CAROL A. McDONEL, Employee, v. ANDERSEN WINDOWS and LIBERTY MUTUAL INS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 21, 2003

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Substantial evidence, including expert opinion, supported the compensation judge=s decision approving fusion surgery to treat the employee=s work-related low back condition.

 

PRACTICE & PROCEDURE - MOTIONS.  Where the employer and insurer raised the issue of the need for a psychological evaluation in its medical response, where the employer and insurer did not learn that the employee had undergone an MMPI until the hearing, where the employer and insurer filed a motion post-hearing, requesting an independent review of the employee=s MMPI test results and psychological and medical records, and where the compensation judge denied that motion on the grounds that arrangements should have been made prior to the hearing for a written report by a  psychologist chosen by the employer and insurer, that evidentiary ruling was within the compensation judge=s discretion and does not represent an abuse of the compensation judge=s discretion, nor does it evidence a lack of due process afforded to the employer and insurer.

 

Affirmed.

 

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

Compensation Judge:  James R. Otto           

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal from the compensation judge=s finding that the proposed surgery to the employee=s lumbar spine is reasonably required to cure and relieve the employee from the effects of her injury on September 1, 2000.  We affirm.

 

BACKGROUND

 

Carol McDonel, the employee, began working for Andersen Windows, the employer, in 1983.  Her primary duties included assembly line work.  On May 19, 1998, she sustained a work-related injury to her low back, diagnosed as a lumbar strain.  She was eventually assigned a rating of 9% permanent partial disability of the whole body as a result of this injury.  The employee  testified that her low back symptoms resolved by the fall of 1998. 

 

On September 1, 2000, the employee sustained an admitted low back injury as a result of being struck by a large object, described by the employee as a 3600-pound battery, as it slid off a forklift.  The employee noted an immediate burning pain in her lower back and received first aid from the employer.  She consulted her family physician, Dr. Jon Stratte, on September 6, reporting pain in both legs, a burning sensation with a bruised area in the buttocks, and tenderness in her sacral and lumbar areas.  Dr. Stratte restricted her from work and prescribed muscle relaxers and pain medication.  An MRI taken on September 7, 2000, revealed a small left-sided protrusion at the L4-5 level which was stable, and degenerative changes at the L3-4, L2-3, and L1-2 levels, which were stable.  Those results showed no significant changes from an MRI scan administered in July 1998 following the employee=s 1998 injury.

 

At Dr. Stratte=s referral, Dr. Charles Ormiston conducted a neurological evaluation of the employee, and diagnosed a pain syndrome and depression for which he suggested trigger point injections and a comprehensive pain approach.  Dr. Stratte prescribed medication for pain management, anti-depressant medication to help relieve symptoms of depression, and also a TENS unit.  Dr. Stratte released the employee to work in mid-November, and she did attempt a return to work for approximately six weeks, but noticed continued pain and dragging of her left foot.

 

Dr. Bruce Bartie, D.O., and John Stratmann, physician=s assistant, who examined the employee on January 4, 2001, diagnosed multilevel degenerative disc disease with chronic low back pain, L4-5 facet instability, and depression, and restricted the employee from work.^[1]   They referred the employee to Dr. Ashish Shanbhag for chronic pain management and consideration of facet joint injections at the L4-5 level.  Dr. Bartie also advised the employee that it was unwise for her to remain in a manufacturing environment, as she would be at significant risk for further occupational injury in the future. 

Dr. Shanbhag initially recommended left psoas compartment and lumbar plexis blocks, and administered those on March 20, 2001, but those provided only temporary relief of the employee=s symptoms.  He referred the employee to Dr. Jane Siegal, licensed psychologist, for an evaluation of the employee=s cognitive, emotional and behavioral functioning as they related to symptoms of pain.  Dr. Siegal diagnosed adjustment disorder with depressed mood and chronic pain.  She concluded that

 

Clinical findings suggest difficulties adjusting to chronic pain with somewhat depressed mood.  However, she appears to be making efforts to adapt appropriately.  She reports a variety of ways in which she is attempting to make the best of things.  It is certainly possible that her coping ability may be fragile and she may need psychology services at a future point.  However, she is not motivated for psychotherapy at this time. 

 

Thereafter, Dr. Shanbhag recommended a variety of conservative treatments including epidural injections, narcotic medications, physical and occupational therapy, aquatic therapy, and a series of work-hardening sessions, none of which provided any significant relief of symptoms.  On October 23, 2001, Dr. Shanbhag performed an annuloplasty utilizing an intradiscal electrothermal (IDET) procedure.  The employee testified that the IDET procedure worsened her condition.  By January 2002, Dr. Shanbhag recommended surgery in the nature of percutaneous disk decompression via the LASE [endoscopic discectomy] technique.

 

The employee sought a second opinion from Dr. Thomas Rieser, who examined the employee on February 13, 2002, and diagnosed the employee with degenerative disc disease and low back pain resulting from her injury on September 1, 2000.  He expressed concern with the narcotics the employee was utilizing, and advised her to get her medications Aunder control@ and to try to discontinue all narcotic medication, within a chronic pain program if needed, in order to better assess her pain situation.  Dr. Rieser addressed the endoscopic procedure recommended by Dr. Shanbhag, and stated that

 

I am not optimistic about her gaining any significant relief by any procedure at L4-5 endoscopically.  I feel the chance is less than 50/50 on this.  Certainly it is a minimally invasive procedure, but in this patient, I am not convinced there is a high chance of success.  On the other hand, I am not sure I have any other great alternatives for her.  She has had an IDET procedure at L5-S1.  She has had degenerative changes at L4-5 and mild degenerative changes above that at the proximal three levels.  Some day she may require a fusion at L4-5 and possibly at L5-S1.  However, I would not entertain any of this at all until a significant change was made with regards to her medication usage.  I also feel she should be evaluated by psychology with an MMPI, etc.

 

Dr. Rieser reexamined the employee on March 20, 2002, at which time she advised him that she was no longer taking Methadone, that she was seeing a psychologist at Bethesda Pain Center, and was also participating in a pain management program at the Courage Center.  Dr. Rieser recommended a second discogram, to determine whether surgery was an option, and also referred the employee for a pain evaluation with Dr. Todd Hess at the United Pain Center.  The discogram was interpreted to show concordant pain at level 5 out of 10 at L3-4 and 10 out of 10 at the levels of L4-5 and L5-S1.  Dr. Rieser discussed the option of fusion surgery with the employee and ultimately recommended continued conservative treatment.  However, by May 2, 2002, the employee reported continued significant symptoms, and, after further discussion with the employee, Dr. Rieser recommended that she undergo fusion surgery at the L4-5 and L5-S1 levels of the spine.

 

On July 1, 2002, the employee filed a medical request for approval of the recommended fusion surgery, and in their medical response, the employer and insurer denied authorization for the proposed surgery.  This matter was scheduled for a hearing on August 27, 2002, before Compensation Judge James Otto.  Shortly before the hearing, on August 20, 2002, the employee underwent an MMPI (Minnesota Multiphasic Personality Inventory) conducted by Dr. Colleen Warner, licensed psychologist.  The employee testified that she underwent an MMPI because she believed that Athis is one of the procedures that needs to be done@ before undergoing surgery, based upon her group discussions at pain management meetings.  She also testified that A[g]oing back through my records, I knew that Dr. Rieser would have probably wanted it, so I had it done.@  In a report prepared after the employee=s MMPI, Dr. Warner noted that the employee=s clinical interview revealed no obvious cognitive deficits or psychiatric difficulties.  She also noted that the employee had mild depression by history, and that psychological testing revealed some tendency to magnify physical symptoms in the face of psychological distress, but that her depression was consistent with that often seen in chronic pain patients.  Dr. Warner concluded that there were no obvious psychological reasons to prohibit surgery. 

 

At the employer and insurer=s request, Dr. David Boxall examined the employee following the hearing, on September 4, 2002.  He diagnosed multiple level degenerative disc disease of the lumbar spine with L4-5 left-sided disc protrusion, and marked functional overlay and chronic pain syndrome, and determined that the employee=s September 1, 2000, injury was a temporary flare-up of her pre-existing condition.  Dr. Boxall found a marked divergence between the employee=s objective physical findings and her subjective complaints on examination, and concluded that the proposed surgery was not appropriate due to those discrepancies.  He also noted that the employee=s responses to multiple modalities of treatment were all unsuccessful, and anticipated that her result from surgery similarly would be unsuccessful.  Dr. Boxall concluded that by September 2001,  the employee had reached maximum medical improvement from all low back injuries.  He assigned physical work restrictions, and had no further suggestions for medical treatment.  Dr. Boxall stated that

 

I do not believe that a psychological or psychiatric evaluation prior to surgery would be of any benefit.  It is clear from the nature of her bizarre complaints at this time that she has a significant psychological component to her ongoing symptoms.  It is also rather unusual that she has failed to respond to a multitude of different types of treatment she has had to date.  It is interesting to note that in spite of being off work for the last approximately one year her symptoms have worsened.

 

Dr. Boxall explained that he saw no need for psychological evaluation, as he thought such an evaluation would not Aget rid of@ some problems that are evident from her medical records.  Instead, he suggested resolution of litigation, and recommended home exercises, over-the-counter medication, and a return to work. 

 

In view of the short period of time between the filing of the employee=s medical request and the evidentiary hearing, the employer and insurer were granted leave by the compensation judge to schedule a post-hearing deposition of Dr. Boxall.  At the hearing, the employee requested that she be allowed to submit, post-hearing, the report issued by Dr. Colleen Warner, and a supplemental report issued by Dr. Rieser.  On September 16, 2002, the employer moved for an order allowing the record to remain open to allow for an independent psychological review of the results of the MMPI.  Compensation Judge Rolf Hagen, designee for the Chief Administrative Law Judge, denied that motion by order served and filed on September 25, 2002. 

 

In his Findings and Order, served and filed on October 1, 2002, Compensation Judge James Otto, who presided at the hearing held on August 27, 2002, found that the proposed fusion surgery reason was reasonably required to cure and relieve the effects of the employee=s injury of September 1, 2000.  The employer appeals. 

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

The employer and insurer appeal from the compensation judge=s finding that the proposed fusion surgery represents reasonable and necessary treatment for the employee=s September 1, 2000, low back injury, arguing that the compensation judge=s decision is legally insufficient because it is not based upon the record as a whole, and contending that there are significant conflicting medical opinions and objective medical findings that indicate the employee is not a candidate for fusion surgery.  Based upon Dr. Boxall=s report, the employer and insurer argue that the employee=s subjective complaints do not correlate well with her objective findings, and that even if she did proceed with surgery, she would not achieve a satisfactory result on most of her subjective complaints.  The employer and insurer also point to the employee=s poor results from the IDET procedure as being an indication that proposed surgical intervention may not resolve the employee=s subjective complaints.

 

  In his Findings and Order, the compensation judge stated that he gave considerable weight to Dr. Rieser=s opinion Ain determining that the proposed fusion procedure has a reasonable chance of providing to Ms. McDonel the relief that she seeks from her highly disabling pain symtomatology.@  (Memo, p. 4)  The employer argues that Dr. Rieser did not have the proper foundation for his opinion that fusion surgery is necessary, as his recommendations are not based on a complete medical record, and his reports do not address the findings of other physicians who noted inconsistencies between the employee=s  reported complaints and physical findings.

 

As stated by the Minnesota Supreme Court, AThe 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 which is the subject of the offered testimony.@  Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983), as cited in Drews v. Kohl=s, 55 W.C.D. 33 (W.C.C.A. 1996), summarily aff=d (Minn. July 12, 1996).  Adequate foundation is necessary for a medical opinion to be afforded evidentiary value.  Winkles v. Independent Sch. Dist. No. 625, 46 W.C.D. 44, 58 (W.C.C.A. 1991).  To establish an adequate foundation, the facts upon which an expert relies for his or her opinions must be supported by the evidence.  McDonald v. MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff=d (Minn. July 13, 1990).

 

In the present case, the employer and insurer allege that Dr. Rieser=s opinion is based on an incomplete medical record.  However, Dr. Rieser=s records include an extensive history provided by the employee, his findings from the physical examinations he conducted on the employee, and his review of the employee=s MRI scan taken in September 2000 and of her lumbar spine discograms taken in October 2001 and April 2002.  In addition, Dr. Rieser clearly had  Apractical experience with the matter@ at issue, since he had treated the employee since February 2002.  See Jepsen v. Bayliner Marine Corp., 55 W.C.D. 370 (W.C.C.A. 1996) summarily aff=d (Minn. Oct. 29, 1996).  The employer and insurer=s concerns about the Dr. Rieser=s lack of reference to conflicting medical opinions and the employee=s psychological condition do not demonstrate an inadequate factual foundation for his opinions.  See also McDonald, 43 W.C.D. 83.  Although these concerns may relate to the persuasiveness or weight accorded Dr. Rieser=s medical opinions, they are insufficient to establish lack of foundation.  Drews, 55 W.C.D. at 40; see also Stuhr v. Northwestern Travel Serv., Inc., 57 W.C.D. 352 (W.C.C.A. 1997), summarily aff=d (Minn. Dec. 15, 1997), citing Bossey v. Parker Hannifin, slip op. (W.C.C.A. Mar. 14, 1994) (while adequate foundation is necessary for a medical opinion to be afforded evidentiary value, the expert need not be made aware of every relevant fact).  We conclude adequate foundation existed for Dr. Rieser=s opinions.

 

The employer and insurer also argue that the compensation judge did not consider the record as a whole, as he failed to mention the conflicting medical opinions, the alleged gaps in Dr. Rieser=s medical opinion, the failed IDET procedure, and the findings of the various MRI scans.  The employer and insurer further argue that the compensation judge failed to discuss why he disregarded the opinions of Dr. Boxall, Dr. Garvey and Dr. Bartie, all of whom stated that the employee was not a candidate for surgery, and that such failure compels a reversal of the findings and order of the compensation judge.^[2]  We disagree.  The fact that the compensation judge did not recite or refer to  all the medical evidence in his findings does not establish that he overlooked that evidence.  See  Rothwell v. MN Dep=t of Natural Resources, slip op. (W.C.C.A. Dec. 6, 1993); Pelto v. USX Corp., slip op. (W.C.C.A. Dec. 16, 1993).  The records of the employee=s extensive medical treatment, and the reports of Drs. Boxall, Garvey and Bartie, were admitted into evidence, and it can be reasonably inferred that the compensation judge considered those records and medical opinions.  See Braun v. St. John=s Univ., slip op. (W.C.C.A. July 20, 1992) (compensation judge is not required to relate or discuss every piece of evidence introduced at trial).  The compensation judge chose not to adopt or rely upon those opinions and instead accepted the contrary opinion of Dr. Rieser.  That the compensation judge did not specifically refer to the other doctors= opinions in his decision does not mean that he failed to consider them.  In addition, it is the role of the compensation judge to choose between conflicting medical opinions.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).  

 

The employer and insurer also argue that neither the compensation judge nor Dr. Rieser considered the employee=s psychological state in reaching his conclusions concerning the need for the proposed fusion surgery.  They argue that an employee=s psychological condition should be evaluated by a surgeon before concluding whether surgery would be of benefit to an individual.  The employer and insurer=s concerns rest, in large part, on the employee=s medical records that document a broad area of diffuse complaints, subjective findings and depression for which the employee was prescribed anti-depressant medication.  They cite Torgerson v. ELO Eng=g, slip op. (W.C.C.A. Mar. 16, 1994), in which we affirmed a compensation judge=s conclusion that  anterior/posterior fusion surgery was not reasonable and necessary, where the compensation judge found that the treating surgeon had proceeded to surgery without an adequate consideration of the employee=s past treatment history, diagnostic test results, consideration of treatment alternatives, or a comprehensive evaluation of the employee=s emotional and psychological fitness for surgery.   We note initially that Torgerson was an affirmance of a compensation judge=s finding, based on substantial evidence, and cases resolved on this basis have little value as precedent.  In the present case, the compensation judge=s finding that the employee Ais an appropriate psychological candidate for an anterior/posterior type fusion of her lumbar back@ refutes the employer and insurer=s contention that the compensation judge did not consider the employee=s psychological state.  Dr. Siegal=s and Dr. Warner=s opinions provide a basis for that determination.  That the compensation judge did not specifically cite to either psychological opinion does not, on its own, mean that he did not review those records.  Rothwell, slip op. (W.C.C.A. Dec. 6, 1993); Pelto, slip op. (W.C.C.A. Dec. 16, 1993).  Further, Dr. Boxall did not believe that a psychological evaluation would be of any benefit.  The judge=s finding that the employee is an appropriate psychological candidate for the proposed fusion surgery is adequately supported by the record, including the opinions of Dr. Siegal and Dr. Warner.

 

The employer and insurer further argue that they were denied due process when they were unable to schedule an independent assessment of the employee=s MMPI results and Dr. Warner=s analysis of those results.  The employer and insurer were first apprised of Dr. Warner=s evaluation at the hearing on August 27, 2002.  The record remained open for submission of the results of the MMPI, and on September 10 or 11, 2002, the employee=s attorney and counsel for the employer and insurer received a copy of that report from Dr. Warner.  Thereafter, the employer and insurer requested additional time for an independent review of the MMPI results, but were denied that request.^[3]  The employer and insurer now argue that had they been informed of the scope of Dr. Warner=s examination, they would have requested an independent review of the MMPI results during the hearing as opposed to post-hearing, and that an independent review could have been accomplished within the time originally extended by the compensation judge for the record to remain open.  They further argue that since the employee=s psychological condition is of great importance in determining the employee=s fitness for proposed surgery, they should have been allowed to have an independent post-hearing review of the MMPI results. 

 

However, the employee argues that the compensation judge properly denied the employer and insurer=s motion for a post-hearing psychological review of the MMPI.  Even though the employer and insurer initially raised the issue of the employee=s psychological condition in their medical response dated July 8, 2002, by stating that the employee=s orthopedic surgeon recommended a psychological evaluation and an MMPI prior to deciding whether to perform surgery, they neither chose to schedule an independent psychological evaluation of the employee, nor asked her to undergo an MMPI, prior to the hearing.  In addition, the employee argues that Dr. Boxall saw no need for a psychological evaluation.  For those reasons, the employee contends that the compensation judge reasonably denied the employer and insurer=s motion for an additional record review by a psychologist.  We agree.

 

In an order denying motion, served and filed September 25, 2002, Compensation Judge Rolf Hagen, as designee of the chief administrative law judge, concluded that good cause had not been shown by the employer and insurer Afor an extension of time to obtain from a psychologist a written report after reviewing the result of an MMPI and all medical records.@  The judge concluded that the employer and insurer should have arranged for a written report by a psychologist prior to the hearing, which the employer and insurer did not choose to do, even though they raised the psychological issue in their medical response.  The compensation judge also referred to the independent examiner=s conclusion that a psychological evaluation would not be of any benefit.  AEvidentiary rulings are generally within the sound discretion of the compensation judge.@  Ziehl v. Vreeman Constr. Co., slip op. at 5 (W.C.C.A. Oct. 15, 1991).    It was within Compensation Judge Hagen=s discretion to deny the employer and insurer=s post-hearing request for an independent review of the employee=s psychological report and MMPI results issued by Dr. Colleen Warner.  In view of the record as a whole, the compensation judge=s ruling does not represent an abuse of his discretion, not does it evidence a lack of due process afforded to the employer and insurer.  We  therefore affirm the denial of the employer and insurer=s post-hearing motion.