JERI S. WEBBER, Employee, v. SENIOR FRIEND ASSOCS., INC., and AIU INS. CO./AIG CLAIMS SERVS., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 1, 2003

 

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS.  Where a statement of the treating physician was minimal but sufficient evidence that fusion surgery was being considered at the time that the discography was ordered, and where there was substantial evidence that the other three criteria of the rule were also satisfied, the compensation judge=s conclusion that all four of the criteria in Minn. R. 5221.6100, subp. 2G, for authorizing discography were satisfied was not clearly erroneous and unsupported by substantial evidence.

 

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Where there were abnormal findings on a discogram, and where there was expert medical opinion that the employee was not a candidate for surgical intervention but had a 60 to 70 percent chance of some improvement with IDET treatment, the compensation judge=s conclusion that the recommended IDET treatment was reasonable and necessary in treatment of the employee=s work injury was not clearly erroneous and unsupported by substantial evidence.

 

PRACTICE & PROCEDURE - ADMISSION OF EVIDENCE; EVIDENCE - CREDIBILITY.  Where the compensation judge listened to the employer and insurer=s arguments as to the relevance of testimony regarding the employee=s conduct during a previous neck injury for purposes of gauging the employee=s credibility, and where the judge concluded that that conduct and injury were too remote to be relevant to the low back injury at issue, the compensation judge=s exclusion of cross-examination regarding the neck injury was not an abuse of discretion, such as would require reversal of the judge=s ruling.

 

PRACTICE & PROCEDURE.  Although the court continued to discourage the practice, there was no legal error in the judge=s nearly verbatim adoption of proposed Findings and Order.

 

Affirmed.

 

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

Compensation Judge:  Donald C. Erickson.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge=s award of payment for a discogram and proposed intradiscal electrical thermal [IDET] procedure.  They further appeal from an evidentiary ruling of the judge and from his verbatim adoption of the employee=s proposed findings and order.  We affirm.

 

BACKGROUND

 

On November 6, 2000, Jeri Webber [the employee] sustained a work-related injury to her low back^[1] while employed as a home health aide with Senior Friend Associates, Inc. [the employer].  The employee initially treated with family practitioner Dr. Leon Kohn, who prescribed medications, physical therapy, and restrictions.  The employee did not improve, and Dr. Kohn referred her for evaluation by occupational medicine specialist Dr. Jed Downs. 

 

Dr. Downs began treating the employee in January 2001 and has become the employee=s primary treating physician.  In the course of his treatment, Dr. Downs has prescribed  chiropractic treatment, physical therapy, a right sacroiliac injection, pelvic stabilization therapy, a home exercise program, and various prescription medications, including MS Contin and Neurontin, none of which modes of treatment has provided any lasting relief for the employee.  By May of 2001, Dr. Downs suspected, as a reason for the employee=s recurrent problems, an annular tear at either one or two levels, supposing that the employee=s residual pain had a Adiscogenic component as well as a mechanical component.@  He referred the employee for a lumbar MRI scan, which was conducted on May 23, 2001, and was read to be normal.  On September 13, 2001, Dr. Downs concluded that the employee suffered from recurrent mechanical back pain and stated that he suspected Ainternal disc disruption and possibly an unstable left iliosacral joint.@  He referred the employee for a discogram, to be followed by a neurosurgical consultation.

 

The employee underwent a five-level discogram at the Lakewalk Surgery Center on October 5, 2001.  The examiner, Dr. Hal Heyer, found concordant pain at both the L4-5 and the L5-S1 discs, both of which had Aslightly abnormal@ morphology.  At the employee=s follow-up with Dr. Downs on October 10, 2001, treatment options were discussed, including the possibility of an IDET procedure or lumbar fusion surgery.  Dr. Downs indicated that recommendations regarding surgery would ultimately rest with a neurosurgeon.

 

On November 2, 2001, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Jack Drogt.  Dr. Drogt obtained a history from the employee, conducted a physical examination, and reviewed the employee=s May 23, 2001, MRI scan and her medical records, as well as a nineteen-page summary letter prepared by counsel for the employer and insurer, which contained a detailed summary of the employee=s prior medical history.  Dr. Drogt found the employee=s MRI scan to be normal but concluded that the employee had residual low back pain localized to the right sacroiliac joint referable to the November 6, 2000, incident.  He diagnosed a lumbar pain syndrome, concluding that the employee=s presentation on examination suggested symptom amplification.  He concluded that most treatment to that time had been reasonable and necessary and suggested that additional aggressive treatment of the right sacroiliac joint would also be reasonable.  However, in light of the employee=s normal MRI scan, Dr. Drogt concluded that the employee=s discography had not been warranted, nor did he believe that the proposed IDET procedure was reasonable and necessary.

 

In February 2002, the employee was seen in consultation by neurosurgeon Dr. Scott Dulebohn.  Following an additional MRI study, Dr. Dulebohn concluded that the employee was not a candidate for surgical intervention.  He did recommend, however, that the employee be referred back to Dr. Heyer for the IDET procedure, Ashould she choose to go through with it.@  He stated that Ashe has got a 60 to 70% chance of some improvement with IDET and follow-up rehab.@ 

 

On March 6, 2002, the employee filed a medical request, alleging entitlement to payment of the expenses related to the discogram and requesting authorization of the IDET procedure.  The employer and insurer denied liability for the expenses, contending that the treatment was neither reasonable and necessary nor indicated by the medical treatment parameters.  On May 9, 2002, the employee=s claims were heard by a compensation judge at an administrative conference pursuant to Minn. Stat. ' 176.106.  In a decision issued June 7, 2002, the judge denied the employee=s request for payment for the discogram and for authorization of the IDET procedure.  On June 13, 2002, the employee filed a request for a formal hearing. 

 

On July 22, 2002, Dr. Downs wrote to the employee=s counsel regarding his reasons for recommending the discogram and the status of his treatment of the employee.  Dr. Downs stated that, while the employee=s MRI scan effectively ruled out a sympathetic nerve root compression due to disc herniation, the scan did not rule out the possibility of internal disc disruption.  He stated that the employee=s MRI scan of May 23, 2001, had not established a specific diagnosis and that, A[i]n fact, lumbar fusion was being considered as a therapeutic option@ as of October 2001.  With regard to the IDET procedure, Dr. Downs stated, ACurrently, the trend is to pursue an[] IDET procedure prior to doing lumbar fusion because it is much less invasive; however, the jury is still out as far as how effective a treatment it is.@

 

The matter came on for hearing before Compensation Judge Donald C. Erickson on July 31, 2002.  In a Findings and Order issued September 3, 2002, the compensation judge concluded that the discogram had been reasonable and necessary to cure and relieve the employee from the effects of her work injury and that the criteria for a discogram set forth in Minn. R. 5221.6100, subp. 2G, had been met.  He further determined that the proposed IDET procedure was reasonable and necessary to cure and relieve the employee from the effects of her injury.  The employer and insurer appeal.

 

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

 

1.  Discogram

 

The compensation judge concluded that the employee=s discography was compensable because she met the criteria under Minn. R. 5221.6100, subp. 2G.  That rule provides that discography is indicated when,

 

(1)  all of the following are present:

 

(a)  back pain is the predominant complaint;

(b)  the patient has failed to improve with initial nonsurgical management;

(c)  other imaging has not established a diagnosis; and

(d)  lumbar fusion surgery is being considered as a therapy.

 

The primary contention of the employer and insurer is that the medical and rehabilitation records offered into evidence do not support a finding that lumbar fusion surgery was being considered as a therapy at the time discography was ordered.  They argue that the employee testified at trial that no doctor has ever told her that she was a candidate for fusion surgery.  They note that the first record to mention any thought of fusion surgery was Dr. Downs= office note of October 10, 2001, five days after the discogram was performed.  Even that office note, they argue, does not indicate that Dr. Downs was considering fusion surgery, since he made clear that such a recommendation would be left to a neurosurgeon.  They further contend that the only evidence supportive of the compensation judge=s decision in this regard is the letter written by Dr. Downs to the employee=s attorney on July 22, 2002, just prior to trial.  In that letter, Dr. Downs simply stated that fusion surgery was being considered as a therapeutic option.  The employer and insurer contend that this letter cannot be considered substantial supporting evidence, in view of the fact that it was issued ten months after the discogram was recommended and nine months after the discogram took place, that it was issued at the request of the employee=s attorney to refute the employer and insurer=s position, and that it was not consistent with the contemporaneous records or the employee=s testimony.  We are not persuaded.

 

Although we agree that the contemporaneous record is less than clear as to whether or not lumbar fusion surgery was being considered as a therapy at the time the discogram was ordered, we believe that there is substantial evidence in the record to support the judge=s conclusion that the criteria for a discogram have been met.  First of all, we note that the employer and insurer do not dispute the clear satisfaction of the first two criteria of the rule.  The employee=s predominant complaint is back pain, and she has failed to improve with initial nonsurgical management.  With regard to the third criteria, that other imaging has not established a diagnosis, we note that Dr. Downs, in his report of July 22, 2002, specifically stated that Athe MRI scan had not established a specific diagnosis,@ noting that a normal MRI scan does not rule out the possibility of internal disc disruption.  Having apparently hoped to see an internal disc disruption when he ordered the MRI scan, Dr. Downs concluded as follows upon receipt of the normal MRI report:

 

Internal disc disruption can, in the early phases, demonstrate a fairly normal looking MRI scan, though over time there will certainly be changes in the architecture as the disc continues to degrade.  A diagnosis of internal disc disruption can really only be confirmed by discography and was the alternative etiology suspected when ordering an alternative imaging study.

 

As to the fourth criteria of the rule, while it would have been preferable to have better documentation of the required fusion alternative in records contemporaneous with the discography decision, we conclude that Dr. Downs= clear statement in his July 22, 2002, report, that A[i]n fact, lumbar fusion was being considered as a therapeutic option,@ minimally but sufficiently satisfies the requirement.  That statement was directly in response to a query as to whether the fusion alternative was being considered Aas of October 2001,@ the time of the discogram, and it was not unreasonable for the judge to find the statement evidence of such a consideration at that time.  Considering the record in its entirety, we cannot conclude that the compensation judge was unreasonable in finding that the criteria for a discogram had been met in this case.  Accordingly, this determination of the compensation judge is affirmed.

 

2.  IDET Procedure

 

The employer and insurer contend that substantial evidence does not support the compensation judge=s finding that the proposed IDET procedure is reasonable and necessary to cure and relieve the effects of the work injury.  They contend that Dr. Downs does not specifically indicate in any report that he believes the IDET procedure to be reasonable and necessary.  In fact, they contend, Dr. Downs essentially deferred to the neurosurgeon on the issue.  Dr. Downs simply stated that the IDET procedure is the current trend and that the jury is still out on how effective the procedure is.  Even the neurosurgeon, Dr. Dulebohn, recommended sending the employee for the IDET procedure only if she chose to go through with it.  The employer and insurer argue that leaving this decision to the employee cannot be interpreted as an opinion by a medical expert that the procedure is reasonable and necessary.  Given this record, they contend, and especially in view of Dr. Drogt=s unequivocal opinion that the treatment is not reasonable and necessary, the compensation judge=s decision is not supported by substantial evidence in the record.  We do not agree.

 

In concluding that the IDET procedure is reasonable and necessary, the compensation judge referred specifically to the employee=s abnormal finding on the discogram.  Dr. Dulebohn specifically found that the employee was not a candidate for surgical intervention but did recommend that the employee be referred to Dr. Heyer for an IDET.  He specifically stated AI think that she has got a 60 to 70% chance of some improvement with IDET and follow-up rehab.@  Dr. Dulebohn=s opinion constitutes an adequate basis for the compensation judge=s determination.  While Dr. Drogt disagreed with the recommendation in this case, it was the compensation judge=s responsibility to weigh the evidence and his prerogative to choose between these conflicting opinions.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Finding no basis for substituting our judgment for the compensation judge=s, we affirm the judge=s decision on this issue.

 

3.  Evidentiary Ruling

 

At the hearing in this matter, the employer and insurer sought to challenge the credibility of the employee=s subjective complaints of low back pain by reference to medical treatment and pain complaints expressed by the employee following an injury to the employee=s neck in a motor vehicle accident in 1996.  Counsel for the employee objected on grounds of relevance.  The compensation judge concluded that the relevance of the employer and insurer=s line of questioning was outweighed by the potential prejudice to the employee in this instance.  He therefore sustained the objection.  The employer and insurer contend that the compensation judge erroneously excluded evidence regarding the employee=s credibility.  Dr. Drogt, the employer and insurer=s examining physician, opined that the employee=s Apresentation on physical examination suggests significant symptom amplification as well as the presence of non-organic pain, which would indicate the probability of functional overlay.@  The employer and insurer argue that their line of questioning was intended to attack the employee=s credibility by demonstrating a similar pattern of presentation of symptoms following the 1996 neck injury.^[2]  We conclude that the judge did not abuse his discretion in excluding the evidence.

 

On many occasions, our supreme court has expressed a policy favoring inclusion of evidence in workers= compensation matters.  See, e.g., Bey v. Oxford Properties, Inc., 481 N.W.2d 40, 46 W.C.D. 198 (Minn. 1992); Scalf v. LaSalle Convalescent Home/Beverly Enterprises, 481 N.W.2d 364, 366, 46 W.C.D. 283, 286 (Minn. 1992) (Athe purpose of [a workers= compensation] proceeding is disclosure of the true facts, a purpose better served by acceptance of all competent, relevant, and material evidence@ than by exclusion of evidence).  Even if we agreed with the employer and insurer that the line of questioning they sought to develop at trial was relevant, we are not persuaded that this evidence of the employee=s credibility regarding prior neck complaints would have changed the judge=s decision relative to her low back injury and the need for the treatment at issue.  We would further note that at least some of the evidence that the employer and insurer sought to develop was before the judge in the medical records admitted into evidence and in Exhibit 2 of Dr. Drogt=s deposition.  Moreover, the employer and insurer were not restricted in their ability to call into question the credibility of the employee=s current complaints by other means, either at trial or at Dr. Drogt=s deposition.

 

It is a well established principle of workers= compensation proceedings that evidentiary rulings are generally within the sound discretion of the compensation judge.  See Ziehl v. Vreeman Constr., slip op. (W.C.C.A. Oct. 15, 1991).  To warrant reversal, the compensation judge=s ruling on the admissibility of evidence must be prejudicial as well as erroneous.  See McGuire v. Merillat Indus., Inc., slip op. (W.C.C.A. July 27, 1993); see also Elling v. Cub Foods, slip op. (W.C.C.A. Feb. 24, 1994); Brecht v. General Mills, slip op. (W.C.C.A. Jan. 28, 1994).  In the present case, the compensation judge listened to the employer and insurer=s arguments as to the relevance of the employee=s previous injury and concluded that the employee=s previous neck injury and treatment were too remote to be relevant.  We cannot conclude that the judge=s ruling in this case amounted to an abuse of discretion, such as would require reversal of his ruling.

 

4.  Adoption of Proposed Findings

 

The record in this matter closed on August 14, 2002, with the filing of proposed findings by each party, and the compensation judge issued his findings and order on September 3, 2002.  For his decision, the judge adopted the proposed findings of the employee essentially verbatim, concluding that the employee=s discogram was covered by the treatment parameters and that the proposed IDET procedure was reasonable and necessary medical treatment.  The employer and insurer contend that the compensation judge erred by adopting the employee=s proposed findings and order verbatim.  We disagree.

 

We have stated on a number of occasions that, while they may be helpful to the finder of fact, proposed findings or letter briefs at the conclusion of a hearing should not supplant the judge=s obligation to evaluate the evidence.  While we continue to discourage the practice, there is no evidence of legal error in the judge=s adoption of proposed findings in this matter, in that substantial evidence supports those findings.  Accordingly, the decision of the judge is affirmed.