ALLAN TROM, Employee, v. EXPRESS PERSONNEL, SELF-INSURED/GALLAGHER BASSETT, INC., Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 28, 2000

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - SURGERY; MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Where the expert medical opinion on which the judge relied was not insufficiently certain, where the judge reasonably concluded that the recommended surgery was reasonably likely to improve the employee=s work-related condition even though it resembled the employee=s earlier and unsuccessful surgery, and where it was not otherwise unreasonable for the judge to rely on the recommending expert=s opinion, the compensation judge=s award of payment for the recommended surgery at issue was not clearly erroneous and unsupported by substantial evidence.

 

MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE.   Where the goal of the surgery recommended by the employee=s surgeon was to replace relatively severe disability with reasonable functionality, and where there was medical basis to hope that the surgery would be successful, the compensation judge=s reliance on the employee=s surgeon=s conclusion that MMI had not yet been reached was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the surgeon could not guarantee the surgery=s success.

 

Affirmed.

 

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

Compensation Judge:  James R. Otto

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The self-insured employer appeals from the compensation judge's conclusion that proposed surgery is reasonable and necessary treatment for the employee=s work injury and that the employee has not reached maximum medical improvement with regard to that injury.  We affirm.

 

BACKGROUND

 

On September 25, 1997, Allan Trom sustained a work-related dislocation of his left elbow in the course of work at a plastics factory under employment with Express Personnel, a self-insured temporary agency.  Mr. Trom [the employee] was forty-five years old at the time of his injury and was earning a weekly wage of $340.00.  Express Personnel [the employer] admitted liability and commenced payment of various workers= compensation benefits.  The employee=s injury resulted in part in a few small chip fractures, which were treated initially with closed reduction and bracing.  Symptoms persisted and instability developed, and on March 24, 1998, the employee saw orthopedic surgeon Dr. Shawn O=Driscoll at the Mayo Clinic.  Noting loose material in the soft tissue surrounding the injured elbow, Dr. O=Driscoll recommended an arthroscopy to assess the elbow for arthritis and other damage, together with a lateral collateral ligament reconstruction.  The employee underwent the recommended surgery on June 24, 1998, which included excision of two loose bodies.

 

The employee=s pain continued subsequent to his surgery, and on September 22, 1998, the employee returned to Dr. O=Driscoll, complaining that his elbow pain was perhaps even worse than it had been prior to his surgery and that he was also noticing a recurrence of snapping in the joint.  Dr. O=Driscoll recommended physical therapy for stretching and strengthening of the elbow and forearm and scheduled the employee for a return appointment in two months.  On November 24, 1998, Dr. O=Driscoll evidently recommended surgery.^[1]

 

On February 5, 1999, the employee was examined for the employer by orthopedist Dr. Chris Tountas.  Dr. Tountas diagnosed degenerative changes of the elbow with limited motion and rendered an opinion in part that Ait is unlikely that any further surgery will result in a significant decrease in the pain complaints and is not recommended.@  Dr. Tountas also concluded that the employee had reached maximum medical improvement [MMI] with a 5% whole body permanent partial impairment with regard to his elbow injury, and his report to that effect was served on the employee on March 1, 1999.

 

On March 30, 1999, the employee was examined again by Dr. O=Driscoll, who reported unimproved and recurrent symptoms of instability and pain in the injured elbow.  Dr. O=Driscoll stated on that date that A[i]t would seem reasonable, based on documented physical findings, that [the employee] undergo surgery as planned including an arthroscopy to evaluate the joint followed by a lateral collateral ligament reconstruction or tightening procedure.@  Dr. O=Driscoll indicated in his treatment notes for that date that he had explained to the employee Athat I cannot be certain that [his symptoms] are going to be improved with surgery, but I can tell him that they are not going to improve without surgery.@

 

On May 11, 1999, the employee filed a Medical Request, seeking payment for the recommended surgery, and on May 21, 1999, the employer filed a Medical Response to that request, refusing to pay for it.  The matter came on for hearing on July 30, 1999.  Issues at hearing included whether the additional surgery recommended by Dr. O=Driscoll was reasonable and necessary treatment for the effects of the employee=s September 1997 work injury and whether the employee had reached MMI with regard to that injury.  By Findings and Order filed August 5, 1999, the compensation judge concluded in part that the recommended surgery was reasonable and necessary and that the employee had not yet reached MMI.  The employer 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

 

Reasonableness and Necessity of the Proposed Surgery

 

In his March 30, 1999, treatment notes, Dr. O=Driscoll concluded that the surgery here at issue Awould seem reasonable, based on documented physical findings,@ conceding that he could not guarantee the surgery=s success but suggesting that the employee=s symptoms would certainly persist without it.  In Finding 5, the compensation judge found that the surgery proposed by Dr. O=Driscoll was reasonably required treatment for the employee=s work injury, explaining in his subsequent Memorandum that he accepted Aas probably true Dr. O=Driscoll=s opinion that [the employee=s] left elbow symptoms are not going to improve without the surgery.@  The employer contends that the judge=s decision Aruns contrary to the baseline standard of compensability for medical treatment expenses, and that the medical evidence submitted fails to establish within a reasonable degree of medical certainty@ the reasonable necessity of the surgery at issue.  The employer argues that the judge erred on three grounds: (1) in relying on a medical opinion that does not rise to the level of certainty required under case law; (2) in ignoring evidence that the surgery now being proposed is identical to surgery that was Aa complete failure@ in June of 1998; and (3) in making no reference at all to the adverse opinion of Dr. Tountas, which the employer contends Ais far more consistent with the remainder of the medical evidence than is that of Dr. O=Driscoll.@  We are not persuaded.

 

In arguing that Dr. O=Driscoll=s opinion recommending surgery does not rise to a legally sufficient level of medical certainty, the employer quotes this court=s quotation from the supreme court=s decision in Holmlund v. Standard Constr. Co., 240 N.W.2d 521 (Minn. 1976), to the effect that, A[t]o sustain a finding of causal relationship it is not enough that there is medical testimony that the injury might have caused the subsequent condition or could have caused that condition but there must be medical testimony that the injury did cause that condition.@  Id. at 525, quoted in Winkels v. Indep. Sch. Dist. No. 625, 46 W.C.D. 44, 58 (W.C.C.A. 1991).^[2]  As the employee has asserted, however, these cases are ones addressing the issue of medical causation, not the specific issue of the reasonableness and necessity of certain treatment, which is here the issue.  There appears to be no contention in this case that, should it be found reasonable and necessary treatment, the recommended surgery here at issue would not be causally related to the employee=s work injury.  Moreover, even with regard to causation opinions, an expert's opinion need be stated only in terms of a reasonable degree of medical probability, and "[r]easonable probability . . . is determinable by consideration of the substance of the [expert's opinion] and does not turn on semantics or on the use by the witness of any particular term or phrase."  Boldt v. Jostens, Inc., 261 N.W.2d 92, 94, 30 W.C.D. 178, 181 (Minn. 1977), quoting Insurance Co. of North America v. Myers, 411 S.W.2d 710, 713 (Tex. 1966).  An expert witness is not required to speak with such confidence as to exclude all doubts in his mind but may qualify his opinion in expressions that fall short of absolute conviction, and such qualification affects merely the probative force of the testimony.  See Hiber v. City of St. Paul, 219 Minn. 87, 16 N.W.2d 878, 13 W.C.D. 302 (1944).  Here, the doctor=s mere recommendation of the surgery notwithstanding the earlier failure of very similar surgery expressed a sufficient degree of certainty to preclude reversal of the judge=s decision on the basis argued.

 

With regard to the purported identity of the recommended surgery with that that the employee underwent in June 1998, we would note initially that the proposed surgery includes Aa lateral collateral ligament reconstruction,@ as had the earlier surgery, Aor tightening procedure@ (emphasis added).  It is not clear to us from the record that the proposed surgery will necessarily entail a completely new reattachment of the torn ligament to the bone, which appears from the surgical record to have been the procedure in June 1998.  It appears from the language of Dr. O=Driscoll=s recommendation, as well as from certain aspects of the employee=s testimony as to his understanding of that recommendation, that the recommended surgery could ultimately constitute merely an upgrading of the previous surgery rather than necessarily a repetition of that surgery.  Moreover, the employee testified that it was his understanding from discussions with Dr. O=Driscoll and other physicians on Dr. O=Driscoll=s surgical team that follow-up surgeries of this sort are not unusual and have been successful in the past.  Further, Dr. O=Driscoll himself, on whose expert opinion the compensation judge relied, was of course well aware of the similarity of the recommended surgery to the employee=s previous surgery.  We conclude that there is no evidence that the compensation judge necessarily Aignored@ the similarity of the recommended surgery to the previous surgery and that it would not have been unreasonable for him to find the recommended surgery reasonable and necessary even granting its similarity to the previous surgery.

 

Finally, with regard to the employer=s argument that Dr. Tountas=s opinion should have been more credited by the compensation judge, we would reiterate this court=s long-held rule that a trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).  In this case, there is no evidence that either opining medical expert=s opinion was based on any false premises.  Moreover, in that details of Dr. Tountas=s opinion were clearly referenced at hearing and his report clearly included in the parties= joint medical exhibit,^[3] the fact that the compensation judge made no express reference to Dr. Tountas=s opinion in his relatively brief decision is not dispositive on the issue of whether or not the judge duly considered it.^[4]  Because it was not unreasonable for the compensation judge to rely on the opinion of Dr. O=Driscoll over that of Dr. Tountas without mentioning the latter, we will not reverse the judge=s decision on grounds that he did so.

 

Because the expert medical opinion on which the judge relied was not insufficiently certain, because it was not unreasonable for the judge to conclude that the recommended surgery was reasonably likely to improve the employee=s work-related condition even though it resembled the employee=s earlier and unsuccessful surgery, and because it was not otherwise unreasonable for the judge to rely on the recommending expert=s opinion, we affirm the compensation judge=s award of payment for the recommended surgery at issue.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

Maximum Medical Improvement

 

Minn. Stat. ' 176.011, subd. 25, defines maximum medical improvement as Athe 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.@  The employer contends that Ait is beyond reasonable argument that the Employee has reached maximum medical improvement,@arguing that A[t]he best Dr. O=Driscoll can offer in terms of refuting Dr. Tountas= MMI opinion is to say he is >uncertain= as to whether or not the proposed surgery will improve the employee=s symptoms.@  For this reason, the employer contends, Dr. O=Driscoll=s opinion as to MMI is  Aon its face, legally insufficient,@ in light of the statutory definition of MMI.  Further, the employer cites case law in support of its assertion that A[t]he fact [that] there is [a] surgical recommendation pending is not determinative of whether or not the Employee has reached maximum medical improvement.@  We are not persuaded.

 

It appears essentially presumptive to us, particularly given the severity of the employee=s ongoing symptoms, that Dr. O=Driscoll=s conclusion that the surgery here at issue Awould seem reasonable, based on documented physical findings@ was also a conclusion that significant improvement to the employee=s elbow A[could] reasonably be anticipated, based upon reasonable medical probability.@  This is true notwithstanding the fact that Dr. O=Driscoll could not entirely guarantee such improvement.  The goal of the proposed surgery in this case is not mere maintenance, which might reduce the anticipation of Asignificant@ improvement; the goal of the surgery here is to replace relatively severe disability with reasonable functionality.  Nor is the case law cited by the employer to support a contrary conclusion, Steinbach v. B.E. & K. Constr., slip op. (W.C.C.A. Nov. 12, 1991), applicable to this case.    In Steinbach, the compensation judge had made a factual finding that the employee had been at MMI prior to certain surgery that had already failed.  On appeal, the employee had argued that the judge=s setting of MMI at a date prior to the surgery was improper, and this court affirmed the judge=s factual finding.  The circumstances in this case are clearly distinguishable, not only because the factual finding at issue for our review under the Hengemuhle standard is that MMI has not been reached but also because, contrary to the circumstances in Steinbach, there remains hope that the surgery will be successful.  Because it was not unreasonable, we affirm the compensation judge=s conclusion that the employee has not yet reached MMI with regard to his work injury.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.