RODNEY STROMLEY, Employee/Appellant, v. McQUAY INT=L, and ROYAL & SUN ALLIANCE, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 2, 2005

 

No. WC05-141

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - SURGERY.  Substantial evidence supports the compensation judge=s denial of proposed fusion surgery for the employee.

 

Affirmed.

 

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

Compensation Judge: Cheryl LeClair-Sommer

 

Attorneys: Mark M. Walbran, Walbran, Furness & Leuning, Owatonna, MN, for the Appellant.  Laura L. Enga, Searls and Associates, Edina, MN, for the Respondents.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals the compensation judge=s denial of proposed lumbar surgery.  We affirm.

 

BACKGROUND

 

On October 8, 2003, Rodney Stromley, the employee, sustained a work-related injury to his low back while working for McQuay International, the employer, which was insured for workers= compensation liability by Royal & Sun Alliance, the insurer.  At the time of his injury, the employee constructed air conditioning and heating units used for commercial rooftop systems, and noted low back pain after lifting a steel frame or copper fins. On October 9, the employee consulted Dr. Ray Wood, reporting pain in his low back, left buttock and left hip.  Dr. Wood restricted the employee from work, and referred him for an MRI scan.  That scan was performed on October 23, and was interpreted as showing degenerative disc disease with disc desiccation at all levels, and a fairly large left paramedian posterior disc protrusion at the L3-4 vertebral level.

 

The employee was referred to Dr. David Beck, who examined the employee on December 1, 2003, and interpreted the MRI scan to show a free fragment of disc coming from the L3-4 disc level.  Dr. Beck recommended surgery based on the employee=s neurological deficit and, on December 5, 2003, performed a L3-4 laminectomy and discectomy on the left.  The employee initially experienced some relief following surgery, including improvement in his left leg pain for approximately 1 2 weeks, but by January 2004 he reported severe pain in the left leg.

 

A January 21, 2004, MRI indicated a post partial left-sided L3 hemilaminectomy with epidural scar surrounding, but not displacing the left L3 nerve root, and a negative study for recurrent herniation of the L3-4 disc.  Dr. Beck indicated that the MRI showed foraminal stenosis, and noted that the employee had a tight foramen at L3-4 and that it looked like he had nerve root impingement.  A February 18, 2004, lumbar myelography indicated spinal stenosis from disc bulges at L3-4, L4-5, and L5-S1.  A February 28, 2004, CT scan indicated a minor broad based disc bulge at L3-4 but no definite neural impingement.  Radiologist Dr. Brad Janson stated that the exiting L3 nerve root could be affected.  Dr. Beck reviewed the myelogram and concluded that the employee had a recurrent disc herniation at L3-4, and recommended a L3-4 discectomy and posterior fusion to alleviate the employee=s radicular pain.  The employee noted continued left leg pain and numbness, and remained off work.

 

On March 18, 2004, the employee was examined by Dr. Paul Cederberg, an orthopedic surgeon, at the employer and insurer=s request.  At that time, the employee reported continued low back pain and numbness and weakness in his left leg, and also advised Dr. Cederberg that at times his legs felt cold.  Dr. Cederberg agreed that the employee=s diagnosis was a probable recurrent left L3-4 disc herniation, but he had not yet reviewed the reports from the employee=s MRI and CT myelogram.  After later reviewing these reports, Dr. Cederberg concluded that there was no evidence of a recurrent herniation at L3-4.  He concluded that:

 

These reports do not show any mass effect on the nerve roots at the L3-4 level.  Apparently, Dr. Beck has recommended discectomy and possible fusion from a posterior approach.  In my opinion, the findings on the myelogram CT scan and MRI do not warrant further surgical treatment.  I believe he would be a candidate for nerve root blocks at L1-3, followed by a stabilization exercise program for the low back and avoidance of further surgery.  This could be accomplished over a period of three to four weeks by a licensed physical therapist.

 

The employee was referred to physical therapy by Dr. Beck, but was unable to  tolerate treatment and was discharged after six of eight visits on the basis of insufficient gains with continued therapy.  The employee remained off work.  Dr. Beck continued to recommend fusion surgery.  In a letter dated December 6, 2004, Dr. Beck provided the following basis for his recommendation:

 

The indications for surgery are continued leg pain.  He has foraminal narrowing.  A PLIF [L3-4 discectomy and fusion] would open up the foramen and remove all disc.  In my experience patients are usually able to get rid of this chronic radicular pain with this procedure.  The cause of Mr. Stromley=s pain is twofold.  One is the probability of a recurrent disc herniation.  The second is the disc rupture was so large initially that the disc space collapsed down and the foramen are tight.  Either way his current symptoms of severe left leg pain and back pain prompt me to recommend the fusion. . . I don=t think nerve blocks would do him any good.  He has been doing a stabilization program without any success so while Dr. Cederberg=s recommendations are reasonable, quite frankly I don=t think they will give Mr. Stromley any relief.

 

On October 13, 2004, the employee filed a medical request for approval of the proposed posterior fusion.  The employer objected, and a hearing was held on January 6, 2005.  In findings and order served and filed on February 7, 2005, the compensation judge found that the MRI and CT scans do not support the proposed surgery, that the employee had not proven that the proposed fusion surgery was reasonable and necessary, and denied approval of the surgery.  The employee appeals.

 

DECISION

 

The employee argues that substantial evidence does not support the compensation judge=s denial of the proposed fusion surgery.  The employer is obligated to provide the injured worker with medical care which may Areasonably be required@ to cure and relieve from the effects of a work-related injury.  Minn. Stat. ' 176.135.  The employee has the burden of proving that the medical treatment was reasonable and necessary.  Adkins v. University Health Care Center, 405 N.W.2d 233, 39 W.C.D. 898 (Minn. 1987).  The reasonableness and necessity of medical treatment under Minn. Stat. ' 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); Jones v. Wal Mart Stores, Inc., slip op. (W.C.C.A. Sept. 9, 2002).  The question for this court is whether substantial evidence exists to support the decision of the compensation judge.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).

 

At Finding No. 2, the compensation judge summarized her conclusion as follows:

 

The proposed fusion surgery has not been proven reasonable and necessary at this time.  Dr. Cederberg has recommended additional treatment including injections and an ongoing stabilization exercise program, reasonable treatments. Although the therapeutic exercise program at Mason City Physical Therapy was undertaken from June 11, 2004 through July 22, 2004, the employee was discharged with insufficient gains.  Nerve blocks have not been undergone.  The evidence does not support Dr. Beck=s conclusion that the employee Ahas been doing a stabilization program,@ as indicated in his December 6, 2004 report. Although Dr. Beck has recommended a smoking cessation program, the employee has not progressed in this recommendation and Dr. Beck=s records do not show medical intervention to assist in this recommendation.

 

The employee specifically argues that substantial evidence does not support the compensation judge=s finding that the MRI and CT scans did not support the proposed surgery, claiming that the medical imaging scans had positive findings and showed the presence of pathology consistent with the employee=s pain on physical examination, since the MRI scan shows scar tissue surrounding the left L3 nerve root and stenosis at L3-4 and the CT shows a broad based disc bulge.  Dr. Beck determined that recurrent disc herniation or foraminal stenosis at L3-4 was causing the left leg pain.  Dr. Cederberg concluded that there was no evidence of a recurrent herniation at L3-4 and that surgery was not warranted, and recommended nerve root blocks and an exercise program.  The employee argues that Dr. Beck=s opinion should be given more weight since he personally reviewed the imaging scans, not just the reports, and interpreted them based upon his knowledge of the employee=s surgical findings and the employee=s symptoms, as opposed to Dr. Cederberg=s opinion since he only reviewed the reports of the imaging scans.  Competency of a medical expert depends both on the extent of the scientific knowledge of the witness and Athe witness=s practical experience with the matter which is the subject of the offered testimony.@  Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983).  Sufficient knowledge of the subject matter can be obtained through personal knowledge, a hypothetical question, or testimony at the hearing.  Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978).  Dr. Cederberg=s review of the employee=s medical records provided sufficient information to provide foundation for his opinion.

 

Dr. Beck based his opinion on his interpretation of the employee=s imaging scans on his knowledge of the employee=s surgical findings and his symptoms.  The scans were also interpreted by the radiologists who wrote the reports.  Dr. Cederberg based his opinion on the radiology reports.  The January 21, 2004, MRI report indicates a post partial left-sided L3 hemilaminectomy with epidural scar surrounding, but not displacing the left L3 nerve root and a negative study for recurrent herniation of the L3-4 disc.  The CT scan was read as showing a minor broad based disc bulge causing a little flattening of the anterior the cal sac margin but no definite neural impingement and that the L3 nerve roots appear to exit freely.  While Dr. Brad Janson, who issued a report after reviewing the employee=s lumbar myelogram and lumbar CT scan taken on February 4, 2004, stated that the exiting L3 nerve root could be affected and there was epidural scarring surrounding the left L3 nerve root, and while Dr. Beck concluded that a recurrent disc herniation was indicated given his interpretation of the scans, the compensation judge could reasonably determine that the scans were not conclusive.  Even Dr. Beck initially stated that the MRI scan indicated there was no recurrent disc herniation.  It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). Substantial evidence supports the compensation judge=s finding that the employee=s imaging scans do not support the proposed surgery.

 

The compensation judge noted that nerve blocks, as recommended by Dr. Cederberg, had not been attempted, that the employee=s physical therapy program had been terminated in July 2004 with insufficient gains, and that the employee had not stopped smoking, which the employee testified that Dr. Beck had recommended.  The compensation judge could reasonably rely on Dr. Cederberg=s opinion.  In addition, given the conservative treatment options, the record contains substantial evidence to support the compensation judge=s finding that, at this point, the proposed surgery is not reasonable and necessary.

 

On appeal, this court must determine whether the compensation judge's  findings and order are "clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1(3).  Substantial evidence supports the findings if, in the context of the record as a whole, 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).  As the record, including the employee=s medical records and the reports issued by Dr. Cederberg, contains substantial evidence on which the compensation judge could rely in reaching her conclusion concerning the surgical issue, we must affirm.