MEDICAL TREATMENT & EXPENSE – SURGERY. Substantial evidence in the form of a well-founded medical opinion supports the compensation judge’s determination that the surgery proposed by the employee’s treating doctor is reasonable and necessary to cure and relieve from the effects of the employee’s October 1, 1998, work injury.
Compensation Judge: Miriam P. Rykken
Attorneys: Mark G. Olive, Sieben Carey, Minneapolis, Minnesota, for the Respondent. Steven T. Scharfenberg, Lynn, Scharfenberg & Hollick, Minneapolis, Minnesota, for the Appellants.
Affirmed.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the determination of the compensation judge that surgery proposed by the employee’s treating doctor is reasonable and necessary to cure and relieve the effects of the employee’s October 1, 1998, work injury. We affirm.
Mark Puffer was working for Precision Tune when he sustained an injury to his low back on October 1, 1998. The employer and its insurer, SFM, accepted liability for the work injury.
Since the time of injury, Mr. Puffer has had extensive medical care for his low back. On April 25, 2001, he had surgery performed by Dr. Garry Banks at Mercy Hospital. The preoperative diagnosis was L4 to S1 disc degeneration with discogenic back pain and left L5, S1 disc herniation. The operative procedure was described as:
Further surgery was necessary and was done by Dr. Banks on January 16, 2002. His preoperative diagnoses were post L4-S1 fusion and probable failure of fusion, L4-5. Failure of the fusion was confirmed by the surgery. Surgery consisted of removal of the hardware, revision of the fusion, revision of the instrumentation, right posterior iliac crest bone graft, reconstruction of the iliac crest, and injection of intrathecal morphine and fentanyl.
The employee testified at the hearing that his symptoms had not been improved by the surgeries. He continued to have low back pain with radiating pain into both legs. The employee was self-employed in the auto repair business after his 2001 and 2002 surgeries and was able to modify his work to stay within a 30 pound lifting limitation set by his doctors.
Mr. Puffer began treating with Dr. James Schwender at Twin Cities Spine Center on June 4, 2003. According to the chart note from that date, Mr. Puffer advised Dr. Schwender that he “cannot live with the pain at its present state.” The employee had facet joint injections in 2004 and stated it “helped to some degree.”
The employee did not treat with Dr. Schwender after October 6, 2004, until he returned to see him on March 27, 2012. Mr. Puffer told Dr. Schwender that his pain had been progressing and became so great that he had to sell his business. Dr. Schwender recommended pedical screw removal to alleviate the employee’s symptoms. That procedure was done on March 20, 2013. At a three-month follow-up, it was noted that the employee continued to have low back pain as well as bilateral lower extremity pain. At that time, the employee was on opioid pain medication. Dr. Schwender’s subsequent recommendation was for pain management.
The employee last saw Dr. Schwender on February 20, 2014. In his chart note, Dr. Schwender stated, “At this point I would recommend continued non-operative care or consideration of a dorsal column stimulator evaluation.”
In 2013, Mr. Puffer was referred to the Midwest Spine Institute and he saw Dr. Glenn Butterman on October 28, 2013. X-rays taken at that time “revealed obvious osteopenia/osteoporosis.” An MRI also showed disc herniation at L3-4 and bilateral foraminal stenosis. Dr. Butterman recommended a DEXA scan to measure the extent of bone loss in the spine. The scan showed osteoporosis and Dr. Butterman discussed possible surgery options with the employee. Dr. Butterman also started the employee on a regimen of medication and vitamins to help build up his bone density to improve the likelihood of success for surgery.
The employee continued to see Dr. Butterman on a regular basis after his initial visit. At the office visit on December 3, 2014, Dr. Butterman stated the employee was “significantly worse.” He had increased pain and weakness in both legs. X-rays on that date showed progressive unstable degenerative spondylolisthesis at L3-4. Dr. Butterman noted at that visit that a TENS unit had been prescribed on two separate occasions but had been denied by the workers’ compensation insurer. Dr. Butterman concluded “we are heading toward an L3-4 total disc replacement with decompression.”
In a follow-up appointment on December 19, 2014, Dr. Butterman noted the employee was “quite miserable. We had been hoping to do a total disc replacement and decompression L3-4 as well as to minimize the chance of the adjacent levels getting worse.” The employer and insurer denied the requested treatment.
A claim petition was filed on behalf of the employee in October 2015, seeking approval for surgery recommended by Dr. Butterman. A hearing on the claim petition was held on March 11, 2016, before Compensation Judge Miriam Rykken.
The employer and insurer relied on the medical opinion of Dr. John Sherman. At the request of the employer and insurer, Dr. Sherman had evaluated the employee on January 16, 2014, March 4, 2015, and February 10, 2016. In his last report, Dr. Sherman reiterated his previous opinion that the employee was not “a candidate for any further surgical intervention.” Dr. Sherman recounted the employee’s history of “little or no improvement after his past surgeries” and added “the likelihood that Mr. Puffer would have a long-term significant improvement in his clinical situation with any surgical intervention . . . is vanishingly small and cannot be recommended.” Dr. Sherman had no treatment recommendation other than weaning the employee from the use of narcotic pain medication.
In addition to his testimony, the employee relied on his medical records, especially those from Dr. Butterman. In his report of March 8, 2016, Dr. Butterman stated that the employee had been “very compliant” in his use of medication. Dr. Butterman recommended disc replacement surgery using an ActivL implant. He stated that the implant was preferable to a fusion surgery because it would decrease the chance of degenerative disc disease at adjacent levels. Dr. Butterman concluded that the disc implant “would lead to a better outcome with shorter hospital stay, shorter off work status, and lower risk for additional surgery in the future.”
The compensation judge issued her findings and order on April 8, 2016. She determined that “the preponderance of the evidence, including medical records and the testimony of the employee, demonstrates that the proposed surgery represents medical treatment that is reasonable and necessary to cure and/or relieve the effects of the employee’s October 1, 1998 injury.” (Finding 16).
The employer and insurer have appealed.
In their appeal, the employer and insurer raise two issues. First, they claim that the compensation judge erred in failing to make a specific finding that the proposed surgery was causally related to the 1998 work injury. Second, they argue that the ActivL replacement disc is not authorized for use at the L3-4 level and, in any event, is contraindicated in the employee’s case.
We find no merit in the first issue raised by the appellants. First, there was no evidence presented at the hearing that the surgery proposed was not causally related to the employee’s work injury. Neither Dr. Sherman nor any other doctor who has seen the employee has stated that the proposed surgery is not related to the 1998 work injury. Also, contrary to the assertion made by appellants, Finding 16 states specifically that the surgery is to deal with the “effects of the October 1, 1998 injury.” The compensation judge’s finding can only be read as a finding of causation.
The second issue is whether the proposed surgery is appropriate for the employee. The first question in that regard is whether the ActivL replacement disc may be used for surgery at the L3-4 level.
The appellants argue that the ActivL disc is not “authorized” for use at the L3-4 level as proposed by Dr. Butterman. There is no explanation what the appellants mean when they refer to authorized use. At the hearing, the appellants introduced as an exhibit a document titled “ActivL Artificial Disc Spike Endplate” which was prepared by the device’s distributor. The document has a short introductory paragraph titled “Indications for Use.” There is no reference in this report to prohibited or unauthorized use. Indeed, the appellants’ IME, Dr. Sherman, stated in his February 10, 2016, report that “‘off-label’ application of medical technology is the prerogative of the treating surgeon.” The employer and insurer cite to no rule or statute prohibiting the use of the ActivL disc replacement in this case.
The appellants also cite to our decision in Gossett v. Ramsey Excavating Co., 72 W.C.D. 27 (W.C.C.A. 2012) on this point. In Gossett, however, we did not set out a rule of law to be followed in subsequent cases. In our decision in that case, we found substantial evidence to support the compensation judge’s denial of the employee’s request for approval of similar surgery. Our decision in Gossett does not support the appellants’ argument.
The question of whether proposed medical treatment is reasonable and necessary in any case is a question of fact for the compensation judge. Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993); Gamble v. Twin Cities Prods., 75 W.C.D. 23 (W.C.C.A. 2015) In answering that question in this case, the compensation judge was presented with opposing opinions from Dr. Sherman and Dr. Butterman. Both Dr. Butterman and Dr. Sherman are well qualified to provide an opinion on the question of whether the proposed surgery is reasonable and necessary. Both Dr. Butterman and Dr. Sherman had ample foundation to render an opinion on that issue. We have said repeatedly that it is the unique function of the compensation judge to choose between two competing well-founded medical opinions. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn.1985); Fiedler v. Home Depot, 75 W.C.D. 431 (W.C.C.A. 2015). Where the opinion chosen by the compensation judge has adequate foundation, that opinion constitutes substantial evidence to support a compensation judge’s decision and the decision will generally be accepted by this court. Smith v. Quebecor, 63 W.C.D. 566 (W.C.C.A. 2003).
The arguments presented by the appellants to this court as to which medical opinion should be followed are the same arguments presented to the compensation judge. The compensation judge made clear in her findings and memorandum that she carefully considered the evidence in this matter before reaching her determination. We are presented with no valid argument as to why her factual determination should be reversed.
We affirm the decision of the compensation judge.