JAMES A. VEITH, Employee/Appellant, v. CROW WING COOP. and FEDERAL RURAL ELEC. INS. CORP., Employer-Insurer/Cross-Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 3, 2000

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert medical opinion, medical records, and the employee=s testimony, supports the compensation judge=s finding that the May1996 work injury was a permanent aggravation of the employee=s pre-existing condition and that it was a separate work injury from the December 1995 work injury.

 

MEDICAL TREATMENT & EXPENSE - SURGERY.  Substantial evidence supports the compensation judge=s denial of fusion surgery and the award of decompression surgery.

 

APPEALS - STAY OF PROCEEDING.  A decision regarding the effect of a stipulation and statutory limitations on claims for attorney fees is stayed pending resolution by this court of the Minnesota Supreme Court=s remand of Irwin v. Surdyk=s Liquor, 599 N.W.2d 132 (Minn. 1999).

 

Affirmed in part and stayed in part.

 

Determined by: Rykken, J., Johnson, J., and Wheeler, C.J.

Compensation Judge: Jennifer Patterson

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s denial of the employee=s claim for payment of medical expenses related to an anterior/posterior fusion surgery.  The employer and insurer cross appeal from the compensation judge=s determination that the employee=s May 25, 1996 work-related injury permanently aggravated the preexisting condition of the employee=s lumbar spine.  The employer and insurer also cross appeal the compensation judge=s determination that the July 1998 stipulation allows for the employee=s attorney to be paid up to $13,000 in legal fees in connection with legal services provided after the July 1998 stipulation for settlement.  We affirm in part and stay in part.

 

BACKGROUND

 

Injuries of December 15, 1995 and May 25, 1996.

 

On December 15, 1995, James A. Veith, the employee, was employed by Crow Wing Cooperative/People=s Security, the employer, which was insured for workers= compensation liability by Federal Rural Electric Insurance Corporation/Merit Claim, the insurer.   Born on December 2, 1962, the employee was 33 years old at the time of his injury.  On December 15, 1995,  the employee experienced a tearing sensation and a sudden onset of low back pain after carrying a ladder up a spiral staircase.  The employee received four chiropractic treatments from Tom Holbrook, D.C., between December 18-27, 1995, and also consulted Dr. Peter Dunphy, Brainerd Medical Center on December 19, 1995, and January 2, 1996.  He remained off work until January 2, 1996, when he was released to return to work by Dr. Dunphy without physical work restrictions.  The employee continued working at his regular job between January 2 and May 25, 1996, with no additional lost time and without seeking any additional medical treatment.

 

On May 25, 1996, again while employed by the employer, the employee sustained an additional work-related injury to his low back.  While twisting to climb into his truck, the employee experienced a sudden onset of sharp right lower back pain, radiating to his right hip, right leg and right foot.  The employee returned to Dr. Holbrook for three chiropractic treatments and again consulted Dr. Dunphy.  Dr. Dunphy diagnosed a significant lumbosacral sprain syndrome, and referred  the employee to Dr. Sunny Kim, an orthopedic surgeon at the Institute for Low Back Care.  Dr. Kim first examined the employee on June 13, 1996, at which time the employee reported an onset of pain in both December 1995 and on May 25, 1996.  The employee underwent a CT scan on June 13, 1996, which showed mild to moderate broad-based posterior bulging of the disc at the L4-5 level, with no nerve root compression or displacement.  Dr. Kim first recommended an epidural steroid injection, which was performed on June 26, 1996, but which caused adverse results on the employee, including a spinal headache. 

 

Dr. Kim continued to treat the employee through July 8, 1996, at which time the employee reported continued back and leg pain.  Dr. Kim recommended a lumbar MRI examination, Abefore we can totally rule out surgical intervention.@  That MRI, conducted on July 9, 1996, showed a broad-based central and slightly right-sided disc herniation at the L4-5 level, with mild to moderate nerve root impingement.  The MRI also showed a left-sided posterolateral annular tear at the L3-4 level, with mild to moderate disc bulging and nerve root impingement.  Dr. Kim recommended conservative care and referred the employee to the Low Back Rehabilitation Program in St. Cloud.  (Resp. Ex. 1.)

 

The employee consulted Dr. Dunphy on August 7, 1996, to again discuss his low back and symptoms of depression, which Dr. Dunphy related to his work-related injuries.  On September 5, 1996, the employee underwent a neurological consultation with Dr. Mark Fox, apparently at the referral of the employer and insurer.  Dr. Fox diagnosed sacroiliitis on the left side, recommended injection at that joint, and also recommended bilateral discectomy at L4-5 if the injection resulted in no improvement.  Dr. Fox stated that the employee Adoes have degenerative disc disease at L4-5 and I would likely consider a discogram prior to surgery to see if [the employee] would benefit from a fusion procedure at the same time.@  (Pet. Ex. E.)  The employee underwent a discogram and CT scan on October 3, 1996, which showed full-thickness lateral left-sided annular tears in the discs at L2-3 and L3-4.

 

According to Dr. Fox=s chart note of October 8, 1996, he telephoned the employee to advise him of the results of a discogram and CT scan and Aoffered him a bilateral disc removal at L4-5 followed by an L4-5 fusion.@  According to an October 23, 1996, letter from the Low Back Rehabilitation Program to Dr. Kim, the employee Adecided not to participate@ in the program at that time since surgery had been scheduled.  (Resp. Ex. 1.)  However, the employee did not undergo surgery in 1996; the employee testified that it was his understanding that the surgery was denied at that point by the insurer based on the employee=s pre-existing condition.  (T. 31-32.)

 

On April 10, 1997, Dr. Nolan M. Segal examined the employee at the request of the employer and insurer.  Following that examination, Dr. Segal opined that the employee=s December 15, 1995 injury would be considered a temporary aggravation of the employee=s pre-existing condition.  Dr. Segal noted clear evidence of low back pain prior to this injury, with evidence to suggest some degenerative spurring at the L4-5 level previously.  Dr. Segal also stated that the employee Asustained a permanent aggravation of his pre-existing condition in part related to his work activities of May 25, 1996.@

 

Dr. Kim next examined the employee on October 10, 1997.  Additional testing, including a lumbar myelography and a CT scan conducted on February 24, 1998, led to Dr. Kim=s recommendation for surgery.  Dr. Kim originally recommended both a discectomy at the L4-5 level, along with a fusion.  However, by October 10, 1997, he recommended against fusion surgery.  By March 2, 1998, Dr. Kim recommended solely discectomy procedures and stated that A[f]usion will not be performed as he has multi level degenerative disc disease as shown by multi level disc herniations.@  On March 20, 1998, Dr. Kim performed a right-sided L4-5 micro discectomy and a left-sided foraminal discectomy at both the L2-3 and L3-4 levels. 

 

Dr. Kim prescribed post-surgery physical therapy.  The employee continued to experience low back pain, but his leg pain was relieved following the surgery.  By July or August 1998, approximately four to five months post-surgery, the employee experienced numbness and tingling in his feet.  He consulted Dr. Kim in December 1998, complaining of bilateral leg pain similar to his pre-surgery pain.  An MRI scan taken on December 15, 1998, showed the presence of three-level recurrent disc herniations.  By December 1998, Dr. Kim recommended possible repeat decompression surgery at the L4-5 level, based upon the MRI results.  The employee=s symptoms continued to worsen.  The employee testified that his condition had worsened to the point where he was Aabout the same@ as prior to the March 20, 1998, surgery.  By February 4, 1999, the employee reported to Dr. Kim that he noted substantial left leg and right leg pain.  By February 4, 1999, Dr. Kim recommended an anterior/posterior fusion, using pedicle fixation.  In his chart notes on that date, Dr. Kim stated his opinion that a repeat decompression alone, particularly in the foraminal zone, might jeopardize the nerve roots and ganglion and could be harmful in the long run.  Dr. Kim also stated in a letter dated February 9, 1999, that the need for this surgery arose out of recurrent disc herniations and was causally related to the employee=s 1995 work-related injury.

 

The employee underwent an examination by the employer and insurer=s expert, Dr. John Dowdle, on May 21, 1999.  In his report, issued June 10, 1999, Dr. Dowdle outlined the employee=s history, indicating that the employee=s pain symptoms were approximately 20% in his low back and 80% in his legs.  Dr. Dowdle opined that fusion surgery primarily relieves low back pain that decompression surgery primarily relieves leg pain caused by compression on nerve roots and that the employee was not currently a candidate for anterior/posterior fusion as recommended by Dr. Kim.  The reasons cited by Dr. Dowdle included the employee=s smoking history, symptoms being primarily in the employee=s legs as opposed to his back, that a second decompression surgery might substantially relieve some or most of his symptoms, and that due to the employee=s young age, a three-level fusion should be considered as a Alast resort.@

 

Previous Medical History

 

The employee also has a history of low back pain and diagnoses of back strains prior to his initial work-related injury on December 15, 1995.  The employee served in the U.S. Army between 1982 and 1985.  In medical records from the Veteran=s Administration Medical Center, history provided by the employee indicates that he injured or strained his low back while skiing during a training exercise in 1982 or 1983, and strained his low back while falling off a chair or against a desk in 1983.  Although he received treatment for these low back strains while serving in the Army, the employee remained on active duty throughout his enlistment.

 

On about November 9, 1985, the employee experienced sharp low back pain while moving a wheelbarrow on his parent=s farm.  He consulted Mark Munson, D.C., on November 18, 1985.  The employee reported his service-related low back symptoms to Dr. Munson, who diagnosed the employee and assessed the employee as having a 5-10 percent impairment to his low back.  Dr. Munson referred the employee to the Noran Neurological Clinic for confirmation of his diagnosis and permanent partial disability rating.  On January 16, 1986, Dr. Tennebaum examined the employee who reported the onset of low back pain in the Army and denied leg pain or other leg symptoms and referred the employee for a CT scan.  That scan, performed on January 16, 1986, was interpreted as being normal at the L2-3 and L3-4 levels (two of the three levels currently at issue), and as showing a Amild central bulging disc probably of no clinical significance@ at the L4-5 level.  (Resp. Ex. 1.)  Dr. Tennebaum diagnosed the employee as having chronic lumbar strain in the setting of some congenital anomalies.

 

The employee applied to the Veteran=s Administration for a military permanent partial disability.  In connection with that application, the employee underwent an examination by Dr. Samuel Berman on April 24, 1986, reporting low back pain only.  The employee underwent a further examination with Dr. Bruce Van Dyne on April 15, 1987, at the Veterans Administration Medical Center.  Dr. Van Dyne opined that the disc bulge at L4-5 was probably a Anormal variant.@  The employee was eventually awarded a 10% disability for his low back strain and 10% disability for his hernia through the United States Army.  In an unappealed finding, the compensation judge found that the employee consulted Dr. Tennebaum in 1986 Aprimarily to support his claim for disability arising out of his military service and not because he was having significant low back symptoms which limited his functioning significantly,@ and that the Veteran=s Administration Medical Center records in evidence do not support the conclusion that the employee had complaints of significant ongoing leg symptoms through 1986.  (Finding No. 6.)

 

Between 1985 and 1995, following his service in the U.S. Army, the employee worked as a laborer in a construction business, constructing houses.  He then worked for a family business called AVeith Antennas,@ installing satellite dishes and alarms in residential, commercial and industrial settings.  These jobs included heavy lifting of up to 100 pounds and significant bending, twisting, stooping and working in awkward body postures.  The employee also frequently worked in crawl spaces or attics, climbed ladders, worked 12 to 14 hours per day and 60 hours per week.  The employee wore a tool belt which weighed about 12 pounds and frequently used a three-pound cordless drill, which he carried in his hand.  (T. 23-25; Pet. Ex. C, pp. 14-15.)  Vieth Antenna worked as a subcontractor for Crow Wing Cooperative.  By 1990, the employer hired the employee to continue performing the same type of work he had performed since approximately 1985 for Vieth Antennas.  Between November 1985 and December 1995, the employee received approximately 13 chiropractic treatments for activity-related low back pain.  In an unappealed finding, the compensation judge found that the chiropractic records in evidence do not support a conclusion that the employee had significant leg pain in addition to low back pain during this ten-year period of time.  (Finding No. 8.)

 

Procedural Posture

 

In July 1998, the parties entered into a stipulation for settlement, settling claims for benefits relative to his two work-related injuries of December 1995 and May 25, 1996.  In that stipulation, the employer and insurer denied primary liability for the two claimed injuries and alleged that the employee=s claimed work injuries were aggravations of the employee=s preexisting condition.  As a result of the July 1998 stipulation and award on stipulation, the employee received $63,000 in exchange for settlement of all claims, except those specifically left open by the parties= agreement.  One of the claims left open was whether one or both of the employee=s work injuries permanently aggravated the preexisting degenerative changes in his lumbar spine.

 

On February 5, 1999, the employee filed a claim petition, claiming entitlement to payment for surgery as recommended by Dr. Sunny Kim, payment for outstanding medical bills, mileage and out-of-pocket expenses, and payment for attorney fees related to payment of medical bills and expenses pursuant to Minn. Stat. ' 176.081, subd. 1(a)(1).  The employer and insurer denied liability for the employee=s claimed surgery and medical expenses, contending that the employee=s alleged need for surgery did not arise out of or in the course of his employment, but is a result of either superseding, intervening injuries or nonwork-related injuries.  The employer and insurer also denied the claim for additional attorney=s fees.

 

A hearing was held on June 16, 1999.  Issues addressed at the hearing included whether the employee sustained a separate and distinct work injury on May 25, 1996; whether the employee=s December 15, 1995 and alleged May 25, 1996 work injuries temporarily or permanently aggravated the employee=s preexisting degenerative low back condition; whether the employee requires the three-level fusion as recommended by Dr. Sunny Kim; whether the July 1998 stipulation for settlement and award on stipulation preserve the issue of primary liability for degenerative changes in the employee=s lumbar spine; and whether the employee=s attorney has a right to claim additional attorney fees with respect to those issues reserved in the stipulation.

 

In Findings and Order issued on July 8, 1999, the compensation judge determined that the employee sustained a work-related injury on May 25, 1996.  The compensation judge also found that the May 25, 1996 work-related injury was separate and distinct from the December 15, 1995 injury, and that the May 1996 work injury permanently aggravated the preexisting condition of the employee=s lumbar spine, including, but not limited to, the preexisting degenerative changes at the L2-3, L3-4, and L4-5 levels of the lumbar spine.

 

The compensation judge also determined that the employee is not currently a candidate for the anterior/posterior fusion surgery.  However, the compensation judge ordered the employer and insurer to pay for treatment of degenerative changes at the L2-3, L3-4, and L4-5 levels of the employee=s spine. 

 

The compensation judge also found that the July 1998 stipulation must be interpreted to provide for the employee=s attorney to be paid up to $13,000 in legal fees for each of the employee=s two work-related injuries, in connection with legal services provided after the July 1998 stipulation for settlement.

 

The employee appeals from the denial of the claimed fusion surgery.  The employer and insurer cross appeal from the determination that the May 25, 1996 injury was a permanent aggravation of the employee=s pre-existing condition, and from the compensation judge=s findings concerning interpretation of the language regarding attorney=s fees in the July 1998 Stipulation for Settlement.

 

STANDARD OF REVIEW

 

On appeal, 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."  Minn. Stat. ' 176.421, subd. 1 (1992).  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."  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, 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

Permanent Nature of May 25, 1996 Injury

 

The compensation judge determined both that the employee=s AMay 25, 1996 work injury permanently aggravated the pre-existing condition of the employee=s lumbar spine including, but not limited to, the pre-existing degenerative changes at the L2-3, L3-4 and L4-5 levels of his lumbar spine,@ and that it was a Aseparate and distinct work injury from the December 15, 1995 work injury.@  (Finding No. 12.)^[1]  The reasons cited by the compensation judge include the employee=s disability from working for all but approximately three weeks since the 1996 injury, that the employee=s low back has not returned to the condition it was before that point, imposition of substantial physical work restrictions following that injury, a change in the employee=s diagnosis after this injury from lumbar strain to herniated discs and the change in the level of required medical treatment.  The compensation judge also relied, in part, upon the opinion of Dr. Nolan Segal in determining that the employee=s May 25, 1996 work injury was a permanent aggravation of the employee=s pre-existing condition.

 

The employer and insurer argue that the employee sustained only one work-related injury, in December 1995, relying on Dr. Dowdle=s opinion, and also arguing that the employee=s diagnosis, symptoms and work restrictions did not change between the dates of December 1995 and May 1996.  Although these may not have changed between the injury dates, the record overwhelmingly shows that after the May 25, 1996 injury, the employee=s symptoms, condition, findings on radiographic studies and diagnosis worsened.  Drs. Dowdle, Kim, and Dunphy recognize the existence of a separate aggravating incident on May 25, 1996, but diverge in their opinion as to the nature of that injury.  For example, Dr. Kim=s June 21, 1996, chart note refers to the 1995 work injury and also to Aanother severe back flare-up when he re-injured himself on 5/25/96 getting into his truck.@  On July 21, 1998, Dr. Kim testified that he believed that the employee=s pre-existing condition and his 1995 and 1996 work injuries each Ahave contributed independently to the necessity for the surgery.@  However, on March 15, 1999, Dr. Kim referred to both the 1995 and 1996 work-related injuries and testified that the surgery he proposed is related to the employee=s 1995 work-related injury.

 

On January 7, 1997, Dr. Dunphy wrote that AI do believe his low back discomfort is related to his work injuries of December 18^th, 1995 and May 25^th, 1996.@  Dr. Dunphy also testified that in his opinion the injury of May 25, 1996  was a Acontinuation of his previous injury of December of 1995,@ basing his opinion on

 

the fact that he had similar symptoms in December of 1995 and then exacerbated those symptoms and possibly they suddenly got worse with his recurrent injury in 1996; but I just feel cause and effect they are tied together.

 

 (Pet. Ex. C, Depo. of Dr. Dunphy, p. 22.)

 

Dr. John Dowdle testified that the May 25, 1996 injury

 

was a continuation of the December, 1995, injury.  I don=t believe there was a new injury....he had continuation of the same pain.  It was not an indifferent pattern of pain.  It was just at a higher level for a period of time.

 

(Resp. Ex. 4, Depo. of Dr. Dowdle, p. 15.)

 

On factual matters such as this one, it is this court=s task to review the record as a whole, and to assess the substantiality of the evidence that supports the compensation judge=s findings, granting Adue weight to the opportunity for the compensation judge to evaluate the credibility of witnesses appearing before the judge.@  Hengemuhle, 358 N.W.2d at 59-60, 37 W.C.D. at 239-240.  In this case, the decision of the compensation judge is adequately supported by the testimony of the employee and medical records.  The judge=s decision is also supported by the opinion of Dr. Segal, even in the face of differing medical opinions.  See, Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  In view of the entire record, it was reasonable for the compensation judge to find that the May 25, 1996 injury was permanent in nature, and we therefore affirm.

 

Employee=s Claim for Anterior/Posterior Fusion Surgery

 

The compensation judge found that the employee is not currently a candidate for the surgery recommended by Dr. Kim.  The compensation judge determined that

 

As supported by the opinion of Dr. Dowdle, the employee is not currently a candidate for the anterior/posterior fusion of the L2-3, L3-4, and L4-5 levels of his spine because he smokes, he has primarily leg and not low back symptoms, because a second decompression surgery may substantially relieve some or most of his symptoms, and because a three level fusion is to be a last resort for someone still in his 30's.

 

(Finding No. 17.)  Although the compensation judge denied the employee=s claim for the fusion surgery, the compensation judge awarded payment for the decompression surgery recommended by Dr. Dowdle, and stated in Order No. 2 that

 

The employer and insurer shall pay for the treatment of degenerative changes at the L2-3, L3-4, and L4-5 levels of the employee=s spine, subject to the terms and conditions of the Minnesota Workers Compensation Act.

 

(Order No. 2.)

 

Both Dr. Kim and Dr. Dowdle agreed that the employee required additional surgery due to his reherniations.  However, Dr. Kim recommended the anterior/posterior fusion procedure.  Dr. Kim based his recommendation for fusion surgery on the employee=s tendency for recurrent herniations, his two-level disc herniations, and his opinion that the fusion would eliminate the employee=s low back pain.  Dr. Kim also testified that the angle required for surgery at the foraminal disc herniations would require removal of both facet joints to reach the herniations, which in turn would result in severe de-stabilization of the spine.  Dr. Kim also believed that the surgery, as he proposed, would relieve both the employee=s back pain and leg pain.

 

According to the employee, he wishes to undergo the three level fusion surgery recommended by Dr. Kim because he did not obtain lasting relief from the three level decompression surgery performed by Dr. Kim in March 1998, testifying that AI=ve been through it once and obviously it didn=t hold.@  (T.35.) 

 

In her memorandum, the compensation judge referred to the depositions of Dr. Kim and Dr. Dowdle and their opinions on probabilities of success from the alternative surgeries.  At his deposition on July 21, 1998, Dr. Kim testified that the employee had not reached maximum medical improvement from his injury by that point, and that he recommended a decompression surgery on March 20, 1998, due to the employee=s multi level degenerative disc disease.  Dr. Kim also testified that the employee was Anot just simply a fusion candidate.@  (Pet. Ex. A, p. 27.)  By the time of his deposition taken on March 15, 1999, however, Dr. Kim recommended an anterior/posterior fusion from the L2 level to the L5 level, along with decompression and resection of recurrent disc herniations.  He recommended this procedure, for the following reasons: that the employee=s condition had worsened, that by December 1998, approximately nine months post-surgery, the employee again experienced bilateral leg pain, that he had three level recurrent disc herniations post-surgery and that a microdiscectomy procedure would destabilize the employee=s spine in his opinion.  Dr. Kim also testified as to why he felt the fusion procedure was appropriate, stating that:

 

Q        And the reason for the fusion procedure would be what?  Why would you do it for this man?

A        I think the reason - - the primary reason for the fusion is to prevent future recurrent disc herniations, Number 1. Number 2 would be to prevent destabilization of his spine.  Number 3 would be to also get rid of his low back pain.  Usually with a fusion, the low back pain also disappears as opposed to decompression alone.

Q        Would this also relieve his complaints of significant leg pain?

A        It will take care of both back and leg pain - - low back pain as well as leg pain, right.

 

Dr. John Dowdle, who examined the employee on May 29, 1999, testified as to the reasons he recommends disc excision or laminectomy, testifying as follows:

 

Q        What procedure do you recommend?

A        With the disc herniation that he has present and his predominantly having symptoms into the legs, I believe that doing a disc excision or laminectomy, removing that fragment of disc material underneath the nerve at both the L2-3 level on the left and L4-5 level on the right, would benefit him and would allow him to be more functional but not to be so hindered by having so many levels fused.

Q        If he has a fusion, is he going to have restricted motions?

A        Yes.  Significant.

Q        He would have significant restrictions as well?

A        Yes.

Q        Why don=t you see him as a fusion candidate?

A        Well, he could be a fusion candidate, but he is young.  You like not to fuse any more segments than you have to in younger patients.  When you fuse multiple levels like that, they eliminate motion at multiple segments; the segments above that wear out.  When you fuse that many segments, you have marked restrictions of motion as far as your abilities to bend and lift and tie your shoes and do those sorts of things.

 

It would cause him difficulties with certain types of work activities and household activities.  And with a multiple-level fusion, you like to try and treat them conservatively as far as the fusion as long as you can and as often as you can rather than doing an operative procedure where you do a multiple-level fusion.

 

The compensation judge also referred to the employee=s smoking history as being a risk factor which could diminish his success from fusion surgery, according to both Drs. Kim and Dowdle.  Taking this risk factor into consideration, and taking into account the treatment option available to the employee, as recommended and outlined by Dr. Dowdle, the compensation judge determined that the Aemployee needs the less extensive, less invasive surgical procedure of decompression of nerve roots at three levels which has a substantial probability of relieving or eliminating a good portion of his symptoms.@ (Memo. p. 9.)  The compensation judge reviewed the testimony of both Drs. Kim and Dowdle, and relied upon Dr. Dowdle=s opinions in reaching her conclusions.

 

While both doctors carefully explained the basis for their opinions, it was within the compensation judge=s discretion to choose between the conflicting expert testimony.  We note that it is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony and that where Amore than one inference may reasonably be drawn from the evidence, the compensation judge's findings shall be upheld."  Nord v. City of Cook, 360 N.W.2d at 342, 37 W.C.D. at 371-72 (Minn. 1985).  In view of this factual background and Dr. Dowdle=s expert opinion, it was reasonable for the compensation judge to conclude that the employee is not currently a candidate for the proposed anterior/posterior fusion surgery.  We therefore affirm the compensation judge=s denial of the anterior/posterior fusion surgery and affirm her order for payment of the decompression surgery, as recommended by Dr. Dowdle.

 

July 1998 Stipulation

 

In July 1998, the parties entered into a stipulation for settlement, closing out specific claims and allowing other claims to remain open.  The language in the stipulation sets out the compromised settlement reached between the parties.  In addition, the compensation judge found that Athe employer and insurer specifically reserved defenses to the claim that any treatment the employee might need for degenerative changes in his low back was causally related to the admitted December 1995 or the alleged May 19, 1996 work injuries.@  (Finding No. 3.)  The compensation judge further found that Athe July 1998 stipulation for settlement did not prevent the employer from denying the causal relationship between the employee=s degenerative disc disease in his lumbar spine and his admitted and alleged work injuries.@  (Finding No. 3.)

 

This stipulation provided for $12,800 in attorney fees to be deducted from benefits due to the employee, and to be paid to the employee=s attorney in Afull and complete satisfaction of any claim for attorneys fees to date.@  The compensation judge determined that

 

Although paragraph XII a. closed out claims for Roraff fees,^[2] since paragraph XII b. provided for a Ato date@ only payment of attorney fees and the issue of the causal relationship between the employee=s work injuries and the preexisting degenerative changes in the employee=s low back was specifically left open for later proceedings, the July 1998 Stipulation must be interpreted to provide that the permanent aggravation of the preexisting degeneration arising out of the May 1996 work injury allows for the employee=s attorney to be paid up to $13,000.00 in legal fees as provided by statute and in connection with legal services provided after the July 1998 Stipulation for Settlement.

 

(Finding 19.)

 

In her memorandum, the compensation judge refers to the stipulation and inconsistencies between some of the Afacts@ recited as being agreed-to by the parties and the actual claims made by the parties.  The compensation judge also points to inconsistencies in the language explaining what claims were closed out and what were left open for future claims.

 

The compensation judge points to the paragraph in the stipulation currently at issue.  Roraff attorney=s fees were closed out in one section yet another section states that attorney=s fees were paid on a Ato date@ basis.  Language in the stipulation reserved the issue of causal relationship between degenerative changes in the employee=s low back and his claimed and admitted work injuries.  The compensation judge stated that Ait is clear that in the July 1998 stipulation the employee claimed workers= compensation benefits arising out of two work injuries and the employer disputed the occurrence of two work injuries.  The close-out provision of paragraph XII at no point resolves the issue of whether there were one or two work injuries.@  (Memo. p. 10.)

 

Based upon the language of the stipulation, and the internal inconsistencies in the stipulation, the compensation judge found that

 

the July 1998 stipulation must be interpreted to provide that the permanent aggravation of the pre-existing degeneration out of the May 1996 work injury allows for the employee=s attorney to be paid up to $13,000 in legal fees as provided by statute in connection with legal services provided after the July 1998 stipulation for settlement.

 

(Finding No. 19.)

 

The compensation judge stated in her memorandum, however, that such a finding does not automatically provide $13,000 in attorney=s fees with respect to medical issues litigated at the hearing, Abut rather is intended to allow the submission of a claim for attorney fees of more than $200 [the amount remaining after the $12,800 in attorney fees paid pursuant to the stipulation is subtracted from the statutory maximum of $13,000].  (Memo. p. 10.)

 

The Minnesota Supreme Court recently addressed attorney fee issues in its decision on Irwin v. Surdyk=s Liquor, 599 N.W.2d 132 (Minn. 1999).  A primary issue addressed therein involved the statutorily imposed limitation on attorney fees set forth in Minn. Stat. ' 176.081, subd. 1(3)(b).  The supreme court remanded the Irwin case to the Workers= Compensation Court of Appeals, for review of the compensation judge=s determination of reasonable attorney fees.  The interpretation and applicability of Minn. Stat. ' 176.081, subd 1(3)(b) will be addressed by this court.  We therefore stay consideration of the employer and insurer=s appeal of the compensation judge=s decision concerning attorney fees, pending resolution of the Irwin case by the WCCA.