THOMAS THORSTEN, Employee, v. CONSTRUCTION & GENERAL LABORERS, and WAUSAU INS. CLAIMS, Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 1, 2005

 

No. WC04-291

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS; RULES CONSTRUED - MINN. R. 5221.6500, SUBP. 2.C.(1)(d); MEDICAL TREATMENT & EXPENSE - SUBSTANTIAL EVIDENCE.  Where the compensation judge found that the employee had a valid discogram showing positive results at one or two levels, and had experienced incapacitating pain for at least three months, which are two of the conditions in the applicable permanent medical treatment parameter that must be satisfied to indicate that surgery is reasonably required, and where those findings are supported by substantial evidence of record, we affirm the compensation judge=s award of the employee=s claim for the proposed fusion surgery.

 

Affirmed.

 

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

Compensation Judge: Janice M. Culnane.

 

Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Respondent.  Thomas F. Coleman and Edward W. Risch, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal from the compensation judge=s finding that the proposed surgery is reasonable, necessary, and causally related to the employee=s work injury of December 9, 1996.  We affirm.

 

BACKGROUND

 

The employee, Thomas L. Thorsten, has worked in the construction industry since 1974.  In approximately 1996, he was appointed as a business agent for his union, Minnesota Laborers Local 132, the employer.  He sustained an admitted injury to his low back on December 9, 1996, after falling on ice and landing on his back.  He was rendered unconscious and was taken to United Hospital by ambulance, where he was later seen by Dr. David Covington, complaining of a stiff neck and low back.  Lateral lumbar and cervical spine x-rays showed normal alignment and no evidence of fracture; additional lumbar and cervical spine x-rays showed degenerative changes at the L2 through L4 levels.  Dr. Covington diagnosed a cervical and lumbar strain as well as a closed head trauma.  The employee was released from the hospital, was provided pain medications, and was instructed to massage his neck and back with ice and to return if his symptoms worsened.

 

The employee obtained follow-up treatment for his low back symptoms with his family physician, Dr. Conrad Butwinick, and underwent an MRI scan on February 13, 1997, which showed a minimal annular bulge without disc protrusion or spinal stenosis at the L4-5 level, and an annular tear with broad based central disc protrusion, causing mild stenosis, at the L3-4 level.  In addition, at the L3-4 level, a small extrusion of disc fragment inferiorly below the disc level was noted.  In May 1997, Dr. Max Zarling, neurosurgeon, examined the employee at Dr. Butwinick=s referral.   The employee reported frequent spasms and tightness in his back on overexertion, along with numbness in his thighs.  Dr. Zarling recommended conservative treatment and prescribed pain medications.

 

On September 16, 1998, the employee was examined by an orthopedic surgeon, Dr. Gary Wyard, at the request of the employer and insurer.  Dr. Wyard stated that, in his opinion, the work injury on December 9, 1996, was a strain/sprain, that the employee required no restrictions nor ongoing care or treatment, and that he had reached maximum medical improvement by three months after the injury.  Dr. Wyard characterized the employee=s reported symptoms as subjective complaints without specific persistent objective clinical findings.  Dr. Wyard also diagnosed a herniated disc at L3-4, neurologically intact, which he did not believe was related to the 1996 injury, although in the absence of any objective persistent clinical findings he was unable to speculate about when the employee=s lumbar disc had become displaced.  He rated the employee=s permanent partial disability at zero percent based on Minn. R. 5223.0390, subpart 3A or subpart 4A.

 

The employee continued to consult Drs. Butwinick and Zarling, and underwent another MRI scan in October 1998 which showed an annular tear with minimal bulge and minimal effacing effects at the L3-4 level.  On November 12, 1998, the employee returned to Dr. Zarling, complaining that his low back problems and right leg symptoms had worsened during the past year.  Dr. Zarling prescribed pain medications and recommended that the employee Asit tight at present@ since he was able to tolerate his work, and also advised that the employee could consider fusion surgery if his symptoms worsened.  He assigned a permanent partial disability rating of seven percent to the whole body, under Minn. R. 5223.0390, subp. 3C(1).  On November 19, 1998, the employee lost his post as a union business agent and returned to active employment as a working foreman in the construction industry until June 15, 1999, when he was again appointed to be a union business agent.

 

On January 4, 1999, the employee consulted Dr. Zarling to discuss the options of medication or surgical treatment, reporting recurrent pain on the right side of his lower back and  occasional right leg pain and numbness.  In late 1999, the employee reported additional pain with his low back symptoms.  An MRI scan of his lumbar spine taken in January 2000 showed no change from the scan taken in October 1998.  Dr. Zarling recommended discography and referred the employee to a neurosurgeon, Dr. Jerone Kennedy, to discuss potential surgery.  On February 3, 2000, the employee underwent a discogram, which showed degenerative disc disease at the L3-4 level.  However, the examination was negative for reproduction of the employee=s typical pain.

 

The employee consulted Dr. Kennedy on March 15, 2000, who determined that the earlier discogram involved only the L3-4 vertebral level and therefore recommended an additional and  more complete discogram to rule out multi-level etiology.  A second discogram, performed on March 29, 2000, was read as positive at the L3-4 level for reproduction of the employee=s typical symptoms.  At a follow-up examination, Dr. Kennedy discussed the surgical options with the employee, and advised the employee that he had a 50 to 70 percent probability of significant pain relief from surgery.  At that time, the employee stated he was interested in proceeding with the surgery.

 

At the employer and insurer=s request, the employee was again examined by Dr. Wyard on June 14, 2000.  Dr. Wyard diagnosed degenerative lumbar disc disease at L3-4, neurologically intact, consistent with a degenerative process and with the employee=s age and natural aging.  He reiterated his opinion that the employee had sustained no permanent partial disability as a result of his work injury, and that the employee=s subjective complaints were not consistent with his clinical findings or imaging tests.  His only treatment recommendations were that the employee lose weight, exercise, and take anti-inflammatory medications.  In his view, surgery clearly was not reasonable or necessary to cure or relieve the effects of employee=s work injury, and was not indicated for the employee=s natural deterioration of the L3-4 disc, especially in the absence of objective findings.

 

The employee filed a claim petition, seeking payment of medical expenses and benefits based upon a rating of 7% permanent partial disability.  He also sought approval for a  second surgical opinion.  On August 2, 2000, a hearing was held before a compensation judge to address claims for permanent partial disability benefits, penalties for delayed payment of permanency benefits, reimbursement to intervenors and approval for a second surgical opinion.

 

In her findings and order served and filed on October 2, 2000, the compensation judge found that the employee had sustained no permanent partial disability as a result of his work injury, denied his claim for penalties, awarded reimbursement to one of the intervenors and denied the employee=s request for a second surgical opinion.  The employee appealed and, on appeal, this court affirmed the compensation judge=s denial of payment for permanent partial disability benefits and related penalties.  The court also affirmed the award of reimbursement to one of the intervenors, but vacated the denial of the application for intervention status filed by another potential intervenor. The court also reversed the judge=s denial of the employee=s request for a second surgical opinion, holding that Minn. Stat. ' 176.135, subd. 1(a), grants an employee the right to a second opinion with a physician of his choice, at the expense of the employer and insurer, when surgery has been proposed for the condition resulting from his work injury.

 

On August 21, 2001, the employee consulted Dr. Manuel Pinto to obtain a second opinion concerning the surgery earlier recommended by Dr. Kennedy.  Dr. Pinto recommended continued conservative care, including a trial of different nonsteroidal anti-inflammatory medications.  Dr. Pinto advised that if the employee=s pain did not improve after trials of 3 or 4 medications, then the employee would need to decide whether to consider surgery.  Dr. Pinto also advised that if the employee elected to consider surgery, then additional diagnostic testing would be necessary, including a repeat discogram and possibly an additional MRI scan to supplement the earlier MRI scans.

 

The employee=s follow-up with Dr. Pinto was delayed due to a heart attack the employee sustained in September 2001 which required an angiogram and angioplasty.  The employee returned to Dr. Pinto on November 1, 2001, again reporting low back pain with occasional right leg pain and numbness.  In his chart note of that date, Dr. Pinto wrote that,

 

Surgery was discussed with the patient at today=s visit and the patient was instructed to avoid surgery if at all possible, and continue with conservative measures.  He should only look into lumbar discography and surgery if he feels his pain is severe, unrelenting, and interfering with his quality of life on a daily basis, as the surgery would most likely include an extensive anterior/posterior lumbar spinal fusion; however, this would depend on lumbar discography T12 to S1.

 

A dispute later arose concerning approval for additional diagnostic testing.  Dr. Wyard re-examined the employee on March 20, 2002, and again recommended no additional medical care or treatment for the employee=s low back.  He expressed his view that no additional MRI scan nor discogram would be reasonable or necessary, that the employee had functional overlay, and that he had no specific objective findings to support surgical intervention.

 

An additional hearing was held on August 23, 2002, to address the employee=s medical request for the recommended additional testing needed before Dr. Pinto could express an opinion on whether the employee needed back surgery.  In a findings and order served and filed on September 3, 2002, a compensation judge awarded the employee=s request for the additional testing.  The judge concluded that the discogram performed on March 2, 2000, was outdated and was not performed at enough levels of the lumbar spine to allow a full evaluation of whether the employee is a candidate for lumbar spine surgery.  The compensation judge found that Minn. Stat. ' 176.135, subd. 1(a), which provides an employee the right to seek a second opinion on surgery, also provides the employee the right to have the diagnostic tests ordered by the surgeon who is performing the second opinion evaluation.  The compensation judge concluded that it was in the Ainterest of all parties for the employee=s treating doctors to have the best current medical evidence available before deciding whether to recommend surgery for him.@  No appeal was taken from those findings and order.

 

On February 12, 2003, the employee underwent a discogram at six vertebral levels, from T12-L1 through L5-S1, as well as an MRI of the lumbar spine.  The discogram was interpreted to show concordant bilateral low back pain at the L3-4 and L4-5 levels.  The MRI was interpreted as showing a moderate broad-based central and right-sided disc herniation at the L4-5 level with moderate underlying disc degeneration and bilateral facet arthropathy; mild cental and moderate bilateral foraminal stenosis at the L3-4 level with moderate underlying disc degeneration, and moderate bilateral facet arthropathy at L5-S1.

 

The employee consulted Dr. Pinto following those tests to discuss options.  In his chart note of March 13, 2003, Dr. Pinto stated that the employee felt his pain was severe and unrelenting, that he had exhausted all conservative measures and therefore the employee wished to proceed with surgery.  Dr. Pinto advised that the surgery would include an anterior and posterior spine fusion at both L3-4 and L4-5 levels, as both of those levels reproduced concordant low back pain and the L4-5 level reproduced his right-sided hip and groin pain.  He also advised that the surgery would include a decompression at the L3-4 and L4-5 levels due to the spinal stenosis at those levels and the potential contributory effect of the stenosis on the employee=s right lower extremity symptoms.

 

At the employer and insurer=s request, Dr. Wyard examined the employee on two additional occasions, May 21, 2003, and May 20, 2004.  He reviewed updated medical records, including the additional diagnostic testing, and advised that his opinions concerning the employee=s diagnosis and need for surgery were unchanged by the results of the additional testing.

 

On November 25, 2003, the employee filed a request for medical assistance, requesting preapproval for the surgery recommended by Dr. Pinto, and asserting that he had satisfied the requirements of the relevant medical treatment parameter.  The employer and insurer objected, contending that the surgery was not reasonable or necessary either under the treatment parameters or Minn. Stat. ' 176.135.  The employee=s medical request was addressed at a hearing before a compensation judge on June 9, 2004, and the hearing record closed later upon receipt of the transcript from the post-hearing deposition of Dr. Pinto.  In her Findings and Order of September 29, 2004, the compensation judge concluded that the surgery proposed by Dr. Pinto is reasonable, necessary and causally related to the employee=s work injury of December 9, 1996.  The judge found that the employee was currently experiencing incapacitating low back pain, as a result of that injury, which limits him physically, socially, recreationally and vocationally, and also found that the discogram conducted on February 12, 2003, was positive at the L3-4 and L4-5 levels.  She therefore ordered that the employer and insurer pay for the expenses related to the surgery proposed by Dr. Pinto.  The employer and insurer have appealed from the compensation judge=s Findings and Order.

 

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

 

On appeal, the employer and insurer argue that substantial evidence does not  support the compensation judge=s conclusion that the proposed lumbar fusion surgery is reasonable and necessary for the cure and relief of the effects of the employee=s work injury and that the employee has not satisfied the requisite treatment parameter.  They also argue that the compensation judge committed an error of law in finding that lumbar surgery is reasonable and necessary for an injury for which it has been judicially determined that the employee sustained no compensable permanent partial disability.  The primary issues on appeal, therefore, are whether the record supports the findings that the employee has satisfied the requirements in the medical treatment parameters for the proposed surgery, and whether the compensation judge properly relied on the medical expert opinion of Dr. Manuel Pinto in reaching her conclusions.

 

Minn. Stat. ' 176.135, subd. 1(a), states that an employer is to furnish Aany medical, psychological, chiropractic, podiatric, surgical and hospital treatment . . . as may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury.@  Under legislation enacted with the objective of controlling medical costs in the workers= compensation system, the Minnesota Department of Labor and Industry promulgated treatment parameter rules for health care provider treatment.  Hirsch v. Bartley-Lindsay Co., 537 N.W.2d 480, 483, 53 W.C.D. 144, 148 (Minn. 1995).  The requirement that treatment must be reasonable and necessary in order to be reimbursable is contained in the general treatment parameters in Minn. R. 5221.6050, subp. 1A, which states that A[a]ll treatment must be medically necessary treatment, as defined in part 5221.6040, subp. 10.@  AMedically necessary treatment@ is defined in Minn. R. 5221.6040, subp. 10, as Athose health services for a compensable injury that are reasonable and necessary for the diagnosis and cure or significant relief of a condition consistent with any applicable treatment parameter in parts 5221.6050 to 5221.6600.@

 

The applicable parameter in this case, Minn. R. 5221.6500, subp. 2C(1)(d)i, provides that lumbar arthrodesis surgery is reasonably required if the employee has incapacitating low back pain for more than three months and degenerative disc disease with a positive discogram at one or two levels of the spine.^[1]  The employee claims that his medical condition satisfies the requirements for surgery as set forth in that section of the treatment parameters, specifically, that he has experienced incapacitating low back pain for longer than three months and had positive findings on discogram.  The compensation judge found that the employee had satisfied both requirements of the treatment parameters; the employer and insurer contest those findings.

 

The employee testified that since his 1996 work injury, his low back pain has increased over the years and that his ability to engage in normal recreational activities has decreased.  The compensation judge found the employee=s testimony to be credible, as well as convincing and detailed, concerning his pain, symptoms and reduction in activities following his 1996 injury.  She found that the employee credibly testified that although he continued working in spite of his vocational limitations, until he retired in January 2002, his continued symptoms were a factor in his retirement.  She concluded that the employee=s testimony was corroborated by his medical records and reported complaints listed in his records since his injury and by the testimony of two lay witnesses who were familiar with him and had observed his activities both before and after his work-related injury.

 

Dr. Wyard noted that the employee=s reports of leg pain have changed since the years after the injury and are not supported by objective clinical evidence.  The employer and insurer argue that Dr. Wyard=s opinion supports their argument that the employee=s subjective complaints are inconsistent and unreliable.  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 make an evaluation of the credibility and probative value of the witness testimony, Redgate v. Sroga's Standard Service, 421 N.W.2d 729, 734, 40 W.C.D 948, 957 (Minn. 1988), and, in this case, it is apparent that the compensation judge closely evaluated the employee=s testimony and description of his symptoms, as well as his reported symptoms since his injury, when reaching her conclusion.

 

The compensation judge considered Dr. Wyard=s opinion that there are not enough objective clinical findings to support the employee=s complaints and symptoms and that the pain inconsistencies and functional overlay suggest that surgery is not a reasonable option.  However, the compensation judge noted that Dr. Wyard acknowledged that the employee=s range of motion declined over the years, that the employee consistently complained of back pain, and that the employee seems to return to work promptly when various injuries and flare-ups occur.  The compensation judge stated that Athis seems to support Dr. Pinto=s impression that this employee is not a malingerer or faking his symptomatology.  The court accepts this acknowledgment by Dr. Wyard, as supportive, to a small degree, of Dr. Pinto=s opinion concerning the reliability and credibility of the symptomatology offered by this employee.@  (Memo, p. 5.)  Based on the compensation judge=s assessment that the employee=s testimony was credible, and in view of the medical evidence, we therefore affirm the finding that the employee has sustained incapacitating pain for at least three months, and that he satisfies that portion of the treatment parameter requirements.

 

The employer and insurer also argue that substantial evidence does not support the compensation judge=s finding that the employee has a positive discogram result.  The employee=s latest discogram, taken on February 12, 2003, was interpreted as showing concordant pain at the L4-5 and L5-S1 vertebral levels, which are the levels proposed by Dr. Pinto to be fused.  However, the record contains conflicting medical expert opinions concerning the validity of the employee=s discogram. Dr. Pinto was satisfied that the February 2003 discogram included both normal and abnormal discs to provide a proper comparison, and that the discogram was a valid evaluation.  Dr. Wyard testified that, generally, discograms are inconsistent because test results are based upon a patient=s subjective response.  Dr. Wyard also testified that, in the case of this employee, his functional overlay and Waddell signs render his discogram results as inconsistent and invalid, and his findings on three discograms were inconsistent and are not reliable indicators of the employee=s symptoms.

 

The compensation judge concluded that the discogram findings were valid.  She  concluded that the employee satisfied the criteria of a positive discogram at one or two levels, relying  upon Dr. Pinto=s deposition testimony concerning the discogram procedure and findings, including his testimony that he was satisfied that discogram was valid and included both normal and abnormal discs to provide a proper comparison.  The compensation judge also noted that Dr. Pinto provided an explanation for his reasons why he was reassured that the employee is a suitable candidate for surgery based on an accurate report of his symptoms.  We note that it is the compensation judge=s responsibility, as a trier of fact, to resolve conflicts in expert testimony, Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985), and we cannot say that the compensation judge erred in concluding that the employee=s discogram results were valid and conclusive.  Since Dr. Pinto=s opinion supports the compensation judge=s conclusion that the employee=s discogram was valid, we affirm that finding.

 

The employer and insurer also argue that the compensation judge committed an error of law in finding that lumbar spine surgery is reasonable and necessary for an injury which has been judicially determined not to have resulted in compensable permanent partial disability (PPD).  This court earlier affirmed a compensation judge=s denial of the employee=s claim for PPD and the judge=s related finding that the employee had not satisfied the requirements in the permanency schedules for persistent spasm or restricted range of motion.^[2]  Thorston v. Minnesota Laborers, slip op. (W.C.C.A. Mar. 16, 2001).^[3]  The employer and insurer assert that the compensation judge cannot now rely on the employee=s subjective complaints of pain to support his award of the proposed surgery.

 

A determination of permanent partial disability is not required before an employee is entitled to undergo surgery.  Furthermore, the earlier judicial determination that the employee had not sustained any PPD as a result of his 1996 work injury was rendered in December 2000, and was affirmed in March 2001, approximately 2 2  years before the employee filed his medical request for surgery.  Since December 2000, the employee has consulted Dr. Pinto for a second opinion concerning surgery, he underwent an additional discogram which showed positive findings at the same two levels noted as positive on the MRI scan, and his range of motion has decreased, as noted by Dr. Wyard=s examination findings.  Whether or not the employee satisfied the requirements of the PPD schedule is of no relevance to the judge=s determination that the employee met the requirements of the parameters for surgical procedures.  The issue here is whether the employee established incapacitating low back pain and a positive discogram at one or two levels.  Having affirmed the compensation judge=s decision on the employee=s compliance with the treatment parameters, we find no merit to the employer and insurer=s assertion regarding the necessity of a PPD finding prior to surgery.

 

The compensation judge also addressed the concerns of both Drs. Pinto and Wyard that the employee has heart problems and therefore may be at risk if he undergoes surgery.  The compensation judge stated that she was convinced that Dr. Pinto had properly reviewed and considered that factor, and that the employee had been preliminarily cleared by his treating doctor, Dr. Kevin Ronneberg, to be eligible for surgery.  Further, she noted that Dr. Pinto would only perform the surgery if the employee obtained the necessary approval, after a cardiac stress test three weeks before surgery.

 

The compensation judge summarized the basis for her approval of the surgery as follows:

 

In conclusion, the Court is convinced of the credibility of this employee=s pain symptoms and the reported progression of this symptomatology.  The level of symptomatology which this employee is experiencing, when correlated with the discogram from CDI of February 12, 2003, has resulted in Dr. Pinto=s opinion that this employee is a reasonable candidate for the proposed surgical procedure.  The Court accepts this opinion of Dr. Pinto.  The Court further accepts the opinion of Dr. Pinto that this employee=s heart problems do not preclude this employee from going forward with this surgery and preoperative testing will be performed to further monitor his suitability from a cardiac standpoint.  For these reasons, the Court accepts the opinion of Dr. Pinto and has determined the surgery is reasonable.

 

(Memo, p. 5)

 

Substantial evidence in the record, including expert medical opinion, supports the compensation judge=s finding that the proposed surgery is reasonable, necessary, and causally related to the employee=s 1996 work injury, and that the employee=s condition satisfies the presurgical requirements of the treatment parameters.  Accordingly, we affirm.