REBECCA COPP f/k/a REBECCA CARLSON, Employee, v. LUTHERAN SOCIAL SERVS. OF MINN., SELF-INSURED/COMPCOST, INC., Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 12, 2002

 

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - IDET.  Substantial evidence, including expert opinion, supported the compensation judge=s conclusion that an IDET procedure was reasonably required to cure and relieve the effects of the employee=s work-related low back injury.

 

Affirmed.

 

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

Compensation Judge:  Danny P. Kelly.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The self-insured employer appeals from the compensation judge=s finding that the proposed IDET procedure was reasonable and necessary to cure and relieve the employee from the effects of her work injury.  We affirm.

 

BACKGROUND

 

The employee sustained an admitted work-related injury to her low back on February 16, 2000, while working for Lutheran Social Services [the employer].  She subsequently treated with Dr. Kathy Wimmer, who diagnosed lumbosacral musculoskeletal sprain/strain, took the employee off work for three days, and prescribed Flexeril and Relafen.  On her return to work, the employee was subject to restrictions on lifting, bending, and twisting.

 

On March 10, 2000, the employee suffered an exacerbation of her injury while assisting a patient into a wheelchair at work.  She treated the next day at the St. Joseph=s Hospital Emergency Room, where the diagnosis was mechanical back pain.  The employee was released to return to work with restrictions of no bending, lifting, or stooping and was prescribed Flexeril and Lodine. 

 

When seen again by Dr. Wimmer on March 17, 2000, the employee had positive straight leg raising on the right.  At that time, Dr. Wimmer questioned whether the employee might have disc disease and ordered physical therapy.

 

The employee underwent physical therapy from March 22, 2000, through May 4, 2000.  Physical therapy records reflect an improvement in straight leg raising and muscle tightness during that period.

 

The employee underwent an MRI on July 10, 2000, which showed a moderate central disc protrusion at L5-S1 and a minimal broad-based disc bulge or protrusion at L4-5.  Dr. Wimmer then referred the employee to neurosurgeon Dr. Jeffrey Gerdes, who first saw the employee on July 20, 2000.  In a letter dated July 25, 2000, Dr. Gerdes indicated that, since the work injury, the employee Ahas had quite pronounced low back pain with intermittent pain radiating into her lower extremities, right greater than left.@  He also noted that A[s]he tried physical therapy without significant improvement.@  Dr. Gerdes took the employee off work and ordered another round of physical therapy.

 

The employee underwent physical therapy again from August 8, 2000, through August 24, 2000.  When she initially presented for physical therapy, the employee reported that she had constant low back pain and occasional pain down the right leg into the foot.  She further indicated that the low back pain caused problems with sleep and work.  As of August 24, 2000, physical therapy notes reflect that the employee was compliant with her home exercise program but that her low back pain had not decreased.  She reported her pain as being 7-8 out of 10 at that time.

 

When the employee returned to Dr. Gerdes on August 25, 2000, the doctor recommended that a discography be completed as he felt that the employee might be a candidate for intradiscal electrothermal therapy [IDET].^[1]  The discography, performed on October 10, 2000, revealed 3 out of 10 concordant pain at L3-4, 9 out of 10 concordant pain with abnormal disc morphology at L4-5, and 10 out of 10 concordant pain with left posterolateral full thickness annular tear at L5-S1.  Following the procedure, Dr. Gerdes opined that, given the employee=s young age (22) and her symptoms, an IDET procedure would be the best approach for her.

 

The employer had the employee examined by Dr. Daniel C. Randa, a neurologist, on November 19, 2000.  In his report of November 30, 2000, Dr. Randa opined that discography and IDET were not universally accepted procedures in the medical community.  It was his opinion that, with an exercise program and perhaps an epidural steroid injection, Ait is anticipated that the subjective pain complaints will continue to improve and restrictions can be lessened.@

 

The employee underwent another round of physical therapy from February 20, 2001, through March 7, 2001.  When she began that program, her pain was 3 out of 10 with a goal of reducing it to 0 out of 10.  When she completed the program, her pain remained unchanged and a recommendation for a TENS unit was made.  The employee obtained the TENS unit and took part in a three-month exercise program at the YMCA.  Dr. Gerdes released the employee to return to light-duty work on March 6, 2001, and the employee began work with Development Homes, Inc., later that month.

 

  On March 28, 2001, the employee filed a medical request seeking approval for the IDET therapy.  The matter proceeded to hearing on September 13, 2001.  In findings and order filed on November 16, 2001, the compensation judge found that the IDET therapy recommended by Dr. Gerdes is reasonable and necessary to cure and relieve the effects of the February 16, 2000, work injury.  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

 

The employer first contends that IDET therapy is not reasonable or necessary because conservative treatment has improved the employee=s symptoms and the employee has not tried all appropriate conservative treatment.  We are not persuaded.

 

Dr. Randa did testify in his deposition of August 30, 2001, that there are many other effective therapies for the low back and that the employee had not exhausted all other means of conservative treatment for her back condition.  Specifically, he mentioned epidural steroid injection, Medrol Dosepak, a supervised exercise program, and anti-inflammatory medications as possible treatment options.  However, the employee testified that conservative treatment has not provided her with any overall improvement, that she has constant pain in her low back despite treatment, and that she has to be very careful about what she does.  Dr. Gerdes opined that the employee=s pain is limiting for her and that IDET therapy is a reasonable treatment for her.  The compensation judge specifically adopted the opinions of Dr. Gerdes.  A judge=s choice between expert opinions is generally 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).         

 

The employer next contends that Dr. Gerdes=s opinions are not supported by the facts as Amoderate disc herniations are not well suited for IDET procedures,@ citing Kapaun v. Farmstead Foods, slip op. (W.C.C.A. June 4, 2001).  In Kapaun, however, this court did not hold that moderate disc herniations are not well suited for IDET procedures.^[2]  As we stated in McBride v. Anderson Power & Equip., Inc., slip op., (W.C.C.A., Feb. 21, 2002),

 

The Kapaun case was an affirmance of a compensation judge=s finding that the IDET procedure was not reasonable and necessary medical treatment for the employee under the facts of that case.  As we have repeatedly stated, an affirmance of a [compensation judge=s] decision based on substantial evidence is of little precedential value.

 

We would also note that Dr. Randa did not recommend against the IDET procedure because the employee had a moderate disc herniation, but because he views IDET to be comparable to surgery and not a generally accepted procedure.  Dr. Gerdes disagreed with Dr. Randa=s opinions, and it was the compensation judge=s responsibility to weigh the evidence and choose between the conflicting opinions.  Because substantial evidence supports the judge=s decision, and we find no basis to overturn his choice of expert opinions, we affirm the judge=s decision.