JOHN A. WARNER, Employee/Appellant, v. KATH BROS. FUEL OIL CO. and ARROWPOINT CAPITAL GROUP, Employer-Insurer/Respondents, and FIRST LIGHT HEALTH SYS., GADOLA HAASKEN DENTAL, and INST. FOR LOW BACK, P.A., Intervenors.

The employee, the appellant in this matter, appeals from the compensation judge’s denial of the employee’s request for a proposed surgery in the nature of fusions at L5-S1 and L1-L2, osteotomies at those levels, and possible iliac instrumentation.  The employer and insurer maintain that the judge’s decision is supported by substantial evidence in the record.  We affirm.

The employee was working for the employer, Kath Brothers Fuel Oil Company, when he suffered an admitted low back injury on April 27, 1976.  On January 12, 1999, the employee underwent a L2 through L5 fusion surgery of the low back.  The employee experienced continued back pain following the fusion surgery.  The employee received a number of modifications to his home and assistive devices (such as a motorized scooter).  On June 18, 2013, the employee was examined for an umbilical hernia by Victor Liew, M.D.  Dr. Liew concluded that the employee was a poor candidate for surgical repair of the hernia, primarily due to the employee’s morbid obesity.  Dr. Liew recommended that the employee pursue a program of weight loss and consider bariatric surgery as an alternative.^[1]

On May 30, 2014, the employee was examined by Steven M. Stulc, D.O., of the Institute for Low Back and Neck Care (ILBNC) on referral from the employee’s family physician.  Dr. Stulc assessed the employee as morbidly obese and deconditioned.  Dr. Stulc assessed the employee’s rehabilitation potential as poor due to his obesity.  On June 9, 2014, the employee underwent an MRI scan which showed mild spondylosis at L1-L2 and right central disc protrusion at L5-S1.  On July 24, 2014, the employee underwent an injection at the S1 nerve root.  The employee did not experience significant pain relief from the injection.^[2]

On August 20, 2014, the employee was examined by David H. Strothman, M.D., of the ILBNC.  Dr. Strothman noted that the employee was morbidly obese at 343 pounds, had a walking tolerance of 300 feet, a sitting tolerance of one hour, and a standing tolerance of 15 minutes.  The employee scored 46 on the Oswestry disability index.^[3]  An MRI scan showed degenerative disc disease at L5-S1.  The employee also displayed significant opioid dependence on oxycodone and OxyContin (320 to 380 mg daily).  Dr. Strothman directed that physical therapy be undertaken and that the employee reduce his opioid medications.^[4]

On February 3, 2015, Dr. Strothman examined the employee and noted that physical therapy had not reduced the employee’s back pain.  The employee had reduced his opioid consumption to 8 Percocet daily (dosage not indicated).  The employee experienced an increase in pain that accompanied the reduction in opioid medications that resulted in an emergency room visit in February 2015.  The employee discussed the possibility of surgery with Dr. Strothman.^[5]

On March 26, 2015, the employee underwent an IME conducted by Thomas Litman, M.D.  Dr. Litman reviewed the employee’s medical records and conducted a physical examination.  As related by the employee, Dr. Litman listed the employee’s weight as 350 pounds, down from 400 pounds.  Dr. Litman did not have a recent description of the proposed surgery by Dr. Strothman and also lacked recent imaging.  Dr. Litman opined that the employee would not obtain pain relief from the surgery and that the risks of the procedure outweighed the potential benefits.  Were the employee able to reduce his weight to 225 pounds, Dr. Litman assessed the employee as being more likely to have addressed his symptoms and improved his quality of life without surgery.^[6]

Thereafter, Dr. Litman was provided recent imaging and a description of Dr. Strothman’s proposed procedure.  On May 5, 2015, Dr. Litman supplemented the earlier IME with an addendum.  Dr. Litman reiterated his opinion that the proposed surgery represented a significant risk without the likelihood of significant improvement of the employee’s back pain.  Dr. Litman recommended that the employee undertake a weight loss program, increase his level of exercise, and cease the use of all opioid medication.^[7]

On May 19, 2015, the employee filed a Medical Request.  As later amended, the employee sought approval of fusion surgery, recovery of dental expenses, reimbursement of the purchase of exercise equipment, prescription expenses, a shower chair, medical mileage, and reimbursement for two intervenors.  The fusion surgery was in the nature of fusions at L5-S1 and L1-L2, osteotomies at those levels, and possible iliac instrumentation.^[8]

The case came on for hearing before a compensation judge on August 25, 2015.  The judge heard testimony from the employee.  The employee described his weight as ranging between 403 and 339 pounds (355 pounds as of the date of the hearing).^[9]  In addition to the request for fusion surgery, the parties identified a number of other issues regarding reimbursement for exercise equipment, payment of intervenors, and reimbursement of the employee for medical expenses, dental expenses, and prescription costs.  The employee testified in support of his claims.  The employer and insurer relied upon the medical records of the employee that were introduced into evidence and the IME opinions of Dr. Litman.

The compensation judge issued a Findings and Order, served and filed on September 22, 2015.  The judge awarded the claims of the intervenors, apportioned a dental claim, awarded reimbursement to the employee of some claims, and denied others.  The judge did not make any findings regarding the proposed fusion surgery.  The judge addressed the request for fusion surgery in his order, indicating, “denied at this time.”  The employee appeals the denial of the proposed fusion surgery.

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. 358 N.W.2d 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 Products, 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 contends that the compensation judge imposed an improper burden of proof in assessing the request for fusion surgery.  The employee also maintains that the judge’s decision is not supported by substantial evidence.  The employer and insurer rely on the standards governing the resolution of conflicts between medical experts and maintain that the judge’s decision is supported by substantial evidence.

An employer is responsible for furnishing medical care that is related to a work injury that is reasonably required to cure or relieve the effects of the injury.  Minn. Stat. § 176.135, subd. 1.  The employee bears the burden of proof that the medical treatment is reasonable and necessary.  Adkins v. University Health Care Ctr., 405 N.W.2d 233, 39 W.C.D. 898 (Minn. 1987).  The employee supported the request for additional fusion surgery at the L1-L2 and L5-S1 levels with the opinion of the employee’s treating physician, Dr. Strothman.  The employer and insurer presented objections to the requested surgery based the opinions of Dr. Litman.

The reasonableness and necessity of medical treatment sought under Minn. Stat. § 176.135 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).  In arriving at a decision, the judge must resolve any conflicts in expert medical testimony, and the judge’s choice of expert opinion is usually upheld unless the facts assumed by the expert in rendering an opinion are not supported by the evidence.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the judge are to be upheld.  Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988); Land v. Washington County Sheriff’s Dep’t, slip op. (W.C.C.A. Dec. 23, 2003).

In this matter, the compensation judge did not make explicit findings of fact regarding the proposed surgery.  Usually, a judge will make specific findings regarding what surgery is proposed and whether that surgery is reasonable and necessary to cure and relieve the employee of the effects of the work injury.  The employee argues that the lack of explicit findings regarding the surgery demonstrates that the denial of that surgery is unsupported by the record.  We disagree.

While the expectation is that compensation judges make specific findings, the record in this matter contains support for the conclusion that the proposed surgery is not reasonable at the present time to address the employee’s ongoing back pain.  In his memorandum, the judge made a thorough assessment of the proposed surgery by Dr. Strothman, including the discussions in the employee’s treating record of contraindications to surgery, and the assessments by both Drs. Liew and Litman that significant weight loss is an important aspect of addressing the employee’s condition.  On occasion, the absence of explicit finding(s) regarding a proposed medical treatment may require a remand, but the weight of the evidence in this record obviates the need to do so.  There is substantial evidence from the employee’s treating physicians and from the IME opinions of Dr. Litman that support the conclusion that the surgery is not reasonable at present.  The medical opinions relied upon by the judge in denying the request for surgery provide an adequate basis in the record to support the judge’s conclusions.

The employee contends that the compensation judge applied the incorrect standard of proof by listing a number of alternatives to surgery that have not yet been attempted.  The employee proffers that that alternatives are being relied upon by the judge as a form of legal test that the employee must meet before surgery will be approved.  We disagree.

In his memorandum, the compensation judge states, “[u]ltimately, the compensation judge must be convinced that any benefit to be received by the [employee] from proceeding with surgery at the time of the request, outweighs the detriment of foregoing alternative measures which may be precluded by proceeding with the surgery.”^[10]  We grant the employee that this statement may be confusing.  As stated above, the law in medical treatment cases is whether the medical care that is related to a work injury is reasonable and necessary to cure or relieve the effects of the injury.  Adkins v. Univ. Health Care Ctr., 405 N.W.2d 233, 39 W.C.D. 898 (Minn. 1987).

Reading the compensation judge’s statement in the context of the entire memorandum, however, we are persuaded that the judge applied the reasonableness and necessity standard.  Earlier in the memorandum, it reads, “[t]o determine that a surgical procedure is reasonable and necessary . . . the compensation judge, as well as the patient, must clearly understand the specific risks and contraindications to the [sic] proceeding with the procedure.”^[11]  The memorandum also reads,

Similar to the argument regarding the standard of proof, the employee contends that the compensation judge improperly substituted his opinions for those of the medical professionals contained in the record.  We disagree.

A compensation judge cannot substitute his or her own medical judgment for that expressed in unopposed medical opinions.  Peters v. Tebben Mfg. Co., slip op. (W.C.C.A. Mar. 13, 1997) (citing Olson v. Midwest Printing Co., 347 N.W.2d 43, 46, 36 W.C.D. 623, 627 (Minn. 1984) and DeHaan v. Farmers Union Mktg. & Processing Ass'n, 302 Minn. 552, 555, 225 N.W.2d 21, 23, 27 W.C.D. 683, 686 (1975)).  In this case, however, the medical opinions were conflicting.  In this circumstance, the judge must give due weight to the evidence and arrive at a conclusion.  See Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994); Hosking v. Metro. House Movers Corp., 272 Minn. 390, 398, 138 N.W.2d 404, 409, 23 W.C.D. 673 (1965).

The compensation judge drew support from the treatment records of Dr. Liew and the opinions of Dr. Litman to conclude that the proposed fusion surgery was not reasonable prior to conservative efforts at weight reduction and, if appropriate, bariatric surgery.  While the judge could have clarified his reliance on the physicians’ evidence in the record by making explicit findings and adopting a medical opinion, failure to do so does not constitute reversible error.

In conclusion, we find that substantial evidence supports the compensation judge’s denial of the proposed fusion procedures and we affirm.