RONALD W. ODASH, Employee/Appellant, v. PEPSI-COLA CO. and LUMBERMEN=S MUT. CASUALTY/KEMPER NAT=L INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 25, 2000

 

HEADNOTES

 

MEDICAL TREATEMENT & EXPENSE - REASONABLE & NECESSARY; MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the compensation judge=s findings that the proposed exploratory low back surgery was not reasonable and necessary and that the employee had reached maximum medical improvement. Since the finding that the employee had reached maximum medical improvement was affirmed, discontinuance of temporary total disability benefits was appropriate.

 

REHABILITATION - ELIGIBILITY.  Substantial evidence supports the compensation judge=s finding that the employee could not be expected to return to suitable gainful employment through rehabilitation services given his inability to work; therefore the employee is not a qualified employee for rehabilitation services at this time. 

 

Affirmed.

 

Determined by: Rykken, J., Wilson, J., and Johnson, J.

Compensation Judge: David S. Barnett

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The pro se employee appeals the compensation judge=s findings that exploratory low back surgery was not reasonable and necessary medical treatment, that the employee had reached maximum medical improvement and therefore that discontinuance of temporary total disability benefits was appropriate, that the employee was not a qualified employee for rehabilitation services, and the denial of a medical expense.  We affirm.

 

BACKGROUND

 

On January 30, 1997, Ronald W. Odash, pro se employee, sustained an admitted low back injury while working as a route delivery truck driver for Pepsi-Cola Company, employer, which was insured for workers= compensation liability by Lumbermen=s Mutual Casualty, insurer.  Born on July 16, 1968, the employee was 28 years old on the date of his injury. 

 

On the night following his injury, the employee was treated at an emergency room for low back symptoms.  On February 3, 1997, the employee=s wife called Dr. Paul Rud, who recommended ibuprofen and physical therapy, and told the employee to remain off work and to see him in two weeks.  On February 19, 1997, the employee consulted Dr. Rud, reporting increased back pain.  Dr. Rud noted paraspinous muscle spasm and limited back range of motion.  The employee returned to work in March 1997 after approximately six weeks of physical therapy.  At work, the employee continued to lift 25 pounds frequently, 30 to 40 pounds often, and 60 to 70 pounds occasionally.

 

The employer requested a different doctor, and the employee was seen by Dr. Eric Green in May 1997.  Dr. Green also ordered an MRI, conducted April 28, 1997, which was read by the radiologist as indicating broad based central disc protrusion/mild herniation at the L5-S1 level causing mild encroachment upon both lateral recesses/exiting S1 nerve roots greater on the left, and rightward disc protrusion at the L4-5 level.  Dr. Green diagnosed low back pain, bilateral lower extremity parathesis, neurological status intact, right paracentral L4-5 disc protrusion, and central, broad based disc herniation at L5-S1 with bilateral nerve root impingement.  Dr. Green discussed surgical and nonsurgical options with the employee, who chose a structured rehabilitation program and was referred to Dr. Thomas Balfanz. 

 

At his May 9, 1997, examination with Dr. Balfanz, the employee reported a burning sensation in his back, minor aching and pain extending down his legs into his feet, and numbness and tingling down the back of each leg down to the bottom of his feet.  The employee advised Dr. Balfanz that he had been told not to lift more than thirty pounds, and that he usually worked 30 to 40 hours per week, but sometimes up to 12 hours per day.  In July 1997, the employee was referred to Dr. Edward Hames, an neurosurgeon, by his QRC.  Dr. Hames read the employee=s April 1997 MRI to show mild desiccation at L4-5 and L5-S1, a central disc bulge at L5-S1 but nothing that seemed to compress the S1 or L5 roots, and an insignificant central disc bulge at L4-5.  Dr. Hames concluded that employee=s neurological examination appeared benign with nothing to suggest radiculopathy or to explain the tingling symptoms, and that he would be hesitant to suggest a surgical procedure.  Dr. Hames suggested that a demyelinating disease could be a possible source of the employee=s problem. 

 

Dr. Balfanz decided not to pursue rehabilitation past eight weeks, ending August 8, 1997, and recommended that the employee remain off work until he could see Dr. Green for another opinion regarding surgery and restrictions.  The employee did not return to work for the employer after August 8, 1997.  The employee returned to Dr. Green on August 6, 1997, and reported parathesis in his upper extremities as well as his lower extremities.  Dr. Green did not believe that disc pathology could be creating these symptoms.  Dr. Green also questioned whether other possible etiologies could be the cause. 

 

The employee was referred by his attorney to Dr. Richard Golden, who examined the employee on October 6, 1997, and ordered a second reading of the April 1997 MRI.  Dr. Anthony Cook interpreted the MRI to indicate mild posterior disc bulging at L4-5 with no evidence of nerve root impingement or stenosis; mild posterior central disc bulging at L5-S1 which was contiguous with the ventral aspect of the thecal sac and S1 nerves, and no evidence of stenosis; and stated that the findings were consistent with degenerative disc disease at L4-5 and L5-S1.  Dr. Golden also ordered a myelogram and a CT scan, which was read as indicating a diffusely bulging L4-5 disc, mild; mild bulging of the L5-S1 level disc with mild foraminal narrowing bilaterally; and mild posterior facet degeneration changes at the L5-S1 level.  As of October 23, 1997, Dr. Golden opined that the employee was not at maximum medical improvement (MMI), and in November 1997, he opined that the employee had lumbar degenerative disc disease, chronic pain, depression, and that perhaps surgery should be explored.

 

From January 3, 1998, through January 16, 1998, the employee was hospitalized at Abbott-Northwestern Hospital for chronic back pain.  The employee was admitted by Dr. Richard Salib for evaluation of possible disc herniation and possible surgery.  After two surgical consultations, by Dr. Salib and Dr. Thomas Bergman, he was determined not to be a surgical candidate and was transferred to neurology, undergoing multiple diagnostic tests to evaluate his back pain, including multiple MRI scans of his cervical, thoracic, and lumbar spines and of his head, EMGs, CMG-EMG, spinal fluid examination, a myelogram, a bone scan, and multiple laboratory studies.  The employee was also evaluated for pain management.  No definitive diagnosis was found other than chronic mechanical back pain.  The employee declined to participate in active physical therapy while at the hospital. 

 

On January 10, 1998, the employee was evaluated by Dr. E.L. Chua, a psychiatrist.  Dr. Chua=s impression was adjustment disorder with mixed emotions, no secondary gains issue, not chemically dependent, and high anxiety.  Dr. Chua recommended small doses of Lorazepam or Xanax, but did not suggest antidepressants.  Dr. Matthew Monsein evaluated the employee, and concluded that the employee=s diagnostic workup did not show any severe structural pathology and indicated that there was no frank disc herniation or nerve root compression and no upper motor neuron disease.  Dr. Monsein recommended a pain management approach.  On January 25, 1998, the employee began participation in the Sister Kenny Chronic Pain Program.  After one week, Dr. Monsein felt that the employee was not making any significant progress and discharged him from the program because while the employee was compliant, he had a difficult time accepting the concept of pain management since he believed he had a disc herniation and needed surgery.  Dr. Monsein believed that the employee=s pain experience was real, and that the employee was frustrated at the lack of a precise and specific diagnosis.  Dr. Monsein also opined that until the employee accepted the idea of not finding a definitive cause of his symptoms it would be impossible for him to benefit from a pain management approach. 

 

Dr. Monsein referred the employee to the Mayo Clinic.  The employee was evaluated at the Mayo Clinic from February 4 through February 11, 1998.  A Mayo Clinic neurology note states that the MRI of cervical, thoracic, and lumbar spines and a lumbar myelogram, which were brought by the employee=s family, were reviewed with a radiologist, and that no abnormalities were detected.  On discharge, a pain management program was recommended for the employee.  According to the discharge summary on February 11, 1998, the employee had not made a final decision on that recommendation.

 

On February 20, 1998, the employee was evaluated by Dr. Stephen Hanske at the Brainerd Medical Center.  At Dr. Hanske=s request, a radiologist reviewed the MRI films, which indicated mild central bulges at L4-5 and L5-S1 with no impingement of the spinal cord or nerves.  Dr. Hanske recommended low impact exercises to improve his muscle tone back to the point where he would be functional and able to return to work.  Dr. Hanske referred the employee to the Fairview-University Medical Center, where he was admitted from March 13 to March 25, 1998.  The employee indicated that he desired exploratory surgery which could possibly reveal more extensive damage than was apparent on the scans, and that he did not want to go through another chronic pain program.  A formal neurosurgical consultation was conducted, resulting in a diagnosis of chronic low back pain without evidence of myelopathy or brain lesion and hyperreflexia, and which concluded that there was no surgical indication for treatment of the mild disc bulge.

 

The employee requested a different physician at Fairview-University Medical Center.  On April 24, 1998, the employee consulted with Dr. John Zenk, a specialist in internal medicine.  The employee reported his January 30, 1997, work injury, and that he experienced worsening pain since that date, a burning sensation radiating down both legs and diffuse regions of numbness over the bilateral pretibial areas and posterior thighs, more prominent on the right than the left, trouble ambulating, and urinary retention.  Dr. Zenk referred the employee to Dr. Manuel Pinto at the Twin Cities Spine Center for surgical evaluation.  On April 28, 1998, the employee was examined by Dr. Gary Lamm on behalf of Dr. Pinto.  Dr. Pinto indicated that the employee's lumbar discs could be causing some of his pain, but that other symptoms could not be related to disc degeneration.  Dr. Pinto referred the employee to Dr. Paul Waytz, a rheumatologist, who opined that no inflammatory arthropathy was involved.  On receipt of this report, Dr. Pinto indicated that it was possible that a lumbar fusion could help some of the employee=s symptoms, but that he doubted that it would help all of his symptoms, and he therefore referred the employee for a neurological consult.  Dr. Pinto ordered a lumbar discogram which was conducted on May 4, 1998.  On May 12, 1998, the employee was evaluated by Dr. Bruce Synder, a neurologist, who saw no indication for lumbar spine surgery.  In June 1998, Dr. Pinto also recommended a psychiatric evaluation.  In a letter dated October 7, 1998, Dr. Pinto stated that he recommended the psychiatric evaluation and discography to address the low back complaints and to determine whether the employee was a reasonable surgical candidate from both a pathology standpoint and a psychological perspective.

 

At the employer and insurer's request, the employee was evaluated by Dr. Bruce Van Dyne, a neurologist, on June 9, 1998.  Dr. Van Dyne opined that there were two possible diagnoses for the employee, either a hysterical conversion process or conscious malingering, and that the employee had reached maximum medical improvement from his injury of January 30, 1997.

 

On August 6, 1998, and October 15, 1998, the employee was evaluated by Ronald Wutchiett, Ph.D., a psychologist.  Dr. Wutchiett only reviewed Dr. Pinto's records for the employee.  The employee indicated that he understood that this was a pre-surgical evaluation.  However, Dr. Wutchiett=s report to Dr. Pinto states that before meeting with the employee, Dr. Wutchiett was informed that the employee was no longer being considered for surgery and may treat elsewhere.  Dr. Wutchiett stated that the employee still chose to proceed with the psychological evaluation.

 

Dr. Pinto concluded that the employee was not a surgical candidate at this time.  On September 22, 1998, Dr. Pinto stated in a letter to the employee=s attorney:

 

Regarding your question #1, it is my opinion that the work injury of January 30, 1997, at this point in time is not a substantial contributor to this patient=s current disability.

 

* * *

 

According to Mr. Odash he has back pain, and that could certainly be related to the findings at the L4-5 and L5-S1 discs.  It is also possible that those findings and pain may be related to the work injury of January 30, 1997.  However, his symptoms go beyond pain in the low back.  He has other symptoms that I cannot explain based on the findings that he has.

 

* * *

 

Regarding your question #2, surgery has not been recommended to the patient.  The patient has been informed of that.  While he has evidence of symptomatic lumbar disc derangement (as demonstrated by discography), there are other factors which cloud the issue, and therefore, until those issues are cleared I would certainly not contemplate any surgical treatment for this patient.

 

Regarding your question #3, again the complexity of Mr. Odash=s status is such that I doubt very much that he would be able to return to gainful employment at this point in time.  My recommendation would be for him to undergo a good chronic pain program, i.e., Sister Kenny Pain Program or the Fairview Pain Program or the Pilling Pain Program.  Hopefully at the completion of one of those programs, he would be able to return to some form of gainful employment.  You have to remember that indeed he has some findings that are significant for spinal cord irritation.  Please refer to Dr. Bruce Snyder=s evaluation and opinions (neurologist).

 

In summary, at this point in time I believe Mr. Odash would be best assessed by a very comprehensive pain program and hopefully at the completion of that program he would be able to return to some form of gainful employment.

 

* * *

 

At this point in time I definitely do not have surgical treatment recommendations.  In the future, if his psychological issues are resolved and if he accepts the fact that he has symptoms and signs which are associated with spinal cord irritation which are permanent, if he still has significant low back pain, he could certainly be re-evaluated for low back complaints.

 

* * *

 

 . . . Again, I have never offered this patient surgery.  On the contrary, I told him that surgery is not recommended in this current status.  I reviewed my office notes, and no where in them is a mention that I have discussed surgical treatment with this patient.

 

(Employee=s Ex. B.)  Dr. Zenk continued to opine that the employee Adeserves the benefit of an exploratory surgery to help him correct his problem or some other definitive procedure to put an end to his suffering.@  (Resp. Ex. 16.)  Dr. Pinto testified in his deposition that he does not perform exploratory low back surgery.  Dr. Zenk has not referred the employee to any other surgeons.  Dr. Zenk also opined in October 1998 that the employee cannot work at his previous job or at any other job until his condition improves.

 

The employee previously sustained an injury to his low back, in 1994, while employed by the employer.  According to history provided to Dr. Bruce Van Dyne on June 9, 1998, the employee first injured his low back in 1994, when several cases of pop came down on top of him while he was bending down on his knees.  He reported feeling that he tore the muscles of his back extending from his neck down to his buttocks.  He treated with Dr. Rud, underwent physical therapy, and remained off work for approximately one month.  The employee testified that he returned to work after three weeks, and eventually was able to return to his regular job.  (Resp. Ex. 19; T. 104-107.)  The compensation judge noted this injury in Finding No. 35; no claim was raised that the previous injury represented a substantial contributing cause of the employee=s current condition.

 

On July 8, 1998, the employee filed a medical request claiming payment for medical expenses and requesting preauthorization for low back surgery.  On September 9, 1998, the employee filed a claim petition for medical expenses; and filed an amended claim petition on October 23, 1998, for 10% permanent partial disability, medical expenses, and the assistance of a QRC.  On October 9, 1998, the employer and insurer filed a notice of intention to discontinue workers= compensation benefits.  An administrative conference was held on November 4, 1998, and discontinuance was allowed by administrative decision served and filed November 17, 1998.  The employee filed an objection to discontinuance on November 25, 1998.  The employee=s medical request, claim petition and objection to discontinuance were consolidated for hearing which was held on December 29 and 30, 1998.  In unappealed findings, the compensation judge found that the employee had sustained a 10 percent permanent partial disability of the body as a whole, pursuant to Minn. R. 5223.0390, subp. 3.C.(2), and also awarded payment for certain medical expenses.  The compensation judge also found that the proposed exploratory low back surgery was not reasonable and necessary medical treatment, that the employee had reached MMI as of July 17, 1998, that certain medical expenses were not reasonable and necessary medical expenses, and that the employee was not a qualified employee for rehabilitation services.  The employee appeals.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1998).  Substantial evidence supports the findings if, in the context of the entire record, Athey 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 evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, A[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).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless 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.

 

DECISION

 

Maximum Medical Improvement

 

The employee appeals the compensation judge=s finding that the employee had reached maximum medical improvement (MMI) as of July 17, 1998.  Maximum medical improvement is defined as "the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability."  Minn. Stat. '176.011, subd. 25.  Maximum medical improvement "occurs upon medical proof that the employee's condition has stabilized and will likely show little further improvement."  Polski v. Consolidated Freightways, Inc., 39 W.C.D. 740, 742 (W.C.C.A. 1987).  Whether MMI has been reached is a question of ultimate fact for the compensation judge to decide.  Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 528-29, 41 W.C.D. 634, 639 (Minn. 1989).  The burden of proving MMI is normally on the employer and insurer.  Burns v. Firestone Tire & Rubber, slip op. (W.C.C.A. June 29, 1993). 

 

The employee argues that surgery is still an option for treatment of his injury and therefore that he is not at MMI.  The employer and insurer argue that the employee did not appeal the compensation judge=s finding that the employee=s proposed surgery was not reasonable and necessary, and therefore he may not base his arguments regarding MMI on his alleged need for surgery.  This court=s review is limited to Athe issues raised by the parties in the notice of appeal.@  Minn. Stat. ' 176.421, subd. 6; Ruether v. State, Mankato State Univ., 455 N.W.2d 475, 42 W.C.D. 1118 (Minn. 1990).  In this case, the employee did not appeal the compensation judge=s finding that the proposed surgery was not reasonable and necessary, only the finding that the employee had reached MMI. 

 

Generally, this court will look only to the notice of appeal to determine the extent and nature of the appeal.  We conclude that, while technically deficient, the appellant=s notice of appeal is adequate to raise the issue of the reasonableness and necessity of the employee=s proposed surgery as it relates to the issue of whether the employee is at maximum medical improvement.  Minn. R. Civ. App. P. 103.03 provides: A[A] notice of appeal is sufficient if it shows an intent to appeal and the order appealed from apprizes the parties of the issues to be litigated on appeal.  A notice of appeal is not insufficient due to clerical errors or defects which could not have been misleading.@  See Pischke v. Kellen, 384 N.W.2d 201 (Minn. App. 1986).  Therefore, we will consider the employee=s arguments regarding the reasonableness and necessity of the proposed surgery.  The employee=s brief also refers to medical treatment attempted after the hearing; we will only consider evidence that is part of the record on appeal. 

 

The employee has undergone numerous surgical consultations and evaluations which have led to many physicians= conclusions that the employee is not a surgical candidate.  After extensive testing at Abbott Northwestern Hospital over a two week period in January 1998, the employee was found not to be a surgical candidate.  After another round of evaluations at Mayo Clinic, surgery was not recommended.  Dr. Zenk at Fairview-University Medical Center recommended surgical evaluation by Dr. Pinto.  Dr. Pinto does not recommend surgery at this time. 

 

The employee refers to the initial recommendations for treatment of his injury which indicated that surgery could be an option.  At that time, surgery was not thoroughly evaluated since the employee initially chose conservative treatment.  The employee infers that he is being penalized by choosing not to undergo surgery initially.  However, there is no indication that surgery would have been recommended at that time had the option been evaluated immediately post-injury.  In addition, there were conflicting readings of the employee=s radiographic films, but the majority of the expert medical opinions indicated that the disc bulges evident on radiographic films were not impinging on the nerves.  Further, it is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).  Substantial evidence supports the compensation judge=s finding that the proposed surgery is not reasonable and necessary and that the employee has reached MMI as of July 17, 1998.^[1]  Accordingly, we affirm.

 

Temporary Total Disability

 

The employee also appeals the compensation judge's discontinuance of temporary total disability benefits.  Temporary total disability benefits cease ninety days after service of maximum medical improvement.  Minn. Stat. ' 176.101, subd. 1(j).  Since we have affirmed the compensation judge's finding that the employee reached MMI as of July 17, 1998, we affirm the discontinuance of temporary total disability benefits as of October 15, 1998.

 

Rehabilitation Services

 

The employee appeals the compensation judge=s denial of rehabilitation services.  An employee must be qualified to be eligible for rehabilitation services.  Minn. R. 5220.0130, subp. 1.  A qualified employee is defined by Minn. R. 5220.0100, subp. 22 as:

 

an employee who, because of the effects of a work-related injury or disease, whether or not combined with the effects of a prior injury or disability: 

A.      is permanently precluded or is likely to be permanently precluded from engaging in the employee=s usual and customary occupation or from engaging in the job the employee held at the time of the injury;

B.       cannot reasonably be expected to return to suitable gainful employment with the date-of-injury employer; and

C.      can reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services, considering the treating physician=s opinion of the employee=s work ability.

 

The employee testified that Dr. Balfanz restricted him from work after August 8, 1997, and that no doctor has since released him to return to work.  (T. 137-138.)  A representative of the employer, Thomas Perpich, testified at deposition that the employer continues to have work available for the employee, and that he would Ahave no objection to [the employee] working light-duty,@ and that the employee=s job has been kept open for him.  (Resp. Ex. 23, Perpich depo., p. 26, 33.)  However, in Finding No. 78, the compensation judge found that the employee is permanently precluded or is likely to be permanently precluded from engaging in his usual and customary occupation or from engaging in the job he held at the time of his injury.

 

The compensation judge found that the employee satisfied the first two factors necessary to qualify for rehabilitation assistance: that he is permanently precluded or is likely to be permanently precluded from engaging in his usual and customary occupation or from engaging in the job he held at the time of injury, and that the employee cannot be reasonably expected to return to suitable gainful employment with the employer.  The compensation judge, however, found that there was an insufficient basis to conclude that the employee could reasonably be expected to return to suitable gainful employment through rehabilitation services considering the treating physician=s opinion of the employee=s work ability.  Therefore, the compensation judge concluded that the employee was not a qualified employee for rehabilitation services.  Dr. Zenk opined in October 1998 that the employee cannot work at his previous job or at any other job until his condition improves.  The compensation judge could reasonably conclude that rehabilitation services would not return the employee to suitable gainful employment given his condition at that time.  Substantial evidence supports the compensation judge=s finding that as of the date of hearing, the employee was not a qualified employee for rehabilitation services, and we therefore affirm.  The employee may make another claim for rehabilitation services in the future.

 

Other Issues

 

In addition, the employee appeals several findings which he alleges contain inaccurate statements of his symptoms or condition.  These statements are not findings by the compensation judge, but are quotations or paraphrased statements from medical reports which were referred to by the compensation judge.  The statements are accurate recitations of the medical reports and are therefore affirmed.

 

The employee also appeals the compensation judge's denial of payment for the psychological evaluation by Ronald J. Wutchiett, Ph.D.  The compensation judge found that the employee continued with this consultation even after Dr. Wutchiett advised him that Dr. Pinto had determined that the employee was not a surgical candidate.  Dr. Wutchiett=s report to Dr. Pinto states that before meeting with the employee, Dr. Wutchiett was informed by Ms. Butler, R.N., that the employee was no longer being considered for surgery and may treat elsewhere, but that the employee still chose to proceed with the evaluation.  The compensation judge found that: 

 

The bill incurred with psychologist Wutchiett was for services rendered after it was clear to Mr. Odash and to Mr. Wutchiett that Dr. Pinto was no longer considering Mr. Odash as a potential candidate for low back surgery.  Thus the evidence of record fails to establish that the bill was reasonable and necessary to cure or relieve the effects from the employee=s 1/30/97 injury. 

 

(Finding No. 76.)  Substantial evidence supports the compensation judge=s denial of payment for the psychological evaluation, and we affirm.