapacitating pain for at least three months.  Since we conclude that the treatment rendered was consistent with the parameters, no findings as to a possible departure from the parameters were required.

 

Notice Arguments

 

The employer and insurer raised two notice arguments in their brief.  Specifically, they argue that the employee failed to comply with Minn.R. 5221.6050, subp. 9, which requires that a health care provider notify the insurer either orally or in writing of proposed non-emergency surgical treatment at least seven days before initiating the treatment.  The employer and insurer contend that Athere is no evidence that the Employer and Insurer received any advanced notification from the medical provider of the scheduled surgical procedure with the exception of a telephone call on June 30, 1999, only two days before the scheduled surgery.@  They contend that reimbursement should accordingly have been denied.

 

We reject this argument as a misstatement of both the facts and the substance of the rule.  The employer and insurer do not deny that they received prior notification from Dr. Dulebohn of his surgical recommendation certainly well before March 23, 1997 when they wrote to the doctor to inform him that they were denying the procedure.  Rather, their argument appears to be that they should have been given further specific notice of the date of the proposed surgery again once it was scheduled, and that this additional notice was not provided more than seven days prior to the date of the surgery on July 1, 1999.  We note that the same rule cited by the employer and insurer permits an employee to proceed with the proposed treatment where it has been denied by the insurer, subject to a later determination of compensability by the commissioner or a compensation judge.  We further note that nothing in the language of the rule suggests that an additional notice must be given if this option is followed.  

 

The employer and insurer further argue that the employee failed to comply with Minn. R. 5221.6050, subp. 7.C, which provides, in part, that upon filing a medical request with the Department of Labor and Industry after denial of authorization or payment by the insurer, the employee Amust describe or attach a copy of the notification [i.e., pursuant to rule 5221.6050, subp. 9, already discussed], and any response by the insurer, to the medical request filed with the department.@  As the employer and insurer have indicated, there is no description or copy of the notification by Dr. Dulebohn in the attachments to the  employee=s medical request, although the employee did attach copies of the insurer=s letters of denial dated March 1, 1993 and March 23, 1993  (Judgment Roll).  However, we see in this no basis for a reversal of the award of reimbursement for the costs of the surgery.  Any technical defect in the medical request was clearly not prejudicial to the employer and insurer.   

 

Attorney Fees

 

The compensation judge ordered that the employee=s attorney Ais entitled to attorney fees based on the 25/20 formula applied to the value, pursuant to the medical fee guidelines, of contested medical services recovered hereunder for the employee.@  (Order 2.)  In their brief on appeal, the employer and insurer argued that any fee award would be premature without the employee=s attorney having first filed a statement of attorney fees, and without a determination of (1) whether the fee awarded would, if added to prior fees awarded to the employee=s attorney, exceed the statutory amount of $13,000 per case set forth in Minn. Stat. '176.081, and (2) if so, whether fees in excess of that amount were necessary to adequately compensate the attorney=s efforts.^[1]

 

At oral argument, the employee=s attorney pointed out that, consistent with actual practice, he understood that any fee award would not be effective until after he had filed his statement of attorney fees and the employer and insurer had been given the opportunity to respond.  He noted that the compensation judge=s jurisdiction over the fee issue was suspended during the pendency of the current appeal to this court, and indicated that he intended to file a fee statement upon a favorable resolution of the appeal.  The employer and insurer conceded that if the award of reimbursement for medical expenses of the employee=s surgery is upheld, the judge=s award of contingent attorney fees to the employee=s attorney is generally appropriate.  They expressed willingness to withdraw their appeal from the order awarding fees, on the understanding that the employee=s attorney will file an attorney fee statement and that any potential issues regarding the amount of fees already paid or entitlement to excess fees will be considered by the compensation judge at that time.