CINDY M. RUSHMEYER, Employee, v. LYNGBLOMSTED CARE CTR., SELF-INSURED/BERKLEY RISK ADM=RS, Employer/Appellant, and BLUE CROSS/BLUE SHIELD OF MINN. and TWIN CITIES SPINE CTR., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 17, 2002

 

HEADNOTES

 

CAUSATION - MEDICAL EXPENSE; MEDICAL TREATMENT & EXPENSE - SURGERY; EVIDENCE - EXPERT MEDICAL OPINION.  Where the employee had had no back problems prior to the year of her two work injuries and there was evidence that she had had ongoing back pain ever since, and where the judge=s decision was supported by expert medical opinion, the compensation judge=s award of payment for medical expenses including proposed surgery was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that there was a three-year lapse in the employee=s actual treatment for her condition.

 

Affirmed.

 

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

Compensation Judge:  Jeanne E. Knight.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The self-insured employer appeals from the compensation judge=s determination that disputed medical treatment and a requested fusion surgery are reasonable and necessary and causally related to the employee=s 1987 work-related injuries.  We affirm.

 

BACKGROUND

 

Cindy Rushmeyer [the employee] sustained work-related injuries to her low back on  January 6 and June 13, 1987, while employed as a nursing assistant by Lyngblomsten Care Center [the employer], which was self-insured at the time against workers= compensation liability.  She sought treatment with her family doctors at the North St. Paul Medical Center, who prescribed medication and physical therapy and released her to work with restrictions.  The employee was also seen in consultation by orthopedic doctors Arnulf Svendsen and Jack Drogt.  On November 19, 1997, Dr. Drogt diagnosed continued lumbosacral strain/sprain and advised the employee that her discomfort might last anywhere from six to eighteen months and that she might occasionally require physical therapy. 

 

Also on November 19, 1987, the employee was examined for the employer by orthopedist Dr. Mark Engasser, who diagnosed a myoligamentous strain of the thoracolumbar spine.  Dr. Engasser reported that the employee had exhibited minimal objective back-related findings, and he recommended a three-month program of supervised conditioning.  He also recommended continued restrictions but anticipated that those restrictions would decrease over time.  Dr. Engasser concluded that the employee Awill have reached maximum medical improvement in three months following@ her two work injuries, and he did not anticipate any permanent partial impairment.

 

A lumbar CT scan performed on January 26, 1988, was interpreted as normal, with very minimal facet joint hypertrophic changes at L5-S1.

 

The employee was referred to neurologist Dr. Steven Noran on February 1, 1988.  Dr. Noran noted that the employee had been on and off light-duty work and had been attending physical therapy off and on since her injuries.  After reviewing the employee=s records and CT scan, Dr. Noran saw no reason for further diagnostic tests but continued to prescribe medications, physical therapy, and work restrictions.  Because the employee had apparently sustained frequent exacerbations related to activity, Dr. Noran ordered a functional capacities evaluation [FCE] to determine the appropriateness of the employee=s job with the employer.  The FCE was conducted, and on October 12, 1988, the employee and her QRC met with Dr. Noran to discuss its results and to review the QRC=s evaluation of the employee=s job.  Dr. Noran subsequently concluded that the employee was not able to continue working in the job she was performing as a nursing assistant.

 

On November 2, 1988, Dr. Noran opined that the employee had reached maximum medical improvement [MMI] on October 12, 1988, with a final diagnosis of lumbar strain.  He again opined that the employee was not medically able to resume her former employment, and he indicated that further medical treatment was advised.  He rated the employee=s permanent partial disability at 3.5%, under Minn. R. 5223.0070, subp. 1A(2), which provides for such a rating for a healed sprain, strain, or contusion.^[1]  Due to her restrictions, the employee evidently left her employment with the employer in late 1988 or early 1989.

 

In June 1989, the employee and the employer entered into a full, final, and complete settlement of the employee=s claims for workers= compensation benefits, exclusive of reasonable and necessary medical treatment.  An Award on Stipulation was issued by a compensation judge on August 2, 1989.

 

The employee was last seen by Dr. Noran on September 28, 1989, following an acute flare-up of her back pain the previous week.  The doctor recommended physical therapy and prescribed medication.  In March 1990, the employee began treating with Dr. Donald Jensen, a chiropractor in White Bear Lake.  The employee treated regularly with Dr. Jensen through April of 1994.  In late May of 1994, the employee moved to Hinckley, Minnesota.

 

In December 1995, the employee was referred by Dr. Jensen to Dr. Kyle Hams at the Hinckley Chiropractic Center, who provided intermittent treatment during 1995 and 1996.  The employee=s medical records do not reflect any further back treatment between October 10, 1996, and July 20, 1999.

 

On July 19, 1999, the employee and a friend were lifting a freshly painted cabinet when the employee twisted and experienced a flare-up in her low back.  The next day, she was seen at the Mora Medical Center by Dr. Larry Brettingen.  The employee complained of severe back pain and an inability to sit, stand, or walk in a satisfactory position.  Dr. Brettingen diagnosed acute lumbar disc syndrome and prescribed medications.

 

On the following day, July 21, 1999, the employee returned to the Hinckley Chiropractic Center and commenced what became nearly two years of almost weekly treatment with Dr. Hams.  In a letter to the employee=s attorney dated December 9, 1999, Dr. Hams stated that the employee=s recurring low back and leg pain were consistent with her 1987 injuries and that her treatment was being provided on a PRN basis in an effort to keep her gainfully employed and as pain free as possible.

 

An MRI scan performed on August 24, 1999, revealed degenerative changes, with mild disc narrowing and with a mild annular disc bulge at L2-3 and, to a lesser degree, at L3-4 and L5-S1.  The radiologist saw no disc herniation, and Dr. Brettingen continued the employee=s restrictions and medications and referred her for physical therapy.

 

On April 7, 2000, the employee was seen by Dr. Maria Zorawska at the Institute for Low Back Care, to whom the employee complained of pain mainly confined to the right buttock, together with some back pain, more on the right side than the left.  She also complained of radiating pain down the back of the right thigh and to the side of the calf.  On April 21, 2000, Dr. Zorawska injected the L5 nerve root with cortisone and local anesthetic, temporarily relieving her right leg pain.

 

On April 24, 2000, the employee filed a claim petition, seeking payment of medical expenses incurred at the Mora Medical Center and Hospital, the Institute for Low Back Care, and the Hinckley Chiropractic Center.  The employer denied liability, contending that the employee=s need for medical treatment was due to a superseding intervening cause--the employee=s lifting injury of July 19, 1999

 

A second MRI scan was performed at the request of Dr. Zorawska on May 16, 2000.  Three days later, the employee was seen by Dr. Zorawska=s colleague, Dr. Charles Burton.  Dr. Burton reviewed the recent MRI with the employee and explained that it showed multi-level degenerative changes consistent with a diagnosis of juvenile discogenic disease.  At L5-S1, he found radiographically significant and severe lateral spinal stenosis, with exiting nerve compression bilaterally.  Dr. Burton recommended Asurgical decompression bilaterally at L5-S1,@ together with Aa dorsolateral strut stabilization (non-rigid fusion),@ apparently at that level.

 

About eight months later, the employee sought a second surgical opinion from Dr. Manuel Pinto of the Twin Cities Spine Center.  Dr. Pinto obtained a history of the employee=s back complaints, performed a physical examination, and reviewed the MRI performed in May 2000.  Dr. Pinto noted that the employee=s scan showed multi-level degenerative disc disease, with a moderate herniation at the L5-S1 level lateralized to the right, causing obvious compression of the right S1 nerve root.  Because the employee=s symptoms were primarily back pain, Dr. Pinto recommended a discogram to assess which levels were contributing to her symptoms.

 

On February 1, 2001, the employee returned to Dr. Pinto for a discussion of her discogram.  Dr. Pinto explained that the tests highlighted two discs that were very painful and also morphologically ruptured.  Injections into the L2-3 and L5-S1 discs gave the employee 10/10 concordant pain at both levels.  The doctor also noted that there was mild to moderate pressure sensation at the L4-5 level and that the disc at that level had a nearly complete full-thickness tear.  The doctor opined that surgical treatment was a reasonable option.  He suggested an anterior instrumented fusion of L2-3, together with either an anterior/posterior fusion of L5-S1 only or, because of disc abnormalities at L4-5, fusion also up through L4-5.

 

On February 20, 2001, Dr. David Boxall examined the employee on behalf of the employer, in the process obtaining a history from the employee and reviewing her medical records.  In deposition testimony taken on May 24, 2001, Dr. Boxall opined that the employee=s injuries in 1987 were temporary in nature and that there was no relationship between her work injuries and the medical expenses at issue.  The doctor also opined that the chiropractic treatment provided by Dr. Hams and the fusion procedure proposed by Dr. Pinto were not reasonable or necessary.

 

On May 17, 2001, Dr. Pinto had also testified by deposition, opining that the fusion procedure he proposed was both reasonable and necessary and causally related to the employee=s work injuries.  In the course of that testimony, in the context of distinguishing between dermatomally distributed radicular pain and non-dermatomally distributed discogenic pain, the doctor responded under cross examination AI don=t know@ to the question Ais it your opinion that both L2-3 and L5-S1 were traumatically affected by [the employee=s two work injuries] in 1987?@.  Under redirect examination near the end of his deposition, however, Dr. Pinto also testified unambiguously, over a foundation objection, AYes@ to the question Ais it your opinion that the 1987 work injuries permanently aggravated or accelerated the problems that [the employee] currently has in her spine?@.

 

The employee=s claims for medical treatment, including a claim for the surgery proposed by Dr. Pinto, came on for hearing before a compensation judge on May 30, 2001.  Evidence offered at trial included the depositions of Dr. Boxall and Dr. Pinto, the employee=s medical records, and the employee=s testimony.  The employee testified that she had no low or mid back complaints prior to her injuries in 1987 and that since 1987 she had had constant low back pain and tingling in her right leg.  The employee also testified to a number of flare-ups and a progressive worsening of her condition that had caused her to dramatically change her activities.

 

In a decision filed July 30, 2001, the compensation judge determined that the medical treatment received by the employee had been reasonable and necessary and causally related to the employee=s work injuries.  She further determined that the surgical procedure sought by the employee was reasonable and necessary.  The self-insured 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 argues that the compensation judge erred in finding the employee=s medical treatment and proposed surgery to be reasonable and necessary and causally related to her 1987 work injuries.  It contends (1) that the judge=s finding of causal relationship is unsupported by the contemporaneous medical records; (2) that the employee=s medical expert did not satisfy the employee=s burden of proving causation; and (3) that the proposed surgery is not reasonable in view of the employee=s unremarkable physical examination and the risk of increased problems at the level or levels that remain unfused.  We are not persuaded by any of these arguments.

 

First of all, as to the contemporaneous medical records, we acknowledge that there is evidence which, if accepted by the compensation judge, would have supported the conclusion urged by the employer.  Dr. Claudon, at the North St. Paul Medical Center, reported that, on October 21, 1987, the employee was pain free and that his examination of the employee was essentially negative.  When Dr. Engasser examined the employee in 1987, the employee exhibited minimal objective back-related findings, and the doctor did not anticipate any permanent partial disability.  The employee=s CT scan in 1988 did not reveal any evidence of a herniated disc or any of the employee=s current abnormalities.  Dr. Noran diagnosed only a lumbar strain and found the employee to have reached MMI by October 12, 1988.  When Dr. Brettingen obtained the employee=s history in 1999, the employee indicated that she had been getting along quite well for thirteen years, until she reinjured her back on July 19, 1999.  We grant that this evidence may support the employer=s contention regarding causal relationship, but the question here on appeal is not whether the evidence would support a contrary result, but whether the result reached by the judge is clearly erroneous and unsupported by substantial evidence in view of the record as submitted.  Minn. Stat. ' 176.421, subd. 1 (1992).  This court may not disturb findings of fact 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.@  Northern States Power Co. v. Lyon Food Prods., 304 Minn. 196, 229 N.W.2d 521 (1975).  That is not here the case.

 

On the issue of causation, the compensation judge accepted the opinion of Dr. Pinto, the employee=s treating physician, over that of Dr. Boxall, the employer=s expert medical examiner.  When asked why he found no relationship between the disputed treatment and the employee=s injuries, Dr. Boxall had stated that one of the reasons was that Athere is a five-year hiatus with no treatment from December of >90 to December >95 which would indicate that there was no ongoing back problem.@  In her memorandum, the judge pointed out that Dr. Boxall was mistaken, in that the employee did treat during that time, with Dr. Jensen in White Bear Lake.  We note also that, following Dr. Claudon=s examination of October 21, 1987, the employee reported a flare-up of back pain followed by the January 1988 CT scan and the referral to the Noran Clinic.  In her findings, the judge also emphasized that prior to 1987 the employee had had no low back problems, whereas after 1987 she had constant low back pain and tingling in her right leg.  Moreover, the judge noted, the employee=s back progressively worsened over the years, and she was forced to leave her job with the employer and to modify her activities, eventually becoming subject to flare-ups of her pain with light activity.

 

We are similarly unconvinced by the employer=s contention that Dr. Pinto=s testimony did not satisfy the employee=s burden of proof.  The employer argues that Dr. Pinto was unable to state whether the employee=s L2-3 and L5-S1 discs were traumatically affected by the employee=s 1987 injuries.  Citing Holmlund v. Standard Constr. Co., 307 Minn. 383, 389, 240 N.W.2d 521, 525, 28 W.C.D. 317, 324 (1976), the employer argues, ATo sustain a finding of causal relation 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@ (emphasis in original).  Again we are not persuaded.

 

Dr. Pinto testified that the employee has experienced back symptoms and the need for treatment almost every year since 1987.  He stated that the employee=s treatment has been a continuum of the 1987 work injuries.  While Dr. Pinto could not specifically relate the employee=s MRI findings to her 1987 injuries, he nevertheless expressed a clear opinion on causal relationship after obtaining the employee=s history, reviewing her medical records, examining her on two occasions, and being provided with a written hypothetical at his deposition.  Generally, this court will affirm a finding which rests upon the compensation judge=s choice between conflicting opinions of medical expert witnesses unless facts relied upon by the chosen expert in forming his opinion are unsupported 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).  There is no evidence that Dr. Pinto=s opinion was premised on any such facts.  Given the employee=s testimony, her record of treatment since 1987, and Dr. Pinto=s opinions, the employee has adequately satisfied her burden of proof.  Accordingly, we affirm the judge=s findings of causal relationship.

 

Finally, we reject the argument of the employer that the proposed surgery is not reasonable.  The employer argues primarily that the opinion of Dr. Boxall should have been preferred over that of Dr. Pinto.  It notes that when Dr. Pinto examined her on January 19, 2001, the employee was not in any acute distress, had no obvious spinal deformity, and had only mild or minimal tenderness in her low back.  Moreover, the employer argues, a fusion at two levels, while skipping levels in between, is particularly risky and not in the employee=s best interests.

 

Whatever merit there may be to the employer=s argument, the issue here is entirely one of a difference in expert medical opinion.  The compensation judge accepted the opinion of Dr. Pinto, who, the judge noted, performs low back surgery whereas Dr. Boxall does not.  The judge was entitled to rely upon Dr. Pinto=s medical judgment in his interpretation of the employee=s clinical history and diagnostic tests.  Dr. Pinto was clearly aware of the risks connected with the proposed surgery and yet opined that it was reasonable.  The compensation judge was free to accept Dr. Pinto=s opinion in this regard.

 

This was a factually difficult case, and had we been the judge we may well not have decided it as she did.  However, because the judge=s decision was not unreasonable in light of the record as a whole, we affirm in its entirety the compensation judge=s conclusion that the employee=s medical treatment and the surgery proposed by Dr. Pinto were reasonable, necessary, and causally related to the employee=s 1987 injuries.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.