Wittrock v. Dalco Roofing & Sheet Metal

THOMAS C. WITTROCK, Employee, v. DALCO ROOFING & SHEET METAL, and RCI MINN./BERKLEY RISK ADM=RS CO., Employer-Insurer/Appellants.

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Substantial evidence, including expert opinion, supported the compensation judge=s decision that proposed surgery was reasonable and necessary to treat the employee=s work injury.

Attorneys: James A. Batchelor, Batchelor Law Firm, Edina, MN, for the Respondent. Timothy J. Pramas, Felhaber, Larson, Fenlon & Bogt, St. Paul, MN, for the Appellants.

The employer and insurer appeal from the judge=s decision that the proposed surgery is reasonable and necessary to cure or relieve the effects of the employee=s work injury. We affirm.

The employee sustained a work-related injury on April 22, 2002, while employed by Dalco Roofing & Sheet Metal [the employer]. The employee was treated for left-sided neck pain, headaches, and shoulder pain thereafter, with physical therapy and medications, administered under the direction of the employee=s treating doctor, Karen R. Kane.

The employee was examined by neurologist Dr. Eve Rogers on July 31, 2002. At that time, the employee presented with greatly decreased cervical range of motion and a severe aching pain over the left base of his skull. On examination, Dr. Rogers noted extreme tenderness and muscle spasm palpable over the left posterior scalp, and she recommended referral to a physiatrist for trigger point injections.

The employee received multiple injections but experienced no long-lasting relief. Dr. Kane then recommended an occipital nerve block, which was performed on October 8, 2002. When the nerve block provided some temporary relief, Dr. Kane directed that two additional injections be performed. In December of 2002, noting that she was running out of treatment options, Dr. Kane prescribed a facet block, which was performed on December 24, 2002. When the employee returned to see Dr. Kane on December 31, 2002, he indicated that he had not noticed any benefit from the block. At that time, Dr. Kane referred the employee back to Dr. Rogers.

When seen by Dr. Rogers on January 30, 2003, the employee reported continued persistent neck and left trapezius muscle pain as well as cervicogenic headaches. Dr. Rogers recommended an EMG, which was conducted on May 1, 2003, and interpreted as showing a mild degree of chronic neurogenic injury affecting primarily the left C5 nerve root.

In September of 2003, Dr. Kane recommended that the employee undergo a cervical MRI, along with a psychological assessment for anxiety, depression, and chronic pain. The MRI, performed on September 17, 2003, was interpreted as showing small marginal osteophytic spurs at C3-4 and C5-6; Abroad-based posterolateral right-sided marginal osteophytic spur with mid cord indentation@ at C5-6; moderate left-sided foraminal stenosis at C5-6; and moderate right-sided foraminal narrowing at C4-5.

Psychologist Dr. Ron Wutchiett evaluated the employee on September 30, 2003, and diagnosed, in part, Amajor depression, single episode mild severity@ and Apain disorder associated with both psychological factors and a medical condition.@ The employee was not receptive to the idea of an antidepressant medication trial, and Dr. Wutchiett concluded, A[i]f it becomes clear that Mr. Wittrock is not a candidate for surgical intervention and he continues to struggle with pain, disability and depression, you may want to consider a referral to a chronic pain rehabilitation program.@

Dr. Kane referred the employee to neurosurgeon Dr. Terry Hood, who examined the employee on October 21, 2003. Dr. Hood recorded a history of left-sided neck and shoulder pain, with the pain radiating from the left side of the employee=s neck into the shoulder and up into the ear and teeth. It was Dr. Hood=s opinion that the employee Amay have a C5 or C6 radiculopathy,@ and he recommended diagnostic blocks of those two nerves. When those blocks were administered on November 6, 2003, the employee experienced relief of 40% of his left shoulder, left arm, and hand pain with the left C5 nerve root block, and relief from 60% of his left ear, jaw, and neck pain with the left C6 nerve root block. On November 12, 2003, Dr. Hood recommended that the employee undergo a left C4-5, C5-6 hemilaminectomy and foraminotomy. The employee filed a medical request for the proposed surgery on January 14, 2004. The employer and insurer responded that no decision as to the surgical request could be made until the employee underwent an independent medical examination.

The employee was examined by independent medical examiner Dr. Neil R. Dahlquist on February 5, 2004. In his report of that date, Dr. Dahlquist indicated that he disagreed with the interpretation of the EMG and that he did not believe that the employee had a cervical radiculopathy. It was his opinion that the employee had functional overlay, psychological issues, and clinical depression, and he did not believe that the employee would benefit from a surgical procedure.

On April 20, 1994, Dr. Hood issued another report, stating that the employee=s diagnosis was a left C5 and C6 radiculopathy secondary to foraminal stenosis at those levels and that the proposed surgery was reasonable and necessary to relieve the foraminal stenosis, which had been exacerbated by the work injury. It was his opinion that the surgery would have an 85-90% chance of relieving the employee=s symptoms.

The medical request proceeded to hearing on April 21, 2004. In findings and order filed on May 21, 2004, the compensation judge found that the proposed surgery was reasonable and necessary. The employer and insurer appeal.

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).

The employer and insurer contend that substantial evidence does not support the judge=s decision, in that the opinion of Dr. Hood was premised on an invalid result on the diagnostic nerve root blocks. Specifically, the employer and insurer contend that the results of the diagnostic nerve root blocks were anatomically impossible, because a nerve block at C4-5 cannot provide pain relief into the arm, and a nerve root block at C5-6 cannot provide pain relief in the ear, the side of the face, and the neck.^[1] We are not persuaded.

While the employer and insurer=s position is supported by the deposition testimony of Dr. Dahlquist, taken on April 19, 2004, the issue on appeal is not whether the evidence might support a different result but rather whether substantial evidence supports the result reached by the compensation judge. Hengemuhle, 358 N.W.2d 54, 37 W.C.D. 235. In this case, Dr. Hood reviewed the MRI, EMG, and diagnostic blocks and concluded that the proposed surgery was reasonable and necessary. At oral argument on appeal, counsel for the employer and insurer conceded that Dr. Hood had also reviewed Dr. Dahlquist=s report before reiterating, in his April 20, 2004, report, that the proposed surgery was reasonable and necessary.

The employer and insurer suggest that Dr. Hood was obligated to respond to Dr. Dahlquist=s allegations of anatomically impossible results. We disagree. Under Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985), a trier of fact=s choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. In the present case, the compensation judge found the opinion of Dr. Hood more persuasive than that of Dr. Dahlquist. Dr. Hood implicitly found the results of the EMG, MRI, and diagnostic nerve root blocks to be valid, while Dr. Dahlquist did not. This is nothing more than a difference in opinion between experts. Seeing nothing that would require reversal of the judge=s choice between those expert opinions, we affirm the judge=s decision in its entirety.

^[1] Dr. Dahlquist alleged that the employee had reversed his responses to the nerve blocks, suggesting that a nerve block at C4-5 would give pain relief in the ear, side of the face, and neck and a nerve block at C5-6 would give pain relief into the arm. He testified that this supported his diagnosis of functional overlay.