JAMES A. PELOWSKI, Employee/Appellant, v. K-MART CORP., SELF-INSURED/IHDS OF MICHIGAN, LTD., Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 23, 2000

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Although the judge=s decision as to satisfaction of the pertinent treatment parameters might be questionable, substantial evidence, including expert opinion, nevertheless supported the judge=s finding that fusion surgery was not reasonable or necessary to treat the employee=s work-related back injury.

 

Affirmed.

 

Determined by Wilson, J., Rykken, J., and Pederson, J.

Compensation Judge:  William R. Johnson

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s finding that the employee did not meet his burden of proving that his lumbar fusion surgery was compensable.  We affirm.

 

BACKGROUND

 

The employee sustained an admitted injury to his low back on January 7, 1997, while working for K-Mart Corporation [the employer].  He initially treated at an emergency room and three days later, on January 10, 1997, he was seen by Dr. B.O. Rasmussen, complaining of a sharp pain in his left low back that periodically extended into his buttock.  Dr. Rasmussen diagnosed an acute low back strain, prescribed physical therapy and pain medications, and took the employee off work.  Dr. Rasmussen=s office notes for January 17, 1997, reflect that the physical therapist had noted improvement and that the employee felt that he was ready to return to work, and the doctor released the employee to return to work on January 20, 1997.^[1]  On January 23, 1997, Dr. Rasmussen noted an Aaggravation of pain symptoms into the leg@ and prescribed additional physical therapy.  Dr. Rasmussen subsequently ordered an MRI, which, according to his office notes, showed an L3-4 small central disc herniation.^[2]  Dr. Rasmussen also had the employee instructed in home exercises.

 

Dr. Rasmussen referred the employee to orthopedic surgeon Dr. David C. Carlson, who interpreted the employee=s x-rays^[3] as showing some mild degenerative arthritis, with no evidence of any spondylosis or spondylolisthesis.  Dr. Carlson noted that the MRI showed an L3-4 centrally located herniated disc, which did impinge slightly on the thecal sac.  Dr. Carlson diagnosed a lumbosacral sprain and recommended work restrictions and additional physical therapy. 

 

On February 20, 1997, Dr. Carlson began treating the employee with a series of epidural steroid injections, and he eventually referred the employee back to Dr. Rasmussen.  The employee reported improvement in his leg and buttock pain with the injections but continued to complain of pain in the low back.  Dr. Rasmussen then referred the employee to Dr. Robert Barnett, who examined the employee on March 21, 1997, and diagnosed nonradicular low back pain, noting, AI see no surgical indication.@  On March 24, 1997, Dr. Rasmussen noted in his office notes, AI do not believe that he has a surgically treatable problem currently.@

 

In April of 1997, the employee switched his care to Dr. James Allen, a neurologist.  When seen on April 21, 1997, the employee complained of pain radiating from the low back down the right thigh to the knee, with some intermittent numbness into the toes.  Dr. Allen=s impression was lumbar radiculopathy on the right, Awhich appears to likely be at the L5 nerve root level.@  The doctor prescribed physical therapy, medications, and a neck and back rehabilitation program and  referred the employee to Dr. Barbara Seizert for evaluation.  In her report of April 11, 1997, Dr. Seizert opined that Athere is not a surgical indication on his examination or symptoms.@  A CT scan done on April 29, 1997, was interpreted as showing a small L4-5 disc herniation with encroachment on the right-sided neural foramen; a lumbar myelogram performed that same date showed a small anterior extradural defect at L3-4.  The employee=s treatment with Dr. Allen and physician=s assistant Jay Tracy consisted of an exercise program, pool therapy, a TENS unit, instruction on pain control techniques, and medications.  

 

In November of 1997, the employee complained to Dr. Allen of a recent flare-up, with constant low back pain, occasional dull radiation down the right leg to the toes, and difficulty sleeping.  Dr. Allen did not think that the employee was a candidate for surgery at that time but noted, AIf he should develop more constant pain or numbness or weakness in the legs, then he might be a candidate for surgery . . . . @

 

On January 14, 1998, Dr. Allen referred the employee to the Twin Cities Spine Center because of the employee=s constant pain in the low back, radiating down his right leg, along with numbness.  When Dr. Timothy Garvey examined him on February 23, 1998, the employee complained of 75% back pain and 25-30% leg pain.  Flexion-extension x-rays failed to show any instability, and Dr. Garvey diagnosed multiple-level disc degenerative changes, opining,

 

The surgical option available for him, if he wishes to do so, would be a fusion that would involve 2 levels.  We explained to him that this surgery is a last option and that he should by all means try to avoid this option [if] possible . . . .  If after trying conservative treatment he feels the quality of his life is so badly affected that he wants to proceed with surgery, the surgical option will be a 2 level fusion, although we would need to do further testing to verify this and this would include discograms and an MMPI study.

 

The employee was examined by independent medical examiner Dr. Daniel Ahlberg on March 20, 1998.  Dr. Ahlberg diagnosed chronic low back pain syndrome secondary to musculoligamentous lumbar strain and chronic obesity.  He did not believe that the employee had Asignificant degenerative lumbar disc or spondylitic disease@ that contributed to his symptomology.  In a letter dated May 1, 1998, Dr. Ahlberg indicated that he would not recommend a lumbar fusion to treat the employee=s chronic low back pain.  He did recommend weight loss and exercise.

 

The employee saw Dr. Garvey in follow-up for low back pain on June 8, 1998, reporting that his symptoms had worsened since his last examination.  Again, Dr. Garvey explained to the employee Athat if he gets to the point where he feels the quality of his life is so badly affected day in and day out because of his symptoms and is not helped with nonoperative strategies then there might be a potential surgical option available to him.@ 

 

The employee returned to Dr. Garvey on September 21, 1998, with continued complaints of 80% low back pain and 20% leg pain.  The employee stated that he was unable to sleep or sit secondary to the pain and indicated that if there was a surgical option he would like to proceed with it.  On September 28, 1998, the employee underwent a discography.^[4]  Dr. Garvey recommended a two-level arthrodesis, and the employee elected to proceed with surgery.  Dr. Allen later concurred with Dr. Garvey=s assessment.^[5]

 

Dr. Ahlberg reviewed the lumbar myelogram, post-myelogram CT, discogram, and the September 21, 1998, office note of Dr. Garvey, and, on October 15, 1998, he opined that AI am unable to conclude that surgical therapy for Mr. Pelowski=s low-back pain and mild degenerated disc disease at L3-4 and L4-5 can scientifically be determined as necessary or indicated.@  Dr. Ahlberg went on to state that it would be appropriate to obtain additional diagnostic tests, Aat very least an MRI scan of the lumbar spinal canal in order to better determine whether surgical treatment is appropriate.@   The self-insured employer apparently denied payment for the surgery, and the employee did not go forward with surgery at that time.

 

Dr. Garvey examined the employee again on March 1, 1999.  At that time, the employee complained of dominant mechanical low back pain, with 90% low back pain and 10% leg pain.  Dr. Garvey again opined that the employee was a candidate for a two-level lumbar arthrodesis, and he ordered a new MRI and repeat flexion-extension x-rays.  Dr. Garvey interpreted the MRI, performed on March 10, 1999, as being Aquite consistent with more significant degenerative change at the L3-4 and L4-5 level, with mild morphologic abnormalities at L5-S1 and L2-3.@^[6]  On March 15, 1999, Dr. Garvey opined that the employee had an approximately 80% chance of attaining a solid arthrodesis and an approximately 70-80% chance of a good or excellent outcome as to resolution of his low back pain.

 

The employee filed a claim petition on March 15, 1999, seeking approval for the surgery recommended by Dr. Garvey.  

 

The employee had an MMPI performed on June 21, 1999.  Dr. Garvey opined that two categories of the employee=s test were mildly elevated but that, Agiven the rest of his objective documentation, I believe this patient is a candidate for anterior lumbar interbody fusion at the L3-4 and L4-5 levels.@ 

 

The employee obtained a second opinion from orthopedic surgeon Dr. Mark Gregerson on July 28, 1999.^[7]  Dr. Gregerson noted that the employee had failed conservative management and agreed that a fusion procedure was indicated.^[8]  On September 2, 1999, Dr. Garvey indicated that Athe patient does not appear to have improved over the last 9-10 months and has continued complaints of significant back pain that limits his daily activity.  I still believe that this gentleman is a candidate for two level lumbar fusion.@

 

The employee proceeded with an anterior interbody lumbar fusion at L3-4 and L4-5 on September 22, 1999.  When seen in follow-up by Dr. Garvey on October 28, 1999, the employee reported that his pain was better than it had been prior to surgery.

 

The claim petition came on for hearing before a compensation judge of the Office of Administrative Hearings.  In findings and order filed on January 18, 2000, the compensation judge found that treatment parameter Minn. R. 5221.6500, subp 2C(1)(d), applied to the employee=s claim;  that the requirements of degenerative disc disease with a  positive discogram at one or two levels had been met; but that the Aemployee did not have consistent symptoms which would indicate the need for a fusion surgery.@  The judge went on to find that the employee had failed to meet his burden of proving the compensability of the fusion surgery.  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 (1992).  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

 

The employee contends that the compensation judge applied the treatment parameters incorrectly.

 

Minn. R. 5221.6500, subpart 2C(1)(d), provides in relevant parts:

 

Subp. 2.  Spinal surgery.

C.  Lumbar arthrodesis with or without instrumentation.

 

   (1) Indications: one of the following conditions must be satisfied to indicate that the surgery is reasonably required:

* * *

  (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 one or two levels. . . .

 

 (Emphasis added.)

 

The compensation judge found that the employee had degenerative disc disease with a positive discogram at two levels.  Then, in Finding 3, the judge stated, AThe first argument thus centers on whether the employee=s back pain has been incapacitating for the required period.@  At no point thereafter, however, did the judge analyze this case in terms of low back pain.^[9]  Rather, the judge spent four pages of his decision analyzing the employee=s complaints of left leg pain and instability, ultimately concluding that the employee=s testimony about left leg instability could not be accepted because that problem was not documented in the medical records.

 

It is questionable whether the record supports a finding that the employee did not satisfy the treatment parameters.  As previously indicated, the compensation judge analyzed the case in terms of left leg pain and instability, rather than low back pain.  The employee testified to constant pain in the low back Aall the time@ and that Abasically, I was just miserable.@  The records of Jay Tracy indicate that the employee was not able to keep up normal recreational or work activities.  Dr. Garvey continually advised the employee that surgery should only be considered when Athe quality of his life is so badly affected day in and day out because of his symptoms.@  Dr. Garvey=s office notes eventually reflected that the employee was unable to sleep or sit secondary to the pain.  It is true that Dr. Ahlberg testified that the employee did not have incapacitating low back pain; he explained that A[the employee] was capable of working without specific restrictions and at least should be expected to perform duties on -- perform light duties with the modifications or restrictions which I outlined . . . .@  The employee was working full time, in a light-duty job after July 21, 1997, but as this court held in Kappelhoff v. Tom Thumb Food Mkts, 59 W.C.D. 479 (W.C.C.A. 1999), the term incapacitating low back pain, as used in the treatment parameters, does not require total disability.  However, even if we were to reverse and find that the employee did in fact have incapacitating low back pain as specified by the parameters, that reversal would not address the judge=s other basis for denying the employee=s treatment expense claim.  Specifically, the compensation judge analyzed this case as a choice between expert opinions.

 

The judge explained his decision in part by indicating that he accepted the opinion of Dr. Ahlberg over that of Dr. Garvey. Generally, a judge=s choice between expert opinions is 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).  In his brief, the employee did not address the issue of whether Dr. Ahlberg relied on facts not supported in the evidence in rendering his opinion.  However, at oral argument, employee=s counsel argued that Dr. Ahlberg=s opinion was lacking in foundation because this doctor had not reviewed the employee=s discogram.  Our review of the record reveals that Dr. Ahlberg specifically commented on the discogram in his October 15, 1998, report.  We are also unpersuaded by counsel=s argument that the compensation judge could not rely on Dr. Ahlberg because Dr. Ahlberg made a diagnosis that was different than that found by the compensation judge.  Dr. Ahlberg testified that the employee has degenerative disc disease, the exact diagnosis made by Dr. Garvey, and the compensation judge analyzed the case with that diagnosis in mind.

 

Because the employee did not raise the issue of the compensation judge=s choice between expert opinions in his brief, and because there is no obvious defect in Dr. Ahlberg=s opinions that would require us to reverse the judge=s decision, we affirm the judge=s denial of the employee=s claim for treatment expenses relating to his fusion surgery.