Anderson v. Proforce

CHERYL L. ANDERSON, Employee/Appellant, v. PROFORCE, and BERKLEY RISK ADM=RS CO., Employer-Insurer/Cross-Appellants, and PROFORCE, and DAKOTA TRUST/RISK ADMIN. CO., Employer-Insurer.

MEDICAL TREATMENT & EXPENSE - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s denial of the requested fusion surgery.

CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s decision that the employee sustained a specific injury and a Gillette injury as of September 11, 2001.

Attorneys: Mark W. Shepherd, Von Holtum, Malters & Shepherd, Worthington, MN, for the Appellant. Matthew H. Jones, Brown & Carlson, Minneapolis, MN, for the Cross-Appellants. Karen R. Swanton, Fitch, Johnson, Larson, Walsh & Held, Minneapolis, MN, for the Respondents.

The employee appeals from the compensation judge=s denial of her request for approval of fusion surgery. Berkley cross-appeals from the compensation judge=s determination that the employee sustained a specific and a Gillette injury on September 11, 2001, which contribute to the employee=s disability and need for medical care.^[1] We affirm.

Cheryl Anderson, the employee, began working for the employer as a homemaker for the elderly in 1985. She was sent to the homes of various clients and did cleaning, laundry, made beds, grocery shopping, money management, and ran errands. She estimated that 75 to 80 percent of her time was spent cleaning, with the most physically demanding work being vacuuming, mopping, and tub scrubbing. She continued to work her same duties for the employer from 1985 to 1999 and in 1999 was working about 17 hours a week. The record does not indicate whether those hours were typical of her employment.

On July 7, 1999, she was at a client=s home, wiping down the front of a refrigerator in a bent over position. She felt something pop in her low back and was unable to straighten up. She reported the incident to her employer and went to a medical doctor at her local clinic in Minneota, Minnesota. A claim representative for her employer=s workers= compensation insurer, Dakota Truck/Risk Administration Services, referred her to Dr. David Hoversten with Dakota Orthopedics in Sioux Falls, S.D.

The employee first saw Dr. Hoversten on September 7, 1999. She gave him a history of right leg and buttock pain which came on when she was wiping down a refrigerator two months previously. The employee had an MRI done before she saw Dr. Hoversten and it was read as showing a small central disc protrusion at the L4-5 level and a herniation with fragmentation at the L5-S1 level which slightly displaced the right S1 nerve root. Dr. Hoversten recommended a microdiscectomy at L5-S1. The recommended surgery was done on September 28, 1999 by Dr. Hoversten.

After follow-up examination, Dr. Hoversten released the employee to return to work on a part-time basis on November 15, 1999. On December 15, 1999 he released her to work full-time with work restrictions of no lifting more than 35 pounds, no vacuuming more than two hours a day, and no frequent bending or twisting. On February 23, 2000, Dr. Hoversten concluded she had reached Amaximal medical improvement@ and increased her lifting restriction to 40 to 50 pounds. He assessed her permanent partial disability at 10 percent of the whole person pursuant to Minn. R. 5223.0390, subp. 4.C(3). The rated disability was paid by the employer and insurer.

The employee testified that the surgery eliminated her right buttock and leg pain but that she was still left with some pain in her low back. She returned to her regular job as homemaker with some modifications that she made to her cleaning duties which would limit her bending. Her employer also sent co-workers to the client=s homes to do some of the vacuuming. The employee estimated that she still did about half of the vacuuming required.

The employee returned to Dr. Hoversten on November 9, 2000 with complaints of increasing low back pain and numbness in her right foot. Dr. Hoversten=s impression was of a degenerative disc with increasing irritation of the right leg and toes. He recommended pain medication and a possible epidural cortisone block if there was no improvement on recheck in three weeks. The employee=s recheck appointment was cancelled because of the weather and she did not see Dr. Hoversten again until May 24, 2001.

At that time she reported to Dr. Hoversten that she had back pain in the morning which improved in the afternoon but after a day of cleaning houses. Dr. Hoversten concluded she had a low back ache with degenerative disc disease at L5-S1. He referred her to physical therapy and sent her for another MRI. That scan, done on June 22, 2001, showed disc extrusion with a possible fragment at L4-5 and an extrusion at L5-S1 with stenosis and suspected nerve root compression. When the employee returned to Dr. Hoversten on July 10, 2001, he noted that this was a Adifficult problem to treat@ and that epidural blocks and pain medications could treat it temporarily. He discussed with the employee the possibility of a fusion at the L4-5 and L5-S1 levels, indicating that this could give her a Apretty functional back.@

On September 11, 2001, the employee was making a bed at a client=s home. As she bent over and reached to tuck in a corner, she had a sudden onset of pain in her low back and down both sides of her buttocks and both legs. She returned to Dr. Hoversten on September 18, 2001, and provided him with the history of the incident on September 11. He recommended a discogram at L3-4 and indicated that if a healthy disc was shown at that level, he would recommend a decompressive laminectomy and discectomy on the right at L4-5 and a fusion with a ABrantigan cage@ at L5-S1.

The employer and insurer sent the employee to Dr. R. Wynn Kearney for an independent medical examination on November 1, 2001. The employee gave Dr. Kearney a history that she had not worked since September 11, 2001, and that her symptoms were primarily low back pain with pain in the right buttock and posterior thigh and tingling in the right foot. Dr. Kearney disagreed with the option of fusion surgery, suggesting instead that epidural steroid injection therapy and possible discectomy at the L4-5 level would be appropriate. Dr. Kearney also concluded that the employee=s present symptoms were not the result of her July 7, 1999, injury but was instead Aa new development.@

On April 15, 2002 the employee filed a claim petition, alleging entitlement to wage loss benefits and medical coverage as a result of her July 7, 1999, injury and as a result of a claimed September 11, 2001, injury. On July 7, 1999, the employer was insured by Dakota Risk/Risk Administration Services (Dakota) and on September 11, 2001 the employer was insured by the Workers= Compensation Assigned Risk Plan, administered by Berkley Risk Administrators (Berkley). Both insurers denied liability for the employee=s claim.

On July 18, 2002, the employee was evaluated on behalf of Berkley by Dr. Michael D. Smith. Dr. Smith reported that the employee was working 13 to 16 hours per week but that she avoided repetitive twisting activities such as vacuuming. Dr. Smith=s impression of the employee=s condition was of A1. Status post lumbosacral microdiscectomy for radiculopathy, 2. Discogenic low back pain, 3. Deconditioning and obesity.@ It was his opinion that the employee=s work on September 11, 2001, was a temporary aggravation of her pre-existing condition. Dr. Smith concluded that the employee did not need treatment for her September 11 injury, which he stated had resolved, but he did not comment on treatment options generally.

On June 9, 2003, Dakota petitioned for a temporary order which was issued on July 21, 2003. Dakota agreed to pay outstanding medical bills and agreed to provide coverage for a surgical work-up with Dr. Hoversten. The employee then had a discogram and an MRI on July 29, 2003, and saw Dr. Hoversten on July 31. Dr. Hoversten recommended an interbody arthrodesis with Brantigan cages at L5-S1, and a discectomy and fusion at L4-5 with Steffe plates.

The employee was sent for a second independent medical examination by Dakota and saw Dr. John Dowdle on August 15, 2003. In his report of August 18, Dr. Dowdle diagnosed mechanical low back pain with degenerative disc disease at L4-5 and L5-S1. Complicating factors were identified as being the employee=s obesity, deconditioning and smoking. Because of those factors, Dr. Dowdle believed the employee was not a good candidate for fusion surgery, noting that the failure rate in a fusion for a smoker was up to 50 percent greater than for a non-smoker. Dr. Dowdle recommended that the employee stop smoking and that fusion surgery would then be appropriate. As an interim step, Dr. Dowdle recommended a sacroiliac joint injection under fluoroscopy. It was also Dr. Dowdle=s opinion that the employee=s low back condition was not the result of either a 1999 or 2001 work injury but was due instead to an underlying degenerative condition.

The employee was seen on behalf of Berkley for a second time by Dr. Smith on August 21, 2003. Dr. Smith did not change his opinion on the diagnosis of the employee=s condition and indicated further, his opinion that the employee=s condition was solely the result of her July 7, 1999, injury. Dr. Smith stated that the surgical plan recommended by Dr. Hoversten was appropriate. He added Ait is true that smoking is a definite risk factor for failure of fusion, and therefore, Ms. Anderson would do well by cessation of tobacco use. This would optimize her chances of attainment of solid bony fusion.@

Dr. Hoversten=s deposition was taken on September 3, 2003. He was given a hypothetical and expressed his opinion that the employee=s back condition was due to the 1999 injury as well as a cumulative injury after that date and a specific injury on September 11, 2001. On cross-examination Dr. Hoversten apportioned responsibility for the condition and assessed 70 percent of the responsibility against the 1999 injury and 30 percent against Aintervening work and deterioration.@ Dr. Hoversten also testified about his recommended treatment and was asked about the effects of the employee=s smoking on the proposed fusion surgery. His response was that it was unrealistic, in his experience, to expect complete cessation of smoking and that the procedure he recommended took the employee=s smoking into account.

The hearing on the employee=s claims took place on September 17, 2003, before Compensation Judge Paul Rieke. The employee was questioned at the hearing about her smoking habit. She stated that she smoked about a pack a day and had done so for over 20 years. The employee indicated further that she had not made any attempt to quit smoking.

The compensation judge served and filed his Findings and Order on September 22, 2003. The compensation judge determined that the employee had sustained both a Gillette injury and a specific injury to her low back on September 11, 2001. Both the 1999 and 2001 injuries were found responsible for the employee=s ongoing back symptoms with 30 percent attributed to the 2001 injury and 70 percent to the 1999 injury. The compensation judge denied the employee=s claim for temporary total and temporary partial disability compensation other than for a period of temporary total disability from September 7, 2001 through September 29, 2001. The compensation judge also determined that the fusion surgery recommended by Dr. Hoversten could not be determined to be reasonable medical treatment. AA preponderance of the medical evidence of record demonstrates that smoking significantly reduces the likelihood that the recommended surgery would be successful.@

The employee appealed the compensation judge=s denial of surgery.^[2] Berkley cross-appealed the compensation judge=s finding of a September 11, 2001 injury.

The obligation of the employer is to provide the injured worker with medical care which may Areasonably be required@ to cure and relieve from the effects of the injury. Minn. Stat. ' 176.135. When a dispute arises as to the reasonableness of treatment, the employee has the burden of proof on this issue. Adkins v. University Health Care Center, 405 N.W.2d 233, 39 W.C.D. 898 (Minn. 1987). The question of reasonableness is one of fact which, as is the case with other fact issues, is one for the compensation judge to resolve. Jones v. Wal Mart Stores, Inc., slip op. (W.C.C.A. Sept. 9, 2002). The question for this court is whether substantial evidence exists to support the decision of the compensation judge. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).

The employee argues in her brief that the compensation judge=s decision creates a new rule that smokers are not eligible for fusion surgery. We believe this argument overstates the scope of the compensation judge=s decision. We see no indication that the compensation judge was either announcing or following any general rule concerning treatment rendered to smokers. The compensation judge had before him the reasonableness of fusion surgery for this particular employee. Dr. Dowdle, in his report, stated that fusion surgery would not be reasonable because of the employee=s smoking. He referred to an increased risk of failure of up to 50 percent. Dr. Smith, in his report, noted the increased risk of failure for fusion because of smoking. Given those opinions, in addition to the employee=s testimony that she had never tried to quit or even minimize her smoking and given the evidence of an existing alternate treatment option, we find substantial evidence to support the decision of the compensation judge on this issue for this particular employee with this specific evidence.

Berkley appeals the compensation judge=s decision that the employee sustained a specific injury on September 11, 2001 and a Gillette injury on that date. Berkley argues that these findings are incompatible on their face but no authority is cited for that proposition. We see no logical reason why an employee=s daily work activities and a specific incident may not combine to result in a personal injury. The question here is whether substantial evidence supports the compensation judge=s determination on this issue.

Berkley argues that there is not sufficient evidence and argues that the three IME doctors in this case concluded that there was no Gillette injury. Actually, only Dr. Smith, Berkley=s doctor, said there was no Gillette injury. Dr. Dowdle concluded that the employee=s back condition was not the result of any work injury. Dr. Kearney in his November 1, 2001 report stated the employee=s condition was not the result of the 1999 injury and was instead a Anew development.@ Dr. Hoversten in his deposition specifically attributed 30 percent of the employee=s condition to the Aintervening work and deterioration.@ Dr. Hoversten=s opinion was based on his treatment and a detailed hypothetical and is consistent with the medical records which document a worsening of the employee=s condition and with the employee=s testimony at hearing.

Dr. Hoversten=s opinion had adequate foundation. It is the function of the compensation judge to consider competing medical opinions and the compensation judge=s decision in that regard will not be reversed if adequate foundation supports the medical opinion. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

^[1] Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105, (1960).

^[2] The employee also appealed the compensation judge=s denial of temporary total and temporary partial disability compensation. That issue was not addressed in the employee=s brief and is considered waived. Minn. R. 9800.0900, subp. 2.