The compensation judge determined the employee’s decision to proceed with anterior/ posterior low back fusion was so unreasonable, negligent, dangerous or abnormal as to be a superseding, intervening cause of disability.  The employee appeals.  We reverse.

Christopher Stordahl was employed as a cable installer for Advanced Communications, Inc. when he was injured on the job on January 25, 2006.  He fell off a stepladder, landing on his buttocks and then falling backward and hitting his head on the floor.  Later that day, he went to the emergency room at Regions Hospital.  The physician there assessed a back strain, gave him pain medication, and released him to return to work without restrictions.

Mr. Stordahl saw Dr. Stephen Danaher at Stillwater Medical Group on January 30, 2006, with his main complaint being “persistent low back pain with radiation of pain into his left calf area.”  Dr. Danaher assessed lumbar back strain and some radiculopathy without weakness or reflex change.  He prescribed pain medication, referred Mr. Stordahl for physical therapy, and provided work restrictions that limited lifting.

The employee continued to treat at Stillwater Medical Group for his low back.  The medical records show that he also received chiropractic care from Dr. David Wilson.  An MRI was done on February 27, 2006, that was interpreted as showing,

Mr. Stordahl was referred for an orthopedic evaluation and saw Dr. David Hanson at St. Croix Orthopedics on March 29, 2006.  His symptoms were low back pain and pain radiating into both legs.  Resting pain was described as mild and activity pain was moderate.  Dr. Hanson found increased pain with lumbar flexion and extension.  Dr. Hanson diagnosed a “left L5-S1 synovial cyst with compression left L5 nerve root in addition to increased lumbar spondylosis L5-S1 and L4-5.”  Dr. Hanson wanted the employee to begin a trial of oral steroids and if that was not successful, an epidural steroid injection would be done.

Mr. Stordahl was also seen by Dr. Steven Barron for an IME on March 27, 2006.  Dr. Barron noted no objective findings on examination and concluded the employee had sustained a lumbar strain.  According to Dr. Barron, the prognosis was excellent, there was no need for further treatment or work restrictions and Mr. Stordahl was at MMI.

The employee began treating at Midwest Spine Institute in April 2006.  The initial treating diagnosis was degenerative disc disease of the lumbar spine with facet arthropathy to the left at L5-S1.  A nerve block injection was done on April 17, but on April 25, Mr. Stordahl told Dr. Reiser that the injection had not been of any help.

The employee returned on May 9, discussed the discography results with Dr. Reiser and reviewed treatment options with Dr. Reiser.  Dr. Reiser recommended weight loss, lighter work, and therapy at Physicians Neck and Back Clinic (PNBC).  There was also discussion of the possibility of surgery.

On May 15, Mr. Stordahl went to PNBC in Woodbury for an assessment.  The physician there reported that he had back pain and worsening leg pain that was currently at a 7/10 level.  Examination showed restricted range of motion in the lumbar spine but no spasm.  Reflexes were normal but straight leg raising was restricted bilaterally.  Mr. Stordahl was assessed as having mechanical back pain with deconditioning syndrome.  A short-term program that included home exercise was recommended.
The employee returned to Dr. Reiser on May 23 and told him that the PNBC program was not helping him.  He said his pain was worse, he was tired of living with the pain, and he wanted something more definitive to be done to address the pain.  Dr. Reiser stated, “the only option I really have would be an anterior/posterior fusion.”

Various pleadings filed by the parties were the subject of a hearing held on June 28, 2006, before Compensation Judge Gary Mesna.  The issues for determination were identified by the compensation judge as 1) entitlement to temporary total benefits; 2) entitlement to temporary partial benefits; 3) payment of medical bills; 4) whether the intervenors were entitled to payment or reimbursement; 5) entitlement to a rehabilitation consultation; 6) approval of recommended surgery; 7) whether the disability and benefits claimed were causally related to the admitted work injury; 8) whether the work injury was temporary or permanent in nature; 9) whether the employee had reached maximum medical improvement; 10) whether the medical treatment was reasonable and necessary; 11) whether the proposed surgery was reasonable and necessary treatment.

For the hearing, the employee presented a report from Dr. Reiser dated June 19, 2006, in which Dr. Reiser set forth his rationale for recommending surgery and the findings which supported that recommendation.  The employer and insurer provided an additional IME report from Dr. Barron of June 26, 2006, in which he had reviewed additional medical records and then stated that the proposed anterior/posterior fusion surgery was not causally related to the January 2006 work injury and was not reasonable or necessary medical treatment.  The hearing record closed on June 28, 2006.

On July 3, Dr. Reiser performed surgery on Mr. Stordahl: posterior fusion at L4-5 and posterior lateral fusion at L5-S1 with nerve root decompression and internal fixation.  On July 10, Dr. Reiser did an anterior spinal fusion and total discectomy at L4-5, L5-S1.

Compensation Judge Mesna issued his Findings and Order on July 20, 2006.  He determined that the employee’s back symptoms were the result of the work injury, that MMI had not been reached, and that the employee was entitled to temporary total disability benefits.  He found the proposed surgery was “not reasonable and necessary medical treatment at this time.”  In his memorandum, the compensation judge noted “considering that it is not even six months since the injury, the proposed surgery is, at best, premature and, at worst, unwarranted and ill advised.”  The employee appealed Compensation Judge Mesna’s denial of temporary partial disability benefits and the requested anterior/posterior fusion surgery.  This court found substantial evidence existed to support the compensation judge’s decision and the decision was affirmed.^[1]

On October 14, 2006, the employer and insurer filed an NOID to discontinue temporary total disability benefits on the basis that the employee had undergone surgery “done against judge’s decision.”  Benefits were allowed to be discontinued by an administrative conference decision.  Mr. Stordahl objected and a hearing was held before Compensation Judge Gary Hall on October 24, 2006.

The sole issue at the hearing was whether the employee’s decision to proceed with surgery was a superseding, intervening cause of disability so as to warrant the discontinuance of temporary total disability benefits.  The compensation judge concluded “the employee’s decision to proceed with surgery was unreasonable and constitutes a superseding/intervening cause of disability.  The employee is not entitled to temporary total disability from July 3, 2006 to the date of hearing.”  The employee appeals.

The issue here is whether the employee’s decision to proceed with surgery broke the causal relationship between his disability and the work injury.

The general rule on this issue is set forth in Nelsen v. American Lutheran Church, 420 N.W.2d 588, 590, 40 W.C.D. 849, 851 (Minn. 1988), in which the supreme court stated:

The Minnesota Supreme Court has not dealt with this issue since Nelsen.  This court, in considering these cases, has looked to whether the employee’s activities were “normal physical activities” or “unreasonable, negligent, dangerous, or abnormal.”

In these cases, consistently, there was no dispute that the employee’s physical activity aggravated the underlying work injury and that it was the aggravation that led to disability or the need for treatment. The issue in these cases was whether the physical activity should be labeled as “normal” or as “unreasonable, negligent, dangerous or abnormal.” Emerson v. State, Dep’t of Veterans Affairs, 61 W.C.D. 468 (W.C.C.A. 2001); Azinge v. CCP/Adapted Living Programs, slip op. (W.C.C.A. Apr. 25, 2001); Trettel v. Cambridge Reg. Ctr., slip op. (W.C.C.A. Dec. 17, 2003).

Mr. Stordahl did not engage in physical activity which aggravated his work injury or which led directly to the need for surgery. In contrast to the cited cases, he did not engage in sledding or drive an unheated car or other activities considered in the case law.  The fusion surgery done in July 2006 was due to the work injury and not to a physical aggravation of the work injury.

The compensation judge focused on the employee’s decision to proceed with the surgery recommended by his treating doctor when the reasonableness of that surgery was in dispute and was pending before a compensation judge.  It should be emphasized, however, that, at the time of the surgery, there had been no decision by the compensation judge on this issue. We are not willing to conclude that an employee may not proceed with treatment if there is a dispute over the reasonableness of the treatment. If an employee does proceed with treatment and the treatment is found not to be reasonable or necessary, the workers’ compensation insurer has no liability for the cost of the treatment. The compensation judge’s decision in the present case goes further, however, and holds that an employee who proceeds with disputed treatment, which is later found unreasonable, is precluded indefinitely from any further workers’ compensation benefits.  This court has dealt with the effect of proceeding with unreasonable medical care in earlier cases.

In Cummings v. Atrium Catering Int’l, slip op. (W.C.C.A. July 17, 2001), this court stated,

The employer and insurer cite to our decision in Rude v. Halstad Lutheran Mem. Home, 52 W.C.D. 293 (W.C.C.A. 1994), in which this court affirmed a compensation judge’s decision that denied additional permanent partial disability following unreasonable surgery.  In that case, however, the employee failed to properly advise the treating doctor of post-injury care from other providers so that the treating doctor’s recommendation for surgery lacked foundation.  Further, the only issue in that case was the question of increased permanent partial disability from the surgery.  Those facts do not exist here.  While the compensation judge in July 2006 found the surgery to be not reasonable and necessary, there is no contention that Dr. Reiser did not have complete information in making this decision.  The question here was primarily a medical dispute as to appropriate treatment for the employee.  We do not find Rude controlling in the present case.

Finally, the employer and insurer argue that the findings of the compensation judge are supported by substantial evidence and must be affirmed under the Hengemuhle standard.^[3]  We disagree.  The facts in this matter are not in dispute; the dispute is the conclusion to be reached from those facts.  We have stated previously that a decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which this court may consider de novo.  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607 (W.C.C.A. 1993). We conclude the compensation judge erred and his decision must be reversed.