RONNIE W. MCBRIDE, Employee, v. ANDERSON POWER & EQUIP., INC., and FEDERATED MUT. INS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 21, 2002

 

HEADNOTES

 

CAUSATION - CONSEQUENTIAL INJURY.  Sub­stantial evidence, including the opinion of the employee=s treating physician, supports the compensation judge=s finding that the employee sustained a compensable injury at L1-2 as a con­sequence of his admitted work injuries at L4-5 and L5-S1.

 

EVIDENCE - EXPERT MEDICAL OPINION.  Failure to provide a detailed description of how the injury occurred does not render a medical expert=s opinion without foundation.  Rather, the presence or absence of such testimony goes to the weight that may be afforded the testimony by the compen­sation judge.  A doctor=s causation opinion need not be expressed in any particular terms.  Rather, all that is needed is that, under the facts peculiar to the case, it appears from the testimony of the medical expert, considered as a whole, that the expert believed there was a causal relationship between the original injury and the consequential injury.

 

MEDICAL TREATMENT & EXPENSES - IDET.  Substantial evidence supports the com­pensation judge=s decision approving the IDET procedure at L1-2 recommended by the employee=s treating physician.

 

Affirmed.

 

Determined by: Johnson, J., Pederson, J., and Rykken, J.

Compensation Judge: Jennifer Patterson

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

Anderson Power & Equipment, Inc., and Federated Mutual Insurance Company appeal the compensation judge=s finding that the employee sustained a consequential injury to his back caused in substantial part by the employee=s July 26, 1995 personal injury with Anderson Power & Equipment, Inc.  They further appeal the compensation judge=s award of intradiscal electrical thermal treatment.  We affirm.

 

BACKGROUND

 

Ronnie W. McBride, the employee, sustained a personal injury on February 2, 1987, while employed by John Nelson Farms.  In December 1987, Dr. Ben Clayburgh performed a lam­inectomy and fusion at the L5-S1 level.

 

In 1989, the employee commenced employment with Anderson Power & Equipment, Inc., the employer.  On July 26, 1995, the employee sustained a Gillette-type injury to his back for which the employer and Federated Mutual Insurance Company were found liable.  An MRI scan on August 22, 1995, showed Scheuermann-type changes at the thoracolumbar junction with Schmorl=s nodes at L4-5.  A CT scan in March 1997 showed significant stenosis at L3-4.  In June 1997, Dr. Timothy A. Garvey performed an anterior posterior lumbar interbody fusion at L4-5 and L5-S1.

 

The employee returned to see Dr. Garvey on October 5, 1998, complaining of increas­ing pain over the past six months.  The doctor felt the employee might be experiencing irritation of the paraspinal musculature due to the instrumentation.  In February 1999, Dr. Garvey performed a third surgery to remove the instrumentation from the fusion site.  The employee testified the sur­geries did not help his back condition.  Lumbar discography in November 1999 was 10/10 concord­ant at L1-2, 8/10 concordant at L2-3 and 6.5 non-concordant at L3-4.  The employee returned to see Dr. Garvey on January 3, 2000.  The doctor diagnosed significant disc degeneration at L1-2 with a Achemically sensitized disc.@  (Pet. Ex. E.)  The doctor felt further surgery was not appropriate.  The insurer agreed to pay for steroid injections at L1-2 which Dr. Garvey then performed.

 

On February 18, 2000, Dr. John Dowdle examined the employee at the request of the employer and insurer.  The doctor obtained a history from the employee, reviewed his medical records and conducted a physical examination.  Dr. Dowdle concluded the employee=s July 25, 1995 injury was an aggravation of underlying degenerative disc disease at L4-5 and L5-S1.  He opined the employee did not suffer any new or intervening injuries after July 25, 1995. 

 

In March 2001, the employee filed a medical request seeking approval of an intra­discal electrical thermal (IDET) procedure recommended by Dr. Garvey.  The employer and insurer objected to the requested medical treatment. 

 

Dr. Dowdle reviewed the employee=s current medical records and prepared a report dated July 3, 2001, in which he stated his diagnosis had not changed since his February 18, 2000 examination.  The doctor opined the degenerative disc condition at L1-2 pre-existed the personal injury and was not related to any work injury.  Finally, Dr. Dowdle felt the IDET procedure was not appropriate for the employee and had a very low chance of relieving the employee=s pain. 

 

By report dated July 6, 2001, Dr. Garvey again recommended intradiscal electrothermy at the L1-2 level and felt the employee was a good candidate for this procedure. In a report dated August 13, 2001, Dr. Garvey stated:

 

I believe that the patient=s pre-existing fusions at L4-5 and L5-S1 place him at a greater risk for degeneration at levels above.  He does have a significant genetic component to disc degeneration at a young age based on the multi level nature of his pathology.  On the other hand, his L1-2 level appears to be aggravated by his attempting to return to work, bending over the bowling alleys.  I believe that the 1987 and 1995 injuries play a part in this, in that because he has an L4 to the sacrum fusion he has increased risk of degeneration above the level of that fusion.  I believe this would encompass the entire lumbar spine.  (Pet. Ex. H.)

 

The employee=s medical request was heard by a compensation judge at the Office of Administrative Hearings.  In a Findings and Order filed August 29, 2001, the compensation judge found the work injuries to the L4-5 and L5-S1 levels of the employee=s lumbar spine resulted in a consequential injury^[1] to the L1-2 level of his spine.  The compensation judge further found the IDET procedure recommended by Dr. Garvey was reasonable and necessary medical treatment.  The employer and insurer appeal.

 

DECISION

 

1.  Consequential Injury

 

The employer and insurer appeal the compensation judge=s finding that the employee sustained a consequential injury at the L1-2 level.  They assert Dr. Garvey=s opinion is inadequate and insufficient to establish causation between the work injuries at L4-5 and L5-S1 and the L1-2 disc degeneration because the doctor failed to explain the basis for his opinion or the mechanism of injury.  Such failure, the appellants argue, render the doctor=s opinion legally insufficient to satisfy the employee=s burden of proof.  We disagree.

 

The competency of a witness to provide expert medical testimony depends upon both the degree of the witness= scientific knowledge and the extent of the witness= practical experience with the matter at issue.  Reinhardt v. Colton, 337 N.W.2d 88 (Minn. 1983).  In this case, Dr. Garvey was the employee=s treating doctor, was fully aware of the employee=s medical history and examined him on many occasions.  As a general rule, this level of knowledge establishes a doctor=s 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).  We agree Dr. Garvey did not provide a detailed description of how the L4-5, L5-S1 fusion caused disc degeneration at the L1-2 level.  Such omission, however, does not render Dr. Garvey=s opinions without foundation.  See Goss v. Ford Motor Co., 55 W.C.D. 316 (W.C.C.A. 1996) summarily aff=d Oct. 17, 1996.  Rather, the presence or absence of such testimony may go to the weight afforded the testimony by the compensation judge. 

 

The appellants further argue Dr. Garvey=s opinions state only that the work injuries played a part in the aggravation of the L1-2 disc but failed to state the injuries were a substantial contributing cause.  Thus, appellants contend, Dr. Garvey=s opinions are legally insufficient to establish a causal connection and could not be relied upon by the compensation judge.  Again, we disagree.

 

A medical opinion does not have to express absolute certainty, but the employee must still sustain his or her burden of proving a causal relationship by a preponderance of the evidence.  See Schopf v. Red Owl Stores, Inc., 323 N.W.2d 801, 803, 35 W.C.D. 216, 220 (Minn. 1982).  To establish causation, it is not necessary to establish absolute medical certainty; a medical opinion is sufficient if it is probably true.  Pommeranz v. State, Dep't of Public Welfare, 261 N.W.2d 90, 91, 30 W.C.D. 174, 176-77 (Minn. 1977).  A doctor=s causation opinion need not be expressed in any particular words.  All that is needed is that, under the facts of the case, it appears from the testimony of the medical witness, considered as a whole, that the doctor opined the injury not only could have but did cause the disc injury. 

 

Dr. Garvey opined the employee=s L4-5 and L5-S1 fusion placed him at a greater risk for degeneration at levels above.  The doctor further stated the L1-2 degeneration was aggravated by the employee=s work activities and concluded the 1987 and 1995 injuries played a part in that aggravation.  The reports of Dr. Garvey can reasonably be construed as stating the admitted work injuries did cause, aggravate or accelerate the disc degeneration at the L1-2 level.  Accordingly, the compensation judge=s findings must be affirmed.

 

2.  Medical Expenses

 

The compensation judge found the employee was a good candidate for the IDET pro­cedure at his L1-2 disc, found the procedure was reasonable and necessary and ordered the employer and insurer to pay for the treatment.  The employer and insurer appeal this finding contending the employee will not receive significant benefit or relief from the procedure according to Dr. Dowdle.  Further, the appellants contend where an employee=s condition is long-standing in nature due to de­generated discs, the IDET procedure is contraindicated, citing Kapaun v. Farmstead Foods, slip op. (W.C.C.A. June 4, 2001).  We are not persuaded.

 

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 trial court=s decision based on substantial evidence is of little precedential value.  In his July 6, 2001 report, Dr. Garvey recommended the IDET procedure at the L1-2 level and stated the employee was a good candidate for the procedure.  Dr. Dowdle opined the employee was not a good candidate for the IDET procedure.  It is the com­pensation judge=s responsibility as the trier of fact to resolve conflicts in expert testimony.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  The compensation judge chose to ac­cept the opinion of Dr. Garvey and award the requested medical benefits.  The judge=s decision is supported by substantial evidence and is, accordingly, affirmed.