CHAUNTELL CLEMMER, Employee, v. NATIONAL STEEL PELLET CO./MINNESOTA SELF-INSURERS= SEC. FUND, adm=d by SEDGWICK CLAIMS MGMT. SERVS., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 13, 2004

 

File No. WC04-212

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - SURGERY.  Substantial evidence in the form of the IME=s opinion supports the compensation judge=s decision that the proposed surgery to lengthen the employee=s Achilles tendon was reasonable and necessary.

 

PRACTICE & PROCEDURE - EXPEDITED HEARING.  Where the employee=s medical request for surgery approval was set for hearing on an expedited basis pursuant to Minn. Stat. ' 176.106, subd. 7, the compensation judge did not err in refusing to expand the issues to include the designation of the employee=s treating doctor.

 

Affirmed.

 

Determined by:  Stofferahn, J., Wilson, J., and Pederson, J.

 

Compensation Judge:  Patricia J. Milun

 

Attorneys:  Michael G. Schultz, Sommerer & Schultz, Minneapolis, MN, for the Respondent.  T. Michael Kilbury, Peterson, Logren & Kilbury, St. Paul, MN, for the Appellants.

 

 

OPINION

 

DAVID A. STOFFERAHN,  Judge

 

The employer appeals from the compensation judge=s determination that the Achilles tendon lengthening surgery requested by the employee was reasonable and necessary and from the compensation judge=s refusal to expand the issues at hearing to include designation of a treating doctor.^[1]  We affirm.

 

BACKGROUND

 

Chauntell Clemmer, the employee, injured her left foot on March 8, 2002, while working as a welder for the employer, National Steel Pellet Company.  The employee slipped while walking across a Agrizzly bar@ and the toes of her left foot were pushed upward towards her shin.  She felt immediate pain in the back of her left foot and ankle.  The employee continued to work her regular job despite symptoms of pain and swelling in her ankle.

 

The employee first sought medical care for her foot and ankle on April 2, 2002, when she saw nurse practitioner Karen Jakala at the Mesaba Clinic.  She was diagnosed as having an ankle sprain and recommendations were made for physical therapy and the use of an ankle support.  Physical therapy did not start until May 23, 2002.  The parties dispute the reason for this delay.  The employee claims the employer did not authorize treatment on a timely basis and the employer points to chart notes which indicate that the employee was unable to attend physical therapy sessions because of transportation problems.  In May 2002, the employee also started using a CAM boot, a fixed cast which can be removed by the patient and which allows ambulation.  On June 18, 2002, the employee was assessed as having a resolving left ankle sprain and further physical therapy was recommended.  Questions were raised about the employee=s continued use of the ankle brace and about whether the employee was doing the recommended home exercise program.  The employee was released to work without restrictions.

 

On return visits to the Mesaba Clinic, the employee complained of increased pain with her physical activities at work.  A referral was made to an orthopedist, Dr. Daniel Lister.  The employee saw Dr. Lister on July 25, 2002.  The employee was advised that her findings were indicative of an Achilles tendinitis and further physical therapy was recommended.  The employee was also restricted to sedentary work with no prolonged standing, walking, or ladder climbing.  When the employee returned on August 22, Dr. Lister recommended continuing physical therapy and the employee=s work restrictions, noting that surgery would not be appropriate because of the employee=s pregnancy.  A referral was made to Dr. Daniel Wallerstein, a physical medicine and rehabilitation specialist.

 

The employee was also seen at the request of the employer for an IME with Dr. Peter Strand on August 16, 2002.  Dr. Strand diagnosed a Asprain type of injury@ and stated that the treatment of partial immobilization and an exercise program was appropriate.  Dr. Strand also suggested restrictions of no prolonged standing and walking and stated in a follow up report of September 30, 2002, that the restrictions were due to the employee=s work injury.

 

Dr. Wallerstein saw the employee on October 10, 2002.  Dr. Wallerstein assessed chronic Achilles tendinitis.  He recommended an ambulatory cast which would increase the heel height.  The employee returned to Dr. Wallerstein on January 9, 2003, and stated she had no improvement in her left foot and ankle pain.  It was noted that some treatment approaches were limited because of the employee=s pregnancy.  Additional physical therapy was recommended.

 

The employee was referred to Dr. J. Chris Coetzee and saw him on April 3, 2003.  Dr. Coetzee stated that the employee was not a surgical candidate, noting that Aduring pregnancy, the ligamentous structures throughout the body always soften up and the healing potential is slightly less.@  Accordingly, further physical therapy was recommended for an additional month.

 

On May 7, 2003, Dr. Strand issued another report after reviewing additional medical records and stated that the employee Ais not a candidate for surgical intervention now, and would not be in the future.@  Dr. Strand continued work restrictions for the employee but concluded that her symptoms were out of proportion to the physical findings, that her treatment was excessive, and that the employee was at maximum medical improvement.

 

Dr. Coetzee performed surgery on June 13, 2003.  Dr. Coetzee found the Achilles tendon to be in satisfactory condition generally, but there was moderate synovitis and a synovectomy was done.  Dr. Coetzee also did a debridement of nodules in the tendon.  Dr. Coetzee saw the employee in follow up on September 25, 2003.  He stated that the employee had not made a lot of progress.  In a report of work ability prepared subsequently, Dr. Coetzee continued to limit the employee to sedentary work.

 

The employee was evaluated by Dr. Thomas Jetzer for an additional IME on behalf of the employer on November 21, 2003.  In his report dated December 1, Dr. Jetzer concluded that the employee needed no further medical care, that the employee had reached MMI in May 2002, that the surgery was not related to the work injury, and that the work injury was a temporary sprain which had resolved by May 2002.  Finally, Dr. Jetzer stated that the employee=s ongoing problems were related to an incident in July 2002 when she fell on stairs at home.  Dr. Jetzer also suspected secondary gain issues in the employee=s case.

 

Dr. Coetzee saw the employee again on January 15, 2004.  He stated that the employee Ais still in about five degrees equinus and is not responding to stretching.  One option is to do a surgical lengthening of her Achilles, but I am very hesitant to suggest or do that.@  Dr. Coetzee recommended a consultation with Dr. Fernando Pena.

 

The employee consulted with Dr. Pena on January 21, 2004.  He found five degrees of plantar flexion with the knee in flexion.  He assessed left foot equinus deformity and stated AI think it is fair to pursue with a peroneus tendon lengthening of her left Achilles.@  The employee returned to Dr. Coetzee on January 22, who stated in his chart notes on that date that Dr. Pena Ais going to assume her care.@

 

On February 19, 2004, the employee filed a medical request seeking approval of left Achilles tendon surgery.  The employer filed a medical response refusing to provide the requested treatment on the basis that the surgery was not reasonable or necessary based on Dr. Jetzer=s opinion, that the patient had not been cooperative or compliant with previous conservative treatment recommendations, that the risks of the operative procedure outweighed the objective evidence concerning the need and necessity for the procedure, and that the proposed change in provider was not appropriate.

 

Dr. Strand conducted another IME of the employee on May 13, 2004.  On examination, Dr. Strand found the employee had Aa contracture of her left ankle and plantar flexion of about five to ten degrees.  She cannot dorsiflex to a neutral position.@  In addressing the question of the proposed surgery, Dr. Strand stated, AShe has responded poorly to all forms of treatment in the past and in my opinion that there is a significant risk that she will be no better, or worse, after the proposed tendon lengthening surgery.  In light of the contracture, however, the procedure is a reasonable recommendation, in my opinion.@

 

Dr. Coetzee=s deposition was taken on May 7, 2004, for the hearing.  Dr. Coetzee neither approved nor disapproved of the proposed surgery, stating that he would be reluctant to perform the procedure.  His reluctance appeared to be based on the six months of immobilization in a five to ten degree dorsiflexion cast which would be necessary after the surgery.  He identified two other possible procedures: inpatient supervised physical therapy for one or two weeks, or sequential casting of the left foot and ankle in progressive dorsiflexion to force the foot up.

 

The employee=s medical request was referred by the Department of Labor and Industry to the Office of Administrative Hearings where it was set for an expedited hearing.  The hearing was held on May 27, 2004, before Compensation Judge Patricia Milun.  At the hearing, the employee testified that she had constant pain at the back of her left ankle that was moderate to severe in intensity depending on the amount of walking she did.  She did the recommended home exercises three times a day and also iced her foot twice a day to help minimize swelling.  The employee testified that she was not interested in the inpatient physical therapy program because she would be away from her child during that time.  She stated that she wanted to proceed with the surgery advised by Dr. Pena and Dr. Strand.  In Findings and Order served and filed June 14, 2004, the compensation judge determined the proposed tendon lengthening surgery to be reasonable, necessary, and causally related to the employee=s March 8, 2002, work injury.  The employer was ordered to pay for the surgery.  The employer appeals.

 

DECISION

 

Reasonableness and Necessity of Surgery

 

The compensation judge gave credence to the employee=s testimony and also accepted the opinions of Dr. Strand and Dr. Pena in determining that the proposed Achilles  tendon lengthening surgery was reasonable and necessary.  The employer appeals this determination, arguing on appeal that the compensation judge erred in doing so because Dr. Strand and Dr. Pena did not have adequate foundation for their opinions, because Dr. Coetzee=s opinion was disregarded, because the employee had not complied with previous conservative care, and because alternative treatment options exist.

 

Dr. Strand, one of the employer=s IMEs, saw the employee on a number of occasions and reviewed her medical records.  As the employer concedes in its brief, this background provides adequate foundation for a medical opinion.  Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188, 30 W.C. D. 426, 430 (Minn. 1978).  In his report of May 13, 2004, Dr. Strand stated that the proposed surgery was a reasonable recommendation.  The employer urges consideration of Dr. Strand=s earlier opinions as set out in his May 7, 2003, report that the employee was not a surgical candidate.  The question before the compensation judge however, was not whether surgery was appropriate in 2003, but whether it was a reasonable treatment approach in May 2004.  On this question, Dr. Strand=s opinion provides substantial support for the compensation judge=s determination.  Dodgen v. Casey=s General Stores, Inc., slip op. (W.C.C.A. November 8, 2002).

 

The employer also contends that Dr. Coetzee=s opinion was not addressed by the compensation judge.  We conclude that the compensation judge did not err on this point since Dr. Coetzee never expressed an opinion in his deposition either that the proposed surgery was reasonable or that the surgery was not reasonable.  The most support that Dr. Coetzee could be said to provide to the employer=s position was his statement in the deposition that he would be reluctant to do the surgery.  While the compensation judge did not refer specifically to Dr. Coetzee=s testimony, she stated in her memorandum that she had reviewed all of the evidence in this case and a compensation judge is not required to comment on every piece of evidence introduced at the hearing.  Midtling v. Schwan Sales Enters., slip op. (W.C.C.A. September 22, 2003).

 

The employer also contends that the compensation judge should have denied the employee=s surgery request because of the employee=s alleged noncompliance with previous conservative treatment.  There was conflicting evidence before the compensation judge on this point.  The employer pointed to the delay in the start of physical therapy, missed or cancelled physical therapy appointments, and the employee=s continued use of the CAM boot when she had been advised by at least one doctor to gradually discontinue wearing the boot.  The employee testified that the delay in beginning physical therapy was because of the employer=s delay in approving treatment, that she did not miss or cancel appointments without justification, and that her use of the CAM boot was as directed by her doctors.  Determination of this point rested on a consideration of the employee=s credibility by the compensation judge.  The compensation judge specifically found the employee to be credible and assessment of witness credibility is uniquely within the province of the compensation judge.  Moreno v. Northwest Surfacing Co., slip op. (W.C.C.A. September 29, 2003).

 

Finally, the employer argues that the compensation judge failed to give adequate consideration to the existence of alternative treatments.  The alternative treatments referred to were inpatient physical therapy and progressive casting to force the employee=s foot out of its flexed position.  Although Dr. Coetzee mentioned these treatments, neither he nor any other doctor recommended these approaches in preference to the proposed surgery.  We find no authority for the proposition that, as a matter of law, the compensation judge must deny a request for surgery where other treatments might exist.

 

Determination of whether proposed treatment is reasonable and necessary is a question of fact to be determined by a compensation judge.  Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993).  We find substantial evidence in the record to support the compensation judge=s decision.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).

 

Expansion of the Issues

 

The employer has also appealed the compensation judge=s refusal to designate a treating physician for the employee.  The employer argued at hearing that the employee=s consultation with Dr. Pena constituted an unauthorized change of physician. The compensation judge stated, after discussion with counsel, that she would consider the question of Dr. Pena=s status and the question of doctor shopping as elements of the employer=s defenses to the surgery request, but she would not make a separate determination which would designate a treating physician.  She concluded that such a determination would be an improper expansion of the issues raised by the medical request.

 

While the employer has appealed this ruling and characterizes it as unfair, it is not clear how this ruling prejudiced the employer in any way.  As the compensation judge pointed out, the employer would be able to file its own medical request on the issue of the treating doctor.  In its brief, the employer does not enunciate any way in which it was unable to present a defense to the question of approval of surgery because of the compensation judge=s ruling.

 

Minn Stat. ' 176.106, subd. 3, allows the commissioner to refer medical and rehabilitation disputes to the Office of Administrative Hearings for a full hearing instead of conducting an administrative conference.  Once that referral is made, Minn Stat. ' 176.106 subd. 7,  requires the Office of Administrative Hearings to schedule that hearing on an expedited basis, no later than sixty days after the office receives the matter.  We have previously held that in a hearing set under this section, a compensation judge erred in considering whether an employee was eligible for rehabilitation services when the only issue identified in the rehabilitation  request was for a change of QRC.  This court determined the compensation judge=s decision to be an improper expansion in an expedited hearing of the issues raised in the rehabilitation request.  Owens v. New Morning Windows, slip op. (W.C.C.A. June 5, 2000).  We agree with the compensation judge that to have determined in this proceeding the identity of the employee=s treating physician would have been an improper expansion of the issues presented by the employee=s medical request.