The employee, Lon Gamble, injured his low back when he fell from a ladder in the course and scope of his employment at the self-insured employer herein, Twin Cities Concrete Products, on May 24, 2010.

After some initial treatment, the employee had an MRI on July 1, 2010.  The MRI revealed a prior hemilaminectomy at L4-5, without evidence of recurrent disc protrusion.  It also revealed mild facet arthropathy at L4-5 with mild foraminal narrowing.  The MRI also showed “minimal spondylosis at L5-S1,” with bilateral foraminal narrowing, and the spondylosis contacted the left L5 nerve root in the left neural foramen.

The employee began treating with Dr. Christian DuBois in mid-July 2010.  The employee reported low back pain and pain down both legs all the way to his feet.  Doctor DuBois reviewed the MRI and opined that the employee’s condition did not warrant anything surgical.  He recommended an epidural injection.

The employee underwent epidural injections in July and September 2010, which provided little relief.  He also had a course of physical therapy, without a positive result.  Doctor DuBois took the employee off work in October 2010, and in early November 2010, Dr. DuBois recommended a two-level fusion from L4 to S1.

The employee filed a claim petition seeking workers’ compensation benefits, including the recommended medical treatment.  The self-insured employer sent the employee for an independent medical examination with Dr. David Florence on December 21, 2010.  Doctor Florence opined that there were “very weak” degenerative changes at L4-5 and L5-S1, and he noted elements of functional overlay.  Doctor Florence opined that the employee had unusual symptomatology, and he noted that the employee had “not been appropriately worked up” by a neurologist, which would determine the origin of his symptoms.  Doctor Florence concluded that surgery was unreasonable and unnecessary, stating that it was “contraindicated in view of the total picture and the lack of surgical guidelines.”  Based, in part, on Dr. Florence’s opinion, the employer denied payment for the recommended fusion surgery.

The employee began to report shooting pain down the back of both of his legs along with numbness in January 2011.

The employee underwent a second opinion examination with Dr. Thomas Rieser at Midwest Spine Institute on February 23, 2011.  Doctor Rieser noted that the employee had low back pain and bilateral hip and leg pain “global” in nature and radiating to the feet.  He diagnosed the employee with “Mechanical back pain secondary to multiple level degenerative disc disease that has been aggravated.”  With regard to the recommended fusion, Dr. Rieser stated, “[t]he only commend [sic] I would make would be discography simply to make sure that there is more objective correlation between degeneration and his pain.”  He went on to state that “[c]ertainly if there is good correlation and a good control level at L3-4 I feel it would be reasonable to proceed with a fusion.”

The employee and Dr. DuBois discussed the possibility of disc replacement instead of fusion surgery.  The employer denied approval for that procedure as well.  However, the employee’s Health and Welfare Fund (“the Fund”) agreed to pay for the proposed fusion surgery.  The employee then proceeded with the fusion surgery on April 20, 2011, and Dr. DuBois performed the fusion at Lakeview Hospital (“Lakeview”).  Lakeview charged $67,460.25 for its role in the fusion surgery, of which the Fund paid $52,809.36.

The parties proceeded to hearing in June 2011 to consider, among other things, whether the fusion surgery was causally related to the employee’s work injury, whether the surgery was reasonable and necessary, and who was responsible for the medical expenses related to that surgery.  Before the hearing, the employee notified the Fund and some of the medical providers of their right to intervene in the proceeding, but failed to notify Lakeview of its intervention right.  Based on the record, including the opinions and notes of the treating physicians, the workers’ compensation judge concluded that the fusion surgery was not reasonable and necessary.  The compensation judge ordered the self-insured employer to reimburse the Fund for its payment of the medical expenses and authorized the employer to seek reimbursement from the medical providers, including Lakeview.

The self-insured employer reimbursed the Fund and then filed a medical request seeking reimbursement from the medical providers.  Lakeview filed a motion to intervene, in which it sought to obtain payment of the unpaid balance of the employee’s medical bills.  Following a second hearing in September 2012, the workers’ compensation judge evaluated the evidence, including new evidence presented by Lakeview, and determined that the surgery was not reasonable and necessary and ordered the medical providers to reimburse the self-insured employer for the medical bills it had paid to the Fund.

This court reversed, concluding that the automatic-reimbursement rule of Brooks v. A.M.F., Inc., 278 N.W.2d 310, 314-15, 31 W.C.D. 521, 530-31 (Minn. 1979) (companion case to Hendrickson v. Central States Insulation, Inc., 278 N.W.2d 310, 31 W.C.D. 521 (Minn. 1979)) applied, and that Lakeview Hospital was entitled to payment in full of its medical charges because it had not been given notice of its right to intervene in the initial hearing.

The Minnesota Supreme Court reversed, concluding that “when an employer fails to give a medical provider notice of its right to intervene in a workers’ compensation proceeding, the medical provider is not entitled to automatic payment of its medical bill under Brooks, unless the medical provider can show the lack of notice resulted in prejudice.”  Gamble v. Twin Cities Concrete Prods., 852 N.W.2d 245, 249, 75 W.C.D. ___ (Minn. 2014).  The Supreme Court went on to explain that there was “no material prejudice to Lakeview or any other party” because the employee “established that his injury was work-related at the June 2011 hearing, and therefore the remaining issue was whether [the employee’s] back surgery was reasonable and necessary.”  Id. at 250, 75 W.C.D. at ___.  The compensation judge revisited the issue de novo at the second hearing, and as the Supreme Court summarized, “Lakeview relied upon the evidence presented at the June 2011 hearing and presented new testimony from [the employee] and a new report from Dr. DuBois.”  Id., 75 W.C.D. at ___.  The Supreme Court concluded that the procedures employed by the workers’ compensation judge ensured that Lakeview Hospital’s interests were protected and not materially prejudiced.  Id., 75 W.C.D. at ___.

Following its conclusion that Lakeview Hospital was not entitled to automatic payment of its medical bills pursuant to Brooks, the Supreme Court remanded the case to this court to decide whether the workers’ compensation judge’s conclusion that the surgery was not reasonable and necessary is supported by the record.  Id. at 251, 75 W.C.D. at ___.

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, 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).

Minn. Stat. § 176.135, subd. 1(a), requires an employer to “furnish any medical . . . surgical and hospital treatment . . . as may be reasonably required at the time of injury and any time thereafter to cure and relieve from the effect of the injury.”  The reasonableness and necessity of medical treatment pursuant to Minn. Stat. § 176.135 is a question of fact for the compensation judge.  See, e.g., Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993).

The issue of reasonableness and necessity of the treatment at issue was raised before the compensation judge at both hearings.  The compensation judge found, after both hearings, that the fusion surgery was not reasonable and necessary.  Lakeview raised the issue of reasonableness and necessity before this court as a part of its initial appeal, but we did not reach it because of the conclusion that Lakeview was entitled to automatic reimbursement pursuant to Brooks.  Lakeview and the self-insured employer both fully briefed the issue of reasonableness and necessity as a part of the initial appeal, and neither party submitted additional briefs or arguments on remand.

Lakeview first challenges finding 8, in which the compensation judge cited the employee’s testimony that he had an excellent result from the fusion surgery and found that he had returned to work with restrictions but was not able to do “a lot” of bending and lifting.  Lakeview argues that the employee actually had lifting restrictions of about 35 to 40 pounds, including squatting and lifting from floor to waist.  Therefore, Lakeview argues that the finding was inconsistent with the restrictions.  As a general rule, it is not the role of this court to re-evaluate the credibility and probative value of witnesses’ testimony.  Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).  There is no dispute that the employee does have restrictions on the amount he can lift and on movements such as bending.  Although the employee also testified that he had improvement in his symptoms following his fusion surgery, he also testified that he has some ongoing symptoms and limitations, stating “a lot of bending and squatting, I’m not able to do a lot of that.”  Therefore, there is substantial evidence to support the compensation judge’s determination in finding 8, and we will not disturb it on appeal.

Lakeview next challenges finding 9, in which the compensation judge states, “[t]here was no neurological consultation, EMG, discogram, or psychological consultation done before the surgery.”  Although this finding is factually true, Lakeview argues that the lack of these various tests would not render the fusion unreasonable and unnecessary.  Dr. DuBois opined that the additional tests/diagnostics would not have been necessary for the spinal fusion.  However, Dr. Florence stated that the lack of additional diagnostics contributed to his opinion that the fusion was not reasonable and necessary.  Dr. Rieser indicated that a discogram should be performed to determine whether there was objective evidence to confirm the employee’s subjective symptoms.  If so, he would recommend surgery as well.  Lakeview may be correct in its assertions that surgery has been found reasonable where it resulted in a substantial reduction in an employee’s pain complaints^[1] and even where a treating physician has indicated that additional diagnostics are not necessary, as Dr. DuBois opined here.^[2]  However, those findings would not mandate a finding that the surgery was reasonable and necessary.  Furthermore, the opinions of Dr. Florence and Dr. Rieser both suggest that additional diagnostics were necessary, or at least desirable, before the fusion surgery.  It is the compensation judge’s responsibility, as trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).  Here, substantial evidence, including the opinions of Dr. Florence and Dr. Rieser, supports finding 9, and it was not error for the compensation judge to consider the additional diagnostics as a factor in making the reasonableness and necessity determination.

Lakeview next challenges finding 11, in which the compensation judge noted that “[n]one of the doctors who examined the employee found sensory loss or any other objective neurological findings.”  Lakeview argues that this fact is insignificant, especially given Dr. DuBois’s indication that “frank neurological findings are not considered necessary for spinal fusion.”  However, Dr. Florence opined that this was a significant factor, and he stated that this weighed against the reasonableness and necessity of the fusion.  Therefore, substantial evidence supports finding 11, and it was not error for the compensation judge to consider a lack of neurological findings as a factor in making the reasonableness and necessity determination.

Lakeview also argues that the compensation judge implicitly determined that the employee’s testimony and Dr. DuBois’s opinions were not credible.  Lakeview argues that it was inappropriate to make credibility determinations without specific findings on credibility.  A compensation judge, however, is not required to “make specific findings as to credibility of witnesses or discuss credibility in a memorandum.”  Bangs v. Bloomington Elec., slip op. (W.C.C.A. Oct. 16, 2001).  The compensation judge did discuss the reasons that he chose not to credit Dr. DuBois’s opinions in his memorandum, including the lack of additional diagnostics, the results of the MRI scan, and the lack of a definite symptom pattern.  Although the compensation judge did not state that the employee was not credible, he did note Dr. Florence’s opinion that the employee was showing signs of functional overlay, and he noted that “the employee did not complain of axial back pain until after Dr. DuBois told him that surgery was not appropriate because he did not have significant axial back pain.”

Again, the reasonableness and necessity of medical treatment is a question of fact for the compensation judge.  Hopp, 499 N.W.2d 812, 48 W.C.D. 450.  The assessment of a witness’s credibility is the unique function of the trier of fact, and this court must give due weight to the opportunity of the compensation judge to observe the witness and assess his or her credibility.  Even v. Kraft, Inc., 445 N.W.2d 831, 834, 42 W.C.D. 220, 225 (Minn. 1989); Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988).  It is the compensation judge’s responsibility, as trier of fact, to resolve conflicts in expert testimony.  Nord, 360 N.W.2d at 342, 37 W.C.D. at 372.  Ultimately, it is not the role of this court to re-evaluate the credibility and probative value of witnesses’ testimony.  Redgate, 421 N.W.2d at 734, 40 W.C.D. at 957.  Because there is substantial evidence in the record to support the compensation judge’s determination that the fusion surgery was not reasonable and necessary, we affirm.