JAMES TARVER, Employee/Appellant, v. AMERICAN BLDG. MAINT. and CNA-RSKCo., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 24, 2003

 

HEADNOTES

 

CAUSATION B SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee=s proposed surgery was not causally related to the employee=s 2001 work injury.

 

MEDICAL TREATMENT & EXPENSE B SURGERY.  Substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee=s proposed surgery was not reasonable and necessary medical treatment.

 

Affirmed.

 

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

Compensation Judge:  Paul V. Rieke.

 

Attorneys:  Gary L. Manka and Brian A. Thompson, Katz, Manka, Teplinsky, Due & Sobol, Minneapolis, MN, for Appellant.  Thomas F. Coleman, Cousineau, McGuire & Anderson, Minneapolis, MN, for Respondents.

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals the compensation judge=s findings that the employee=s need for proposed knee surgery was not causally related to the employee=s 2001 work injury and that the proposed surgery was not reasonable and necessary medical treatment.  We affirm.

 

BACKGROUND

 

On July 24, 2001, James Tarver, the employee, sustained an admitted work-related injury to his right knee while working as a janitor for American Building Maintenance (ABM), the employer.  At the time of the injury, the employer was insured for workers= compensation liability by CNA, the insurer.  The employee was treated at Park Nicollet Clinic on July 30, 2001, and was given restrictions including no squatting or kneeling and no lifting or carrying over 50 pounds.  The employee continued to work but experienced pain and locking of the knee.  He returned to the clinic on August 9, 2001, and treated with Dr. Constance Pries, who recommended a knee sleeve and an MRI, prescribed anti-inflammatory medication, and released the employee to light duty work with restrictions including a requirement for sitting allowed for a third of the day, avoiding squatting, and no lifting over 20 pounds.  An August 15, 2001, MRI indicated an irregularity of the posterior horn of the medial meniscus with an oblique tear of the posterior horn.  The employee was referred to Dr. Julie Samson, an orthopedic surgeon, for a consultation on September 24, 2001.  Dr. Samson recommended a right knee arthroscopy for partial medial menisectomy.  The employer and insurer apparently denied approval for the surgery.  The employee did not treat with Dr. Samson again until January 31, 2002.

 

The employee had a pre-existing knee condition of a tear in the medial meniscus of the right knee which required a menisectomy of the medical meniscus on November 22, 1994.  Approximately sixty to seventy percent of the medical meniscus was removed.  The employee reached maximum medical improvement from this injury on September 8, 1995, and received a 3% permanent partial disability rating for this injury.  The employee was also given restrictions of no lifting or carrying more than 30 pounds and no kneeling on his right knee after that injury. 

 

The employee was laid off by the employer in September 2001 due to economic reasons.  After his layoff, the employee was able to find part-time work as a janitor but did not have health insurance either privately or through his new employment.  On one job application the employee denied having any knee problems.  The employee testified that he requested Dr. Samson release him to work without restrictions so that he could find work and that he did not tell potential employers of his knee conditions because he needed the work.  On January 31, 2002, Dr. Samson released the employee to work without restrictions as of February 1, 2002.  Dr. Samson noted that the employee was without remarkable significant symptoms on examination, no significant effusion, more tenderness on the lateral than the medial joint line, some crepitus, no warmth or erythema.  Dr. Samson also noted that the employee would return on an as needed basis and that if the employee elected to proceed with knee arthroscopy, it could be scheduled.

 

On January 30, 2003, the employee sustained a work-related injury to his low back while working for a different employer.  On March 14, 2003, the employee returned to Dr. Samson, who noted that the employee had a fair amount of symptomatology with palpation of his medial  joint line, greater than the lateral, and also in the area of his patellar facets, with no remarkable effusion, otherwise good range of motion, and complaints of pain.  Dr. Samson noted that the employee could schedule arthroscopy as previously discussed or he could treat conservatively. 

 

On May 19, 2003, the employee was examined by Dr. Larry Stern at the employer and insurer=s request.  Dr. Stern opined that the employee was at maximum medical improvement from his July 24, 2001, work injury, that no additional treatment would be causally related to the work injury, that the employee had no restrictions related to the work injury, and that the proposed arthroscopic surgery was not reasonable and necessary.

 

A hearing was held on May 30, 2003, on the employee=s request for approval of the proposed arthroscopic right knee surgery.  The compensation judge denied the request, finding that the employee=s need for proposed knee surgery was not causally related to the employee=s 2001 work injury and that the proposed surgery was not reasonable and necessary medical treatment.  The employee 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.  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

 

Minn. Stat. ' 176.135, subd. 1(a), provides 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.@  General treatment parameters also require treatment to be reasonable and necessary in order to be reimbursable.  Minn. R. 5221.6050, subp. 1A.  Medically necessary treatment is defined 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.@   Minn. R. 5221.6040, subp. 10.  The parties did not raise the issue of whether the applicable treatment parameters were met in this case, and therefore that issue is not addressed.  See Brantl v. Kendrick Elec., Inc., slip op. (W.C.C.A. Mar. 18, 1998) (court would not consider the treatment parameters where those rules were not raised below or on appeal).  The reasonableness and necessity of medical treatment under Minn. Stat. ' 176.135 is a question of fact for the compensation judge.  See Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993). 

 

In addition, the question of whether the employee=s need for proposed knee surgery was causally related to the employee=s 2001 work injury is a question of fact.  Questions of medical causation fall within the province of the compensation judge.  Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994).  The supreme court has stated, A[u]ntil the time comes when medical knowledge has progressed to such a point that experts in the field of medicine can agree, causal relation in determining injury or disease will have to remain in the province of the trier of fact.@  Id. at 459, 50 W.C.D. at 184 (quoting Ruether v. State, 455 N.W.2d 475,  478 (Minn. 1990), and Golob v. Buckingham Hotel, 244 Minn. 301, 304-05, 69 N.W.2d 636, 639 (1955)).

 

The compensation judge listed the following evidence and factors in support of his decision to deny the employee=s surgery request: the employee=s right knee injury, physical restrictions and condition before the July 2001 injury, the employee=s release to work without restrictions in January 2002, the lack of medical treatment for the right knee from January 2002 to March 2003, the employee=s ability to work doing significant physical activities with other employers post-injury, the employee=s report of no knee problems when applying for other jobs, and Dr. Stern=s opinions. 

 

The employee argues that he did not tell potential employers of his knee conditions because he needed the work, that he requested Dr. Samson to release him to work without restrictions so he could find work, and that he did not seek treatment because he did not have health insurance coverage.  Assessment of the credibility of a witness is the unique function of the trier of fact.  Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988).  It is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge.  Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990).  The compensation judge could reasonably conclude that the employee had been released to work without restrictions by Dr. Samson as of February 1, 2002, based upon her medical examination of the employee which indicated that he was without remarkable significant symptoms on examination, no significant effusion, more tenderness on the lateral than the medial joint line, some crepitus, no warmth or erythema, and not simply because the employee requested to be released without restrictions.  The compensation judge could also conclude that the employee did not seek treatment for reasons other than his lack of health insurance and that he did not inform other employers of his knee problems because he was able to perform the physically active work required by those employers.

 

The employee also claims that Dr. Stern=s opinion is not supported by the evidence, arguing that the employee had not been treated for the 1994 injury since 1995 and that the employee has not yet recovered from the 2001 injury.  Dr. Stern=s opinion, however, does not indicate that the employee has a  current knee condition that is related to the 1994 injury, but that the employee does not have a current knee condition which requires treatment.  Dr. Stern explained his opinion in his report:

 

In summary, Mr. Tarver had a significant bucket-handle tear of his medial meniscus, which was treated with an arthroscopic partial medial meniscectomy on November 22, 1994.  The operative report is quite specific in indicating that approximately 75% of Mr. Tarver=s medial meniscus was removed.  In other words, following this 1994 arthroscopy, only 25% of his meniscus remained.  It can be stated with orthopedic certainty that the 25% of the medial meniscus that remained after the first surgery was not Anormal.@  In other words, Mr. Tarver was left with what we call a Ameniscal remnant.@  Such remnants are notorious for showing up as abnormal findings on an MRI scan and in and of themselves, do not represent a significant abnormality which requires treatment.

 

Mr. Tarver does not need a medial meniscectomy again because quite simply, he has essentially only minimal medial meniscus remaining.  It is quite common for the remaining meniscal remnant to have all sorts of manners of tears and degenerative changes since the piece that was Aleft behind@ is subjected to abnormal stresses and is often read as being chronically torn on MRI scan.  This does not mean that the meniscal fragment is significantly torn in the Anormal way,@ and would not necessarily require an arthroscopic procedure to investigate it.  Another way to phrase the issue is that essentially 100% of people who have had large bucket-handle tears removed from their knee will have abnormal knee MRI scans on a permanent basis when looking at that same medial compartment.

 

In addition, there is the current state of Mr. Tarver=s knee.  Mr. Tarver is almost two years out from his injury.  Yet, on his examination today, his exam is essentially normal.  There was effusion in the knee and no swelling.  There were no physical findings suggestive of any type of knee problem that requires treatment.  In my opinion, Mr. Tarver has the normal appearance of a knee which has undergone significant previous partial meniscectomy and for which he has had a satisfactory outcome.  Again, there is no orthopedic finding at this point which would indicate that an arthroscopy is appropriate in view of his past medical history and the current clinical state of his knee.

 

It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony and a compensation judge=s choice between conflicting medical opinions is upheld, unless the opinion on which the judge relies is not based on adequate foundation or evidence and facts in the record.    Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).  As Dr. Stern=s opinion is adequately founded, we will not disturb the compensation judge=s choice between conflicting medical expert opinions.  Substantial evidence supports the compensation judge=s findings that the employee=s need for surgery was not causally related to his work injury and that the proposed surgery was not reasonable and necessary.  Accordingly, we affirm.