The employee appeals from the compensation judge’s determinations that 1) the employee’s cervical spine injury of January 19, 2012, was a temporary injury; 2) a multilevel cervical fusion, which was the subject of the employee’s medical request, was not causally related to the employee’s injury of January 19, 2012, because the employee’s injury was not a substantial contributing factor in the need for the surgery; and 3) the fusion surgery was not reasonable or necessary to cure or relieve the effects of the employee’s injury of January 19, 2012.  We affirm.

On January 19, 2012, the employee, Ramon Serrano, sustained an injury to his cervical spine while working for the employer herein, ABM Janitorial Services.  The employee filed a claim petition in June 2012 and a medical request in August 2012.  The employer and insurer filed a petition to discontinue in December 2012.  The issues involved with the claim petition and the petition to discontinue were settled in February 2013.  However, the parties eventually proceeded to hearing with regard to the medical request, which sought payment of medical expenses relating to a C4-C7 anterior cervical fusion as recommended by Dr. Kevin J. Mullaney.  The compensation judge denied the medical request, and the employee appeals.

The employee’s injury occurred while he and a coworker were attempting to set up some staging materials.^[1]        While the employee and his coworker were moving a piece of the staging material, it struck the employee on the top of his head.  The employee did not lose consciousness, but he testified that he felt as though his head was spinning, and he experienced immediate neck pain with headache.

The employee first sought medical treatment on January 20, 2012, at Apple Valley Medical Center.  He reported acute neck pain with radiation into his arm and down into his fingers.  He was also experiencing headaches.  The employee next treated at Park Nicollet Medical Center on January 23, 2012.  He was continuing to experience headaches and neck pain, and he also had pain radiating into both arms.

The employee then presented to Noran Neurological Clinic on January 31, 2012, where he was examined by Dr. Ronald Tarrel.  The employee was continuing to complain of headaches and neck pain.  Dr. Tarrel began to oversee the employee’s treatment, and he referred the employee for physical therapy.

At Dr. Tarrel’s recommendation, the employee underwent a cervical MRI and various other treatments in the early part of 2012, including physical therapy, an epidural injection, and a strengthening and active therapy program.  The employee testified that his condition did not improve despite the various treatments attempted.  Dr. Tarrel then referred the employee for a consultation with Dr. Kevin Mullaney.

The employee saw Dr. Mullaney on August 9, 2012, and the doctor reviewed the employee’s history, examined the employee, and reviewed his cervical MRI.  On examination, the employee had “5/5 strength to internal and external rotation, forward flexion, and abduction at the shoulders bilaterally and also 5/5 at the biceps and triceps against resistance, which is also bilaterally.”  Dr. Mullaney noted that the employee had failed with physical therapy, exercise, and epidural injection.  Dr. Mullaney also noted that the employee was a non-smoker.  Dr. Mullaney ultimately recommended that the employee proceed with an anterior cervical fusion from C-4 through C-7.

At the employer and insurer’s request, Dr. Charles V. Burton performed an independent medical examination on August 20, 2012.  Dr. Burton obtained a history from the employee and conducted a physical examination.  He also reviewed medical records, including x-ray and MRI scans.  Dr. Burton issued a report dated September 12, 2012, and he gave a deposition in preparation for the hearing.

Dr. Burton diagnosed the employee with multilevel degenerative disc disease and facet joint disease throughout the employee’s spine, made worse by having been a chronic smoker.  Dr. Burton also opined that the employee was physically and neurologically intact from an objective standpoint.  He noted that the employee demonstrated, on examination, “a very high level of pain perception unaccompanied by objective evidence to support his complaint of total body pain.”  Dr. Burton opined that the employee had sustained a temporary post-concussive syndrome and temporary cervical strain as the result of the January 19, 2012, injury.  Dr. Burton also indicated that “a cervical strain would typically have resolved with appropriate conservative care in a period of time of not more than 8 to 12 weeks.”  As such, Dr. Burton opined that medical treatment beyond April 19, 2012, could no longer be attributed to the work injury of January 19, 2012.  Ultimately, Dr. Burton indicated that the employee’s “presentation is highly consistent with symptom magnification, possible malingering, probable secondary gain, positive evidence of pain behavior, and characterized by subjective complaints of pain unsupported or uncorroborated by very much in the way of objective clinical findings (chronic multi-level cervical degenerative disc disease).”

At the employee’s request, Dr. Robert A. Wengler conducted an examination of the employee on October 24, 2012.  Dr. Wengler issued a report and gave a deposition in preparation for the hearing.  Dr. Wengler noted that on examination, the employee was complaining of neck pain, headaches, pain in both arms, low back pain radiating into both lower extremities, and right leg pain, which was more symptomatic than the left.  The employee was “unable to localize dermatomal patterns.”  Dr. Wengler indicated that the employee’s cervical MRI showed multilevel degenerative disc disease.  He noted advanced bilateral foraminal stenosis at C5-6 with moderate central canal stenosis, moderate spinal canal stenosis with mild bilateral foraminal stenosis at C4-5, and moderate right foraminal stenosis at C6-7.  Dr. Wengler assessed the employee with discogenic cervical spine pain, bilateral upper extremity radicular symptoms secondary to multilevel spinal stenosis and instability.  Dr. Wengler agreed that the employee was a candidate for the stabilization procedure.

The employee saw Dr. Tarrel again on November 19, 2012.  Dr. Tarrel found no evidence of cranial nerve dysfunction.  He also found that the employee exhibited good power and normal movement in all extremities with normal bulk and tone.  The employee had no evidence of “incoordination,” and his gait was normal.  Dr. Tarrel observed the employee to exhibit difficulty when rising from a seated position after remaining seated for a prolonged period of time.  Dr. Tarrel also indicated that the employee’s depression was becoming more of a problem.  Dr. Tarrel placed the employee on Wellbutrin instead of Cymbalta because the employee had not noted much benefit from Cymbalta.  Dr. Tarrel recommended that the employee be referred to Institute for Low Back and Neck Care for evaluation of minimally invasive procedures.  Dr. Tarrel specifically stated, “surgery has been considered in the past, but I would like for him to avoid that if possible.”

The parties proceeded to a hearing before Compensation Judge Catherine A. Dallner with respect to the requested surgery, and the hearing took place on February 7, 2013.  The employee testified at the hearing.  The parties also introduced medical records, including Dr. Tarrel’s records, Dr. Mullaney’s records, Dr. Wengler’s report and deposition testimony, and Dr. Burton’s report and deposition testimony. The following issues were presented at hearing:

During the employee’s direct examination, the employee’s attorney addressed the employee’s smoking history, and he referred to Dr. Burton’s report and medical records that seemed to indicate that the employee had a long history of smoking.  The employee testified, however, that he quit smoking in 2004.  He admitted that before 2011, he was smoking about one cigarette a day, but said it was “not much.”  He testified that he quit smoking altogether in 2011.

Following the submission of written closing arguments from both sides, the compensation judge served and filed her findings and order on March 18, 2013.  The compensation judge concluded that the employee’s January 2012 cervical spine injury was temporary in nature.  She concluded that the cervical fusion was not causally related to the employee’s January 2012 injury, and she determined that the employee’s injury was not a substantial contributing factor to the multilevel fusion recommended by Dr. Mullaney.  The compensation judge also concluded that the fusion recommended by Dr. Mullaney was not reasonable or necessary to cure or relieve the effects of the employee’s personal injury of January 19, 2012.

The compensation judge explained that she found the opinions of Dr. Burton to be more persuasive.  Specifically, she noted that both Dr. Burton’s and Dr. Mullaney’s neurological examinations of the employee were normal.  She also referred to Dr. Burton’s opinion that while the employee did have radiographic findings, they had “no meaning” because they did not have corroborative objective clinical findings to substantiate the testing.  The compensation judge also noted Dr. Burton’s concerns that the employee had not yet been adequately evaluated because of a lack of EMG.

The compensation judge indicated that there was evidence presented regarding the employee’s past and current smoking behavior, and numerous studies have indicated that smokers have a significantly higher complication rate following fusions.  The compensation judge also noted Dr. Burton’s indication that it would be reasonable to have the employee certified as a non-smoker by undergoing nicotine testing.

The compensation judge went on to cite Dr. Tarrel’s indication that the employee should avoid surgery.  She noted that both Dr. Tarrel and Dr. Burton had expressed concern regarding the employee’s psychological condition, and she credited Dr. Burton’s opinion that the employee’s psychological condition was one of the factors that needed to be taken into consideration in assessing whether a multilevel fusion was appropriate.

The compensation judge also discussed Dr. Wengler’s opinions.  She noted that Dr. Burton and Dr. Wengler agreed that the employee’s subjective complaints did not fit any specific dermatomal pattern, and Dr. Wengler acknowledged that he could not ascertain which disc or disc levels, if any, were symptomatic in the employee’s cervical spine.

The compensation judge also noted that the employee had been complaining of severe low back and bilateral leg pain, and the judge felt these complaints were “a further confounding element to this case.”  The employee had an MRI of the low back and thoracic spine in May 2012.  The MRI showed mild disc bulging and spurring, but there was no evidence for nerve root impingement, disc herniation, or spinal stenosis.  The compensation judge stated that “notwithstanding these findings, Mr. Serrano has continued to complain of low back and bilateral lower extremity pain and problems.”  The compensation judge noted that the employee attempted to minimize his low back and lower extremity complaints, but the compensation judge noted that “the employee’s medical records from his numerous treating providers clearly indicate consistent and ongoing complaints of pain in the mid-back, pain in the low back, pain radiating into both lower extremities along with headaches, neck pain, pain in both arms and numbness and tingling involving 5 fingers of both hands.”

Ultimately, the compensation judge indicated that “careful consideration of all of the evidence presented in this case has led this Compensation Judge to the determination that the recommended 3 level cervical fusion is not causally related to and is not reasonable or necessary to cure or relieve the effects of the employee’s personal injury of January 19, 2012.”

In reviewing cases 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.  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, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.”  Northern States Power Co. v. Lyon Foods Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  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.”  Id.

The employee argues that the compensation judge based her finding of a temporary injury solely on Dr. Burton’s opinions, and he argues that Dr. Burton’s opinions as to the temporary injury lacked foundation.  Therefore, the employee argues that the compensation judge did not have substantial evidence to conclude that the January 2012 neck injury was temporary in nature. 

Dr. Burton reviewed medical records concerning Mr. Serrano’s condition and medical treatment.  He took a history from the employee and conducted a physical examination.  Therefore, Dr. Burton had sufficient information to establish foundation for a medical opinion.  See Drews v. Kohl’s, 55 W.C.D. 33, 38-39 (W.C.C.A. 1996), summarily aff’d (Minn. July 11, 1996) (citing Grunst v. Immanuel-St. Joseph Hospital 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1988)).  As such, the employee’s challenge to the compensation judge’s reliance on Dr. Burton’s opinions goes to the weight of those opinions and not their foundation.  Drews, 55 W.C.D. at 39-40.  This court will generally affirm the decision of a compensation judge based on the choice between expert opinions, “so long as the accepted opinion has adequate foundation.”  Smith v. Quebecor, 63 W.C.D. 566 (W.C.C.A. 2003) (citing Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985)).

The employee argues that Dr. Burton agreed that the employee did not have a history of problems or treatment with his neck before the January 2012 injury, and he was able to perform heavy work until the time of his injury.  The employee cites, in detail, the medical records from his treating physicians and Dr. Wengler outlining his ongoing complaints, and he argues that the “overwhelming weight of the evidence” supports a conclusion that despite his treatment, he continued to have ongoing complaints of neck pain, and his symptoms did not resolve after the January 2012 injury.

Following his examination of the employee, however, Dr. Burton concluded that there was a lack of objective findings.  As the compensation judge indicated, Dr. Burton opined that while the employee did have radiographic findings, there was “no meaning” to them because they did not have corroborative objective clinical findings to substantiate the testing.  Dr. Burton felt that the employee demonstrated “a very high level of pain perception unaccompanied by objective evidence to support his complaint of total body pain,” and he indicated that the employee’s “presentation is highly consistent with symptom magnification, possible malingering, probable secondary gain, positive evidence of pain behavior, and characterized by subjective complaints of pain unsupported or uncorroborated by very much in the way of objective clinical findings (chronic multi-level cervical degenerative disc disease).”  Dr. Burton felt that the employee sustained “a cervical strain” that would have “typically” resolved with appropriate conservative care in eight to twelve weeks.  Therefore, Dr. Burton opined that any medical treatment beyond April 19, 2012, could no longer be attributed to the work injury.

The employee argues that Dr. Burton’s decision is contrary to the weight of the evidence and that Dr. Tarrel, Dr. Mullaney, and Dr. Wengler all related the employee’s ongoing symptoms to January 2012 work injury.^[2]  However, as the compensation judge noted, Dr. Tarrel had indicated that the employee’s neurological examination was normal, Dr. Mullaney’s examination of the employee was normal, and Dr. Wengler concluded that the employee’s symptoms did not exhibit any specific pattern.  Dr. Wengler also conceded that he could not ascertain which disc or disc levels, if any, were symptomatic in the employee’s cervical spine.

Although Dr. Burton’s opinion was contrary to the findings and opinions of the employee’s treating doctors with regard to the temporary injury, his opinion was not without foundation, and the choice between competing medical opinions is for the compensation judge to make.  See, e.g., Dulon v. Andersen Corp., slip op. (W.C.C.A. Apr. 28, 2003) (citing Nord, 360 N.W.2d 337, 37 W.C.D. 364).  The compensation judge was aware of the conflicting medical opinions involved here, as well as the employee’s testimony regarding his ongoing symptoms.  However, because Dr. Burton’s decision provided adequate support for the compensation judge’s determination that the employee sustained a temporary injury on January 19, 2012, we affirm.

The employee argues that the compensation judge erred in finding that the fusion was not causally related to and not reasonable and necessary to cure or relieve the effects of the employee’s injury.

The employer and insurer are obligated to provide reasonable and necessary medical care to “cure and relieve” the effects of a work injury.  Minn. Stat. § 176.135, subd. 1.  The reasonableness and necessity of any given medical treatment is a question of fact for the compensation judge.  See Amunrud v. Advance United Expressway, 64 W.C.D. 204, 218 (W.C.C.A. 2004), summarily aff’d (Minn. May 27, 2004) (citing Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993)).

The employee argues that Dr. Burton conceded that additional testing, including an EMG or other non-surgical, conservative treatment could be considered.  Therefore, the employee argues that Dr. Burton’s conclusion that the employee was no longer in need of medical treatment was contrary to the weight of the evidence, and the fusion surgery should be reasonable and necessary.  However, Dr. Burton’s conclusion was that the employee’s treatment received would have been “reasonable and appropriate to some degree for his pre-existing degenerative disease . . . .”  While Dr. Burton did concede that the employee’s current condition may, in fact, be painful for the employee, Dr. Burton related that condition strictly to the employee’s degenerative condition and not to the temporary work injury.  As indicated above, Dr. Burton’s opinion provides substantial evidence to support the compensation judge’s determination that the employee’s injury was merely temporary in nature.  As such, we affirm the compensation judge’s conclusion that the employee’s injury no longer continues to be a substantial contributing factor in the employee’s need for surgery.

Furthermore, we will not disturb the compensation judge’s decision to afford more weight to Dr. Burton’s opinion with regard to the reasonableness and necessity of the proposed fusion.  As indicated above, there was proper foundation for Dr. Burton’s opinion that the employee was no longer in need of any treatment related to his work injury, including the proposed fusion.  In addition to Dr. Burton’s opinion, the compensation judge also cited Dr. Tarrel’s opinion that the employee should avoid surgery.  She noted that Dr. Tarrel, like Dr. Burton, expressed concern about the employee’s psychological condition and recommended, if anything, additional minimally invasive treatments.  Ultimately, even if Dr. Burton did concede that there was some additional treatment that may have been appropriate, he opined that it was not related to the employee’s work injury, and neither Dr. Burton nor Dr. Tarrel agreed that the recommended fusion was reasonable and necessary.  Therefore, we will not disturb the compensation judge’s decision to credit that opinion.

We acknowledge that there is evidence in this case, like many others, that could arguably support the employee’s position.  However, where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are upheld.  See Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).  Because there is substantial evidence to support the compensation judge’s decision to deny the recommended fusion procedure, we affirm.