MARK A. BURG, Employee, v. MIK COOP TRUCKING ASS=N and FARMLAND MUT. INS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 22, 2005

 

No. WC05-209

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - CHANGE OF PHYSICIANS.  Where the employee=s treatment had been varied and complex prior to his current doctor=s involvement, where the latter was obviously aware of that treatment when he continued to recommend conservative treatment, where the judge reasonably concluded that the employee=s doctors had documented a treatment plan as required under the treatment parameters, and where the employer and insurer had not offered any evidence that any form of treatment not already tried by the employee would be proposed by another doctor, the compensation judge=s denial of the employer and insurer=s request for a change of physicians was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the employee had not demonstrated a substantial change in his symptomology since the date of his work injury.

 

Affirmed.

 

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

Compensation Judge: Jerome G. Arnold

 

Attorneys: Louis A. Stockman, Petersen, Sage, Graves & Stockman, Duluth, MN, for the Respondent.  Timothy S. Crom, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Appellants.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge=s denial of their request for a change of treating physicians.  We affirm.

 

BACKGROUND

 

On May 6, 2001, Mark Burg [the employee] sustained an injury to his low back while attempting to move a telephone pole that was lying on the ground, in the course of his work as an over-the-road truck driver for MIK Coop Trucking Association [the employer].  The following day he sought treatment at the Gateway Family Health Clinic in Moose Lake, Minnesota, where he was seen by physician=s assistant Melinda Ninefeldt.  Ms. Ninefeldt diagnosed a back strain and advised the employee to refrain from truck driving until he felt more comfortable.  She prescribed Ibuprofen, Flexeril, and heat.  On the date of his injury, the employee was thirty-eight years old.

 

Since the date of his injury, the employee=s treatment has been varied and complex and at the hands or consultation of about a dozen different physicians and therapists.  About a week after the injury, on May 16, 2001, he was evidently seen in an emergency room for back discomfort, having earlier that morning collapsed to his knees while getting out of his truck.^[1]  X-rays were obtained, and an MRI scan of the lumbar spine was performed on May 17, 2001.  The MRI showed a central prolapse of L4-5 but no significant nerve impingement, as well as mild degenerative changes at L1-2, L2-3, and L3-4.  He was subsequently seen, on May 22, 2001, by his family physician at the Gateway clinic, Dr. Kenneth Etterman, to whom he complained of pain in his back when he moved and significant trouble sitting.  Dr. Etterman restricted him from working and referred him for physical therapy and to physiatrist Dr. Peter Hindle.

 

The employee was first examined by Dr. Hindle on June 26, 2001.  He reported to Dr. Hindle that the physical therapy that he had been receiving over the past four weeks had not been of much benefit.  He had also been prescribed a home exercise program but had found some of the exercises too difficult to do.  Dr. Hindle diagnosed an acute lumbosacral strain Awith what appears to be left sacroiliac dysfunction.@  He noted that the employee was using too much Ibuprofen and prescribed Celebrex and Ultram instead, together with Elavil to help with sleeping.  In addition, the doctor prescribed continued physical therapy, directed to Amobilization of the SI and pelvic stabilization and strengthening,@ and trial of a TENS unit.  About a month later, on August 1, 2001, the employee returned to Dr. Hindle, reporting that he had been attending his physical therapy in Moose Lake three times a week over the previous four weeks and had experienced at least a fifty percent improvement in his symptoms.  The doctor concluded that the employee=s lumbosacral strain was resolving and released him to return to work with restrictions.  Unfortunately, the employee evidently experienced an increase in symptoms on his first day back at work, and on August 10, 2001, he phoned Dr. Hindle, who restricted him from working again and referred him back to physical therapy.  Later that month, the employee phoned Dr. Hindle again, indicating that he wished to return to work, and he was evidently released to do so.  The employee returned to see Dr. Hindle in follow-up on October 10, 2001.  He reported that he was still able to work but had increasing low back and leg pain after sitting for forty-five minutes or longer.  Dr. Hindle completed a report of work ability indicating that the employee could continue to work without restrictions but should be seen on an as-needed basis.

 

On January 25, 2002, the employee was seen by orthopedist Dr. Robin Hendricks, apparently at the request of his Aworkers= comp nurse.@  Dr. Hendricks reviewed the employee=s x-rays and MRI scan and performed an examination.  He diagnosed mechanical low back pain and a possible herniated disc that may have evolved since the MRI.  He recommended a repeat MRI to rule out a new herniated disc.  The employee=s repeat MRI, performed on January 29, 2002, showed no evidence of nerve root impingement, and Dr. Hendricks advised the employee that he did not have any treatment options to recommend and referred him back to Dr. Etterman for ongoing treatment.

 

On February 1, 2002, the employee returned to see Dr. Etterman, who in turn referred him to the Pain Center Clinic at Miller Dwan Medical Center.  The employee was evaluated there on February 14, 2002, by Dr. David Hoeft, who diagnosed low back pain with evidence of degenerative disc disease and degenerative facet arthritis as noted on MRI.  Dr. Hoeft recommended a series of L4 transforaminal epidural injections, which were subsequently performed on February 22, March 8, and March 22, 2002.  The employee returned to see Dr. Etterman in follow-up on April 2, 2002.  He reported that he had undergone three injections to his back with some relief of his discomfort, but he noted that he was more comfortable with the use of Vicodin, Prozac, and Depakote.  The employee reported to Dr. Etterman that, A[a]fter he was injected a third time, the physician stated that he might have a ten lb. weight restriction, and had to be limited to about 15 minutes of sitting at one time.@  Dr. Etterman noted also that the insurer evidently wanted the employee to be seen by another physiatrist, in spite of the fact that he had already seen Dr. Hindle, Dr. Hendricks, and neurosurgeon Dr. Stefan Konasiewicz.  Dr. Etterman concluded that the employee needed more physical therapy and that now, approaching almost a year after his injury, he might still be experiencing ongoing symptoms of that same injury.

 

On April 19, 2002, the employee was examined at the request of the employer and insurer by orthopedist Dr. Jack Drogt.  Dr. Drogt obtained a history from the employee, reviewed his medical records, and performed a physical examination.  In a report issued on that same date, Dr. Drogt concluded that the employee had a history of work-related injury on May 6, 2001, with continued chronic mechanical low back pain.  He found that the employee had not yet reached maximum medical improvement from his injury, and he recommended that he undergo a comprehensive rehabilitative program, Aprobably instituting isokinetic rehabilitation and chronic pain management.@  Dr. Drogt released the employee to light duty work, restricted from lifting or carrying over twenty pounds, recommending that he alternate sitting, standing, and walking.

 

The employee returned to see Dr. Hindle again for his lower back complaints on June 11, 2002.  At that visit, the doctor noted that he had last seen the employee in October of 2001 and had released him to return to work without restrictions Aat his own request.@  He noted further that he did have some concerns about this because the employee was not pain free but that Ahe was insistent that he wanted to go back to work.@  After completely reviewing the employee=s status, Dr. Hindle recommended an aggressive physical therapy program focusing on stretches, conditioning, and strengthening modalities.  The employee was therefore referred to Moose Lake Physical Therapy, the therapy location closest to his home.  On July 26, 2002, the employee reported to Dr. Hindle that the physical therapy aggravated his symptoms and that he ached all over.  The doctor concluded that the employee had two options in terms of further treatment - - 1) a referral to Physical Therapy Orthopaedic Specialists, Inc. [PTOSI], for intensive treatment or 2) a pain management program such as the one at Sister Kenny.  He also indicated that he was considering repeating the MRI scan of the employee=s lumbar spine and doing EMG nerve conduction studies of his legs.

 

The employee attended five days of therapy at PTOSI in August 2002, but he complained that the treatment made his back pain worse and increased the paresthesias into his upper legs.  On September 11, 2002, he underwent a third lumbar MRI scan and returned to see Dr. Hindle on September 16, 2002.  On that date, Dr. Hindle=s impression was that the employee had Acontinuing moderately severe chronic mechanical low back pain with underlying degenerative disc disease at L4-5 with the protruding disc to the left side.@  Dr. Hindle stated further, however, that on clinical examination he was not able to find any definite evidence of radiculopathy, neuropathy, or sacroiliac dysfunction.  With regard to the protruding L4-5 disc, Dr. Hindle referred the employee for an EMG/nerve conduction study of his left leg, to rule out any underlying radiculopathy.  If the study should prove negative, Dr. Hindle felt that referral to a chronic pain management program would be appropriate.  Noting that he was leaving the Duluth Clinic at the end of September, Dr. Hindle indicated that he had arranged for the employee to be followed by his colleague, Dr. Skip Silvestrini.

 

The employee was examined for a second time for the employer and insurer by Dr. Drogt on October 8, 2002.  Following this examination, Dr. Drogt diagnosed chronic mechanical low back pain as a result of multilevel degenerative disc disease, with increased subjective symptoms but no appreciable objective findings.  He concluded that the employee had been incompletely rehabilitated and again recommended a substantive course of isokinetic rehabilitation coupled with pain management.  Based on the lack of objective findings, Dr. Drogt concluded that, from an orthopedic standpoint, the employee did not require formal restrictions from any physical activities.

 

On October 14, 2002, the employee underwent the EMG/nerve conduction studies recommended by Dr. Hindle.  Dr. T. Mark Seidelmann interpreted the studies as normal, concluding that there was no electrodiagnostic evidence of lumbar radiculopathy or peripheral polyneuropathy.

 

The employee was seen for the first time by Dr. Silvestrini on November 1, 2002.  After reviewing the employee=s history and MRI scan and performing a physical exam, Dr. Silvestrini concluded that the employee needed a generalized conditioning program, using his home jacuzzi as part of the program.  About four weeks later, the employee experienced an increase in his low back pain going into his right hip and was seen in the emergency room on November 30, 2002.  He was given an injection and told to follow up with Dr. Silvestrini, whom he saw on December 5, 2002.  Dr. Silvestrini thought that the employee might have had a locked facet at L3 or L4, and he referred him for manual therapy.  The doctor felt that the employee needed to be in an evolved conditioning program focusing on stretching the employee=s back and hamstrings and strengthening his trunk and abdomen.  Dr. Silvestrini also prescribed an interferential current stimulator.  The employee attended only three therapy sessions between December 16, 2002, and January 30, 2003, and when he returned to see Dr. Silvestrini on February 25, 2003, he advised the doctor that the interferential current stimulator provided no lasting reduction in his symptoms.  Dr. Silvestrini continued to believe that medication for pain control and general conditioning exercises were appropriate for the employee.

 

In supplementary reports issued on January 7 and March 26, 2003, Dr. Drogt again commented that, unless the employee underwent an isokinetic rehab course of therapy, he did not expect a significant improvement in the employee=s overall condition or symptom complex.  On March 26, 2003, after reviewing the therapy notes from the employee=s treatment at PTOSI in August 2002 and the EMG report of October 14, 2002, Dr. Drogt opined that the employee had reached maximum medical improvement.

 

The employee=s activity level and symptoms did improve with time, and Dr. Silvestrini eventually released him to driving two to three days per week.  Unfortunately, the employee again experienced a flare-up and was unable to work for about four months, beginning in November 2003.  Dr. Silvestrini obtained an updated MRI scan in December 2003, but it essentially showed no change from the employee=s previous MRIs.  At about that same time, Dr. Silvestrini offered to refer the employee to a chronic pain program, and he did recommend that he see a pain psychologist, but he continued to believe that the employee needed to work on strengthening.

 

On September 10, 2004, the employer and insurer served a medical request, seeking a change of treating doctors from Dr. Silvestrini to Dr. Daniel Wallerstein, D.O.  The employer and insurer asserted that Dr. Silvestrini=s treatment was doing nothing to progress the employee=s physical condition and that the doctor had no current treatment plan.  They stated that the employee Aneeds to be evaluated by a second medical professional to provide a different perspective to [t]his patient=s care and treatment and one which will hopefully provide some level of progress and improvement in the employee=s overall condition.@

 

On September 29, 2004, Dr. Silvestrini requested flexion/extension x-rays of the employee=s back to see if there was Aany shift in the basis of the degenerative disc change.@  X-rays obtained on October 6, 2004, were interpreted by the radiologist as showing no abnormal motion with flexion or extension.  The lumbar interspace heights appeared well preserved, and there were mild degenerative changes of the facet joints.

 

On December 29, 2004, the employee was examined at the request of his attorney by Dr. William Fleeson.  Dr. Fleeson diagnosed an L4-5 annular tear with central and left disc protrusion as a result of the employee=s May 2001 work injury.  He also diagnosed preexisting mild degenerative disc disease at L1-2 through L4-5.  Dr. Freeson recommended additional therapy, traction, a lumbar corset, bed/mattress modification, and medication adjustment as possibilities for additional passive treatment.  He recommended also that the employee be evaluated for surgery by Dr. Timothy Garvey at Twin Cities Spine Center and that his restrictions should include Ano lifting, no bending, no walking at exposed or dangerous heights or use of ladders, no prolonged sitting (greater than 15 minutes), no pushing or pulling, ability to change positions at will.@

 

The employer and insurer=s medical request had been denied at an administrative conference, and the matter came on for formal hearing before a compensation judge on April 27, 2005.  In a Findings and Order issued May 19, 2005, the judge denied the employer and insurer=s request for a change of physician, concluding that they failed to show that the requested change of physician was in the best interest of the parties, Aor will provide any additional options for treatment not already tried and agreed to by the employee.@  The employer and insurer appeal.

 

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

 

The employer and insurer argue that, in light of the fact that the employee=s condition has not improved and the treating physician over a prolonged period of time has not recommended further treatment options, the judge=s decision not to allow a change of physician was clearly erroneous.  Here, they argue, other than occasionally being taken off work, the employee has remained on sedentary duty two to three days per week since he was released to work in April 2003.  Despite no improvement in the employee=s condition, they argue, Dr. Silvestrini has not provided a treatment plan and the employee=s condition has essentially consisted of discussing exercises and medication.  They argue that Dr. Silvestrini has exhausted his resources and that the employee=s care should therefore be transferred to Dr. Wallenstein.  We are not persuaded.

 

The compensation judge=s Findings and Order set forth a detailed recitation of the medical treatment received by the employee for his work injury.  While it is true that Dr. Silvestrini=s recommendations have focused on a conditioning program for the employee, the doctor=s recommendations follow extensive treatment options already explored by the employee=s previous treating doctors.  Prior to Dr. Silvestrini=s involvement, the employee had a series of lumbar x-rays, three MRI scans, EMG/nerve conduction studies, a referral to a pain management program, three epidural steroid injections, orthopedic and neurosurgical consultations, physical therapy in Moose Lake and PTOSI, and two evaluations by Dr. Drogt.  It was with this record of prior treatment that Dr. Silvestrini formulated his recommendations for the employee.  Dr. Silvestrini also obtained an updated MRI scan, and flexion/extension x-rays of the employee=s lumbar spine.  Dr. Silvestrini has obviously been aware of the employee=s fluctuating symptomatology but has continued to recommend medication and exercise.  Although they propose a different doctor, the employer and insurer have not offered any evidence that a particular form of treatment not already tried by the employee would be proposed by another doctor.  As noted by the judge in his memorandum, Dr. Drogt does not suggest additional treatment, and in fact he believes that the employee is at MMI.

 

As to the lack of a treatment plan, the judge reasonably concluded that the employee=s treating doctors, including Dr. Silvestrini, have throughout their treatment documented a treatment plan as required under the treatment parameters.  The judge stated,

 

The current treatment plan is for the employee to continue to work on strengthening per his established home exercise program and to continue on medications for pain management.  The plan when taken together with the employee=s record of previous treatment appears appropriate and consistent with the treatment parameters.  The employer/insurer=s independent medical examiner believes employee is at MMI.  Changing physicians at this time for the purpose of proposing or reviewing a treatment plan is not in the best interest of the parties.@

 

(Emphasis added.)  The judge also noted that the employer and insurer did not produce any evidence as to Dr. Wallerstein=s qualifications, his special skills, the availability of other specialists in a group practice with him, his physical therapy capabilities, or and other reasons that might be unique to the circumstances of this case to allow the court to determine the reasonableness of the request Aon grounds other than the employer/insurer=s dissatisfaction with the employee=s response for treatment and restrictions imposed by the treating doctor.@

 

We acknowledge that the employee has not demonstrated a substantial change in his symptomatology since the date of his work injury.  Nevertheless, given the extensive nature of the treatment already received by the employee and the evidence offered by the employer and insurer, we do not at this time find unreasonable the compensation judge=s denial of the employer and insurer=s request for a change of physicians.  Therefore, the judge=s decision is affirmed.  See Hengemule, 358 N.W.2d at 59, 37 W.C.D. at 239.