HARLON TOMFORD, Employee, v. MARK’S WELDING, INC., and UNITED FIRE & CAS. GROUP, Employer-Insurer/Appellants.

APRIL 30, 2014

No. WC13-5655


STATUTES CONSTRUED - MINN. STAT. § 176.155, SUBD. 2; PRACTICE & PROCEDURE - NEUTRAL PHYSICIAN.  Under the circumstances of this case, where the employer and insurer requested appointment of a neutral physician shortly after the employee’s renewed request for surgery based on additional testing, the appointment was mandatory pursuant to Reider v. Anoka-Hennepin Sch. Dist. No. 11, 728 N.W.2d 246, 67 W.C.D. 112 (Minn. 2007), and the judge erred in denying the request.

MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS.  The compensation judge did not err in concluding that the medical treatment parameters applicable to lumbar spine surgery were not applicable to proposed fusion of the employee’s sacroiliac joint.  That joint is not part of the lumbar spine.

Affirmed in part, reversed in part, and remanded.

Determined by:  Wilson, J., Stofferahn, J., and Hall, J.
Compensation Judge:  James F. Cannon

Attorneys:  DeAnna M. McCashin, Schoep & McCashin, Alexandria, MN, for the Respondent.  Christine L. Tuft and Susan K.H. Conley, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Appellants.




The employer and insurer appeal from the compensation judge’s decision approving the employee’s request for sacroiliac (SI) joint fusion surgery.  We affirm in part, reverse in part, and remand the matter for further proceedings.


The employee sustained a work-related injury to his low back on June 2, 2005, while employed as a welder by Mark’s Welding, Inc. [the employer].  As a result of this injury, the employee underwent fusion surgery at L5-S1, with a bone graft taken from the employee’s right ilium.

On March 21, 2013, the matter came before the compensation judge for resolution of issues raised by three pleadings, which the judge had consolidated for hearing:  the employer and insurer’s June 2012 request for formal hearing asking for a change of QRC; the employee’s June 2012 request for formal hearing asking that a specific placement vendor continue providing services; and the employee’s September 2012 medical request asking for approval of SI joint fusion surgery, as recommended by Dr. Sunny Kim.  As to the medical request, the employer and insurer disputed causation.  They also alleged, based on the opinion of the adverse examiner, Dr. Jeffrey Dick, that the employee should undergo additional tests to be certain that it was in fact the SI joint that was the source of the employee’s symptoms.

The compensation judge issued a decision on these issues on May 2, 2013.  The employee prevailed on one rehabilitation issue, the employer and insurer prevailed on the other, and the compensation judge dismissed both requests for formal hearing.  On the employee’s medical request, the compensation judge found as follows:

20.    Therefore, the employee’s medical claim for surgery is premature, until such time as the employee undergoes the recommended diagnostic testing of a high resolution CT scan and lumbar medial bundle branch block at L4-5 on the right side, as recommended by Dr. Kim his treating physician.
21.    Although the employee is not required to undergo the recommended diagnostic testing, the employee’s medical claim for surgery is denied, unless and until he undergoes the aforementioned recommended diagnostic testing in this matter.

The corresponding order provides:

1.    NOW, THEREFORE, IT IS HEREBY ORDERED that the employee’s claim for the recommended surgery, in the nature of an SI fusion surgery, is denied as premature, until such time as the employee undergoes the recommended diagnostic testing of a high resolution CT scan of the L4-L5 fusion site and a lumbar medial bundle branch block at L4-5 on the right side, due to the work-related back injury of June 2, 2005.

Neither party appealed from the judge’s decision.

In a letter dated August 14, 2013, the employee’s attorney advised the judge that the employee had undergone the recommended testing and that the employer and insurer were still refusing to pay for the proposed surgery.  Counsel asked the court whether there was a procedure “to gain a priority setting on this need for fusion surgery,” contending that an expedited hearing on the matter would be appropriate and asking for direction as to how to proceed.

On August 20, 2013, the Office of Administrative Hearings served the parties with an order entitled “Notice for Special Term Conference on the Employee’s Request for Expedited Hearing on Medical/Surgical Request,” setting a telephone hearing before the compensation judge for September 30, 2013.  In the meantime, by letter dated August 23, 2013, counsel for the employer and insurer advised the compensation judge that she was anticipating another report from Dr. Dick, who was still “not convinced that the SI joint is the source of the employee’s pain.”  Counsel concluded her letter by requesting the appointment of a neutral physician given the “continuing disagreement” between Dr. Kim and Dr. Dick.

The special term conference evidently took place as scheduled but was not recorded.  Counsel for the employer and insurer purportedly renewed their request for appointment of a neutral physician, which they reiterated in a letter to the compensation judge dated that same day.  The employer and insurer apparently also for the first time alleged that the proposed surgery was not consistent with the medical treatment parameters.

On October 2, 2013, the compensation judge issued an “Order on Special Term Conference,” stating, in relevant part, as follows:

During the course of the Special Term Conference, the employee noted that he had completed the two specific tests ordered to be completed for a determination on his surgery claim, pursuant to the Findings and Order served and filed on May 3, 2013.  During the course of the Special Term Conference, the employer and insurer noted that there were additional tests recommended by the IME physician, which the employee had not yet completed.  There were no formal motions raised by either party at the Special Term Conference.
The undersigned Compensation Judge initially advised the parties that since the Requests for Formal hearing filed on June 12, 2012 and June 18, 2012 were dismissed in said Findings and Order there was no active pleading upon which the Court could make a determination in this matter.  However, upon further review, the undersigned Compensation Judge determined that an Order for Consolidation that he issued on September 18, 2012, not only consolidated the aforementioned Requests for Formal Hearing, but also consolidated a Medical Request filed by the employee on September 13, 2012 for hearing.  Further, the undersigned Compensation Judge determined that the Medical Request had not been dismissed in the Findings and Order issued on May 3, 2013.
NOW, THEREFORE, IT IS ORDERED that the employee need not file a Medical Request regarding her [sic] surgery claim.
IT IS FURTHER ORDERED that the parties shall have 14 days from the date of the service of the Order herein, or October 16, 2013, to submit a 4 - 5 page legal brief on the merits of awarding or not awarding the employee’s surgery claim, and whether the employer and insurer’s request for a neutral physician should be granted or denied as timely.

On November 8, 2013, following the parties’ submission of briefs and attached exhibits, the compensation judge issued another findings and order.  After tracing the procedural history of the case, the judge went on to make various factual and legal conclusions, ultimately determining that the employer and insurer’s request for appointment of a neutral physician was untimely and that the proposed SI joint fusion surgery was reasonable, necessary, and causally related to the employee’s work injury.  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).

“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.”  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).


1.  Treatment Parameters

The employer and insurer apparently raised the medical treatment parameters as a defense to the employee’s surgery claim for the first time at the special term conference, claiming that Minn. R. 5221.6500, subp. 2.C., governing lumbar fusion surgeries, applied to the proposed SI joint surgery.  The compensation judge suggested that the defense had not been raised in a timely fashion, but he then went on to conclude that the cited rules were inapplicable because the SI joint is not part of the lumbar spine.  The employer and insurer argue that the judge erred in this regard.  We disagree.

The SI, or sacroiliac, joint is not part of the lumbar spine, nor is it even directly connected to the lumbar spine.  Rather, it is the joint between the sacrum, the triangular bone below the lumbar vertebrae, and the ilium, the main bone of the pelvis.[1]  The compensation judge correctly concluded that the treatment parameters governing lumbar fusion surgery were not applicable, and the employer and insurer have pointed to no other treatment rules specifically applicable to treatment of an SI joint condition.

The employer and insurer also contend that “[i]t is well established that even in situations where the Treatment Parameters cannot be directly applied . . . they should be referenced as guidance when determining the appropriateness of medical treatment.”  However, we find nothing in case law suggesting that reference to the treatment parameters is mandatory when the parameters are inapplicable.

Finally, the employer and insurer contend that the judge erred by failing to consider factors established by case law for requests for fusion surgery.  Again we disagree.  The factors cited in the cases at issue[2] were relevant on the facts of those cases, but we find no basis to conclude that consideration of those factors is necessarily required in all surgery disputes.  In a case such as this one, where the treatment parameters do not apply, a decision as to reasonableness and necessity is generally a fact issue to be decided based on all the evidence submitted.  Relevant criteria are often case specific, and it is generally up to the compensation judge to determine how to weigh the opposing evidence.[3]  We therefore reject the employer and insurer’s arguments concerning the compensation judge’s evaluation of the employee’s claim on the current record.  Nevertheless, for the reasons expressed below, we conclude that further proceedings are required.

2.  Neutral Physician

Minn. Stat. § 176.155, subd. 2, reads in relevant part that,

In each case of dispute as to the injury the commissioner of labor and industry, or in case of a hearing the compensation judge conducting the hearing, or the Workers’ Compensation Court of Appeals if the matter is before it, may with or without the request of any interested party, designate a neutral physician to make an examination of the injured worker . . . . and . . . when an interested party requests, not later than 30 days prior to a scheduled prehearing conference, that a neutral physician be designated, the compensation judge shall make such a designation.

The employer and insurer requested appointment of a neutral physician in their letter dated August 23, 2013, in a letter dated September 30, 2013, and purportedly, during the conference held on that latter date.  In his November 8, 2013, decision, the compensation judge rejected that request as untimely.  On appeal, the employer and insurer contend that the compensation judge erred in denying their request.  Under the very specific circumstances of this case, we agree.

As referenced by the compensation judge, the Minnesota Supreme Court addressed the current version of Minn. Stat. § 176.155, subd. 2, in Reider v. Anoka-Hennepin School District No. 11, 728 N.W.2d 246, 67 W.C.D. 112 (Minn. 2007).  However, contrary to the compensation judge’s conclusion, the court in Reider did not hold that, “in the absence of a pretrial conference, the timeliness for the appointment of a neutral physician is to be determined at the discretion of the Compensation Judge.”  Rather, the court simply held that, if a party makes a timely request for appointment of a neutral physician in a case in which no pretrial conference is held, appointment is mandatory.[4]  Id. at 250, 67 W.C.D. at 119-20.  The request in Reider was made more than four months prior to the hearing on the merits, but Reider provides virtually no guidance as to how to determine timeliness in a case in which no pretrial conference has been scheduled.

The very unusual procedural history of the case before us complicates the picture considerably.  Because the compensation judge did not dismiss the employee’s medical request when he issued his May 2013 decision, he viewed the March 2013 hearing and his May 2013 decision as the dates by which to measure the timeliness of the employer and insurer’s request.  However, the compensation judge indicated in his May 2013 decision that the record had closed on March 21, 2013, the day of the hearing, and we find nothing in that decision to suggest that the record would be reopened for reconsideration of the surgery claim once the employee underwent the specified tests.  In fact, it is evident that no one involved in the case was sure how to proceed. [5]  Under these particular circumstances, the employee’s August 2013 letter is most appropriately viewed either as a new request for surgery, based on new evidence obtained after the record from the previous hearing had closed, or a request for reconsideration of the prior medical request.  Either way, the employer and insurer’s August 23, 2013, request for a neutral physician - - made less than two weeks after the employee’s letter to the compensation judge and more than 30 days prior to the scheduled conference - - was timely, and, pursuant to Reider, appointment of the neutral physician was therefore mandatory.[6]

The employee contends that allowing appointment of a neutral physician in this case is inconsistent with the legislative directive that the workers’ compensation act be interpreted to “assure the quick and effective delivery of indemnity and medical benefits to injured workers at a reasonable cost to employers.”  See Minn. Stat. § 176.001.  However, in response to similar arguments in Reider, the supreme court explained,

Finally, we recognize that the WCCA majority concluded that “practical problems” would result from a conclusion that a party’s timely request for a neutral physician always requires appointment.  The WCCA majority specifically noted that a mandatory neutral-physician-examination process will be difficult to implement, particularly in the absence of a list of available neutral physicians or any rules establishing procedures for the designation of a neutral physician.
[6]  We are not unmindful of these concerns.  Although a mandatory neutral-physician-examination process will probably not be without administrative burden or expense, “[i]t is for the legislature, not the [c]ourt, to judge the social utility of this statutory system, which has no common law counterpart, to balance the interests of employees and employers, and to make whatever adjustments and corrections it deems appropriate.”  Parson v. Holman Erection Co., Inc., 428 N.W.2d 72, 76 (Minn. 1988).

728 N.W.2d at 252, 67 W.C.D. at 120-21.

One final point warrants discussion.  The special term conference held on September 30, 2013 was not recorded.  As such, we have no way to know, with any certainty, just what the compensation judge considered in rendering his decision on the merits, and full review of that decision is therefore problematic.  See Ek v. Virginia Reg’l Med. Ctr., No. WC08-235 (W.C.C.A. May 12, 2009).

For all these reasons, we reverse the judge’s decision approving the employee’s request for surgery and remand the matter for appointment of a neutral physician pursuant to Reider, creation of a record concerning the new evidence and arguments submitted to the judge, and reconsideration and new findings on the employee’s surgery claim based on the record as a whole, including the opinion of the neutral examiner.

[1] See Dorland’s Illustrated Medical Dictionary 1343, 1593 (29th ed. 2000).

[2] Torgerson v. ELO Eng’g, slip op. (W.C.C.A. Mar. 15, 1994); Longendyke v. Patent Scaffolding Co., slip op. (W.C.C.A. June 2, 1994).

[3] See Fries v. Indep. Sch. Dist. #47, No. WC12-5480 (W.C.C.A. Jan. 17, 2013).  In Fries, the court also noted that Torgerson was an affirmance on substantial evidence grounds and therefore had little value as precedent.

[4] In Reider, the employee contended that appointment was not mandatory because no prehearing conference was held.  The court expressly rejected that construction of the statute.  Id.

[5] According to the employee, the judge initially advised the employee to file a new medical request.

[6] The employee argues that the employer and insurer failed to follow applicable rules for motions, Minn. R. 1420.2250, subp. 2.  However, the employee points to nothing in the statute or rules indicating that requests of this kind must be made by formal motion.  Moreover, Minn. R. 1420.2250, subp. 2, specifies that motions must generally be filed on or before the date set for a pretrial conference.  As all parties are aware, there was no pretrial conference here.