SARA KIENTZ, Employee, v. ALLINA HEALTH SYS./HOME MEDICAL EQUIP., SELF-INSURED/GALLAGHER BASSETT SERVS., Employer-Insurer/Appellant, and MAYO FOUND., Intervenor.

 

WORKERS' COMPENSATION COURT OF APPEALS

AUGUST 19, 2002

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert medical opinion, lay testimony and medical records, supported the compensation judge's finding that the employee=s work injury on July 14, 2000 substantially aggravated a preexisting lumbar cyst in her lumbar spine, resulting in disability and the need for medical treatment.

 

MEDICAL TREATMENT & EXPENSE - SURGERY.  Substantial evidence supported the finding that the employee's emergency surgery for cauda equina syndrome was reasonable and necessary.

 

Affirmed.

 

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

Compensation Judge: Kathleen Behounek

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The self-insured employer appeals from the finding that the employee=s work injury on July 14, 2000 substantially aggravated a preexisting lumbar cyst in her lumbar spine, resulting in disability and the need for medical treatment, and from the finding that surgery performed to remove the cyst on February 2, 2001 was reasonable and necessary.  We affirm.

 

BACKGROUND

 

Sara Kientz worked for the employer, Allina Health System, as a respiratory therapist.  On July 14, 2000 she sustained an admitted work injury to her low back when she was pushing a desk to accommodate the delivery of a copy machine.  She immediately felt pain in her low back on the right side below the belt line, and about a day later also began to experience intermittent tingling into her feet. At the time of her injury, the employee was 33 years old.

 

A few days later, on July 17, the employee saw her family physician, Dr. Brian Bunkers, who diagnosed an acute mechanical low back strain. He restricted the employee from lifting more than 20 pounds and from repeated bending or twisting.  The employee returned to Dr. Bunkers on July 24 reporting that she was now starting to experience tingling and numbness down the back of her right leg and onto the dorsum of her foot.  She had no bowel or bladder dysfunction.  Dr. Bunkers noted that her symptoms were suggestive of a right-sided radiculopathy.  He prescribed physical therapy and a CT scan.  The CT scan was denied by the self-insured employer and was not performed.  On July 27, 2000 the employee returned to Dr. Bunkers.  She was now experiencing an occasional burning sensation in her thighs and tingling in her lower legs. 

 

Dr. Bunkers referred the employee to Dr. Steven Kirkhorn, an occupational medicine specialist, for evaluation of her low back pain.  Dr. Kirkhorn first saw the employee on August 2, 2000.  He also diagnosed a low back strain, and continued physical therapy treatment.  On August 16, however, Dr. Kirkhorn noted that the employee had reported a feeling of bladder urgency along with some bladder retention, and that these symptoms had been present for about one and a half weeks.  The employee continued to have numbness along the top of her right foot, which was increasing.  Because of the worsened symptoms and the employee's failure to improve, Dr. Kirkhorn recommended an MRI scan.  The MRI was performed on August 22, 2000 and showed a large perineural cyst on the right at the S1-2 level expanding the right neural foramen.  Dr. Kirkhorn's assessment of the scan was that the cyst was possibly the source of impingement resulting in the employee's paresthesias.

 

On September 25, 2000 the employee was evaluated by Dr. Guy M. Sava in the neurosurgery department of the Immanuel St. Joseph's Clinic.  Dr. Sava opined that the cyst was a degenerative condition which was rendered symptomatic by the employee's July 14^th work incident.  He recommended that the employee undergo surgery in the form of a decompression of the right L5-S1 interspace.  The employee wanted to wait and think it over.  Dr. Sava advised her to call immediately if she experienced foot drop or any loss of bowel or bladder function.

 

The employee returned to Dr. Kirkhorn on October 11, 2000.  She continued to have numbness in the right foot and increased loss of bladder control but no loss of bowel control.  Dr. Kirkhorn noted that he agreed with Dr. Sava's assessment that the employee's symptoms reflected an aggravation of a pre-existing condition.  He continued the employee on medications and restrictions.

 

Dr. Kirkhorn's chart notes from November and December 2000 indicate that the employee's bladder symptoms abated during this period, although she was still having numbness in the right foot.  Her lumbar range of motion was somewhat limited and straight leg raising was somewhat equivocal.  In view of the employee's failure to get better with conservative care, Dr. Kirkhorn agreed with Dr. Sava that surgical excision was indicated and referred the employee for a neurosurgical consultation with Dr. Christine Cox at Neurosurgical Associates. 

 

Dr. Cox saw the employee on January 10, 2001.  She noted that the employee's radicular complaints were then fairly minimal and her primary complaint was back pain, so that she would likely require only conservative management rather than surgical intervention. However, she recommended that the employee undergo a lumbar myelogram and CT scan to determine the nature of the cyst.

 

At about this time the self-insured employer sought a surgical opinion by way of a record review conducted by Dr. Brian M. Krasnow, a neurologist.  Dr. Krasnow opined that surgery would not be indicated for the employee's condition absent definitive neurological deficit, signs of cord compression, or bowel or bladder dysfunction from compromise of the conus medullaris.  As none of these appeared to be present, he did not believe surgery was needed.  He noted further that the employee's cyst itself was not the result of her work injury of July 14, 2000.

 

The CT scan and myelogram were performed on January 24, 2001.  They showed a quite large perineural cyst emanating from L5 down into the sacrum and flattening the S1 and S2 nerve roots.  Dr. Cox noted that she had never seen a perineural cyst this large at the L5 level.  She deferred a final decision regarding possible surgical intervention until after she had consulted with her colleagues.  She continued the employee on work restrictions and suggested a trial of a back conditioning program to see if that would provide some relief to the employee's back pain.

 

On February 2, 2001 the employee went to the emergency room at Immanuel-St. Joseph Hospital and reported that she had started to experience episodes of urinary incontinence two days before and that they had become more frequent, occurring up to seven times a day.  Her low back pain and the radicular symptoms down her right leg had also worsened, to the extent that she was almost unable to walk.  She was examined by a nurse practitioner, Aymee Rovick, who noted that the employee had weakness and alteration to sensation to touch in the L5-S1, ankle jerk was absent on the right, and the employee's rectal tone was slightly reduced.  Dr. Sava was consulted.  He concluded that the employee had "an unequivocal cauda equina syndrome and almost total inability to ambulate as well as bladder dysfunction," and in addition had lost rectal tone.  Dr. Sava performed surgery that same day on an emergency basis, in the form of a decompressive lumbar laminectomy of L5 to S2 with exoneration of multiple perineural cysts originating from the right L5 and S1 nerve roots.  During the surgery it was noted that the cyst had caused erosion into the vertebrae.

 

Following discharge from the hospital the employee developed a synovial fluid leak which required additional hospitalization and treatment.  Thereafter she continued under the care of Dr. Kirkhorn with slow improvement through the date of hearing.

 

On June 1, 2001 the employee underwent a medical evaluation by Dr. Krasnow on behalf of the self-insured employer.  Dr. Krasnow opined that the work injury in July 2000 "could have been an aggravation to her cyst that was later operated upon on February 2, 2001," but he did not believe it was a "substantial" aggravation.  In his report and in deposition testimony, Dr. Krasnow indicated that he was somewhat uncomfortable with accepting that the employee had exhibited signs of a cauda equina syndrome when she presented to the emergency room on the date of surgery, since the examination had been conducted by a nurse practitioner rather than a physician, and the possibility that her urinary symptoms were merely caused by a urinary tract infection had not been first ruled out by consultation with a urologist.  Further, he testified that his own approach to the treatment of a perineural cyst would have been to first attempt to exhaust non-surgical alternatives, including putting the employee on oral steroids for 48 to 72 hours before considering a referral to a neurosurgeon, though he conceded that other physicians might not take as cautious an approach.

 

The self-insured employer disputed that there was a causal relationship between the work injury and any symptoms and related disability or medical treatment associated with the employee's perineural cyst.  In addition, the employer disputed that the emergency surgery performed on February 2, 2001 was reasonable or necessary.  The matter came on for hearing before a compensation judge of the Office of Administrative Hearings on October 19, 2001.  Following the hearing, the judge found that the employee's work injury on July 14, 2000 substantially aggravated a preexisting lumbar cyst in her lumbar spine, resulting in disability and medical treatment, and that surgery performed to remove the cyst on February 2, 2001 was reasonable and necessary.  The self-insured employer appeals.

 

DECISION

 

I. Causation

 

The compensation judge's memorandum sets forth the judge's reasoning in finding that the employee's work injury on July 14, 2000 substantially aggravated a preexisting lumbar cyst in her lumbar spine, resulting in disability and medical treatment:

 

In this case, all three of the employee's treating doctors opined that the employee's lumbar condition was related to her work injury of July 14, 2000.  Dr. Cox noted the employee's low back condition was directly related to the injury sustained by the employee on July 14, 2000.  Dr. Sava indicated in a report of October 19, 2000 that the synovial cyst at L5-S1 was a pre-existing degenerative condition which became symptomatic as a result of the incident at work on July 14, 2000.  Dr. Kirkhorn agreed with Dr. Sava.  In his October 11, 2000 report, Dr. Kirkhorn indicated that the employee's condition was due to an aggravation of a pre-existing condition.  All three doctors had a complete and accurate history of the employee's injury and subsequent symptoms, complaints, diagnostic findings and treatment, as well as a history of lumbar complaints prior to the work injury.  The opinions of Drs. Sava, Cox and Kirkhorn were adequately founded.

 

Although none of these doctors indicated that the work incident "substantially" aggravated the employee's pre-existing degenerative cyst, the evidence in the case supports such a conclusion.  The employee's lumbar spine was asymptomatic prior to the work injury.  She experienced significant symptoms after the injury, including severe low back pain and tenderness in the right gluteal region, which is consistent with the location of the cyst.  In addition, within days of the injury, the employee had complaints of numbness in the feet and positive neurological findings consistent with nerve root impingement due to the cyst.  The employee's symptoms progressively worsened, without further injury to her low back.

 

(Mem. at 5-6 [citation to record omitted]).

 

The self-insured employer argues on appeal that the opinions of these physicians were insufficient to establish medical causation as a matter of law.   First, the employer asserts that the opinions lacked the requisite degree of medical certainty.  A doctor's causation opinion need not be expressed in any particular words.  What is required is that, under the facts of the case, it appears from the doctor's words, considered as a whole, that the doctor was of the opinion not merely that it was possible that the employee's work could have caused the employee's injury, but that it was probable that it did in fact cause the injury.  McBride v. Anderson Power & Equip., Inc., slip op., (W.C.C.A. Feb. 21, 2002).  We conclude that the opinions of the employee's treating physicians were expressed with sufficient certainty that the compensation judge was entitled to rely on those opinions in determining the causation issue in this case.

 

Citing Palmquist v. Onan Corp., 46 W.C.D. 425 (W.C.C.A. 1991), and other cases the appellant employer next contends that "[i]t is well-settled that a medical opinion without an explanation of the basis for the opinion is considered insufficient in terms of foundation."  (Employer's brief at 11.)  The employer relies principally on Palmquist, supra.  In Palmquist, a panel of this court reversed findings of causation, in part based on the same arguments put forth by the appellant employer in the present case: (1) that the causation opinions relied upon by the compensation judge were too indefinite, and (2) that no specific medical explanation had been offered to explain a physician's causation opinion.  The appellant employer reasonably contends that Palmquist was factually and legally quite similar to the present case.  However, the employer fails to note that Palmquist was reversed by the supreme court, which reinstated the compensation judge's finding of causation as supported by substantial evidence.  See Palmquist v. Onan Corp., 482 N.W.2d 791; 46 W.C.D. 440 (1992).   Another of the cases cited by the employer was similarly reversed, and the holdings in the remainder do not clearly support the proposition for which they have been cited.^[1]

 

Other than this lack of detailed explanation, the appellant employer has not alleged any foundational defects in the opinions adopted by the compensation judge.  In the absence of any obvious foundational error, the employee's treating physicians, who were familiar with the employee's medical history and had examined her on multiple occasions, had sufficient foundation and competence to render an expert opinion.  See Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1988).

 

This case was one in which there was a clear divergence in medical opinion.  As our supreme court has repeatedly stated, "[u]ntil the time comes when medical knowledge has progressed to such a point that experts in the field of medicine can agree, causal relation in determining injury or disease will have to remain in the province of the trier of fact."  Felton v. Anton Chevrolet, 513 N.W.2d 457, 458, 50 W.C.D. 181, 184 (Minn. 1994) (quoting Ruether v. State, 455 N.W.2d 475, 478 (Minn. 1990), and Golob v. Buckingham Hotel, 244 Minn. 301, 304-05, 69 N.W.2d 636, 639 (1955).  The compensation judge's choice among the disparate opinions of medical experts must be affirmed, unless the opinion relied upon was without adequate foundation.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  As we find  no foundational defect, we affirm.

 

II. Reasonableness and Necessity of Surgery

 

The compensation judge found that the surgery performed on February 2, 2001 was reasonable and necessary.  In her memorandum, the judge indicates that she accepted the opinion of Dr. Sava, as expressed in his surgical report, that surgery on February 2, 2001 was necessitated because the employee had presented in the emergency room with findings of unequivocal cauda equina and had reported recent episodes of significant urinary incontinence.^[2]

 

The appellant employer contends that this finding is unsupported by the record, arguing that the evidence in's physical examination at the emergency room on February 2, 2001 was performed by a nurse, rather than a doctor.  The employer also points to the opinions of its medical expert, Dr. Krasnow, and to the records of Dr. Christine Cox, who saw the employee on January 10, 2001 and recommended conservative treatment at that time.

 

We cannot accept the employer's implicit suggestion that medical examination findings are inherently unreliable where the examination was not performed by a physician but instead performed by a nurse practitioner or other medical professional commonly charged with such responsibilities in the medical community.  The compensation judge was not required to reject the examination findings on this basis.  Where the treating surgeon, Dr. Sava, considered it medically reasonable and appropriate to rely upon the examination findings of a nurse practitioner in evaluating the employee's need for emergency surgery, the compensation judge did not err in accepting that the findings formed an adequate basis for that doctor's opinion.

 

With respect to the reports of Dr. Cox, we note that, as of the dates she examined the employee, the employee's principal complaint was low back pain.  Radicular symptoms were fairly minimal, and the employee was not then experiencing the urinary incontinence, loss of rectal tone or severe radicular pain in the right leg which Dr. Sava concluded required emergency surgery when the employee presented to the emergency room on February 2, 2001.  Dr. Cox's report does not address the reasonableness or necessity of surgery where such symptoms are present.

 

Dr. Krasnow, a neurologist, testified that he would have taken a more conservative approach to the employee's condition even on February 2, 2001, and that he would first have attempted treatment with steroid injections for up to 48 hours before referring the employee for possible surgical intervention.  He also would have referred the employee to a urologist to rule out any other possible causes for her urinary symptoms.  However, in his deposition testimony, Dr. Krasnow acknowledged that his approach to surgical treatment was more cautious than that of many physicians and that if true bladder incontinence was present, consideration of surgery was advisable.

 

We conclude that the compensation judge did not err in accepting the opinion of the treating surgeon as to the need for surgery on an emergency basis, and that substantial evidence supports the finding that the surgery was reasonable and necessary.  The compensation judge's findings are affirmed.