Colindres v. ABM Janitorial Servs. and ACE USA

Colindres v. ABM Janitorial Servs. and ACE USA, No. WC13-5584 (October 1, 2013)

The employer and insurer unsuccessfully appealed a compensation judge’s findings that the employee had incapacitating back pain and the proposed back surgery was reasonable and necessary.

The employee injured his low back on two occasions in 2011 while working for the employer as a janitor. In addition to this full-time job, the employee had his own janitorial business on the side.

Following the low back injuries, the employee treated with a chiropractor and began wearing a back brace.  Although he was given work restrictions (no lifting, pushing pulling), the employee was able to continue working both jobs by modifying his job duties and by moving in to a more supervisory role in his own business.  During February and March 2012, the employee’s symptoms continued to worsen.

The Employee saw Dr. Douglas Becker at Minneapolis Orthopedics.  An EMG showed no abnormalities but the employee complained of occasional discomfort radiating down both knees.  The employee continued his conservative treatment (a home exercise program and chiropractic care).  At a subsequent visit, Dr. Becker recommended epidural steroid injections, which were mildly helpful.  The employee continued wearing his back brace, performing home exercises, and seeing a chiropractor.  The work restrictions were expanded (no overhead lifting).

Because conservative treatment and the epidural steroid injections had not worked, Dr. Becker referred the employee to a spine surgeon, Dr. Sinicropi, who believed the employee had bilateral pars intraarticularis fractures of L5 and moderate to severe bilateral neuroforminal stenosis.  Dr. Sinicropi described the symptoms as “severe, unrelenting and intractable” and discussed the possibility of an anterior/posterior fusion and decompression at L5-S1.

In January 2013, the employee had left lower extremity symptoms with a constant sharp stabbing pain in his low back.  Dr. Sinicropi told the employee if he continued to work, his symptoms would get worse.  Because the employee was concerned about losing his job, he asked Dr. Sinicropi to impose the same work restrictions and renew his prescription pain medication.

Dr. Paul Wicklund examined the employee in March 2013 at the employer and insurer’s request.  He diagnosed grade 1 spondylolisthesis in the lumbar spine with subjective low back pain.  Dr. Wicklund stated surgery at this point was not reasonable or necessary based on “the lack of any specific effort to try and reestablish core muscle strength” and recommended a three-month supervised exercise program.

A few weeks later, the employee’s left leg had gone completely numb and he began dragging his leg due to the pain.  However, the employee continued to work because he needed the money.  In April, Dr. Sinicropi wrote to the employee’s attorney stating that any type of physical therapy at this point would be “completely useless” and recommended surgery.

On appeal, the employer and insurer argued substantial evidence did not support the finding that the proposed fusion surgery was reasonable and necessary.  They also alleged the judge committed reversible error because the applicable treatment parameters require conservative modalities before surgery.

There are three phases of the course of treatment for low back pain.  Minn. R. 5221.6200, subp. 2.B. The first calls for “initial nonsurgical management which may include active treatment modalities, passive treatment modalities, injections, durable medical equipment and medications.” Id. at subp. 2.B.(1).   The employer and insurer argue this treatment modality has not been properly explored based on Dr. Wicklund’s opinion the employee should undergo a three-month supervised exercise program before surgery is considered.

The W.C.C.A. determined the rule cited above lists conservative treatment modalities that may be undertaken, but the rule does not require all conservative modalities be exhausted before surgery. The chiropractic and medical records in this case reflect the employee was consistently performing home exercise programs as part of his conservative treatment, and that chiropractic care and epidural steroid injections did not yield significant improvements.

The employer and insurer also alleged the compensation judge erred in finding the employee had incapacitating low back pain that lasted longer than three months, which is one of the criteria applicable to lumbar fusion surgery under Minn. R. 5221.6500, subp. 2.C.(1)(d).  They argued that because the employee continued to work two jobs and his symptoms did not worsen since the injuries in 2011, his pain cannot qualify as “incapacitating.”

An employee may experience “incapacitating pain” within the meaning of the rule without being totally disabled from work.  Kappelhoff v. Tom Thumb Food Markets, 59 W.C.D 479 (W.C.C.A. 1999).  And this determination as to “incapacitating low back pain” is a fact question for the compensation judge to determine.  Klinefelter v. Quicksilver Express Courier, slip op. (W.C.C.A. Jan. 6, 2003).  Here, the medical records established that since the 2011 injury, the employee had increased symptoms and needed additional work restrictions.  The W.C.C.A affirmed the compensation judge’s finding that the proposed surgery was reasonable and necessary.