CHARLES H. SCHULENBURG, Employee, v. CORN PLUS, SELF-INSURED, adm=d by ASU RISK MGMT. SERVS., Employer/Appellant, and FORTIS BENEFITS INS. CO., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 8, 2005

 

No. WC04-227

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - EXPERT MEDICAL OPINION.  Substantial evidence of record, including adequately founded expert medical opinion, supports the compensation judge=s finding that the employee sustained a permanent aggravation of his pre-existing medical condition as a result of his work-related injury, and the concerns raised by the employer about the foundation for the medical opinion relate to the persuasiveness or weight accorded the medical opinion by the compensation judge and not to a lack of foundation.

 

CAUSATION - PERMANENT AGGRAVATION.  Although the employee had sought medical treatment for his low back prior to his work injury, substantial evidence of record supports the compensation judge=s finding that the employee=s work injury to his low back resulted in a permanent aggravation of his pre-existing medical condition.

 

MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS.  Minn. R. 5221.6020, subp. 2, provides that the medical treatment parameters do not apply to treatment related to an injury after an insurer has denied liability for the injury.  For the purposes of application of the permanent medical treatment parameters, a denial of liability includes both a denial of primary liability and a denial of medical causation for subsequent symptoms or conditions.

 

Affirmed.

 

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

Compensation Judge: Jennifer Patterson

 

Attorneys: Matthew T. Nielsen, Scott, Nielsen & Bentz, Fairmont, MN, for the Respondent.  Charles E. Gillin and Thomas J. Misurek, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Appellants.

 

 

OPINION

 

MIRIAM P. RYKKEN,  Judge

 

The self-insured employer appeals from the compensation judge=s finding that the employee sustained a permanent injury to his low back as a result of his February 23, 2003, work injury, and from the related award for payment of temporary partial and temporary total disability benefits and medical expenses.  We affirm.

BACKGROUND

 

On May 1, 2002, Mr. Charles H. Schulenburg began working as a boiler operator for Corn Plus, which operates an ethanol manufacturing facility in Winnebago, Minnesota.  While the employee=s major responsibilities involved monitoring the boilers, he also engaged in additional jobs including machine maintenance, cleanup within the general physical plant, and other non-routine tasks associated with the boiler plant.  On February 23, 2003, the employee sustained an admitted injury to his low back while cleaning liquid material that spilled out of a tank located outside the plant.  He, along with three other employees, cleaned up the spill by using a squeegee, scooping the material into buckets.  As he was standing on a step, stepping down onto an incline, he stepped on ice, his foot went out from underneath him, and he fell flat onto his back.  His communications radio was under his back, and he fell on top of the radio.  The employee initially had difficulty breathing;  and felt an extreme hot or stinging sensation in his back.  He eventually was able to stand up and returned to his cleaning tasks.

 

Following this injury, the employee had difficulty standing up, and if he stood for very long he noted very sharp pains in his back area.  His symptoms worsened within the month following his injury, and he started noticing numbness and tingling in his left leg down into his heel.  At one point during the month following his injury, he experienced a spasm while repairing a chemical pump, and required assistance from a co-worker to stand up.

 

The employee had undergone medical treatment for his low back prior to his 2003 injury.  Between October 1996 and March 2002, while residing in Texas, he treated for symptoms in his low back and left hip. His medical records refer to a history from the employee that he noticed low back pain Anow and then@ since his late 20's.  Those records do not refer to specific low back injuries reported by the employee but refer to various episodes of significant pain resulting from bending over, turning around while walking, or bending to tie his shoelaces.  Radiographic studies since 1996 indicated degenerative changes in the employee=s lumbar spine.  A lumbar MRI scan taken in April 2000 showed bulging discs at multiple vertebral levels.  By March 19, 2002, his treating physician diagnosed Alumbalgia and sciatica.@

 

Following his injury on February 23, 2003, the employer, self-insured for workers= compensation liability, admitted primary liability for the injury and has paid wage loss benefits and medical expenses to and on behalf of the employee.  The employee sought medical treatment for his low back on March 26, 2003, first consulting with Darlene Turner, physician=s assistant, reporting left hip and leg discomfort, increasing weakness in his left leg, and pain and burning sensations occasionally down into his left foot.  Ms. Turner restricted the employee to light-duty activities and work for the next two weeks.  She also referred the employee for x-rays, a CT scan and an MRI scan, which showed degenerative changes and multiple disc bulges, spinal stenosis at the L3-4 level, and irregularity at the L5 level which was suggestive of early pars fracture.  Ms. Turner referred the employee to an orthopedist, Dr. James Schwartz, who first examined the employee on April 8, 2003.  Dr. Schwartz placed a 20-pound lifting limit on the employee, and advised him to avoid squatting, bending, and prolonged walking and standing.  The employee testified that he continued to work while attempting to keep within Dr. Schwartz=s restrictions, but periodically exceeded those when necessary to perform his duties.  Dr. Schwartz recommended epidural steroid injections and physical therapy, but the employee=s symptoms persisted.

 

By July 8, 2003, Dr. Schwartz restricted the employee from work for several weeks to see if rest would help relieve his symptoms.  On July 30, 2003, Dr. Schwartz released the employee to return to work in a supervisory job training in new workers, with no cleanup duties.  The employee returned to work, but testified that he was only able to work as a supervisor for 2 2 shifts, and then, because the plant was shorthanded, he was sent back to the plant to perform his regular duties.  In August 2003, Dr. Schwartz recommended a fitted back brace, which the employee wore at work; the employee testified that the back brace relieved his symptoms.  In September 2003, Dr. Schwartz prescribed Neurontin, which, according to the employee, did not relieve his symptoms.  On October 7, 2003, Dr. Schwartz restricted the employee entirely from work upon learning that he had been asked to perform his regular duties.  At that point, Dr. Schwartz also recommended that the employee undergo an IDET procedure.^[1]  Dr. Schwartz opined that the employee was not, at that time, a good candidate for lumbar fusion surgery due to his degeneration in multiple levels of his lumbar spine.

 

On November 5, 2003, the employee filed a claim petition, seeking payment of temporary partial and temporary total disability benefits, payment for medical expenses incurred, and authorization for the prescribed IDET procedure.  In its answer to the employee=s claim, the employer denied liability for the claimed benefits, specifically stating that it denied Athe nature and extent and cause of the Employee=s alleged injury, disability and medical care and treatment.@

 

On January 29, 2004, the employee underwent an independent medical examination with Dr. Gary Wyard, at the employer=s request.  Dr. Wyard concluded that the employee sustained a contusion to his low back on February 23, 2003, and that he did not need any ongoing medical care or treatment at this time as a result of that injury.  Dr. Wyard concluded that any ongoing care or treatment was a result of Awell-documented, pre-existing degenerative disease of the lumbar spine@ and that the employee did not sustain any permanent partial disability as a result of his work injury due to the lack of persistent objective clinical findings resulting from his 2003 injury.  Dr. Wyard also provided his opinion that the proposed IDET procedure would be unreasonable and inappropriate, as the procedure is controversial and has been Adisqualified as having any therapeutic benefit, other than possible placebo effect.@

 

On April 23, 2004, the employee=s claim petition was addressed at a hearing before a compensation judge.   The issues presented to the compensation judge included whether the employee sustained a permanent aggravation to his underlying condition as a result of his work injury on February 23, 2003, whether the employee was entitled to temporary disability benefits as a result of that injury, whether the IDET procedure claimed by the employee for treatment of his low back was reasonable and necessary medical treatment causally related to that work injury, and whether the medical treatment parameters applied to this case in view of the employer=s denial of liability for a permanent injury and payment of benefits beyond January 29, 2004.

 

The record remained open until May 24, 2004, to allow for submission of additional evidence along with a motion to intervene by Fortis Benefits Insurance Company, long-term disability insurer.  In her Findings and Order served and filed June 29, 2004, the compensation judge found that the employee=s February 23, 2003, work injury permanently aggravated pre-existing degenerative changes in his lumbar spine, and that the employee=s wage loss since that date was causally related to that injury.  The compensation judge ordered payment of temporary partial disability benefits between February 23 and July 7, 2003, and July 31 to October 7, 2003.  She also ordered payment of temporary total disability benefits continuing from October 8, 2003, and corresponding reimbursement from those benefits to the intervenor for long-term disability benefits paid to the employee.

 

The compensation judge also ordered payment for the medical treatment the employee received for his low back through the date of the hearing.  At the hearing, the parties had stipulated that if the employee established that he had sustained a permanent work injury, the employer would pay for such health care treatment subject to the workers= compensation medical fee schedule.  The compensation judge also found that the employee was an appropriate candidate for the IDET procedure, and ordered payment for that procedure, as recommended by Dr. Schwartz, including payment of reasonably related pre-surgical and follow-up care.  The compensation judge determined that, due to the employer=s denial of primary liability for a permanent injury, the treatment parameters did not apply to an assessment of compensability for the IDET procedure.  The employer appeals from the award of temporary partial and temporary total disability benefits and from the award for payment of medical expenses related to the IDET procedure.

 

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).

 

"[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers' Compensation Court of Appeals] may consider de novo."  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff=d (Minn. June 3, 1993).

 

DECISION

 

Foundation for Expert Medical Opinion

 

The employer appeals the compensation judge=s finding that the employee sustained a permanent aggravation to his pre-existing condition as a result of his February 23, 2003, injury.  The employer asserts that the medical opinion upon which the compensation judge relied, that of Dr. Schwartz, was not based on an accurate foundation.  The employer argues that the compensation judge erred in adopting the medical causation opinion of Dr. Schwartz because that opinion was based on an incomplete and inaccurate history concerning the Afrequency, recency, and chronicity of his lumbar and lower extremity complaints@ before his February 23, 2003, personal injury.  The employer cites to references in the employee=s previous medical records that indicate he had low back pain dating back to his late twenties, medical treatment for his low back rendered since at least 1996, a positive MRI scan in 2000, a referral in 2000 to an orthopedic surgeon, and consultation for low back pain in March 2002.  The employer points to testimony provided by the employee at the hearing and argues that the employee did not fully advise Dr. Schwartz of his low back symptoms and medical treatment received in the years before his 2003 work injury.

 

In her findings and order, the compensation judge outlines, in detail, the medical treatment the employee has received over the years, concluding that no records showed the employee

had permanent restrictions placed on his activities before February 2003, and that before that time, his episodes of low back pain healed within a few days or weeks.  The judge found that:

 

As supported by the opinion of Dr. Schwartz, the employee=s February 23, 2003, work injury permanently aggravated pre-existing degenerative changes in his lumbar spine.  All of his episodes of low back pain healed well before February 23, 2003, without permanent loss of function.  Since February 23, 2003, the employee has experienced almost constant low back and leg pain.  His low back has never returned to the condition it was in before February 23, 2003.

 

(Finding No. 28.)  The compensation judge acknowledged that the employee did not have much independent memory about his medical treatment in Texas, but that those medical records Athemselves support his testimony that, although he had episodes of back pain, those episodes healed within a short time with a modest amount of conservative care,@ and that since the February 23, 2003, injury the employee=s low back symptoms have not returned to their pre-injury condition.

 

 On appeal, the employer attempts to discredit the employee=s characterization of his low back condition.  At the hearing, when asked whether he could agree that he had chronic low back pain for years, the employee responded that he had not had low back problems or complaints that might be described as chronic and ongoing (T. 120), and that AI=m prepared to tell you that from time to time I have back pain and I have had for years and years, but it always goes away.  This time it is not going away.@  (T. 128).  The employee also testified generally that he had periodic symptoms in his low back for a number of years.  When asked specifically about what he may have advised his doctors about prior low back pain, the employee responded that AI would tell them that I=ve had backaches from time to time when I do something too much, just like anybody would have if they did something they shouldn=t do,@ (T. 125) and AI also have never had any back pain that has lasted longer than two weeks without some kind of relief.  Now, it might come back again, but I always get relief.  This time I am not getting relief.@  (T. 125-126.)

 

It is the trier of fact's responsibility to assess the credibility of a witness.  Tolzmann v. McCombs-Knutson Associates, 447 N.W.2d 196, 198, 42 W.C.D. 421, 424 (Minn. 1989) (citing Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989)).  It is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge.  Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990).

 

The employer argues that Dr. Schwartz=s opinion is legally insufficient to satisfy the employee=s burden of proof.  We disagree.  The competency of a witness to provide expert medical testimony depends upon both the degree of the witness=s scientific knowledge and the extent of the witness=s practical experience with the matter at issue.  Reinhardt v. Colton, 337 N.W.2d 88 (Minn. 1983); see also McDonald v. MTS Systems Corporation, 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff=d (Minn. July 13, 1990).  In this case, Dr. Schwartz was the employee=s treating doctor since April 2003, and examined him on several occasions.  Dr. Schwartz was aware of the employee=s pre-existing condition and referred to that in his chart notes.  As a general rule, this level of knowledge establishes a doctor=s competence to render an expert opinion.  See Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1988).

 

We acknowledge that Dr. Schwartz referred to the employee=s history of no significant low back problem for the past three years, when in fact the employee had consulted a physician for low back and hip symptoms during the three years before his initial consultation with Dr. Schwartz.^[2]  Such a reference, however, does not render his opinions without foundation.  See Goss v. Ford Motor Co., 55 W.C.D. 316 (W.C.C.A. 1996), summarily aff=d (Minn. Oct. 17, 1996).  Rather, the presence of that statement in his medical report may go to the weight afforded his opinion by the compensation judge.  Thus, although the employer=s concerns may relate to the persuasiveness or weight accorded the medical opinion, they are insufficient to establish lack of foundation.  Drews v. Kohl=s, 55 W.C.D. 33, 40 (W.C.C.A. 1996); see also Stuhr v. Northwestern Travel Serv., Inc., 57 W.C.D. 352 (W.C.C.A. 1997), summarily aff=d (Minn. Dec. 15, 1997), citing Bossey v. Parker Hannifin, slip op. (W.C.C.A. Mar. 14, 1994) (while adequate foundation is necessary for a medical opinion to be afforded evidentiary value, the expert need not be made aware of every relevant fact).

 

The compensation judge reviewed the medical record from the employee=s treating physician as well as the employee=s testimony, and determined that the evidence established that the employee sustained a permanent aggravation of his pre-existing condition as a result of his February 23, 2003, work injury.  Based on our review of the medical evidence of record, including medical records and testimony, we believe that the compensation judge=s determination as to the level and weight to grant the medical opinion of Dr. Schwartz, and her award of the employee=s claims, are not clearly erroneous.  As the compensation judge=s decision is adequately supported by the record and is not clearly erroneous, we must affirm.

 

Application of Permanent Treatment Parameters

 

At hearing the employee sought authorization for the IDET surgical procedure recommended by his treating physician, Dr. Schwartz.  The employer, while admitting the employee sustained a temporary injury on February 23, 2003, contended that the injury had resolved by January 29, 2004.  The employer asserted that the employee=s need for this surgical procedure was not causally related to that injury and that the procedure did not represent reasonable and necessary medical treatment.  The employer also argued that the medical treatment parameters did not provide for payment for the IDET procedure prescribed by Dr. Schwartz.  In view of the employer=s denial of liability for a permanent injury and its corresponding denial of liability for benefits and medical expenses beyond January 29, 2004, the issues at hearing included a determination of whether the treatment parameters applied to the prescribed medical treatment.

 

The compensation judge found that the employee=s injury of February 23, 2003, resulted in a permanent aggravation of his pre-existing medical condition.  She found that he was a candidate for the IDET procedure, relying on the opinion of Dr. Schwartz.  The judge also found that the treatment parameters did not apply once the employer denied liability for a permanent aggravation, concluding that

 

Minnesota Rule 5221.6020, subp. 2, sets out that the treatment parameters do not apply after an insurer has denied primary liability for an injury.  The employer in this case admitted liability for a contusion to the employee=s low back but denied liability for a permanent injury.  Because of the denial of liability for a permanent injury, the treatment parameters do not apply to any treatment recommended or provided after the employer denied liability for a permanent injury.

 

(Finding No. 29.)  The compensation judge accordingly ordered payment for the IDET procedure recommended by Dr. Schwartz, including payment of reasonably related pre-surgical and follow-up care.

 

On appeal, the employer argues, without reference to any specific rule other than Minn. R. 5221.6020, subp. 2, that the medical treatment parameters do not provide for an IDET procedure.  However, pursuant to the rule cited by the employer, the medical treatment parameters Ado not apply to treatment of an injury after an insurer has denied liability for the injury.@ (Emphasis added).^[3]  See, e.g., Johnson v. Northern Pride, slip op. (W.C.C.A. July 15, 1999) (and cases cited therein), summarily aff=d, (Minn. Oct. 21, 1999); see also Clausen v. Ryder Student Transp. Serv., Inc., slip op. (W.C.C.A. Oct. 6, 1999).

 

The employer appeals, contending that the compensation judge erred by refusing to examine the IDET procedure under the treatment parameters even after she determined that the employer was liable for a permanent aggravation of the employee=s underlying condition.  The employer argues that if the adjudication of the employer=s liability for a permanent injury is upheld on appeal, the treatment parameters would then apply to the prospective medical treatment and that treatment would be disallowed.  The employer argues that since the award for payment of expenses related to the IDET procedure is prospective, the employer should not be penalized into the future by requiring payment for that procedure solely because the employer earlier denied primary liability for a permanent aggravation.

 

In addition, the employer argues that it asserted its statutory right to have the employee properly establish a causal relationship between his work injury and the need for that surgical procedure, and that to not apply the treatment parameters to the prescribed IDET procedure contravenes the workers= compensation statute.  The employer also argues that such action violates Minnesota Statutes ' 176.001, that it would exclude numerous employers in cases involving factual disputes from the fair and even application of the rules-empowering statute, Minn. Stat.' 176.83, subd. 5, Aif not also an unconstitutional abuse of due process and/or an unjust taking of a statutorily-created right.@^[4]

 

First, we note that the employer=s constitutional arguments, as discussed in its appellate brief, are reserved for further appeal as necessary, since this court does not have jurisdiction to rule on constitutional questions.  Kilness v. S.B. Foot Tanning Co., slip op. (W.C.C.A. June 10, 1992).

 

The employer contends that Minn. R. 5221.6020, subp. 2, is not applicable because it initially admitted primary liability for the February 23, 2003, injury.  This court addressed the applicability of the treatment parameters in Mattson v. Northwest Airlines, slip op. (W.C.C.A. Nov. 29, 1999), where an employer initially admitted primary liability for a work injury and later denied that the employee=s current condition was causally related to that injury, and stated that

 

Under [Minn. R. 5221.6020, subp. 2], however, the parameters do not apply to treatment for an injury after an insurer has Adenied liability@ for the injury.  For all practical purposes, the employer and insurer=s denial of medical causation for the employee=s low back condition after [the alleged end of the temporary aggravation], is no different than a denial of primary liability from and after that time.  A[W]hen an employer and insurer deny liability for a work injury . . . [they] have no real interest in information about the course of the employee=s care and no legitimate expectation of influencing or limiting the employee=s treatment options.  The same may be said where the employer and insurer are denying that an >admitted= injury has any continuing effects.@  Oldenburg v. Phillips & Temro Corp., slip op. (W.C.C.A. 1999).^[5]  The permanent medical treatment parameters apply to Atreatment of employees with compensable workers= compensation injuries.@  Minn. R. 5221.6020, subp. 1.  The employer and insurers cannot deny the employee=s condition is work-related, yet assert the protection of, or demand compliance with, medical treatment parameters that apply only to work injuries.  We, therefore, conclude that for the purposes of application of the permanent medical treatment parameters, a denial of liability includes both a denial of primary liability and a denial of medical causation for subsequent symptoms or conditions.  (Emphasis in original.)

 

If an employer has denied liability for an injury, it does not enjoy the practical protections afforded by the treatment parameters.  In this case, the compensation judge addressed the issues presented by the parties and the defenses presented by the parties, including the issue of whether the claimed IDET procedure was reasonable and necessary to cure or relieve the effects of the injury.  The issue of the compensability of the IDET procedure was properly before the compensation judge, and the employer=s continued denial of primary liability for permanent aggravation required the compensation judge to consider that medical claim absent the treatment parameters.  The employer cannot now assert that, in view of the compensation judge=s determination that the employee sustained a permanent injury, the treatment parameters must apply to an analysis of the compensability of the IDET procedure.  In that we have affirmed the compensation judge=s finding that the employee sustained a permanent injury as a result of his February 23, 2003, injury, we also affirm the compensation judge=s conclusion that, based upon the employer=s denial of primary liability for the employee=s permanent low back injury, the treatment parameters do not apply to analysis of whether the IDET procedure is compensable.

 

The compensation judge awarded the employee=s claim for the prescribed medical treatment.  Minn. Stat. 176.135, subd. 1(a) provides: AThe employer shall furnish any medical . . . treatment . . . as may reasonably be required at the time fo the injury and any time thereafter to cure and relieve from the effects of the injury.@  The reasonableness and necessity of medical treatment under Min. State. 176.135 is a question of fact for the compensation judge.  See Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993).  We conclude that the compensation judge=s finding that the employee is a candidate for the IDET procedure, as based upon Dr. Schwartz=s opinion, is supported by substantial evidence of the record, and we affirm that finding.  We therefore affirm the compensation judge=s order for payment of the IDET procedure, including the pre-surgical care and follow-up care.

 

Temporary Disability Benefits

 

The employer appealed from the award of temporary partial and temporary total disability benefits, as part of its appeal from the finding that the employee sustained a permanent aggravation of his pre-existing condition as a result of his 2003 work injury and its appeal from all corollary findings and orders.  The specific issue of entitlement to temporary disability benefits was not addressed in the employer=s appellate brief, however, and therefore will not be addressed by the court on appeal.  Issues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be decided by the court.  Minn. R. 9800.0900, subp. 1.