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

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 6, 2005

 

No. WC05-105

 

HEADNOTES

 

VACATION OF AWARD.  Surveillance videotapes submitted by the employer and insurer indicate that, subsequent to a hearing and issuance of a Findings and Order on May 21, 2004, approving proposed surgery, the employee is now capable of certain physical activities and is now working. Nevertheless, the employee=s surgeon, having obtained an MRI scan in November 2004 and examined the employee in December 2004, opines the employee=s condition has worsened and continues to recommend surgery.  We conclude the facts presented do not mandate a conclusion either that the employee has committed fraud or that the condition for which surgery was recommended has improved, and the employer and insurer  has failed to establish good cause to vacate the findings and order.

 

Petition to vacate denied.

 

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

Compensation Judge: Cheryl Le-Clair-Sommer

 

Attorneys: James A. Batchelor, Batchelor Law Firm, Edina, MN, for the Respondent.  Timothy J. Pramas and Edward Q. Cassidy, Felhaber, Larson, Fenlon & Vogt, St. Paul, MN, for the Petitioners.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The petitioners seek to vacate, based upon a substantial change in medical condition and fraud, a compensation judge=s finding that a proposed surgical procedure is reasonable and necessary.  We conclude the petitioners have failed to establish good cause and deny the petition to vacate the findings and order.

 

BACKGROUND

 

Thomas C. Wittrock, the employee, sustained a work-related injury on April 22, 2002, while working for 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 a 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 2002, noting 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 stated he had not noticed any benefit from the block.  Dr. Kane then referred the employee back to Dr. Rogers.

 

When seen by Dr. Rogers on January 30, 2003, the employee reported 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 2003, Dr. Kane recommended the employee undergo a cervical MRI scan, along with a psychological assessment for anxiety, depression and chronic pain.  The MRI scan, 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 percent of his left shoulder, left arm, and hand pain with the left C5 nerve root block, and relief from 60 percent of his left ear, jaw, and neck pain with the left C6 nerve root block.  On November 12, 2003, Dr. Hood recommended 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 employee was examined by independent medical examiner, Dr. Neil R. Dahlquist, on February 5, 2004.  In his report of that date, Dr. Dahlquist stated he disagreed with the interpretation of the EMG and he did not believe 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 the employee would benefit from a surgical procedure.

 

On April 20, 2004, Dr. Hood issued another report, stating 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 percent 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 the proposed surgery was reasonable and necessary.  The employer and insurer appealed and a panel of this court affirmed the compensation judge=s decision.  Wittrock v. Dalco Roofing & Sheet Metal, slip op. (W.C.C.A. Nov. 2, 2004).

 

In October and December 2004, surveillance video tapes were obtained of the employee.  On Sunday, October 10, 2004, the employee worked in his yard performing various tasks.  The employee picked up, carried, lifted and threw various objects of different sizes, using his left arm for many of these tasks.  Most of the objects the employee handled were small, but the employee also picked up and carried a large tarp, a double outdoor chair swing, a chair swing base and a steel fence pole.  The employee dragged a large piece of plywood along the ground, dragged a compressor onto a trailer, threw pieces of wood into a fire and threw tires.  The employee drove a tractor in reverse which required him to turn his head to the rear.

 

At the April 2004 hearing before the compensation judge, the employee testified he had difficulty driving because it was hard for him to turn his neck.  He testified he had a 20-mile driving restriction and a 10 to 15 pound lifting restriction.  The employee also testified he had not worked since September 2003.  By report dated November 21, 2004, Julie McDonough, the employee=s QRC, stated the employee remained off work pending the surgery recommended by Dr. Hood.

 

In October and December 2004, the employee was seen and videotaped on the premises of Schendzilos & Son, an earth moving and excavating contractor.  In an affidavit, Alan Long, an investigator, stated the employee was on the premises from 7 a.m. until 3:45 p.m. on October 12, from 7 a.m. until 3 p.m. on December 16, and from 7 a.m. until 4 p.m. on December 17, 2004.  Mr. Long stated he observed the employee working in a shop area at a two-hour work bench on October 12, 2004.^[1]  During the course of the surveillance, Mr. Long stated he did not see the employee display any signs of injury or disability, did not observe the employee have any disability when he used his left arm and saw no visible signs of any cervical spine or left arm injury.  Michael Dollerschell, a co-investigator, stated in an affidavit that he did not observe any visible signs of pain or physical discomfort from the employee and stated all the employees activities were performed without any apparent difficulty.

 

The employee returned to see Dr. Hood on December 13, 2004, and reported no change in his symptoms since his last office visit in November 2003.  On examination, the doctor noted tenderness to palpation of the mid-to lower cervical spine with mild to moderate loss of cervical range of motion.  Tendon reflex testing showed diminished biceps jerk bilaterally.  In his report, the doctor stated:

 

He has undergone a follow-up MRI of the cervical spine on 11-22-04.  This revealed at C5-6 a 3-4 mm, right posterolateral disc-osteophyte complex, which contacts the cord causing mild to moderate right ventral cord deformity.  This is superimposed on broad-based bulging  and shows extension of disc material to the foraminal entrance zone and into the proximal foramen, which it is confluent with an uncinate spur and results in severe right-sided foraminal narrowing.  There is moderate left-sided foraminal narrowing at this level.  There is only slight foraminal narrowing at C6-7, and mild neural foraminal narrowing at C4-5.  When compared to his previous study of 9-17-04, there has been progression of the endplate changes seen at C5-6, as well as slight progression of the C5-6 right posterolateral and foraminal disc herniation.  In addition there has been osteophyte formation seen at the C5-6 disc herniation, which now appears to be a combination of disc and osteophyte complex rather than pure herniation alone.

 

Dr. Hood concluded the employee=s C5-6 degenerative disc disease had progressed and he recommended a C5-6 anterior cervical discectomy and fusion.

 

By report dated December 27, 2004, the IME, Dr. Dahlquist, stated:

 

I have had an opportunity to view a video tape of Mr. Wittrock.  These surveillance tapes were done recently.  It does not appear that the patient has had any issues at all with working.  He does not restrict himself in any way and appears to have no issues whatsoever regarding his spine.  I have reviewed these films in their entirety.

In January 2005, Dr. Dahlquist reviewed the November 2004 MRI scan which he stated was essentially unchanged from the prior study of September 2003.  The doctor stated the employee had an osteophyte formation at C5-6 but this was on the right.  The doctor stated he found nothing to suggest that the osteophyte formation related to the employee=s history of left-sided arm complaints.  Dr. Dahlquist=s deposition was taken on January 18, 2005.  Dr. Dahlquist testified that based upon the surveillance videotapes, the employee did not appear to have any restrictions on his ability to flex, rotate or move his neck and demonstrated no pain behavior.  The doctor testified that a person with a C5-6 spinal cord compression would not be able to do the things the employee did on the videotapes.  Further, the doctor opined, the employee was not in need of surgery.

 

DECISION

 

The surveillance video tapes, the employer and insurer contend, document the employee is able to be physically active without demonstrating any signs of any cervical or left arm injury.  The employer and insurer further assert the surveillance establishes the employee was working during a period of time he asserts he was temporarily and totally disabled.^[2]  The employee=s level of activity shown on the videotapes is inconsistent, the petitioners contend, with the employee=s testimony regarding his symptoms and his representations to the doctors about his capabilities.  The employer and insurer argue the employee=s physical capabilities exceed what he told his doctors, his range of motion exceeds that observed on examination and he is able to work without surgery.  Therefore, the petitioners contend, either the employee=s condition has materially improved or he fraudulently misrepresented his condition at trial and to his doctors.  In either case, the employer and insurer argue, there is good cause to vacate the findings and order.  We disagree.

 

This court=s authority to vacate an award is governed by Minn. Stat. '' 176.461 and 176.521, subd. 3.  A petitioner must show good cause for this court to vacate an award.  See Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648, 649 (Minn. 1989).  AGood cause@ to vacate an award is limited to:

(1)        a mutual mistake of fact;

(2)        newly discovered evidence;

(3)        fraud; or

(4)        a substantial change in medical condition since the time of the award that was clearly not anticipated and could not reasonably have been anticipated at the time of the award.

 

Minn. Stat. ' 176.461.

 

The workers= compensation act requires an employer to furnish any medical, surgical and hospital treatment as is reasonably required to cure and relieve the employee from the effects of a work injury.  Minn. Stat.  ' 176.135, subd. 1(a).  The purpose of providing medical care is to return the employee, as nearly as possible, to his or her pre-injury state of wellness.  Monteith v. Dobbs Pro Staff, 538 N.W.2d 691, 53 W.C.D. 260 (Minn. 1995).  In November 2003, Dr. Hood recommended a C4-5, C5-6 hemilaminectomy and foraminotomy.  A year later, a second MRI scan was obtained and the employee returned to see Dr. Hood.  The doctor concluded the employee=s C5-6 degenerative disc disease had progressed and he then recommended a C5-6 anterior cervical discectomy and fusion.  The surveillance tapes evidence the employee is capable of certain physical activity and he admits he is now working.  Those facts do not, however, mandate a conclusion either that the employee has committed fraud or that his condition has improved.  Rather, the MRI scan and report of Dr. Hood reflect the employee=s condition has worsened and the doctor now recommends a discectomy and fusion surgery.  The sole issue before the compensation judge at the hearing on April 21, 2004, was the employee=s request for surgery.  Having carefully considered all evidence, the court concludes the petitioner has failed to establish good cause to vacate the compensation judge=s May 21, 2004, Findings and Order awarding the requested medical care.  The petition to vacate is, accordingly, denied.