MARY SWEEP, Employee/Appellant, v. DONNELLY STUCCO and ACE USA, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 19, 2002

 

HEADNOTES

 

CAUSATION - MEDICAL EXPENSES; MEDICAL TREATMENT & EXPENSE - IDET.  Where it was evident that the annular tear in the employee=s lumbar disc, evident on the employee=s 2000 discogram, was the condition necessitating the recommended intradiscal electrothermal [IDET] procedure at issue, and where there was no evidence of that tear or of any disc condition forecasting it on CT scans in 1985 and 1988 or on MRI scans in 1992 and 2002, the compensation judge=s conclusion that the condition to be treated by the recommended IDET procedure was not causally related to the employee=s 1984 work injury was not clearly erroneous and unsupported by substantial evidence.

 

Affirmed.

 

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

Compensation Judge:  William R. Johnson

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge's conclusion that she did not prove that the condition to be treated by a proposed IDET procedure was causally related to her 1984 work injury.  We affirm.

 

BACKGROUND

 

On December 6, 1984, Mary Sweep [the employee] sustained a work-related aggravation of a previous injury to her back, in the process of hanging sheetrock in the course of her employment with Donnelly Stucco [the employer].  The employee was thirty-six years old on that date and was earning a weekly wage of $414.42.  Subsequent to the injury, on December 17, 1984, the employee commenced treatment with chiropractor Dr. John Benassi, who restricted her from working.  On January 16, 1985, Dr. Benassi diagnosed acute bilateral knee sprain, acute lumbar sprain/strain with bilateral lower extremity neuralgia, and acute cervico-thoracic sprain/strain with secondary bilateral upper extremity involvement.  Dr. Benassi released the employee to return to work on March 11, 1985, under a continuing diagnosis of acute knee, low back, and neck pain and findings of decreased cervical and lumbar range of motion, palpable muscle spasm, and an antalgic gate.  About three months later, in June 1985, the employee exacerbated both her cervical and her low back conditions, and on October 22, 1985, she underwent CT scans of her cervical and lumbar spine.  The lumbar scan was read as negative, except for some mild degenerative changes in the facet joints and a slight bulge of the disc at L5-S1 without nerve root displacement or compression.  Several months later, on May 8, 1986, the employee consulted orthopedist Dr. John Larkin, who reported that he had reviewed the employee=s lumbar CT scan and had found it to reveal a small rupture at L5.  Dr. Larkin=s lumbar diagnosis, however, remained lumbar sprain. 

 

On March 23, 1988, the employee underwent another CT scan of her lumbar spine.  This scan was read to reveal a very minimally bulging disc at L5-S1, very minimal degenerative changes at L4-5, and no evidence of a herniated disc.  On March 29, 1988, the employee saw neurosurgeon Dr. Daniel Ahlberg, regarding in part her complaints of persisting low back pain.  Noting that he had reviewed the employee=s March 1988 CT scan and that it had appeared normal, with only minimal degenerative changes evident, Dr. Ahlberg diagnosed chronic low back pain syndrome, most likely related to chronic musculoligamentous strain and loss of supporting muscle tone.  He recommended that the employee have physical therapy for specific instructions in daily range of motion and musculoligamentous strengthening exercises.

 

On August 13, 1992, the employee underwent a lumbar MRI scan, which was read to reveal Ano abnormality of the spinal canal, discs, or vertebral bodies.@  About a year later, on October 26, 1993, the employee was examined by family practitioner Dr. Joseph Raynak regarding in part her back discomfort.  Dr. Raynak reported that A[o]verall, [the employee] feels that she=s doing fairly well.@  On examination Dr. Raynak found some tenderness with lumbar range of motion, but that range of motion was fairly full, there was no tenderness on the spine itself, there was no spasm or gross motor or sensory deficits, and straight leg raising was negative to about fifty or sixty degrees bilaterally.  On those findings, Dr. Raynak diagnosed lumbar strain, prescribed medication, and emphasized the importance of working on proper posture exercises.

 

On December 18, 1995, the employee was examined for the employer and insurer by Dr. John Dowdle, who diagnosed in part mechanical low back pain, expressly noting that the scans from many years earlier did not appear remarkable.  Identifying on physical examination few low back problems other than some nonsevere tenderness, Dr. Dowdle concluded that there was no objective reason why the employee could not work forty hours a week subject to a thirty-five-pound lifting limit, provided she was able frequently to change her positions.

 

The employee=s low back complaints evidently persisted, and on June 7, 1996, she saw Dr. Byron Holth regarding Asharp, shooting pains in the low back@ that she reported experiencing whenever she strayed outside her restrictions.  Dr. Holth diagnosed lumbar facet arthropathy and strain and continued the employee=s permanent restrictions.  On September 11, 1996, the employee returned to Dr. Holth with complaints of continuing and worsening bilateral radiculopathy.  Dr. Holth found straight leg raising tests to be positive at about thirty degrees bilaterally, and he prescribed physical therapy and continued the employee=s medication. The employee saw Dr. Holth again for essentially the same symptoms on March 3, 1997, on February 26, 1999, and on October 8, 1999.  Upon examination on the latter date, Dr. Holth found the employee to be tender over both SI joints and L5-S1 facets, but straight leg raising tests were negative to 90 degrees, and Dr. Holth diagnosed chronic lumbar strain with some radicular symptoms, prescribing medications and home therapy.

 

On February 14, 2000, the parties executed a stipulation for full, final, and complete settlement of all claims for benefits consequent to the December 6, 1984, work injury, except for future medical expenses reasonably and necessarily incurred to cure and/or relieve the effects of the injury.  An award on that stipulation was served and filed February 22, 2000.

 

On May 10, 2000, the employee saw Dr. Holth again, regarding an acute exacerbation of her low back condition, which had resulted in weakness, occasional numbness, and occasional pain radiating down both of her legs.  Dr. Holth prescribed epidural injections and referred the employee to pain specialist Dr. L. Michael Espeland, whom the employee saw on May 24, 2000.  Examination revealed normal reflexes, strength, and sensory response, but there was lower lumbar and S1 joint tenderness bilaterally and limited lumbar flexion and extension, and Dr. Espeland administered diagnostic lumbar medial branch block injections of Marcaine at the pedicles of L4 and L5.  Dr. Espeland reviewed the results of those blocks on May 31, 2000, and, noting that they did not significantly relieve the employee=s low back pain, he recommended a discogram, which he administered on June 14, 2000.  Expressly noting on that date that the employee=s Apain is nonradicular,@  Dr. Espeland interpreted the discogram results to reveal in part a full thickness annular tear at L4-5, with 7/10 concordant pain reproduced at that level.  Noting also that the employee=s disc height was good, Dr. Espeland concluded that the employee would be a good candidate for Aintradiskal annuloplasty.@  Three months later, on September 21, 2000, the employee underwent a dorsal root ganglion block at L2 bilaterally, following which she experienced less than twenty-five percent improvement in her low back pain.  On those findings, Dr. Espeland recommended that the employee undergo a single level intradiscal electrothermal [IDET] procedure at L4-5, based on the results of her June 14, 2000 lumbar discography.

 

On June 7, 2001, the employee underwent therapeutic injection at L4-5, for a flare-up in the intensity and severity of her back pain, and five months later, on November 1, 2001, she filed a medical request, alleging entitlement to the recommended IDET procedure at L4-5, consequent to her work injury on December 6, 1984.

 

On February 21, 2002, the employee evidently underwent a lumbar MRI scan that was read by the radiologist as being normal.^[1]  The following day, February 22, 2002, the employee saw Dr. Espeland again, with complaints of a level six Arefractory low back and bilateral leg pain.@  Having noted positive straight leg raising findings bilaterally at twenty degrees on examination, Dr. Espeland indicated that he would be continuing to pursue IDET treatment for the employee, and on March 6, 2002, in a letter to the employee=s attorney, he reiterated his recommendation to that effect.  Stating that A[i]t is not uncommon for abnormal discography to be present in the presence of an MRI interpreted as normal,@ Dr. Espeland indicated that he was recommending the IDET procedure notwithstanding the MRI results based on results of the employee=s June 2000 lumbar discogram, which he asserted was Athe more sensitive and dependable test.@  In a follow-up report the following day, Dr. Espeland indicated further that the employee=s pain was axial, not radicularBA[t]hat is to say, it is confined to her low back, and does not extend into her lower extremity(s) in a manner that would suggest major nerve root irritation.@  He indicated that it was therefore his opinion that the employee=s pain was Apurely discogenic in its origin,@ with the pain referable to the cluster of nerve endings in the disc annulus itself rather than to the nerve roots emanating past the disc.  AAs far as is known,@ he went on,

 

the mechanism of action of IDET, and its potential to resolve these painful symptoms, lies in the cauterization of irritated nerve endings, thus rendering them insensitive.  Secondly, and more basically, the thermal energy of IDET promotes fusion of injured collagen fibers of the annulus, thus promoting healing of the basic disc injury.

 

On April 5, 2002, the employee was examined again for the employer by Dr. Dowdle, who reported the employee=s condition to be

 

identical to the previous exam date of December 18, 19[9]5.  She does exhibit reasonable range of motion.  She has complaints of neck and low back pain without any objective findings.  Her symptoms have been going on for 15 years.  In my opinion, there is no objective evidence regarding a substantial lesion based on my examination or upon review of the 1992 MRI scan, as a result of the December 6, 1984 accident.

 

It was Dr. Dowdle=s opinion that the annular tear evident on the employee=s June 14, 2000, discogram was simply Aan aging phenomenon@ that was Ain no way@ causally related to the employee=s work injury.  Noting expressly that the employee=s 1992 MRI scan had been normal, Dr. Dowdle explained that, had the employee sustained a substantial lesion as a result of the 1984 work injury, the Adisc would be dehydrated, degenerated and would have narrowed and none of this is found on the more recent scans.@  Dr. Dowdle conceded that the recommended IDET procedure might well be reasonable treatment for the employee=s annular tear, but he reiterated that it was not causally related to the employee=s December 1984 work injury.

 

The matter came on for hearing on April 26, 2002.  The sole issue at hearing was in effect whether the condition to be treated by the proposed IDET procedure was a condition causally related to the employee=s 1984 work injury.  At hearing, the employee testified in part that, from the time of her work injury in 1984 until the present, her symptoms had remained constant in their location--Amid low back, and then radiat[ing] to the legs,@ having changed, since about 1997, only in additional numbness and weakness and  increased intensity.  She testified also that she had sustained no new injury to cause the increase in symptoms and that no doctor had suggested to her that her current problems were attributable to anything other than her work injury.  She testified that she delayed in aggressively pursuing an award of the recommended IDET procedure for nearly four years due to distractions over the deaths of her mother and her nephew.  When asked on direct examination whether she had an understanding, from her discussions with Dr. Espeland, as to the cause of the annular tear at L4-5 of her spine, the employee replied, AIt was due from the -- over the years from the injury that I had in >90 or >84.@

 

By findings and order filed May 6, 2002, the compensation judge concluded, in express reliance on the opinions of Dr. Dowdle, that the employee had failed to proved that the procedure at issue was in treatment of a condition that was causally related to the work injury.  The judge went on to state that, Awhile an IDET procedure might be a reasonable course of action here, the employee has not show[n] that the annual[ar] tear in question is related to her work injury in 1984.@  In his memorandum, the judge emphasized further that, while the discogram did reveal an annular tear at L4-5, Athe discogram fails to tell us anything about the cause of that annular tear.  For that we have to look to the medical history and the employee had a normal CT scan in 1988, a normal CT scan in 1992, and a normal MRI scan in 1995.@^[2]  The employee 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 employee contends that substantial evidence fails to support the compensation judge=s conclusion that the employee failed to prove that the condition to be treated by the recommended IDET procedure is causally related to her 1984 work injury.  The employee bases her claim on the persistence and consistency of her symptoms since the date of the injury, the reproduction of those symptoms in the employee=s June 2000 discogram, Dr. Espeland=s medical opinion based on that discogram, and the inapplicability of Dr. Dowdle=s conclusions.  We are not persuaded.

 

Dr. Espeland=s recommendation of the IDET procedure here at issue was based on results of a June 2000 discogram that contradicted results of CT scans in 1985 and 1988, of an MRI scan in 1992, and apparently of another MRI scan in 2002.  Moreover, on the date of the June 2000 discogram Dr. Espeland expressly reported that the employee=s Apain is nonradicular,@ and in his subsequent re-recommendation of the IDET procedure in March of 2002 he emphasized that that pain was Aconfined to her low back, and does not extend into her lower extremity(s).@  These assertions of Dr. Espeland are directly contrary to the May 2000 records of Dr. Holth at the time of the discogram (Dr. Holth having referred the employee to Dr Espeland), are directly contrary to other sections of Dr. Espeland=s own reports in February and March of 2002 at the time of the subsequent recommendation, and are directly contrary to the employee=s own testimony at hearing that her pain did, in fact, and continues to, radiate into her legs.  Particularly in light of this evidence of contradiction between the employee and her own recommending physician and between elements of that physician=s own records, it was not unreasonable for the compensation judge to credit the opinion of Dr. Dowdle, based on the CT and MRI scan evidence, over that of Dr. Espeland, based on the discogram results.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (a trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence).  While Dr. Espeland=s opinion may well have constituted sufficiently substantial evidence to support a conclusion contrary to that reached by the compensation judge, that is not our concern on review.  See Redgate v. Sroga's Standard Service, 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988) ("[t]he point [on review] is not whether [the appellate court] might have viewed the evidence differently, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate" (emphasis added)).

 

The employee argues also that, even if it is held to be reliable, Dr. Dowdle=s opinion is no basis for denial.  Countering Dr. Dowdle=s conclusion that the annular tear that is to be treated by the claimed IDET procedure is not causally related to the work injury, the employee states in her brief that Athere is no claim that the injury caused the tear@ (emphasis added), only

 

that the symptoms and condition from the time of the injury until the present [are] substantially related to the 1984 injury, which as this Court is well aware can include a preexisting condition becoming symptomatic.  Dr. Dowdle said that there was no substantial lesion from the 1984 injury.  There is no claim that the lesion is substantial.  The claim is that the lesion is causing the symptoms.

 

Other than his conclusory statements, Dr. Dowdle gave no explanation as to how the symptomatic tear at the present time could not be related to the work injury.

 

The employee then goes on to reemphasize the discogram=s confirmation of 7/10 concordant pain at L4-5, which, she reiterates, the employee testified to having experienced without lapse since the 1984 date of her work injury.   Again, we are not persuaded.

 

The employee=s argument under this heading is, if not self-contradicting, at least not altogether clear.  She expressly concedes that any existing lesion consequent to her work injury is not necessarily substantial, and yet she apparently contends that it is nevertheless a substantial contributing factor in the her need for the recommended IDET procedure.  The employee appears to be contending that, at the time of her 1984 work injuryBan aggravation of a previous injury--she was subject to a preexisting condition that either included an annular tear or has since resulted in an annular tear.  She appears to be arguing that, although that tear may not necessarily have been caused by the work injury, treatment of the tear by means of the recommended IDET procedure will reasonably cure or relieve the effects of her work injury and is thereby causally related to that injury.  However, having apparently conceded that an insubstantial, non-tear lesion might be the extent of her work injury, she does not explain exactly how her own insubstantial non-tear injury, diagnosed in 1984 as a lumbar sprain strain, will be cured or relieved by means of the IDET procedure that has now been prescribed for treatment of the annular tear.  Nor has Dr. Espeland provided an adequate explanation to that effect, notwithstanding his follow-up letter to the employee=s attorney on March 7, 2002.  Dr. Dowdle concluded that, had the employee sustained any 1984 disc lesion sufficiently related to warrant compensation now, the disc would have subsequently appeared on scans Adehydrated, degenerated and . . . narrowed,@ even if not torn.

 

We can only conclude that the annular tear evident on the June 14, 2000, discogram is the reason for the treatment here at issue and that, given the absence of evidence of that tear, or of any disc condition forecasting it, on two CT scans and at least one MRI scan spanning much of the eighteen-year period between the work injury and the hearing below, it was not unreasonable for the compensation judge to conclude that that reason for treatment was not causally related to that injury.  Because that conclusion by the judge was not unreasonable, and because the judge=s decision is also supported by expert medical opinion, we affirm the compensation judge=s denial of payment for the IDET procedure here at issue.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.