DEBRA J. JOHNSON, Employee/Appellant, v. REGIONS HOSP., SELF-INSURED/COMPCOST, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 14, 2004

 

No. WC04-130

 

HEADNOTES

 

MEDICAL TREATMENT &  EXPENSE - SURGERY; MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Given the employee=s history of psychological treatment, evidence indicating past concern by physicians that the employee=s depression had impeded her recovery, and the recommendation of the employer=s independent examiner, substantial evidence supported the compensation judge=s denial of the employee=s request for approval of a three-level fusion procedure pending psychological assessment to evaluate whether the employee would be likely to benefit from the procedure.

 

Affirmed.

 

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

Compensation Judge: Kathleen Behounek

 

Attorneys:  James Michael Gallagher, James Michael Gallagher & Associates, Minneapolis, MN, for the Appellant.  Eugene J. Flick and Patrick S. Collins, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Respondents.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s denial of the employee=s request for approval of fusion surgery and from certain findings concerning the employee=s need for reconditioning.  We affirm.

 

BACKGROUND

 

On May 1, 2000, the employee sustained an admitted work-related low back injury while employed as an instrument technician by Regions Hospital [the employer], which was self-insured for workers= compensation purposes.  She subsequently sought treatment from Dr. Keith Mastin, her primary care physician, for low back and left leg symptoms.  Despite conservative treatment, including medication, physical therapy, and, eventually, a series of epidural injections, the employee continued to experience low back and left leg pain.  By March of 2001, Dr. Mastin had begun noting that the employee was Aclinically depressed,@ indicating in a March 1, 2001, treatment note that stress and clinical depression were not causing the employee=s ongoing symptoms but might Aimpede recovery.@  Subsequent treatment records indicate that the employee was noncompliant with treatment both for her depression and for anemia, a condition thought to be related to a prior stomach-stapling procedure.

 

In early September of 2001, the employee was referred to Dr. Jeffrey Dick for a surgical consultation.  A repeat MRI scan confirmed the presence of degenerative changes and/or herniations at several levels of the employee=s lumbar spine, and Dr. Dick recommended a laminectomy at L3-4 and L5 with decompression at L3, L4, and L5 on the left.  In contrast, Dr. Joseph Perra, who had also assessed the employee for surgery, recommended a fusion procedure.  In a September 10, 2001, treatment record, Dr. Mastin noted that the employee had elected against fusion, writing,

 

I completely agree with her on this.  I advised her that a lumbar fusion requires a prolonged convalescence, body cast, prolonged rehab, has a limited success rate and requires good motivation, good psychological health and good support systems, all of which are shaky in [the employee=s] case.

 

On November 1, 2001, the employee was seen by William Cooper, apparently a psychologist with the mental health unit of HealthPartners, on referral from Dr. Mastin.  Dr. Cooper diagnosed Achronic pain with physical and psychological factors,@ noting that the employee was non-compliant with treatment for pain, depression, and anemia, and he wrote that he had explained to the employee that she would not be helped by therapy until she Aaccept[ed] some facts including that she has medical problems that require certain treatment that she is not following and that she is depressed, and that without treating the depression this mood disorder will exacerbate her medical problems. . . .@  Dr. Cooper=s report indicates that the employee had agreed to a follow-up appointment, but the record contains no other reports of psychological care by Dr. Cooper or any other provider, despite the fact that the employee testified that she underwent Atalk therapy@ with a therapist named ANovatwitch@ at HealthPartners in 2001 or perhaps 2002.^[1]

 

On December 10, 2001, the employee underwent a laminectomy at L3, L4, and L5, performed by Dr. Dick.  The employee testified that the surgery helped her low back and left leg symptoms but that, immediately upon awakening after surgery, she noticed Aimmediate pain and pulsating@ in the toes on her right foot Alike a thousand ants were biting them.@  Dr. Dick ordered physical therapy, but the employee=s right foot symptoms did not resolve, and she was referred to a podiatrist.  The podiatrist treated her for suspected plantar fascitis, without success.

 

In the late spring of 2003, the employee began treatment with Dr. Manual Pinto, who, following a discogram, recommended a three-level, anterior/posterior fusion procedure, to be performed after the employee received treatment to raise her hemoglobin level.

 

In October of 2003, after the employee filed a medical request concerning the proposed fusion, the employer requested an order compelling the employee to undergo an independent psychological evaluation, which was denied by Compensation Judge Gary Mesna.  About two months later, on December 10, 2003, the matter came on for hearing before Compensation Judge Kathleen Behounek for resolution of the employee=s request for surgery.  Evidence at hearing included the employee=s testimony, some of the employee=s treatment records, and reports from Dr. Paul Wicklund, the employer=s independent examiner, who indicated that the employee should undergo psychological evaluation and reconditioning before proceeding with fusion surgery. 

 

In a decision issued on February 5, 2004, the compensation judge found that the surgery proposed by Dr. Pinto was Apremature and is not reasonable and necessary to cure and relieve the effects of the employee=s work injury at this time.@  In her memorandum, the judge explained that, in view of the employee=s history, the recommendation for surgery was premature in the absence of a psychological assessment.  The judge also found that the employee was physically deconditioned, having not received any type of strengthening or reconditioning therapy in the previous year.  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 (2004).  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

 

1. Psychological Evaluation

 

The employee contends that Compensation Judge Behounek erred in concluding that proposed fusion surgery was not reasonable and necessary at this time based on the fact that the employee had not undergone a psychological assessment to evaluate whether she is likely to benefit from the procedure.^[2]  As part of this argument, the employee maintains that, given Judge Mesna=s denial of the employer=s motion to compel her attendance at a psychological evaluation, the issue of the employee=s need for psychological assessment was not properly before Judge Behounek.  The employee also contends that substantial evidence does not support Judge Behounek=s decision given the employee=s testimony that all her prior psychological problems were related to family issues,^[3] which are now resolved; her testimony that she was perfectly fine as of the hearing date; the lack of any evidence, in the medical records, of psychological problems, treatment, or medication use for at least a year prior to hearing; and the fact that none of the physicians advocating surgery have suggested that the employee undergo psychological assessment prior to the procedure.  We are not persuaded that Judge Behounek=s decision is clearly erroneous or unsupported by substantial evidence.

 

Initially, we see no legal basis for concluding that Judge Mesna=s prior denial of the requested psychological exam somehow precluded the employer from raising the issue of the employee=s psychological status at the hearing before Judge Behounek.  Just as importantly, we cannot conclude that Judge Behounek=s decision on the issue was unreasonable, based on the evidence.  It is true, as the employee points out, that there is no medical evidence of ongoing psychological treatment or symptoms in the year prior to hearing.  However, Dr. Mastin and Dr. Cooper were clearly concerned about the employee=s psychological state prior to her previous surgery, in December of 2001, indicating that the employee=s depression was likely to impede her recovery, and the employee in fact awoke from that surgery with new symptoms.  Moreover, the employee=s testimony that she is fine and has not taken antidepressant medication in the two years prior to hearing is not particularly compelling evidence given the employee=s documented reluctance to take any medication, whether for depression or anemia, despite repeated medical recommendations to do so.  We would also note that, for whatever reason, some of the employee=s psychological treatment records were apparently not provided to the employer=s attorney or submitted at hearing, making the employee=s claims as to psychological health more difficult to assess.  Also, as late as August of 2002, Dr. Mastin noted that, while the employee had not seen Dr. Cooper in some time, she Aprobably should do so.@ 

 

Both Dr. Mastin=s and Dr. Wicklund=s reports support the conclusion that psychological stability is an important factor in the likely success of a fusion operation.  As Dr. Wicklund explained,

 

It=s my opinion to a reasonable degree of medical certainty that the success of anterior and posterior fusion is not only based on the physical condition of the patient but also on their psychological state of mind as evidenced by many medical articles to that effect suggesting that if a person is an unsuitable candidate from a psychological standpoint that the surgical fusion procedure will not be successful in relieving their pain.  Someone that has chronic pain issues as well as depression and psychological stressors would certainly be at high risk for a successful fusion with regard to pain relief.  The fusion itself might be successful, but the patient may not benefit at all from the surgical procedure.  Therefore, it would be my opinion to a reasonable degree of medical certainty that before she undergoes any fusion surgery that she should have a complete psychological evaluation to determine if she is a candidate for this operation.

 

Because the record as a whole supports the judge=s decision that fusion surgery is premature pending a psychological evaluation to assess the employee=s suitability as a candidate for the procedure, we affirm that decision.

 

2. Deconditioning/Reconditioning

 

The employee contends that substantial evidence does not support the judge=s finding that the employee is deconditioned and that the judge erred in ordering the employee to participate in a reconditioning program.  These arguments have no merit.  

 

As early as July of 2002, Dr. Mastin wrote that the employee was probably deconditioned after having been off her regular job for a year, and Dr. Wicklund recommended reconditioning because of Apoor muscle tone@ and Alimited lumbar motion.@  Substantial evidence therefore supports the judge=s decision that the employee is deconditioned.  As for the employee=s second point, she has apparently misread the judge=s findings and order.  The judge did not order the employee to participate in a reconditioning program; rather, in her memorandum, the judge merely wrote, AThe employee is also reasonably likely to benefit from a reconditioning program, whether or not surgery is ultimately performed.@  We need not address the matter further.  The judge=s decision is affirmed.