The employee appeals from the compensation judge’s determination that the employee’s September 4, 2014, fusion surgery was causally related to the employee’s February 17, 2009, work injury, but that the employee failed to establish that the three-level fusion was reasonable or necessary.  We affirm.

The employee was an over-the-road truck driver for the employer, Genmar Transportation, Inc.  On February 17, 2009, at a stop in Denver, Colorado, the employee was re-rolling a set of tarps weighing between 75 and 90 pounds.  The employee testified that as he lifted a tarp he “flopped forward,” experiencing sudden pain in his low back with numbness in the front of his left leg to the knee.

On his return to Minnesota, the employee sought treatment at Advanced Chiropractic beginning on February 20, 2009.  The employee described constant, sharp low back pain of 7-8 out of 10, with pain and numbness in both legs.  A March 9, 2009, MRI scan showed some disc dehydration from L2 to L5, with mild left and right lateral disc bulges at L2-3, L3-4, and L4-5 without disc herniation or neural compression.

Chiropractic treatment failed to improve his low back pain, and on May 14, 2009, the employee began treating with doctors at the Institute for Low Back and Neck Care (ILBNC).  The employee described constant low back pain, weakness in his legs, and some paresthesias in his thighs.  Treatment prescribed by Dr. Thomas Hennessey and Dr. Steven Sabers included diagnostic and therapeutic injections, muscle relaxant and pain medications, and physical therapy.

On July 17, 2009, Dr. Harvey Bishow, an orthopedic surgeon, conducted an examination at the request of the employer and insurer.  The doctor noted limited range of motion with tenderness and spasm in the lower lumbar spine.  The neurological examination was normal.  Dr. Bishow opined that the employee sustained a temporary sprain/strain as a result of the February 17, 2009, injury and that the employee’s ongoing disability and need for medical treatment was the result of pre-existing, non-work-related degenerative disc disease.

In September 2009, the employee reported his lower back pain had gotten worse and his limp had progressed.  Dr. Hennessey noted that lumbar facet joint injections, medial branch block, and sacroiliac (SI) joint injections had provided minimal benefit with no ongoing relief.  A repeat MRI scan on October 1, 2009, revealed mild disc dessication from L2 to L5, a far lateral annular fissure at L3-4, and a disc bulge at L4-5, with no disc herniation, neural compression, or foraminal stenosis at any level.  The radiologist noted no significant change compared to the March 9, 2009, scan.  On October 16, 2009, Dr. Hennessey observed that physical therapy had not been particularly successful.  On examination the employee had pain in the lower lumbar spine with increased pain with range of motion.  Straight leg raising did not produce radicular symptoms.  The doctor noted that although the intensity of the employee’s pain varied during the day, he was still very limited by it.  Dr. Hennessey recommended discography to try to determine a pain generator.

Dr. Hennessey performed a discogram on November 13, 2009, at L3-4, L4-5, and L5-S1 that produced concordant back pain at L4-5 and discordant pain at L3-4 that was higher than where the employee typically felt his pain.^[1]  The discogram and a post-discography CT scan showed annular tears at both L3-4 and L4-5, with a slightly greater radial dissection arc at L4-5, without extravasation.^[2]  A second discography performed at L1-2 and L2-3 on December 11, 2009, produced concordant back pain at the endpoint in L2-3.  The discogram and post-discography CT scan revealed a right posterolateral annular tear at that level with no evidence of leakage of the contrast.

In January 2010, Dr. Hennessey observed the employee had been doing poorly, walking was difficult due to pain, and he was quite limited because of his pain.  The employee requested a surgical consultation, and was referred to Dr. Jeffrey Pinto, an orthopedic surgeon at the ILBNC.  At the initial consultation on January 20, 2010, the employee reported rather severe pain since February 2009.  Dr. Pinto reviewed the employee’s medical treatment to date, the discograms, and the October 2009 MRI scan.  The doctor noted the discogram was negative at L5-S1, positive at L4-5 with concordant pain, caused discordant pain at L3-4, and caused concordant pain at L2-3.  Dr. Pinto interpreted the MRI scan as showing mild degenerative disc changes at L4-5 with some mild facet changes, and even milder changes at L2-3 and L3-4.  The doctor concluded that additional screening was needed, and referred the employee for an EMG due to the weakness and irritability in his left leg, and additional diagnostic facet blocks.  The EMG was normal with no evidence of focal or peripheral neuropathy, myopathic changes, or lumbosacral radiculopathy in the left lower extremity.  The L2-3 facet block did not provide any significant relief.

Dr. Pinto presented the employee’s case at a case review conference on May 26, 2010.  The doctor reported the surgeons and non-operative physicians essentially agreed that if there was one bad-looking disc it was L4-5.  A Lidocaine/Marcaine intradiscal injection at L4-5 was ordered to see if it would eliminate the employee’s pain.  Dr. Pinto stated that if it did, then surgery could possibly be done at the L4-5 level only.  If the block did not work, Dr. Pinto stated multilevel surgical intervention “is likely not going to be a wise choice for him.”  (Ex. 2, 5/26/10.)

On July 21, 2010, Dr. Pinto summarized his conclusions stating:

The employee was last seen by Dr. Pinto on September 23, 2010.  The doctor stated he had a lengthy discussion with the employee about possible treatment options, and stated again he thought that surgical intervention was “ill-advised.”

The employee began chronic pain treatment with Dr. Todd Hess at United Pain Center in September 2010.  Dr. Todd noted ongoing difficult-to-treat lumbar spine pain.  The employee described the pain as throbbing, stabbing, sharp, intense, and continuous, with the pain ranging from 3 out of 10 to 9 out of 10.  He stated the longer he stood, the worse the back pain was, and he started getting numbness in his left leg.  Dr. Todd concluded the employee suffered primarily from lumbar discogenic pain along with some lumbar facet and SI joint problems.  The doctor prescribed regular warm pool therapy for reconditioning, repeat injections as needed, medications for pain, daily exercise as tolerated, and a core strengthening program.  Dr. Todd and the employee discussed at length the employee’s problem with falling.  The doctor concluded there did not appear to be any neurologic basis, but felt it might be attributable to the pain itself.  In December 2011, the employee also began working with physical therapist John Hoops at United Pain Center focusing primarily on SI joint and pelvic dysfunction.

In December 2012, Nurse Practitioner Sharon Momanyi at United Pain Clinic suggested a follow-up evaluation with neurosurgery at the ILBNC.  On January 16, 2013, the employee was seen by Adam Robinson, a certified physician’s assistant (PA-C) at ILBNC-Sartell.  The PA-C noted the employee had “three-level confirmed discogram positive discogenic low back pain.”  (Ex. 2, 1/16/13.)  The employee reported his medications were no longer helping him, and rated his pain as 5-6 out of 10 on a daily basis, typically increased by activity.  A repeat MRI scan on January 20, 2013, revealed a mild disc bulge/protrusion with a right-sided annular tear at L4-5 with osteophytes, and minimal degenerative changes at L2-3 and L3-4 with no herniation or central stenosis.  No significant change was noted when compared to the October 1, 2009, scan.  PA-C Robinson noted the employee continued to reported his pain as 5-6 out of 10, but felt improved since tapering off some of his medications.  No further interventional recommendations were made.

By the fall of 2013, the employee testified, his low back pain was worsening, he was having problems with balance when walking, and Dr. Hess was having trouble effectively managing his pain.  On April 30, 2014, the employee was going down steps at his home when he fell breaking his lower rib.  Dr. Hess noted at the May 20, 2014, visit that the employee had not been doing well since the fall, and “to rule out further spinal problems” he referred the employee to Dr. Sunny Kim, an orthopedic surgeon at Tristate Brain and Spine Institute.^[3]

Dr. Kim saw the employee on May 28, 2014.  The doctor recorded a five year history of low back pain with radiation into the left lateral thigh.  Dr. Kim interpreted the employee’s January 20, 2013, MRI scan as showing a tear and central disc herniation at L4-5 on the left with some extension into the neural foramen that he believed was consistent with the employee’s symptoms.  The doctor noted a 2009 MRI scan revealed the same pathology.  Dr. Kim indicated the employee had a previous lumbar discogram, and had seen Dr. Pinto “who suggested three level lumbar fusion.”  (Ex. 5, 5/28/14.)  An upright MRI scan on June 25, 2014, revealed mild annular bulging without significant foraminal narrowing or nerve root impingement at L2-3 and L3-4 and a central disc bulge/protrusion with a small annular tear and mild facet arthropathy at L4-5.

On July 3, 2014, Dr. Kim performed a lumbar discogram at L2 to L5.  Mild discordant pain was reproduced at L2-3 and concordant low back pain was reproduced at L3-4 and L4-5.  No leg pain was produced at any level.  A post-discogram CT scan showed disc degeneration at L2-3 and L3-4 with no significant canal or foraminal stenosis.  At L4-5 the scan revealed a right lateral radial tear with diffuse annular fissuring and mild diffuse epidural and foraminal perineal contrast.  Dr. Kim diagnosed chronic low back pain due to lumbar discogenic low back pain syndrome.  On July 15, 2014, Dr. Kim observed that numerous conservative measures had failed to relieve the employee’s severe low back pain, and, based on the discogram, recommended a three-level fusion.

On September 4, 2014, the employee underwent an oblique lateral lumbar interbody fusion from L2 to L5 with discectomy and instrumentation, performed by Dr. Kim.  Following the surgery, the employee’s back pain improved, but he experienced extreme weakness in the quads of his left thigh and weak dorsi/plantar flexion of the left foot.  On September 10, 2014, the employee was discharged to a nursing home for further rehabilitation.

Physical therapy intake at the care home indicated the employee had minimal back pain and that the complicating factor post-surgery was his very impaired left lower extremity due to paresis involving the left hip flexors/abductors, left quadriceps, and left dorsiflexors.  The employee was moving with significant difficulty and required a four-wheel walker and a knee immobilizer to ambulate.  The employee was discharged home on September 22, 2014, and was able to walk without the knee immobilizer.  He continued to have cramping pain in the left leg and residual left thigh pain and weakness, and still required a wheeled walker to ambulate.

The employee was seen in follow-up at Dr. Kim’s office on October 7, 2014.  He reported his previous back pain had subsided, but he continued to experience left leg pain of 6-7 out of 10.  The employee reported constant numbness down the front of his leg “to his big toe” and feeling as though his leg might give out.  A referral to physical therapy was made to evaluate and treat for left lower extremity weakness.

On November 23, 2014, the employee was seen in the Douglas County Hospital emergency room with severe low back pain, uncontrolled by pain medications.  A CT scan was taken that was reviewed by Dr. Kim at a follow-up visit on December 9, 2014.  The fusion appeared to be consolidating well.  The employee reported his back pain was 4 out of 10 at its most intense and that his leg pain was essentially gone, but he continued to have some numbness.  His left leg motor strength appeared back to normal.  Dr. Kim felt the employee’s low back spasms might be due to delayed healing and recommended wearing a back brace and use of a bone growth stimulator until further consolidation of the fusion.

On December 4, 2014, the employee was examined by Dr. Albert Meric, a neurosurgeon, at the request of the employer and insurer.  The employee reported he had not required a walker before the surgery and had had severe left leg weakness ever since the surgery.  He stated he continued to have back pain, but felt it was improved.  The employee indicated he continued to take the same amount of pain medications he was taking prior to the surgery.  On examination, the employee was markedly weak in all muscle groups of the left lower extremity, with subjective sensory loss in the entire left foot.  Dr. Meric concluded that the medical records and the employee’s current complaints suggested the employee was markedly worse since the September 4, 2014, surgery.  The doctor noted objective findings on examination including positive straight leg raising on the left, depression of the left patellar reflex, and atrophy of the left quadriceps muscle.  Dr. Meric opined the employee’s current condition was a surgical failure resulting in a multilevel lumbar radicular pain syndrome, with numbness in the L4, L5, and S1 nerve distributions on the left and nerve root weakness.  In Dr. Meric’s opinion, however, the employee’s current condition was not causally related to the February 17, 2009, work injury.  The doctor opined the employee sustained a temporary lumbar muscle strain injury with maximum medical improvement by April 17, 2009.  Dr. Meric further opined that the fusion surgery was not reasonable or necessary, regardless of causation.  The doctor stated there were no solid indications for the surgery.  Dr. Meric maintained the employee never had true radicular findings on any documented examinations after the injury; the pain into the left leg was not associated with any motor deficit, stopped at the knee, and was most affected by standing; and there was no evidence of nerve root impingement on any of his MRI scans.  The employee did not, he opined, have a good clinical picture for discogenic pain.  In Dr. Meric’s opinion, Dr. Pinto made the correct decision to defer surgery based upon his recognition that the employee’s subjective symptoms did not fit the objective findings or diagnostic studies, and could not be correlated with the results from discography.

By letter report dated February 17, 2015, Dr. Kim stated the employee had had chronic incapacitating low back and intermittent mostly left leg pain since the 2009 work injury.  The doctor stated the July 18, 2014, discogram and post-discography CT scan showed a complete rupture of the disc with leakage of the dye into the epidural space narrowing the left L4-L5 subarticular recess reproducing significant concordant pain.  The other discs were also grossly degenerated and torn and produced severe low back pain.  Since the employee had chronic severe pain for more than five years, resistant to all types of conservative care, a three-level spinal fusion was appropriate.  Dr. Kim acknowledged the employee did have a neurological injury related to the fusion surgery, but maintained the employee had recovered almost fully from that injury with a normal motor examination of the lower extremity documented on recent examinations.  The employee’s current problem, according to Dr. Kim, was recurrent low back pain that came about after post-surgery physical therapy sessions.  The severe low back pain disappeared for a few months and then returned.  Dr. Kim felt the most likely cause was delayed union or nonunion of the fusion.  The employee was immobilized in a rigid back brace to further promote the fusion for at least the next six months.  Dr. Kim opined that the employee’s low back condition was substantially aggravated by his February 17, 2009, work injury.  In particular, in his view, the injury could have torn the L4-5 disc causing chronic low back and leg pain.  Dr. Kim further opined that the medical care and treatment he provided to the employee was reasonable and necessary to cure and relieve the effects of the work-related injury.

On March 9, 2015, the employee filed a claim petition seeking payment of medical expenses incurred for the three-level fusion surgery performed on September 4, 2014.^[4]  The employer and insurer denied liability asserting the surgery was not reasonable or necessary or causally related to the employee’s work injury.  The case was heard by Compensation Judge Brenden on May 13, 2015.  In a Findings and Order, served and filed June 4, 2015, the judge denied the employee’s claims.

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).

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), summarily aff'd (Minn. June 3, 1993).

The compensation judge found the employee failed to establish that the three-level fusion performed by Dr. Kim on September 4, 2014, was reasonable or necessary.  (Finding 11.)  On appeal, the employee contends that application of the treatment parameters requires a finding that the fusion surgery was reasonable and necessary.

The general treatment parameter, Minn. R. 5221.6050, subp. 1.A., provides that all treatment must be medically necessary as defined in Minn. R. 5221.6040, subp. 10.  “Medically necessary treatment” is defined by subpart 10 as “those health services for a compensable injury that are reasonable and necessary for the diagnosis and cure or significant relief of a condition consistent with any applicable treatment parameter in parts 5221.6050 to 5221.6600.”

The employee asserts the applicable treatment parameter in this case is Minn. R. 5221.6500, subp. 2.C.(1)(d)(i), which provides that lumbar arthrodesis surgery is reasonably required if the employee has incapacitating low back pain for longer than three months and degenerative disc disease with positive discogram at one or two levels of the spine involving lumbar segments L-3 and below.  The employee maintains that based upon the evidentiary record and the employee’s testimony, he satisfied the requirement of incapacitating low back pain for more than three months.  See Kappelhoff v. Tom Thumb Food Mkts., 59 W.C.D. 479 (W.C.C.A. 1999).  Second, the employee asserts that Dr. Meric, PA-C Robinson, and Dr. Kim confirmed the employee had multiple discograms with positive results at two levels at least.  Finally, the employee argues the compensation judge’s reliance on Dr. Pinto’s 2010 opinion was misplaced and erroneous.  The employee states that Dr. Hess, the employee’s chronic pain physician, referred the employee to Dr. Kim for a surgical consultation in 2014, more than three years after Dr. Pinto had last seen the employee.  In the meantime, the employee asserts, the chronic pain program had failed, the employee’s legs were giving out from under him, and even the use of significant narcotic medication was not alleviating the employee’s pain.

Accordingly, the employee contends that because he satisfied the requirements of Minn. R. 5221.6500, subp. 2.C.(1)(d)(i), governing lumbar fusion surgeries, the compensation judge’s determination is contrary to law and must be reversed.  We disagree.

The employer and insurer contend the employee is precluded from arguing that Minn. R. 5221.6500, subp. 2.C.(1)(d)(i), requires a finding that the lumbar fusion is compensable as the employee failed to raise the issue of application of the treatment parameters at the hearing before the compensation judge.

This court has recognized that the medical treatment parameters are complex and are not workable in litigation unless the parties inform the compensation judge that application of the parameters is at issue.  Lewis v. St. Therese Home, Inc., slip op. (W.C.C.A. Mar. 31, 2004); Boryca v. Marvin Lumbar & Cedar, slip op. (W.C.C.A. Nov. 10, 1999).  A party relying on the treatment parameters must identify the specific rule(s) relevant to the treatment at issue and how the specified parameter(s) is applicable to the facts of the case.  These arguments must be made at the hearing before the compensation judge.  See e.g., Lowe v. Alexandria-Peterson, 75 W.C.D. 151 (W.C.C.A. 2015); Pinc v. Stepping Out, Inc., 69 W.C.D. 181 (W.C.C.A. 2009); Rosch v. Long Prairie Mem’l Hosp., slip op. (W.C.C.A. Oct. 1, 2003).

The parties agreed at the hearing below that the issues before the compensation judge were whether the fusion surgery was causally related to the employee’s work injury and the reasonableness and necessity of the procedure.  (T. at 5-6.)  In the statement of issues in the Findings and Order, the compensation judge stated the issue was whether the three-level fusion performed on September 4, 2014, was reasonable, necessary, and causally related to the employee’s February 17, 2009 work injury.  There is nothing in the record that indicates that either party mentioned the treatment parameters or asked the judge to apply the treatment parameters, and the judge reached her decision applying general case law principles governing the reasonableness and necessity of medical treatment.

Where the applicability of the treatment parameters was not raised at the hearing below, this court will not consider the question for the first time on appeal.  Lowe, 75 W.C.D. 151; Lewis, slip op. (Mar. 31, 2004); Rosch, slip op. (Oct. 1, 2003).

The employer and insurer additionally argue that the treatment parameters do not apply to the employee’s request for payment of medical expenses related to the lumbar fusion surgery as the employer and insurer denied liability.

Minn. R. 5221.6020, subp. 2, provides that the parameters “do not apply to treatment of an injury after an insurer has denied liability for the injury.”  For the purpose of application of the medical treatment parameters, a denial of liability includes both a denial of primary liability and a denial of medical causation for subsequent symptoms or conditions.  Pinc, 69 W.C.D. 181; Mattson v. Northwest Airlines, slip op. (W.C.C.A. Nov. 29, 1999).  Likewise, an employer and insurer’s claim that an injury was temporary in nature, but has fully resolved, negates the application of the treatment parameters.  Oldenburg v. Phillips & Temro Corp., 60 W.C.D. 8 (W.C.C.A. 1999).

As far back as July 2009, Dr. Bishow, the employer and insurer’s first medical examiner in this case, opined the appellant sustained a temporary injury in the nature of a low back strain/sprain with pre-existing degenerative disc disease.  Dr. Meric, in his December 17, 2014, IME report, opined the employee sustained a temporary lumbar strain/sprain injury that fully resolved by April 17, 2009, and that the fusion surgery was not causally related to the work injury.  The employer and insurer in their March 11, 2015, answer to the employee’s claim petition affirmatively alleged the employee sustained a temporary lumbar strain on February 17, 2009, and denied liability for the employee’s claimed disability and need for treatment.  At the hearing, the employer and insurer continued to assert their denial of liability, maintaining the employee sustained nothing more than a temporary low back strain on February 17, 2009, and that the employee’s injury was not causally related to the September 4, 2014 surgery.  (T. at 14.)

Because the employer and insurer denied medical causation for the employee’s condition at the time of the fusion surgery, the medical treatment parameters do not apply.

The employee, however, citing Armstrong v. RJ Sport & Cycle, 71 W.C.D. 235 (W.C.C.A. 2011), asserts that even if the treatment parameters are not applicable, they do provide guidance for analyzing whether the medical treatment was reasonable and necessary.  In Armstrong, however, this court found the treatment parameters inapplicable and vacated the compensation judge’s order awarding payment for a chronic pain management program applying the parameter rules.  The employee also contends that in Oldenburg, 60 W.C.D. 8, this court indicated the applicability of the treatment parameters is a threshold question of law and stated that the court could undertake review in the absence of a failure to raise the issue before the compensation judge.  In Oldenburg, the employee argued the compensation judge erred in applying the treatment parameters because the employer and insurer had denied primary liability.  The employer and insurer argued that the employee’s failure to raise this issue before the compensation judge meant it could not be addressed on appeal.  This court reiterated that issues not raised at the trial level will generally not be considered for the first time on appeal, but concludedthis particular issue, involving only a question of law applied to uncontroverted facts, which was dispositive of the controversy, could be reviewed.  That is not the case in this matter.

Citing Stordahl v. Advanced Comm’ns, Inc., 67 W.C.D. 336 (W.C.C.A. 2007), the employee additionally argues that based on the facts in the record, the treatment parameters permitted the employee to go forward with his three-level fusion surgery on September 4, 2012.

Pursuant to Minn. R. 5221.6050, subp. 9.A.(3), a health care provider is required to notify an insurer of a proposed surgery at least seven working days before performing the procedure.  The insurer may respond to the provider’s request by approving the request, denying authorization, or requesting an independent medical examination (IME).  Minn. R. 5221.6050, subp. 9.C. and subp. 9.C.(6).  After 45 days following the insurer’s request for an IME, the health care provider may elect to proceed with the surgery.

Dr. Kim’s chart note of July 15, 2014, states that “we will get WC authorization for the procedure.”  There is nothing in the trial record that indicates when or to whom such a request was made, or what, if any, communication was made by the employer or insurer to Dr. Kim’s surgical request.  The record does not contain a request for an IME other than a letter to Dr. Meric dated December 1, 2014, regarding the IME scheduled for December 4, 2014.^[5]

In Stordahl, this court stated we were not willing to conclude that an employee may not proceed with treatment if there is a dispute over the reasonableness of the treatment.  However, the court further stated that 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.  Stordahl, 67 W.C.D. 336.

In O’Neil v. Nelson Roofing, Inc., slip op. (W.C.C.A. June 19, 2000), the employee filed a medical request on April 12, 1999, seeking approval for a surgery, and on April 19, 1999, the employer and insurer filed a medical response refusing to pay for the treatment.  The employee underwent an L4-5 discectomy with L4-L5 arthrodesis on July 1, 1999.  The employer and insurer did not deny that they received prior notification of the employee’s physician’s surgical recommendation.  However, as noted by the court, while an employee may elect to proceed with a proposed surgery after denial by the insurer or election of an IME by the insurer, it is “subject to a later determination of compensability by a compensation judge.”  Minn. R. 5221.6050, subp. 9.C.  The judge in this case found the surgery was not reasonable or necessary.

The employer and insurer argue that, assuming the treatment parameters are found applicable, Minn. R. 5221.6500, subp. 2.C.(1)(d)(i), does not require a finding that the employee’s three-level fusion is compensable.

In Pelowski v. K-Mart Corp., 627 N.W.2d 89, 61 W.C.D. 276 (Minn. 2001), the employee challenged a compensation judge’s denial of his claim for medical expenses for a two-level fusion surgery.  The compensation judge found Minn. R. 5221.6500, subp. 2.C.(1)(d)(i), applied to the employee’s claim, that the requirements of degenerative disc disease and a positive discogram at one or two levels had been met, but concluded there was a lack of objective findings that would indicate the need for fusion surgery.  The supreme court held the compensation judge’s findings were supported by substantial evidence and affirmed the denial of benefits, accepting the compensation judge’s evaluation of the testimony and assessment of the evidence.

In this case, as the treatment parameters were not raised at the trial level, the compensation judge did not consider whether Minn. R. 5221.6500, subp. 2.C.(1)(d)(i), applied to the employee’s claim.  Instead, the compensation judge evaluated the employee’s testimony and weighed conflicting medical opinions.  The judge found that both Dr. Pinto and Dr. Meric advised against surgical intervention based on MRI scans that revealed mild to minimal disc degeneration from L2 to L5 without nerve root impingement or stenosis of any significance, a negative left lower extremity EMG, the questionable correlation between the employee’s symptoms and diagnostic test results, and the remote likelihood, based on the employee’s clinical findings, that a three-level fusion would offer any good relief.

Both Dr. Pinto and Dr. Meric reached their opinions on the reasonableness and necessity of a three-level lumbar fusion only after examining the employee, obtaining a thorough history of his low back symptoms and treatment, reviewing the employee’s extensive medical records, and examining the employee’s MRI scans and at least one of the employee’s discograms.  Dr. Kim was the only physician to recommend fusion surgery.  The case involves a significant surgical procedure and there was a wide divergence between the surgical opinions of Drs. Pinto and Meric and that of Dr. Kim.  It is the responsibility of the compensation judge to weigh the evidence, including the persuasiveness of medical expert opinion.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).

Finally, the employer and insurer argue the appealed findings and order are not clearly erroneous and are supported by substantial evidence in the record as a whole.  Other than arguing that the compensation judge’s reliance on Dr. Pinto’s 2010 opinion was misplaced and erroneous in the context of the application of Minn. R. 5221.6500, subp. 2.C.(1)(d)(i), the employee did not raise the issue of whether the compensation judge’s findings and order were supported by substantial evidence.  This court’s authority to review a compensation judge’s decision on appeal is limited to the issues raised by the party in the notice of appeal.  Minn. Stat. § 176.421, subd. 6.  This issue is, accordingly, deemed waived and will not be decided by the court.  See also, Minn. R. 9800.0900, subp. 1.