RUDY COLINDRES, Employee, v. ABM JANITORIAL SERVS. and ACE USA, Employer-Insurer/Appellants.

OCTOBER 1, 2013

No. WC13-5584


MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY; MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS.  Substantial evidence supported the compensation judge’s conclusion that the employee had incapacitating low back pain as contemplated by the applicable treatment parameters and that the proposed fusion surgery was consistent with other applicable rules.  The rules do not require that all conservative treatment modalities be exhausted prior to surgery.


Determined by:  Wilson, J., Stofferahn, J., and Milun, C.J.
Compensation Judge:  Kirsten M. Tate

Attorneys:  Lucas V. Cragg, Teplinsky Law Group, Minneapolis, MN, for the Respondent.  Thomas F. Coleman and Jennifer R. Augustin, Cousineau McGuire, Minneapolis, MN, for the Appellants.




The employer and insurer appeal from the compensation judge’s decision approving the employee’s request for fusion surgery.  We affirm.


The employee sustained work injuries to his low back on September 27, 2011, and November 11, 2011, while employed by ABM Janitorial Services [the employer].  He worked 40 hours per week for the employer performing janitorial duties, including collecting and disposing of trash, vacuuming, cleaning corridors, and mopping stairs.  In addition to this job, the employee worked in his own janitorial business, A Plus Contract Cleaning [A Plus].

The employee received chiropractic care at Lake Street Pain Relief Center from December 2011 through January 31, 2012.  He initially complained of low back pain, but an office note dated January 6, 2012, indicates that his low back pain would occasionally go into both of his legs.  An MRI of the lumbar spine was recommended, and the employee began wearing a back brace.  The MRI, performed on January 11, 2012, revealed grade 1 spondylolisthesis of L5 on S1 with uncovering of the disc space and superimposed broad-based central disc protrusion with moderate narrowing of the neural foramen bilaterally predominantly due to the anterolisthesis and disc disease.

The employee began treating at Rivera Chiropractic on February 7, 2012.  Dr. Carlos Rivera recommended lifting, pushing, and pulling restrictions and told the employee to avoid twisting and bending.  The employee was able to continue working by modifying his job duties with the employer and by moving to a supervisory role with A Plus.  On February 24, 2012, Dr. Rivera noted that the employee was experiencing radicular pain into the left gluteal region, and, on March 1, 2012, Dr. Rivera indicated that the employee’s pain was radiating into the bilateral gluteal regions.  Also in March of 2012, Dr. Rivera gave the employee exercise instructions.  According to office notes, exercise instruction continued to be part of the employee’s subsequent office visits.

Dr. Rivera referred the employee to Dr. Douglas A. Becker, at Minneapolis Orthopaedics, who examined the employee on April 30, 2012.  At that time, the employee reported that his pain increased with any type of bending and with sitting or walking for prolonged periods.  Dr. Becker gave the employee “a physical therapist designed home exercise program” to enhance lumbar strength, flexibility, and motion, and the doctor recommended restrictions similar to those of Dr. Rivera.  Dr. Becker suggested that the employee continue chiropractic, anti-inflammatories, activity modification, and icing.  He also ordered an EMG and indicated that, “depending on the results of the patient’s progress, may need to consider possible epidural steroid injections or more physical therapy.”

The employee was seen by Dr. Becker again on June 6, 2012, at which time the doctor noted that the EMG showed no abnormalities.  The employee was noted to have occasional discomfort radiating down to both of his knees.  The employee reported that he continued to see the chiropractor and was doing the home exercises that the doctor had given him.  The employee was told to continue using his back brace, receiving chiropractic care, and performing the exercises.  Dr. Becker also recommended an epidural steroid injection, stating that the employee might need up to three of these.

The employee returned to Dr. Becker on July 18, 2012, reporting that his first epidural steroid injection had been only mildly helpful.  The doctor recommended a second steroid injection and “possibly” a third injection two weeks later.  The employee reported that he had been wearing his back brace, going to the chiropractor, and doing his home exercises.  Work restrictions were continued and eventually expanded to include no overhead activities, no mopping, no ladder climbing, and no use of squeegees on windows.

On August 24, 2012, the employee began working with QRC Gretta Bauer.  She recommended medical management and monitoring of the employee’s light-duty employment.

On August 29, 2012, the employee reported to Dr. Becker that his second epidural steroid injection a month prior had helped only a little bit, that he was using anti-inflammatories, that he had received extensive chiropractic treatment, and that he had done home exercises.  The doctor indicated that the employee had discomfort in his low back with burning and constant pain as well as pain down through the buttocks and into the thighs.  Because of the employee’s “extensive conservative treatment” and unsuccessful lumbar epidural steroid injections, Dr. Becker referred the employee to a spine surgeon.

The employee was seen by orthopedic surgeon Dr. Stefano Sinicropi on November 6, 2012.  Dr. Sinicropi reported that the employee’s two epidural injections had given him relief for one week but that all of his pain had returned and that the employee “had therapy without improvement.”  Dr. Sinicropi discussed with the employee his treatment to date,[1] reviewed the employee’s imaging studies, and examined the employee.  It was his opinion that the employee had bilateral pars intraarticularis fractures of L5 and moderate to severe bilateral neuroforaminal stenosis.  Dr. Sinicropi described the employee’s symptoms as “severe, unrelenting and intractable.”  He prescribed Ramadol for pain management and discussed the possibility of an anterior/posterior fusion and decompression at L5-S1.  The employee indicated that he wanted to have the surgery.

The employee was seen by Dr. Robert A. Wengler on December 7, 2012, for a second opinion.  Dr. Wengler agreed with the recommendation for surgery but stated that he would consider a discogram at L4-5 before surgery.

In January of 2013, the employee reported an increase in his low back pain and radicular symptoms and asked the QRC to set up an appointment with Dr. Sinicropi.  The QRC accompanied the employee to that appointment on January 15, 2013.  According to the QRC’s report, the employee had increased low back and left lower extremity symptoms with a constant sharp stabbing pain in the low back.  Also according to her report, Dr. Sinicropi told the employee that continuing to work was likely to increase his symptoms, but, because the employee was concerned about losing his job, he asked the doctor to continue the same restrictions.  In his notes from that appointment, Dr. Sinicropi indicated that the employee continued to have severe low back and leg symptoms and “is doing his best to continue working.”  He again opined that the employee was an excellent candidate for surgery, continued the employee’s restrictions, and renewed his prescriptions.

The employee was examined by independent medical examiner Dr. Paul T. Wicklund on March 2, 2013.  Dr. Wicklund diagnosed Grade 1 spondylolisthesis in the lumbar spine with subjective low back pain.  It was his opinion that decompression and fusion was not reasonable or necessary based on “the lack of any specific effort to try and reestablish core muscle strength.”  He further stated that surgery “should not be done until [the employee] has finished a program such as one at Physicians Neck & Back.”

On March 13, 2013, the employee told his QRC that his pain was becoming intolerable.  He stated that his left leg had become completely numb and that, due to pain, he had begun to drag that leg.  The employee also reiterated that he could not afford to stop working.

On April 16, 2013, Dr. Sinicropi wrote to the employee’s attorney, indicating that “[a]ny type of physical therapy that would be recommended at this point is completely useless.”  He again opined that the employee had severe pain consistent with imaging findings and physical exam and that surgery should be performed to decrease pain and increase function.

The matter came on for hearing, and, in findings and order filed on April 29, 2013, the compensation judge found that the employee’s symptomology included incapacitating back pain and that the proposed anterior/posterior decompression and fusion was reasonable and necessary.  The employer and insurer appeal.


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 (2012).  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 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).


The employer and insurer contend that substantial evidence does not support the finding that the proposed fusion surgery is reasonable and necessary and allege that the judge committed reversible error in determining that the applicable treatment parameters do not require all conservative modalities to be exhausted prior to surgery.  We are not convinced.

Minn. R. 5221.6200, subp. 2.B., addresses the three phases of a course of treatment for low back pain.  The first phase calls for “initial nonsurgical management which may include active treatment modalities, passive treatment modalities, injections, durable medical equipment and medications.”  Id., subp. 2.B.(1) (emphasis added).  The employer and insurer contend that exercise is a component of active treatment modalities and that this treatment modality has not been properly explored.  In making this argument, the employer and insurer rely on the opinion of Dr. Wicklund, who indicated that the employee should undergo a three-month supervised exercise program before considering surgery.  However, while the rule cited above outlines a variety of conservative treatment modalities that may be undertaken, no specific treatment, including a supervised exercise program, is mandated.  In addition, the chiropractic records of Dr. Rivera and the medical records of Dr. Becker establish that the employee was instructed in exercise by both of these providers, and Dr. Becker’s office notes from April of 2012 to August of 2012 reflect that the employee was performing those exercises.  Dr. Becker described his exercise program as “physical therapist designed” to enhance lumbar strength, flexibility, and motion of the low back.[2]  The employee also underwent chiropractic care for eight months and had two epidural steroid injections, all without significant improvement.

A judge’s choice between expert opinions is generally upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  The judge accepted the opinion of Dr. Sinicropi over that of Dr. Wicklund.  Dr. Sinicropi’s office notes and report indicated that he had discussed the employee’s prior treatment[3] with him, he examined the employee, and he reviewed the imaging studies.  Dr. Sinicropi had adequate foundation to render an opinion.  In addition, Dr. Sinicropi saw the employee because Dr. Becker had referred the employee to a spine surgeon when the employee’s symptoms did not improve with non-surgical care.  The employer and insurer point to no facts, assumed by Dr. Sinicropi in rending his opinion, that are not supported by the evidence.

The employer and insurer also contend that the compensation judge erred in finding that the employee had incapacitating low back pain lasting longer than three months, one of the criteria applicable to lumbar fusion surgery.  Minn. R. 5221.6500, subp. 2.C.(1)(d).  They contend that, because the employee has continued to work two jobs and his symptoms have not worsened since his injuries, his pain cannot qualify as incapacitating.  We disagree.

An employee may experience “incapacitating” pain within the meaning of the rule without being totally disabled from work.  Kappelhoff v. Tom Thumb Food Markets, 59 W.C.D. 479 (W.C.C.A. 1999).  In Klinefelter v. Quicksilver Express Courier, slip op. (W.C.C.A. Jan. 6, 2003), this court held that a determination as to “incapacitating low back pain” is a fact finding within the province of the compensation judge.  In the present case, medical and rehabilitation records show that Dr. Sinicropi felt that the employee’s work, even in a light-duty position, was aggravating his symptoms but that the employee had asked that the doctor to release him to work for the employer because he could not afford to be off work.  The employee also testified that he had to hire someone to do the physical aspects of his self employment, that he is limited in his household duties, and that he is not able to participate in the recreational activities that he engaged in prior to the injury.  Furthermore, chiropractic, medical, and QRC records establish that the employee experienced increased symptoms and the need for increased restrictions over that time.  Substantial evidence supports the judge’s finding that the employee has incapacitating low back pain in keeping with the requirements of the treatment parameters, and we therefore affirm her approval of the proposed surgery.

[1] According to the records of the QRC, who accompanied the employee to the appointment with Dr. Sinicropi.

[2] The employer and insurer claim that the fact that the employee did not perform his exercises daily and sometimes wore a back brace “counteracted the goals of home exercise.”  There is, however, no support for this assertion in the record.

[3] Contrary to the employer and insurer’s contention, there is no indication that Dr. Sinicropi assumed that the employee had already attempted physical therapy without relief.