EVIDENCE – EXPERT MEDICAL OPINION. When the opinions of the medical experts have adequate foundation and are supported by substantial evidence in the record, the compensation judge’s choice between competing medical expert opinions will be upheld.
PRACTICE & PROCEDURE – INTERVENTION. The denial of intervention claims filed after the close of the record and not properly considered by a compensation judge must be vacated and remanded for factual findings.
PRACTICE & PROCEDURE – INTERVENTION. The compensation judge did not err in her denial of intervention claims that were not related to the issues raised in the medical request.
Compensation Judge: Elisa M. Murillo
Attorneys: Aaron W. Ferguson, Aaron Ferguson Law, Arden Hills, Minnesota, for the Appellant. Jaclyn S. Millner, Law Office of John C. Syverson and Nicholas W. Rogers, London, Kentucky, for the Respondents.
Affirmed in part, modified in part, and vacated and remanded in part.
PATRICIA J. MILUN, Chief Judge
The employee appeals from the compensation judge’s denial of the SI joint fusion and intervention claims. We affirm in part, modify in part, and vacate and remand in part.
The employee, Martin Austin, was employed by Dayton Rogers Manufacturing Company, the employer, at the time he sustained compensable injuries to his low back on December 29, 1998. The employer was insured for workers’ compensation liability through Liberty Mutual Insurance Company on the date of injury.
Over the next 25 years, the employee underwent extensive medical treatment including multiple surgical procedures to his low back. Since December 1999, the employee has been receiving social security disability (SSDI) benefits because of his low back and poor vision.[1] The employee is unemployed and is legally blind.[2]
On February 8, 2022, the employee underwent a wide bilateral decompression/laminectomy at the L2-3 and L3-4 levels performed by Dr. Stefano Sinicropi for lumbar spinal stenosis. The surgery provided temporary relief. By December 2022, the employee reported that his back pain had returned.
The employee began treatment at Premier Spine and Pain Clinics on January 23, 2023, with Dr. Louis Saeger for constant severe pain in his hip, low back, and groin with numbness over his left inner thigh. After an examination, Dr. Saeger recommended a MRI scan to evaluate whether the employee had sustained a reherniation at the L2-3 level, or had possibly sustained a new herniation at L1-2. The February 8, 2023, MRI scan revealed a L5-S1 right broad-based herniation with osteophytic spurring, which impinged on the right L5 ganglion/nerve, and moderate lateral L4-5 stenosis with L5 neural encroachment. The MRI did not show recurrent central stenosis, neural impingement post-dorsal decompression at L2-3 and L3-4, or significant interval changes compared with a prior MRI scan from March 15, 2022.
The employee was seen by Dr. Luke Dandelet on January 29, 2023, for increased low back pain. He was prescribed oxycodone and given a Medrol dosepak. He was also reminded to follow up with his spine surgeon.
The employee was seen again by Dr. Saeger on February 13, 2023. He reported worsening lower abdominal, low back, groin, and leg pain with altered bowel function, weakness in the left lower extremity, and diminished sensation. Dr. Saeger recommended a CT scan of the employee’s abdomen and pelvis and reevaluation with Dr. Sinicropi.
The employee was seen at Premier Spine and Pain Clinics for a follow-up appointment with Certified Nurse Practitioner (CNP) Mark Stock, APRN, on March 2, 2023. The employee reported to CNP Stock that the CT scan of his abdomen and pelvis was unremarkable, that his primary care physician had referred him to orthopedics for his left hip, and that x-rays revealed normal aging changes. The employee was prescribed oxycodone in addition to Norco for pain management. CNP Stock indicated two contributing etiologies for the employee’s pain. He noted left sacroiliitis, for which a left SI joint injection was ordered. The CNP also suspected a left hip labral tear, for which he recommended a consultation with orthopedics as it was his opinion that this was not a workers’ compensation-related issue.[3]
The employee underwent a left-sided SI joint injection on March 21, 2023. By April 3, 2023, the employee reported a seventy to eighty percent improvement in his symptoms following the injection, however, his low back pain persisted. CNP Stock suggested a few treatment options and the employee chose a repeat SI joint injection. The injection was scheduled for May 25, 2023. Following that injection, the employee reported temporary relief from his symptoms for three weeks. On August 22, 2023, Dr. Saeger administered another SI joint injection. At a September 5, 2023, tele-visit with CNP Stock, the employee reported that he was nearly pain free for one to two days after the August injection, but currently he only felt forty to fifty percent improvement. He continued to manage his pain with oxycodone and Norco. CNP Stock also noted that the treatment plan was for the employee to move forward with a minimally invasive left SI joint fusion with Dr. Saeger. By November 22, 2023, the relief from the August injection had worn off and Dr. Saeger administered another SI joint injection.
At the request of the employer and insurer, the employee was evaluated by Dr. John Sherman on October 5, 2023. In his October 23, 2023, report, Dr. Sherman opined that the employee suffers from chronic pain syndrome, had no objective loss of neurologic function, and had marked symptom magnification on examination. It was Dr. Sherman’s opinion that there was nothing in the employee’s examination that pointed to SI joint mediated pain. Dr. Sherman noted that the employee’s prognosis for resolution for his pain complaints, regardless of any interventions, was poor. He also indicated that SI joint injections have a high placebo component. Dr. Sherman opined that the employee was not a candidate for an SI joint fusion, since there was no evidence of SI joint mediated pain. Additionally, he raised concern for the employee’s history of smoking which, in the opinion of Dr. Sherman, was a contraindication to the procedure.[4]
On November 6, 2023, the employee filed a medical request seeking approval for a SI joint fusion and left-sided SI joint treatment injections. The employer and insurer denied the requested treatment citing Dr. Sherman’s expert opinion that the procedures were not reasonable or necessary and that the employee did not need any further treatment with respect to his low back or SI joint.[5]
On January 15, 2024, Dr. Saeger provided a written response to Dr. Sherman’s October 23, 2023, report. In his response, Dr. Saeger stated that Dr. Sherman inaccurately concluded that there was no indication of the SI joint being a source of pain and also failed to indicate the anatomic pain generator for the chronic pain syndrome diagnosis. Dr. Saeger also asserted that Dr. Sherman mischaracterized Dr. Saeger’s interpretation of the 2023 MRI scan. Dr. Saeger continued to advocate for a minimally invasive SI joint fusion because there was a consistent response to the SI joint injections and because the SI joint appeared to be the predominate source of pain. He noted the employee needed to be completely nicotine free for at least six weeks prior to the fusion procedure. Finally, Dr. Saeger’s response also raised the idea of future spinal cord stimulation to treat the other components of the employee’s chronic pain syndrome.[6]
The employee was seen by CNP Stock on February 8, 2024, and another left-sided SI joint injection was ordered. If the injection was not approved, he recommended a referral to Dr. Todd Jackman at Midwest Spine or Dr. William Cross at Mayo Clinic-Rochester, to address the employee’s pain.
On February 5, 2024, Dr. Sherman issued an addendum medical report. His diagnosis did not change. It was his opinion that Dr. Saeger’s injections at the SI joint and the soft tissue surrounding the SI joint had a high placebo effect. He emphasized the employee’s multiple lumbar surgeries and opined that the probability of a good clinical outcome from surgery had diminished with each subsequent procedure and the probability of long-term clinical benefits from any type of fusion procedure is equivalent to that of a placebo. Dr. Sherman also pointed out that Dr. Saeger predicted the employee would need spinal cord stimulation in the future in addition to the recommended fusion. Finally, he clarified that Dr. Saeger incorrectly concluded that he thought the employee was imagining or exaggerating his pain. He opined that in a vast majority of patients with chronic pain syndrome, a specific anatomic pain generator is unlikely to be identified which, he opined, applied to the employee. His opinions had not changed since his October 23, 2023, report.[7]
On February 13, 2024, the employee received another SI joint injection. Dr. Saeger reminded the employee to cease using tobacco, including any nicotine replacement substances. The cessation of tobacco, in the opinion of Dr. Saeger, was a requirement before the fusion could be performed. On March 7, 2024, the employee reported a ninety percent improvement in pain after the last injection. He also reported that he had quit smoking and was managing his pain with Norco and oxycodone.[8]
On April 4, 2024, the employee was seen by CNP Stock who noted that the employee’s pain had returned. The employee reported a sixty percent improvement since the last injection and eighty to ninety percent temporary relief after taking oxycodone. CNP Stock assessed the employee with chronic low back pain, chronic neck pain, and left sacroiliitis. He reiterated referral options for a second opinion and a possible SI joint fusion. Norco and oxycodone were continued for chronic pain. The employee underwent another SI joint injection on May 14, 2024.
On May 26, 2024, Dr. Saeger provided a written report. He diagnosed the employee with chronic pain related to post-laminectomy syndrome and SI joint related pain, primarily affecting the left side. He again recommended a minimally invasive SI joint fusion, medication management, and consideration of a future trial of spinal cord stimulation to address chronic pain symptoms related to post-laminectomy syndrome. He again noted that the employee needed to be nicotine free before surgery.[9]
The employee’s medical request came on for hearing before Compensation Judge Elisa M. Murillo on July 1, 2024. Following the conclusion of the hearing and the close of the record on July 1, 2024, Premier Spine and Pain Clinics and Pain Specialist of Minnesota filed motions to intervene.
On August 26, 2024, the compensation judge issued her findings and order, denying the SI joint fusion and the intervention claims of Allina Medical Clinic, Premier Spine and Pain Clinic, and Pain Specialist of Minnesota. The employee appeals.
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). When the findings are supported by substantial evidence, the Workers’ Compensation Court of Appeals must defer to the compensation judge. Lagasse v. Horton, 982 N.W.2d 189, 202 (Minn. 2022). 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); see also Smith v. Carver Cnty., 931 N.W.2d 390, 79 W.C.D. 495 (Minn. 2019).
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); see also Busch v. Advanced Maint., 659 N.W.2d 772, 778-79, 63 W.C.D. 277, 284 (Minn. 2003).
The employee argues that the compensation judge’s findings and order are unsupported by substantial evidence in view of the entire record as submitted and that the compensation judge erred as a matter of law and as a matter of fact. We affirm in part, modify in part, and vacate and remand in part, based on the following analysis.
The compensation judge found the left SI joint fusion surgery was not reasonable or necessary to treat the employee’s work-related injury. The employee contends this finding is unsupported by substantial evidence. The employee argues that his medical evidence and medical history were significant factors overlooked by the compensation judge in adopting Dr. Sherman’s medical opinion. He points to the fact that the employee received consistent relief from SI joint injections which was overlooked by Dr. Sherman who reached an ultimate conclusion that the fusion surgery was not reasonable or necessary.
Dr. Sherman and Dr. Saeger opined that the employee suffers from chronic pain syndrome; however, they disagree as to the source of the pain. Dr. Saeger opined that the SI joint was the predominate source of the employee’s pain. His opinion was based on the outcomes of the SI joint injections and physical examinations. He recommended the SI joint fusion.[10] By contrast, Dr. Sherman opined that he would not identify the SI joint as the predominate source of the employee’s chronic pain. He further stated that a specific anatomic pain generator is unlikely to be identified here given the employee’s report of non-localized dispersed pain, the employee’s varied responses after each SI joint injection, the February 8, 2023, MRI scan, and his physical examination of the employee. We conclude that both medical experts had adequate foundation for their medical opinions in their written reports.[11] It was within the compensation judge’s discretion to accept Dr. Sherman’s opinion over the expert medical opinion of Dr. Saeger. Because substantial evidence in the record supports the compensation judge, we affirm.[12]
The employee also argues the compensation judge erred as a matter of law in denying the employee’s claim for a fusion of the SI joint by holding the employee to a higher standard of reasonableness than the statute requires. Pointing to Minn. Stat. § 176.135, the employee underscores the fact that the statute does not include the phrase “reasonable and necessary,” and only requires compensable medical treatment to be reasonable. We are not persuaded by the employee’s argument.
While the word “necessary” has been inserted within the framework established in workers’ compensation case law and Minnesota Rules, we conclude that the insertion here does not create a higher standard than is required under the Workers’ Compensation Act.[13] The compensation judge did not err as a matter of law. We affirm.
Next, we address the employee’s argument that the compensation judge made a significant error of fact in her recitation of the parties’ stipulations that bound the employee to a position to which he never agreed and was factually incorrect.
Stipulation of fact number six in the August 26, 2024, Findings and Order states, “[t]he insurer approved and paid for four prior SI joint injections, but the last injection on or about May 14, 2024, was paid under mistake of fact.” However, the hearing transcript states:
[T]hat Liberty Mutual approved and paid for four—four, the number four, f-o-u-r—prior SI joint injections; however, the employer and insurer assert that the last injection, on or about May 14th, was paid under mistake of fact.
(T. at 8.) (emphasis added.) Clearly, stipulation of fact number six is plain error. We modify stipulation of fact number six to state: “The insurer approved and paid for four prior SI joint injections. The employer and insurer assert that the last injection, on or about May 14th, was paid under mistake of fact.”
Finally, the employee appeals the compensation judge’s denial of the intervention claims of Allina Medical Clinic, Premier Spine and Pain Clinics, and Pain Specialist of Minnesota. We address each intervention claim in turn.
Allina Medical Clinic was put on notice of their intervention rights on June 1, 2024. They filed a motion to intervene on June 5, 2024, seeking payment for medical services for the employee’s left knee. In Finding 36, the compensation judge found there was no claim related to the employee’s left knee. The compensation judge was within her discretion to deny the intervention claim of Allina Medical Clinic, and we affirm.
Premier Spine and Pain Clinics was placed on notice of their right to intervene on June 1, 2024. The record hearing closed on July 1, 2024. On July 5, 2024, Premier Spine and Pain Clinics filed a motion to intervene. The compensation judge denied the claim without opening the record. She based her denial on the assertions from counsel for the employer and insurer at the trial that payments were made.[14] Assertions unsupported by affidavits, testimony, or other evidence are not findings of fact.[15] Basic fairness requires that all parties are afforded reasonable notice and the opportunity to be heard prior to the denial of payment.[16] Here, reasonable notice was given, but the opportunity to be heard was denied. We vacate Findings 34, 37, and 38, and Order 2 as they pertain to the intervention claims of Premier Spine and Pain Clinic and remand for factual findings.
Pain Specialist of Minnesota was placed on notice of their right to intervene on June 1, 2024. They filed a motion to intervene on July 8, 2024, after the close of the record. Similar to Premier Spine and Pain Clinics, intervenor Pain Specialist of Minnesota was given notice but was not afforded the opportunity to be heard. As such, Findings 35 and 38, and Order 2 as they pertain to the intervention claims of Pain Specialist of Minnesota are vacated. This issue is remanded for factual findings.
For the foregoing reasons, we affirm the compensation judge’s order denying the SI joint fusion and the denial of Allina Medical Clinic’s intervention claim and modify stipulation of fact number six in accordance with this decision. We vacate portions of the compensation judge’s Findings 34, 35, 37, and 38, and Order 2, that relate to Premier Spine and Pain Clinics as well as Pain Specialist of Minnesota, and remand for factual findings consistent with the requirements under Minn. Stat. § 176.361 and Minn. R. 1415.1250.
[1] Ex. 1.
[2] Ex. P; T. at 27.
[3] Ex. N at 183.
[4] Ex. 1.
[5] Ex. B.
[6] Ex. N at 153-55.
[7] Ex. 1.
[8] Ex. S.
[9] Ex. H.
[10] Ex. H.
[11] Mattick v. Hy-Vee Foods Stores, 898 N.W.2d 616, 621, 77 W.C. D. 617, 624 (Minn. 2017) (unless an opinion lacks adequate foundation, a compensation judge’s choice among conflicting expert medical opinions must be upheld).
[12] Smith v. Carver Cnty., 931 N.W.2d 390, 79 W.C.D. 495 (Minn. 2019).
[13] Amunrud v. Advance United Expressway, 64 W.C.D. 204, 218 (W.C.C.A. 2004), summarily aff’d (Minn. May 27, 2004); see Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993); see also Sullinger v. KIW Constr., No. WC22-6489 (W.C.C.A. Apr. 21, 2023).
[14] Findings 34, 37.
[15] Minn. Stat. § 176.411, subd. 1. (Findings of fact shall be based upon relevant and material evidence only.); see Burd v. Halstad Lutheran Mem’l Home, 68 W.C.D. 637, 640 (W.C.C.A. 2008), summarily aff’d (Minn. Apr. 29, 1996) (Arguments by counsel are not evidence).
[16] See Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 894, 40 W.C.D. 869, 872 (Minn. 1988).