AVISHOOV ROBERTS, Employee/Appellant, v. SUPERVALU, INC., and KEMPER INS. COS., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 19, 2003

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS; RULES CONSTRUED - MINN. R. 5221.6500, SUBP. 2C(1)(d)(i).  Where the compensation judge found that the employee did not have a valid discogram showing positive results at one or two levels, which is one of the conditions in the applicable permanent medical treatment parameter that must be satisfied to indicate that surgery is reasonably required, and where that finding is supported by substantial evidence of record, we must affirm the compensation judge=s denial of the employee=s claim for a two-level fusion surgery. 

 

MEDICAL TREATMENT & EXPENSE - SUBSTANTIAL EVIDENCE.  Where the compensation judge found that the employee did not have a valid discogram showing positive results at one or two levels, which is one of the conditions in the applicable permanent medical treatment parameter, Minn. R. 5221.6500, subp. 2C(1)(d), that must be satisfied to indicate that surgery is reasonably required, and where that finding is supported by substantial evidence of record, we must affirm the compensation judge=s denial of the employee=s claim for a two-level fusion surgery. 

 

Affirmed.

 

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

Compensation Judge:  William R. Johnson

 

Attorneys:  Raymond R. Peterson, McCoy, Peterson & Jorstad, Ltd., Minneapolis, MN, for the Appellant.  Michael J. Koshmrl, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, P.A., St. Paul, MN, for the Respondents.

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s determination that a proposed surgical fusion is not mandated by the permanent medical treatment parameters as reasonably required medical treatment for the employee=s work related injuries.  We affirm.

 

BACKGROUND

 

This case is before the court on appeal from issuance of a Findings and Order on Remand.  The facts of this case are set forth in our previous decision.  See Roberts v. SUPERVALU, Inc., 63 W.C.D. 191 (W.C.C.A. 2003).  In summary, Mr. Avishoov Roberts, the employee, sustained admitted injuries to his low back on April 21 and October 28, 2000, while employed by SUPERVALU, Inc., the employer.  Following his first injury, the employee eventually returned to work as an order selector and continued to work at his regular duties.  Following his second injury, he returned to work for two hours per day, but had difficulty working and experienced continued symptoms in his low back.  The employee participated in a work-hardening program between October 2000 and February 2001, working one to two hours per day.  The employee testified that he stopped working in February 2001 because he was in pain and because his pain medication affected his ability to drive to work. 

 

On February 20, 2001, the employee was examined by Dr. Theodore Choma from Dr. Manuel Pinto=s office, who recommended continuation of the work-hardening program and a possible discography.  He restricted the employee from work through March 31, 2001.  On March 9, 2001, the employee was evaluated by Dr. Scott O=Connor at the employer and insurer=s request.  Dr. O=Connor opined that the employee had no objective findings and would not benefit from surgical treatment, and recommended physical therapy.  On April 3, 2001, the employee treated with Dr. Pinto, who recommended a lumbar discogram, and stated that if Athe discograms are inconclusive . . . then I would recommend for the patient to undergo a work-hardening program and return to work within the restrictions of the work-hardening.@  The employee underwent the discogram on April 10, 2001, which indicated abnormal morphology at L5-S1 and L4-5, but normal morphology at L3-4, as well as concordant pain at L5-S1 and L4-5 and nonconcordant pressure at L3-4 and L2-3.  Dr. Pinto reviewed the findings, recognized the nonconcordant findings at L2-3 and L3-4,^[1] but still opined that the employee was a reasonable surgical candidate and disabled the employee from work as of April 26, 2001.

 

On May 23, 2001, Dr. John Sherman, who had evaluated the employee in November 2000, again examined the employee to provide a second surgical opinion.  After reviewing the employee=s MRI and discogram results, Dr. Sherman concluded that the employee=s diagnostic findings did not warrant fusion surgery, and that the most appropriate treatment was an aggressive rehabilitation program.  At his deposition, Dr. Sherman testified that he questioned the validity of the employee=s discogram results, stating the discogram may not help identify the cause of the employee=s pain nor lead to surgery that would result in Asignificant and reliable resolution of the [employee=s] symptoms . . . .@

 

On November 7, 2001, the employee filed a medical request for approval of a two-level lumbar fusion surgery recommended by Dr. Pinto.  The employer and insurer refused to pay for the surgery, alleging that the employee had no objective findings on examination, was not a surgical candidate, and would not benefit from surgical treatment.  A hearing was held before Compensation Judge William R. Johnson on February 7, 2002.  The issue at the hearing was whether the recommended two-level fusion surgery was reasonable and necessary treatment of the employee=s admitted low back injury.  The employee claimed that the surgery was appropriate under the treatment parameters, specifically relying upon Minn. R. 5221.6500, subp. 2C(1)(d)i.  The compensation judge did not address the employee=s treatment parameter argument, and found that the proposed low back fusion surgery was not reasonable and necessary.

 

The employee appealed to the Workers= Compensation Court of Appeals, and by decision dated January 9, 2003, we held that the compensation judge did not address the determinative issues as presented by the parties, that is, whether the treatment parameter criteria were met or whether circumstances warranted a departure from the treatment parameter rules.  We therefore vacated the compensation judge=s Findings and Order and remanded for consideration of whether the treatment parameter criteria were met, and if so, whether circumstances warranted a departure from the treatment parameter rules. 

 

On remand, the parties submitted briefs setting forth their respective positions.  In Findings and Order on remand, served and filed on April 28, 2003, the compensation judge again denied the employee=s claim for payment of expenses related to a lumbar fusion surgery.  He found that the employee=s request for a fusion surgery did not meet the requirements of Minn. R. 5221.6500, subp. 2C(1)(d)i.  The compensation judge also found, in the alternative, that if it was determined that the employee did satisfy the requirements set forth in that rule, a departure from the treatment parameters was warranted and the proposed surgery was not reasonable and necessary medical care to cure or relieve the effects of the employee=s work injuries.  The employee again 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.

 

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers' Compensation Court of Appeals may consider de novo.  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff'd (Minn. June 3, 1993).

 

DECISION

 

Minn. Stat. ' 176.135, subd. 1(a), states that an employer is to furnish Aany medical, psychological, chiropractic, podiatric, surgical and hospital treatment . . . as may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury.@  Under legislation enacted with the objective of controlling medical costs in the workers= compensation system, the Minnesota Department of Labor and Industry promulgated treatment parameter rules for health care provider treatment.  Hirsch v. Bartley-Lindsay Co., 537 N.W.2d 480, 483, 53 W.C.D. 144, 148 (Minn. 1995).  The requirement that treatment must be reasonable and necessary in order to be reimbursable is contained in the general treatment parameters in Minn. R. 5221.6050, subp. 1A, which states that A[a]ll treatment must be medically necessary treatment, as defined in part 5221.6040, subp. 10.@  AMedically necessary treatment@ is defined in Minn. R. 5221.6040, subp. 10, as Athose health services for a compensable injury that are reasonable and necessary for the diagnosis and cure or significant relief of a condition consistent with any applicable treatment parameter in parts 5221.6050 to 5221.6600.@   The applicable parameter in this case, Minn. R. 5221.6500, subp. 2C(1)(d)i, provides that lumbar arthrodesis surgery is reasonably required if the employee has incapacitating low back pain for more than three months and degenerative disc disease with a positive discogram at one or two levels of the spine.^[2]  The employee claims that his medical condition satisfies the requirements for surgery as set forth in that section of the treatment parameters, specifically, that the employee has experienced incapacitating low back pain for longer than three months and had positive findings on discogram.

 

On remand, the compensation judge again found that the proposed surgery was not reasonable and necessary.  He addressed the conditions that must be satisfied to indicate that the surgery is reasonably required:  incapacitating low back pain for longer than three months and a positive discogram at one or two levels.  The compensation judge concluded that the employee did not satisfy the criteria of a positive discogram at one or two levels.  The employee=s discogram, taken on April 12, 2001, showed concordant pain at the L4-5 and L5-S1 vertebral levels, which are the levels proposed by Dr. Pinto to be fused. However, the compensation judge concluded that the discogram was very inconclusive because it showed Anon-concordant pressure@ at L2-3 and L3-4, levels which had appeared normal on an MRI scan.^[3]

 

The compensation judge relied on Dr. Sherman=s opinion that, because the employee had significant pressure sensation at levels that appeared to be normal on his earlier MRI scan, the validity of the results was questionable.  Dr. Sherman testified that discography is one test utilized to determine whether an individual is a surgical candidate.  He outlined the nature of the discography and related injections, explaining, in brief, that contrast material is injected into a vertebral disc to identify if the disc looks normal or abnormal morphologically.  A patient is then asked whether he feels pain or pressure at certain levels, and the radiologist performing the test then records whether that report of pain or pressure is the same as or different than the patient=s normal pain or pressure.  Dr. Sherman testified that Athe validity of discography in terms of its diagnostic utility is enhanced when there is a control level meaning a level which morphologically is normal yet does not provoke any significant pain.@  In this case, the employee=s MRI scan showed that his L3-4 and L2-3 discs are normal and yet when his discography was performed, he complained of pressure at both levels.  Dr. Sherman found those findings to be significant and concluded that the discogram results were invalid.  He testified that

 

The fact that he had significant pressure sensations at a normal level at L3-4 calls into question the validity of that test.  And if one cannot identify with a high degree of reliability the anatomic cause of this individual=s pain, then the likelihood of a surgery which by obligation is directed at a specific part of the anatomy resulting in significant and reliable resolution of the symptoms diminishes greatly.

 

There is conflicting medical expert opinion in the record on the validity of the employee=s discogram.  Dr. Kurt Schellhas, the radiologist who performed and interpreted the results of the discogram, concluded that the test was valid, and Dr. Pinto concurred with that assessment.  However, the compensation judge relied on Dr. Sherman=s opinion, and rejected that of Dr. Pinto, in addressing the question of whether the employee met the criteria for a positive discogram.  It is the compensation judge=s responsibility, as a trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).   Even though other medical opinions in the record  would support an opposite conclusion than that reached by the compensation judge, we cannot say that the compensation judge erred in concluding that the employee=s discogram results were invalid and inconclusive.  Since Dr. Sherman=s opinion supports the compensation judge=s conclusion that because the employee=s discogram was not valid the employee=s condition does not satisfy the requirement for a positive discogram, as set forth in Minn. R. 5221.6500, subp. 2C(1)(d)i, we must affirm that finding and his conclusion that the employee is not entitled to the proposed fusion surgery.

 

Because we have affirmed the compensation judge=s finding that the employee does not satisfy the criteria in Minn. R. 5221.6500, subp. 2C(1)(d)i, based on the lack of a positive discogram, we do not need to address the other issues on appeal, that is, whether the record supports the compensation judge=s findings that the employee has not experienced incapacitating low back pain for longer than three months and whether the employee=s condition would qualify for a departure from the treatment parameters as a Arare case exception.@