PRACTICE & PROCEDURE – ESTOPPEL; APPEALS – LAW OF THE CASE; MEDICAL TREATMENT & EXPENSE. A request for approval of surgery intended to treat a work-related injury is not barred by collateral estoppel or the law of the case where the facts establish that the employee’s condition has not improved since the prior approved surgery and no prior appeal established any facts limiting the parties in subsequent proceedings.
MEDICAL TREATMENT & EXPENSE – SURGERY; EVIDENCE – MEDICAL RECORDS. The compensation judge’s award of surgery, incorrectly described as a three-level fusion, is supported by substantial evidence where the surgeon’s proposed procedure is quoted from the employee’s medical record and no other specific procedure was offered as an alternative.
Compensation Judge: Miriam P. Rykken
Attorneys: Scott A. Teplinsky, Teplinsky Law Group, Minneapolis, Minnesota, for the Respondent. Thomas V. Maguire, Brown & Carlson, P.A., Minneapolis, Minnesota, for the Appellant.
Affirmed as modified.
GARY M. HALL, Judge
The employer and insurer appeal the compensation judge’s award of surgery to the employee. As the compensation judge’s decision was supported by substantial evidence and as the doctrines of collateral estoppel and the law of the case are inapplicable, we affirm.
The employee, Ramdai Allie, worked as a housekeeper for the employer, Health Care Services Group. On January 28, 2016, the employee suffered a fall on ice in the employer’s parking lot while coming in to work. The employee was diagnosed with a closed L1 compression fracture and required nursing care for one month as she could not stand or walk. Conservative treatment, including physical therapy and transforaminal epidural injections, did not resolve the employee’s symptoms, particularly low back pain and right-side radicular pain. The employee began working with a QRC and a rehabilitation plan was filed. The employer and insurer admitted the work injury and paid benefits.
With the failure of conservative treatment, the employee sought approval of surgery in the nature of an L1-L2 posterior decompressive foraminotomy. The employer and insurer sought a determination that the employee had reached maximum medical improvement (MMI), denial of the proposed surgery, and discontinuance of the rehabilitation plan. These issues came before a compensation judge who issued a Findings and Order on July 21, 2017. The judge found that the employee was not at MMI and continued to be eligible for rehabilitation services, and that the proposed surgery was reasonable, necessary, and causally related to the January 28, 2016, work injury. The July 21, 2017, Findings and Order was not appealed.
On August 25, 2017, the employee underwent the approved L1-L2 posterior decompressive foraminotomy, performed by Praveen Baimeedi, M.D. The employee continued to complain of right-side radicular pain following the surgery. A right L1-L2 transforaminal epidural steroid injection provided three to four days of pain relief. An MRI scan showed loss of disk height and bilateral foraminal narrowing at L1-L2. The employee described significant limitations in her activity levels due to the ongoing pain. On January 4, 2018, Dr. Baimeedi proposed an L1-L2 fusion to address the employee’s symptoms.
On February 1, 2018, the employee sought a second opinion on the proposed surgery from Joseph Perra, M.D. Dr. Perra noted that imaging of the employee’s spine showed lumbar lordosis and thoracic kyphosis from L-3 through T-9 and a sacral vertical axis that was approximately two centimeters to the right. From these observations, Dr. Perra stated:
The patient was offered unilateral fixation and fusion at L1-2 by an outside surgeon. It is our opinion that this surgery would be fruitless for her as she has significant deformity in both the sagittal and coronal planes and to help alleviate her back pain and to restore her balance and quality of life, she would need a larger surgery. This would most likely be a T5 to approximately L3 posterior spinal fusion. She would likely need some ponte [sic] osteotomies to help restore her to a normal amount of kyphosis. (Ex. K.)
On March 6 and 7, 2018, the employee underwent a functional capacity evaluation (FCE) which assessed her as unable to work due to her back pain. (Ex. L.)
On April 4, 2018, the employee underwent an independent medical examination (IME) conducted by John E. Sherman, M.D., on behalf of the employer and insurer. Dr. Sherman concluded that no further medical treatment was appropriate for the employee’s low back condition. Dr. Sherman considered the employee capable of sedentary work and maintained that this conclusion was consistent with the employee’s FCE. Regarding surgery, Dr. Sherman disagreed with both the one-level fusion proposed by Dr. Baimeedi and the “extensive arthrodesis” proposed by Dr. Perra. Dr. Sherman considered the source of the employee’s pain symptoms to be “a somatic manifestation of her depression.” (Ex. 1.)
The employee filed a medical request seeking approval of the surgery proposed by Dr. Perra. The employer and insurer objected to the surgery. On November 28, 2016, the matter came on before a compensation judge. In the proceeding, counsel for the employer and insurer described the surgery at issue as “multiple levels, three levels.” (T. 29.) Counsel for the employee described the surgery as a “three-level fusion.” (T. 46, 55.) The compensation judge found the proposed surgery to be reasonable and necessary. The judge ordered “that the employee’s request for approval of surgery as recommended by Dr. Perra, in the nature of a three-level fusion, is granted.” In her memorandum, the judge quoted the description of the surgery from Dr. Perra’s recommendation, including the description of the surgery as “T5 to approximately L3 posterior spinal fusion.” The employer and insurer appealed the award of surgery.
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).
The employer and insurer contend that by describing the proposed surgery as a three-level fusion, the judge has substituted her opinion for that of Dr. Perra and awarded a surgery that was not proposed. They assert that the work injury did not cause the need for surgery. The employer and insurer also maintain that the doctrines of collateral estoppel and law of the case preclude an award of the proposed surgery. The employee maintains that substantial evidence in the record supports the award of surgery and that the doctrine of collateral estoppel is inapplicable to this case. As the employer and insurer’s contentions are insufficient to compel a different outcome and substantial evidence supports the compensation judge’s decision, we affirm as modified.
The employer and insurer contend that the judge’s order awarding “surgery as recommended by Dr. Perra, in the nature of a three-level fusion” is a substitution of the judge’s opinion regarding a medical procedure for that of a medical professional. This court has held that a compensation judge cannot award a medical procedure different from that proposed by a medical provider, as such a substitution lacks support in the record. Crockett v. Delano Health Care Ctr., 68 W.C.D. 30, 39-40 (W.C.C.A. 2008). The employee argues that the compensation judge awarded the multi-level surgery proposed by Dr. Perra, and the description of that surgery as a three-level fusion was merely a mischaracterization. We agree.
At the hearing before the compensation judge, both parties referred to Dr. Perra’s proposed surgery as a three-level fusion. The only other surgical option described in the medical record was Dr. Baimeedi’s suggested one-level fusion, which was expressly not sought by the employee. (T. 55-56.) The compensation judge expressly awarded “surgery as recommended by Dr. Perra” and quoted Dr. Perra’s narrative description of the surgery, including the levels involved, in the memorandum to the Findings and Order. Under these circumstances, the judge’s award is not ambiguous and is supported by medical evidence in the record.[1]
The employer and insurer also maintain that the proposed surgery is inadequately described, and thereby, substantial evidence does not support the award. This argument largely relies on conflating the parties’ description of the surgery as a three-level fusion with the procedure as actually proposed by Dr. Perra. The medical records and imaging show the employee’s spine is out of alignment; Dr. Perra opined that only through addressing the misalignment will the employee experience relief of the pain caused by the January 28, 2016, work injury. As the compensation judge relied on well-founded medical opinion in arriving at her decision, this court concludes that the decision is supported by substantial evidence.
The unappealed July 21, 2017, Findings and Order awarded lumbar surgery at a single level. The employer and insurer maintain that the doctrine of collateral estoppel applies to preclude the employee from seeking surgery to additional levels.[2] We disagree.
Generally, the doctrines of res judicata and collateral estoppel may be applied in workers’ compensation cases. Darvell v. Wherley Motors, 64 W.C.D. 76 (W.C.C.A. 2003). To apply, the particular issue must have been specifically litigated and decided in the prior proceeding. Meyers v. Minn. Supply Co., No. WC09-169 (W.C.C.A. Oct. 26, 2009). The elements for application of collateral estoppel were set out in Mach v. Wells Concrete Prods. Co., 866 N.W.2d 921, 927, 75 W.C.D. 279, 286 (Minn. 2015), as:
“(1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.” (Citations omitted.)
In this matter, the employee seeks approval of surgery on the basis that the prior surgery was unsuccessful and she continues to suffer the effects of the January 28, 2016, work injury. The employer and insurer’s statutory obligation is to “furnish any medical … treatment … as may reasonably be required at the time of the injury and any time thereafter ….” Minn. Stat. § 176.135, subd. 1(a) (emphasis added). As the issue presented is the employee’s condition subsequent to the August 25, 2017, surgery, collateral estoppel does not apply in this matter.
The employer and insurer also maintain that the law of the case doctrine applies to this matter and preludes the award of surgery. As described by the Minnesota Supreme Court in Brezinka v. Bystrom Bros., Inc., 403 N.W.2d 841, 843 (Minn. 1987):
Law of the case applies most commonly to situations where an appellate court has passed on a legal question and remanded to the court below for further proceedings. The legal question thus determined by the appellate court will not be re-examined on a second appeal of the same case. See Lange v. Nelson-Ryan Flight Service, Inc., 263 Minn. 152, 155-56, 116 N.W.2d 266, 269 (1962).
In this matter, there has been no prior appeal and no remand. As discussed above, the determination in the earlier litigation was that one-level lumbar surgery was reasonable, necessary and causally related, and that determination did not preclude a further award of surgery as warranted by the employee’s condition. There is no aspect of this proceeding to which the law of the case doctrine applies. For the foregoing reasons, the Findings and Order of the compensation judge, served and filed on December 10, 2018, is affirmed as modified above.
[1] To eliminate any potential ambiguity, this court is affirming the award of surgery as proposed by Dr. Perra, which is the procedure quoted by the compensation judge in her memorandum. Order No. 1 is hereby modified to omit the “in the nature of a three-level fusion” language.
[2] The employee maintains that the collateral estoppel and law of the case defenses were not raised before the compensation judge and therefore should not be heard on appeal. The employer and insurer’s opening argument can be fairly characterized as raising both issues, albeit obliquely. (T. 27-28.) For that reason, both issues will be analyzed.