BRIDGET LEWIS, Employee/Appellant, v. ST. THERESE HOME, INC., SELF-INSURED, admin'd by BERKLEY RISK ADM'RS CO., Employer-Insurer, and ABBOTT NORTHWESTERN HOSP. and METHODIST HOSP., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 31, 2004

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Substantial evidence, including expert opinion, supported the compensation judge=s decision that certain outstanding treatment charges and proposed treatment were not reasonable and necessary to treat the employee=s work injury.

 

MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS.  Parties relying on the medical treatment parameters to support their position as to the compensability of medical treatment must raise the specific parameters at the hearing level.  Where the parameters are not raised or applied at the hearing level, this court will not consider them on appeal.

 

MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee had reached MMI from the effects of her work injury and that the employee=s temporary total disability claim should be denied on that basis.

 

Affirmed.

 

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

Compensation Judge: Paul D. Vallant

 

Attorneys: Caroline Bell Beckman, Jensen, Bell, Converse & Erickson, St. Paul, MN, for the Appellant.  Edward Q. Cassidy, Felhaber, Larson, Fenlon & Vogt, St. Paul, MN, for the Respondents. Kris Wittwer, Attorney at Law, Minneapolis, MN, for the Intervenors.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s denial of temporary total disability benefits, certain outstanding medical expenses, and certain proposed treatment.  We affirm.

 

BACKGROUND

 

The employee began working full-time as a certified nursing assistant [CNA] for St. Therese Home, Inc. [the employer], in 1995.  On February 2, 1998, she sustained an admitted work-related injury to her low back while attempting to keep a resident from falling.  She initially sought treatment for low back and right leg pain from Northwest Family Physicians; physical therapy was prescribed.  In June of 1998, the employee underwent the first of several MRI scans, which was read as showing a moderate-sized paracentral disc protrusion at T11-12 Aof uncertain significance,@ a small central disc protrusion at L4-5 Awithout definite nerve root impingement,@ mild L4-5 central canal stenosis, and a broad-based disc bulge at L5-S1 with no nerve root impingement or canal stenosis.

 

By the fall of 1998, Dr. Manuel Pinto, a neurosurgeon, had become one of the employee=s primary treating physicians.  At Dr. Pinto=s direction, the employee underwent a discogram in October of 1998.  The physician performing the discogram noted that the employee had a Adistinctly low pain tolerance@ and also questioned the employee=s pain intensity ratings.  Nevertheless, based on the discogram results, Dr. Pinto indicated that the employee was a reasonable candidate for anterior/posterior fusion surgery.

 

About a month later, in November of 1998, the employee was seen by Dr. Daniel Randa, who had been asked by the self-insured employer to conduct an independent medical examination.  Dr. Randa concluded that the employee had a musculoligamentous strain injury, superimposed on mild degenerative spondylosis, as well as nerve root irritation possibly caused by the discogram.  Dr. Randa further indicated that the employee was not a surgical candidate and should engage in a vigorous exercise program as well as work hardening.  Shortly thereafter, Dr. Randa performed an EMG, which he interpreted as being consistent with L5-S1 radiculopathy on the right.  Eventually Dr. Randa reported that the employee had a 12% whole body impairment due to her low back condition, and the employer apparently paid the employee benefits accordingly.

 

In March of 1999, the employee was seen for a second opinion by Dr. David Holte.  Dr. Holte agreed that an anterior/posterior fusion might be appropriate but advised the employee to try to manage her symptoms with conservative treatment for as long as possible.

 

The employee continued to be employed by the employer, within restrictions recommended by her treating physician.  Sometime in the spring or summer of 1999, she attended a technical school program to qualify for employment as a trained medication aide [TMA], which was lighter work than her previous CNA job, and she then began working for the employer as a TMA.  However, she was eventually terminated by the employer for failing to accept a job offer.

 

Over the next several years, the employee continued to treat on a regular basis for low back and right leg pain.  At times her low back pain was worse than the leg pain, at times the leg pain was worse than the back.  She ultimately received a number of therapeutic injections as well as undergoing additional physical therapy and work hardening.  Medication prescribed to treat her symptoms included Percocet, a narcotic.  At least three additional MRI scans and one CT scan were ultimately performed.  In the spring of 2002, the employee began seeking treatment for back pain at various hospital emergency rooms.  She testified that she had no other option after the employer refused to authorize additional treatment and she lost her health insurance coverage.

 

Dr. Pinto continued to raise the issue of surgical treatment, eventually recommending a repeat discogram to assess the propriety of fusion surgery or, in the alternative, a sacroiliac root block to determine whether sacroiliitis, which had been disclosed on one of the MRI scans, was causing the employee=s symptoms.  If surgery were not an option, Dr. Pinto indicated that the employee should undergo a functional capacity evaluation [FCE] and be referred to a pain management program.  Dr. Robert Wengler, who conducted an independent medical examination on the employee=s behalf, agreed that another discogram, and probable fusion surgery, would be appropriate given the employee=s symptoms.  Dr. Holte, too, agreed that the employee was a candidate for fusion, although he saw no need for another discogram.

 

Dr. Randa, on the other hand, who had evaluated the employee on at least three more occasions for the employer, continued to dispute the need for fusion surgery.  In fact, after reviewing surveillance videotape taken of the employee cleaning out her car in August of 2002, Dr. Randa concluded that the employee had normal lumbar range of motion and appeared to have no significant pain complaints justifying surgery of any kind.  Furthermore, Dr. Randa expressed significant concern about what he characterized as drug-seeking behavior on the employee=s part, as evidenced by her numerous emergency room visits to obtain Percocet.  Dr. Randa also found it significant that the employee=s extensive treatment records contained only one or two notations of muscle spasm^[1] and that the focus of the employee=s complaints switched back and forth between her back and her leg.

 

Dr. Pinto was apparently not asked to view the August 2002 surveillance videotape.  However, Dr. Wengler wrote that, while the employee showed no overt pain behavior on the tape, the employee=s recorded activities were not inconsistent with his understanding of the employee=s condition and did not change his opinion in any way.

 

When the matter came on for hearing before a compensation judge on June 6, 2003, issues included whether the employee had been temporarily and totally disabled since February 9, 2002,^[2] as a result of her low back injury, whether certain outstanding medical expenses (primarily for certain treatment rendered after February of 2002) were compensable, and whether the employee was entitled to the additional treatment and/or tests recommended by Dr. Pinto.  Evidence included the employee=s voluminous medical records, the surveillance videotape, and the reports of the independent medical examiners.  Witnesses at hearing included the employee, the employee=s son, the employee=s husband, vocational expert Jan Lowe, and Janalee Reinekelyth, an occupational therapist who had been hired by the employer to perform a Anatural functional analysis@ of the employee based on the employee=s activities on the surveillance videotape.

 

In findings relevant to the current appeal, the compensation judge resolved most issues in the employer=s favor, concluding in part that the employee=s February 2, 1998, work injury was Ain the nature of a musculoligamentous strain superimposed upon degenerative spondylosis . . . with mild residual L5-S1 radiculopathy on the right as a consequence of nerve root irritation aggravated by discography,@ as reported by Dr. Randa.  The judge also determined that the disputed outstanding medical expenses and the treatment proposed by Dr. Pinto were not reasonable and necessary to treat the employee=s work injury and that the sacroiliitis disclosed on MRI scan was not causally related to that injury.  Finally, with regard to the employee=s claim for temporary total disability benefits, the judge concluded that the employee had reached maximum medical improvement [MMI] effective with service of an MMI report of Dr. Randa on November 2, 2001, that the employee had been capable of full-time work, within restrictions set by Dr. Randa, after February 9, 2002, and that the employee had not made a diligent search for work after that date.  The employee=s medical and temporary total disability benefit claims were therefore denied.^[3]  The employee appeals.

 

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.  Medical Treatment

 

The compensation judge denied the employee=s claims for treatment rendered by North Memorial Medical Center and Park Nicollet Clinic as well as denying her request for approval of the future treatment recommended by Dr. Pinto, consisting of another discogram and possible fusion surgery, sacroiliac joint blocks, or, in the alternative, chronic pain management at Medical Advanced Pain Specialists [MAPS], and an FCE.  The employee appeals, contending that substantial evidence does not support the judge=s decision on these issues.  We are not persuaded.

 

We note initially that the employee relies heavily, in her brief, on the medical treatment parameters, Minn. R. 5221.6010, et. seq., in support of her argument that some of the treatment in question here is reasonable and necessary to treat her work injury.  However, as we have observed in the past, Athe treatment parameters are complex, and they are not workable in litigation unless the parties inform the judge as to which specific rules are at issue. . . .@  Boryca v. Marvin Lumber & Cedar, slip op. n.3 (W.C.C.A. Nov. 10, 1999).  This observation is true with regard both to cases in which an employer is seeking to use the parameters as a defense and cases in which an employee is relying on the parameters to support her claim.  In the present case, we find no evidence in the hearing record indicating that either party had asked the judge to apply the parameters, and the judge in fact based his decision on general reasonableness and necessity grounds.  As such, because the parameters were not raised or applied at the trial level, we will not consider them on appeal.

 

Going on to the specific disputed treatment, we note that the employee did not specifically address the $141.01 in outstanding charges from her treatment at Park Nicollet Clinic, other than to contend, generally, that all treatment rendered to date has been reasonable and necessary.  As such, arguably, this issue should be deemed waived.  See Minn. R. 9800.0900, subp. 1.  Furthermore, to the extent that consideration of this claim on the merits is appropriate, we would observe that only a portion of the $141.01 balance is clearly related to the employee=s back complaints.^[4]  Finally, it is apparent that the judge denied the low back-related Park Nicollet charge for the same reason that he denied the $8,217.65 in outstanding charges for the employee=s emergency room visits to North Memorial Medical Center.  That is, the judge was persuaded by Dr. Randa=s testimony that the employee was engaged in drug-seeking behavior and that the surveillance videotape from August of 2002 was indicative of a person with no significant pain complaints.  In fact, Dr. Randa testified that the videotape of the employee cleaning out her car

 

was stunning in the degree of normality demonstrated by [the employee] when on all other occasions in doctors= offices, she was unable to flex or bend more than 30 to 45 degrees and had continuing complaints of unremitting pain, and yet when she wasn=t aware that she was being observed, she was totally normal to the extreme.

 

The judge was clearly entitled to accept Dr. Randa=s opinion to this effect.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  In addition, as the compensation judge noted in his memorandum, the employee sought emergency room treatment for pain complaints - - and Percocet refills - - not only at North Memorial but at Methodist Hospital and Abbott Northwestern Hospital, at times seeking Percocet prescriptions when she already had such prescriptions from Dr. Pinto,^[5] and then being repeatedly advised by emergency room physicians to bring her requests for narcotics to her primary care physician.  While the employee offered explanations as to why she went to several different hospitals, the judge was not required to accept her testimony as to this or any other issue, and it is evident that the judge did not believe the employee to be a credible witness.  See Even v Kraft, Inc, 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989) (it is the compensation judge=s function to gauge the credibility of witnesses).

 

Much of the evidence supporting the judge=s denial of outstanding charges from Park Nicollet and North Memorial also supports his denial of the prospective treatment recommended by Dr. Pinto.  In addition, Dr. Randa testified unequivocally that the employee was not a candidate for fusion (thereby obviating any need for a discogram), that she did not need a pain management program or an FCE, and that the sacroiliitis disclosed on MRI was likely the result of an autoimmune condition having nothing to do with the work injury (thereby rendering the recommended SI joint block nonwork-related).  In fact, with regard to the employee=s work-related injury, Dr. Randa has for several years recommended only a vigorous exercise program and trials of (nonnarcotic) neuropharmacological agents, to treat the employee=s subjective pain complaints.  Again, the judge was entitled to accept Dr. Randa=s opinion in this regard.

 

Because substantial evidence supports the compensation judge=s denial of the disputed treatment expenses and proposed treatment, we affirm his decision in this regard.

 

2.  Temporary Total Disability Benefits

 

The compensation judge made two findings relevant to the employee=s claim for temporary total disability benefits from February 9, 2002: he concluded that the employee had reached MMI from the effects of her work injury effective with service of an MMI report by Dr. Randa on November 2, 2001, and he found that the employee had not performed a reasonably diligent job search during the relevant period.  We affirm.

 

It is true, as the employee points out, that Drs. Pinto, Holte, and Wengler have all advocated additional treatment, including fusion surgery, in the hopes of substantially improving the employee=s condition.  However, as the compensation judge concluded that the proposed treatment was not reasonable or necessary, the treatment is irrelevant for purposes of determining whether the employee=s condition has reached the point Aafter which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated.@  Minn. Stat. ' 176.011, subd. 25.  Furthermore, while Dr. Randa recommended exercise and certain medication after the date he chose for MMI, he specified that he thought the medication might be useful to address the employee=s subjective pain complaints, and the applicable statute indicates that subjective pain complaints are irrelevant to an MMI determination.  See id.  Finally, the record clearly supports the conclusion that the employee=s condition did not in fact improve after November of 2001 and that Dr. Randa did not reasonably anticipate any substantial improvement after that date.

 

MMI is a finding of ultimate fact.  See Hammer v. Mark Hagen Plumbing & Heating Co., 435 N.W.2d 525, 41 W.C.D. 634 (Minn. 1989).  In the present case, substantial evidence supports the compensation judge=s decision, and we affirm it.  We therefore also affirm the judge=s denial of temporary total disability benefits from and after February 9, 2002.^[6]  See Minn. Stat. ' 176.101, subd. 1.