JULY 10, 2018

No. WC18-6134

EVIDENCE – EXPERT MEDICAL OPINION. Where the medical opinion relied upon by the compensation judge was given prior to the actual surgery performed and that surgery differed from the procedure described in the medical opinion, the opinion could not support a conclusion that the surgery was not necessary or reasonable.

PERMANENT PARTIAL DISABILITY. Where there is no evidence that an employee's decision to go ahead with surgery was unreasonable under the circumstances, denial of an additional permanent partial disability award resulting from fusion surgery that significantly relieved the employee’s low back pain and improved the employee’s functioning was improper.

TEMPORARY TOTAL DISABILITY; TEMPORARY PARTIAL DISABILITY. Where there is no disagreement that surgery is necessary to address an employee’s low back pain, temporary total disability and temporary partial disability benefits are payable for the period that the employee is off of work for surgery, even where the prior approval for the surgery as performed was denied.

    Determined by:
  1. Gary M. Hall, Judge
  2. Patricia J. Milun, Chief Judge
  3. David A. Stofferahn, Judge

Compensation Judge: Adam S. Wolkoff

Attorneys: Paul M. Malone, Malone & Mailander, Slayton, Minnesota, for the Appellant. Christine L. Tuft and Emily A. LaCourse, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota, for the Respondents.

Vacated in part, reversed in part, remanded.



The employee appeals the compensation judge’s refusal to award benefits for the fusion surgery undergone on April 25, 2016, including an additional award of permanent partial disability. As some of the findings made are not supported by substantial evidence in the record, we reverse in part, vacate in part and remand for specific findings regarding the compensability of the surgery as performed.


The employee, Jennifer Krumwiede, was working for the employer as an LPN Floor Nurse on July 3, 2012, and March 7, 2013, when the employee experienced admitted work injuries to her low back. Following the March 7, 2013, work injury, the employee was kept off of work for over two months. Upon returning to work, the employee experienced pain symptoms and was not able to work the same schedule of shifts, but she did not miss work and she was not placed under formal restrictions.

The employee treated with two physicians, Christopher Janssen, M.D., and Wilson T. Asfora, M.D. The employee underwent physical therapy and a course of injections that did not resolve her radicular lumbar pain.

On March 8, 2013, the employee underwent an independent medical examination (IME) conducted by Paul Cederberg, M.D., on behalf of the employer and insurer. Dr. Cederberg assessed the employee as suffering from a temporary aggravation of an underlying degenerative disc disease at L4-S1. Dr. Cederberg considered the employee’s medical care to have been necessary and reasonable (except for an MRI) and opined that no further care was needed in relation to the work injury. On July 8, 2013, Dr. Cederberg conducted a second IME of the employee. Dr. Cederberg’s opinions were unchanged from those in his earlier report.

In August 2014, Dr. Asfora recommended fusion surgery to address the employee’s ongoing low back pain symptoms. The employee did not agree to the surgery until February 2015. In October 2015, Dr. Janssen recommended additional physical therapy, and if not successful, injections and an MRI.

On October 8, 2015, Dr. Cederberg conducted a third IME of the employee. Dr. Cederberg’s opinions regarding the work injuries were unchanged from those in his earlier report. Regarding the proposed fusion surgery, described by the employee as an L4-L5 fusion, Dr. Cederberg considered the employee to be a poor candidate because of her smoking history. Dr. Cederberg suggested that a microdiscectomy could be reasonable to address the employee’s symptoms, which Dr. Cederberg attributed to degenerative disc disease unrelated to the work injuries.

The employee requested approval for the proposed fusion surgery. The dispute came on before Compensation Judge Cheryl LeClair-Sommer on November 24, 2015. Additional hearing dates were subsequently added to address intervenor issues. Due to these delays, the record in that proceeding closed on May 2, 2016. This resulted in the order on the request being issued eight months after the initial date of hearing. In an Amended Findings and Order dated July 28, 2016, the judge found that the employee’s two work injuries were the cause of her low back condition but that the proposed surgery had not been proven to be reasonable or necessary. The compensation judge found that the employee’s smoking rendered her a poor candidate for fusion surgery and that the employee had not exhausted conservative care set out in the treatment parameters.

In November 2015, the employee began physical therapy on referral from Dr. Janssen. The employee received an initial Owestry score of 68% disability. The physical therapy continued until January 15, 2016, with a final Owestry score of 66% disability. The employee underwent seven transforaminal steroid injections beginning in December 2015. Neither the physical therapy nor the injections provided lasting pain relief to the employee. On April 25, 2016, the employee underwent a bilateral discectomy and fusion at L4-L5 and L5-S1, conducted by Dr. Asfora. Dr. Asfora’s surgical report notes the failure of conservative treatment and [lack of] stability in the employee’s low back as supporting the surgical intervention. The observed condition of the employee’s spine at L4-L5 and L5-S1 was set out in Dr. Asfora’s operative report.

The employee described her post recovery low back pain as 50% improved. (Ex. I.) The employee did not quit smoking through her surgery or recovery. There was no evidence of any medical complication or failure in recovery that was attributable to the employee’s smoking. Dr. Janssen assessed the employee at maximum medical improvement (MMI) as of June 16, 2017. He rated the employee at 10% permanent partial disability (PPD) for two levels of radicular pain from the low back (Minn. R. 5223.0390, subp. 4.C.) and 10% PPD for fusion at two levels (Minn. R. 5223.0390, subp. 5.B.).

The employee filed a claim petition seeking payment for the fusion surgery, temporary total disability (TTD) benefits, temporary partial disability (TPD) benefits, and 20% PPD benefits. The employee relied on the medical records of her treatment, including the physical therapy records and the opinion of Dr. Asfora that the surgery was necessary and reasonable. The employer and insurer relied on the opinions of Dr. Cederberg that had been submitted in the prior hearing. No further IME or updated medical opinion was offered by the employer and insurer.

At the hearing, the employee testified regarding the failure of conservative care to address her symptoms after the July 3, 2012, work injury, the temporary relief received from seven epidural injections, the effects of the March 7, 2013, work injury, and the conservative treatments that followed since that injury. The employee also related a discussion with Dr. Asfora concerning microdiscectomy and that Dr. Asfora had indicated that the employee’s lumbar spine was too unstable for that procedure. The employee testified that she had an overall improvement of her ability to work following the surgery. The employee described her radicular pain as resolved almost completely, but a constant backache remained, adequately controlled with ibuprofen or Tylenol. The employee was able to discontinue use of Lyrica as a result of the surgery. The employee assessed her condition as 60% better after the surgery. The employee also testified to her continued smoking.

The compensation judge found that the employee’s “neurological pain” had resolved but that the employee continued to have low back pain. The judge also found that the employee had not met her burden to show that the fusion surgery was reasonable and necessary. The judge denied TTD and TPD benefits. The judge awarded the employee PPD benefits of 10% for her low back condition but did not award the additional 10% for the fusion surgery. The employee appealed.


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(3). 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).


1.   Reasonableness and Necessity of Surgery

The compensation judge explicitly found that the employee’s low back pain, described as “neurologic pain”, was eliminated after the surgery. The compensation judge found that the employee’s fusion surgery was not reasonable or necessary to cure or relieve the employee of the effects of her work injuries of July 3, 2012, and March 7, 2013. The compensation judge relied on the October 22, 2015, medical opinion of Dr. Cederberg to reach this conclusion.

The employee maintains that the compensation judge erred by relying on Dr. Cederberg’s opinion and that the medical record does not contain substantial evidence to support the decision. As the trier of fact, the compensation judge's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).

An opinion can be relied upon by a compensation judge so long as it is based on “enough facts to form a reasonable opinion that is not based on speculation or conjecture.” Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802, 77 W.C.D. 117, 124 (Minn. 2017) (citing Wenner v. Gulf Oil Corp., 264 N.W.2d 374, 381 (Minn. 1978)). In this matter, the opinion relied upon by the compensation judge assessed a proposed one-level fusion surgery, requested before the employee underwent conservative treatment including physical therapy and a course of injections. After the date of the IME opinion, the employee underwent both of those courses of treatment without relief of symptoms. Further, the employee underwent surgery which resulted in a fusion at two levels. The surgical report identifies the conditions in the employee’s low back that supported the extensive fusions. The compensation judge found that the surgery had the effect of reducing the employee’s low back pain.

The IME opinion of Dr. Cederberg was certainly adequate for supporting the conclusions of the first compensation judge, when the issue was whether the proposed surgery was necessary or reasonable at that time. But this is not the issue presented to the second compensation judge. In the case now before us on appeal, the issue is whether the surgery as performed was reasonable and necessary to cure and relieve the employee of the effects of her work injuries. Dr. Cederberg had already opined that the employee’s low back pain could be appropriately addressed with a microdiscectomy at L4-L5. Dr. Cederberg’s opinion was delivered prior to the failed conservative medical care undergone by the employee from November 2015 onward. More importantly, Dr. Cederberg’s opinion, delivered in October 2015, does not address the actual question before the compensation judge – whether the surgery as performed on April 25, 2016, was necessary and reasonable to address the effects of the employee’s work injuries of July 3, 2012, and March 7, 2013. The absence of information in Dr. Cederberg’s assessment regarding any treatment undergone after October 22, 2015, under the facts of this case, results in the “speculation or conjecture” that renders the medical opinion unreliable for deciding the issue before the compensation judge.

In determining that the employee had not met her burden of proof, the compensation judge indicated that Dr. Asfora did not examine the employee or review updated imaging prior to conducting the fusion surgery on April 25, 2016. This is contradicted by the employee’s medical record. Dr. Asfora reviewed the employee’s most recent MRI and other imaging according to a February 17, 2016, chart note, which also states that Dr. Asfora reviewed and approved the plan.[1] Dr. Asfora ordered lumbar x-rays on April 17, 2016, in advance of the surgery.[2] Dr. Asfora also ordered a bone growth stimulator, specifically referencing the employee’s smoking as support for the treatment.[3] On the second referral for surgery, Dr. Asfora discussed the possibility of a laminectomy without fusion with the employee, concluding that the employee’s lumbar spine was insufficiently stable for the procedure to be helpful.[4] No reasonable inference can be drawn from the medical record supports discounting Dr. Asfora’s medical conclusion that the surgery as performed was reasonable and necessary. The compensation judge’s decision regarding the claimed medical benefits is vacated.

The employer and insurer point to no other medical evidence in the record to support the position that the fusion surgery undergone by the employee was unnecessary and unreasonable. Typically, a findings and order contrary to unrebutted medical evidence requires reversal on appeal. Thao v. Synovis Life Techs., Inc., 76 W.C.D. 607 (W.C.C.A. 2016); Miller v. Abbott Northwestern Hosp., slip op. (W.C.C.A. Jul. 17, 2001); see also Funk v. Virginia Convalescent Ctr., slip op. (W.C.C.A. Jul. 29, 2002). Out of an abundance of caution, however, this matter is remanded for specific findings on the reasonableness and necessity of the surgery as performed to determine if the medical benefits provided are compensable. See Kubis v. Comty. Mem’l Hosp. Ass’n, 897 N.W.2d 254, 77 W.C.D. 543 (Minn. 2017). This court understands that this remand places an additional burden on the employee and provides the employer and insurer with a “second bite at the apple” in litigating this case.

2.   PPD Benefits

Denial of a PPD rating based on a surgical procedure is supported where the employee proceeds unreasonably under the circumstances to have surgery which is subsequently found to be not reasonable or necessary. Rude v. Halstad Lutheran Mem’l Home, 52 W.C.D. 293 (W.C.C.A. 1994), summarily aff’d (Minn. Mar. 17, 1995). In this matter, there was a lengthy delay in the issuance of the compensation judge’s findings and order regarding the request for prior approval of the proposed surgery. The employee completed conservative treatment without relief of her pain symptoms which were impairing her ability to fully perform her job. The surgery was approved for payment by the employee’s health care provider and identified as medically necessary by her treating physicians.[5] Further, the IME opinion of Dr. Cederberg agreed that some surgery would be reasonable to address the employee’s ongoing pain symptoms. The surgery as actually performed addressed a significant portion of the employee’s pain symptoms, allowing for improved work ability and reduction in the medications required by the employee. As found in the delayed findings and order of July 28, 2016, the employee’s pain symptoms were caused by the work injuries of July 3, 2012, and March 7, 2013. Under such circumstances, the denial of the requested additional PPD benefits was error. See Minn. R. 5223.0390, subp. 5.B. (“Fusion … performed as part or all of the surgical treatment of the lumbar pain or radicular pain syndrome ….” (emphasis added)). As the record does not support an inference that the employee acted unreasonably, the denial of PPD benefits is reversed and those benefits are awarded.

3.   TTD and TPD Benefits

The employee’s claims for TTD and TPD benefits all arise from the time spent incapacitated from work due to the fusion surgery performed on April 25, 2016. As discussed above, the need for some sort of low back surgery was undisputed between Dr. Cederberg and the employee’s treating physicians. As determined in the delayed findings and order, the work injuries at issue caused the employee’s low back pain and resulted in the employee undergoing low back surgery. Under such circumstances, there is no basis for denying wage loss benefits to the employee when she underwent surgery to address the effects of her work injuries. The compensation judge’s denial of those benefits is reversed.

[1] Ex. P-13.

[2] Ex. S-13.

[3] Ex. S-14.

[4] T. at 24.

[5] Notably, the employee completed conservative treatment, obtained insurance approval, and completed her surgery before the record closed in the delayed proceeding seeking prior approval. The actual decision was issued some three months after that. There are limits to how long an employee can be expected to remain in pain with no prospect of a determination on a compensation claim. Those limits appear to have been exceeded in this case and constitute a further demonstration of the reasonableness of the employee’s course of action.