Meyer v. Genmar Transp., Inc. et al

Meyer v. Genmar Transp., Inc. et al., No. WC15-5845 (Mar. 1, 2016)

In this workers’ compensation dispute, the employee appealed a compensation judge’s determination that a three-level fusion surgery from September 4, 2014 was not reasonable or necessary in connection with a February 17, 2009 work injury.

Employee was a truck driver. On the date of injury, the employee was rolling a set of tarps weighing 75-90 lbs at a truck stop in Denver, Colorado. He described “flopping forward” as he was rolling tarps and experiencing sudden pain in low back with numbness in the front of his left leg to the knee.

Had some chiropractic care that failed to relieve low back pain in early 2009; a March 2009 MRI showed disc dehydration with lumbar disc bulging, but no herniation or neural compression. The employee had therapeutic injections at Institute for Low Back and Neck Care. In July 2009, Orthopedic Surgeon Dr. Harvey Bishow performed an examination and found limited ROM, tenderness, and spasms in the employee’s lower lumbar spine; the neurological examination was normal. Dr. Bishow found a temporary strain/sprain occurred on the backdrop of pre-existing degenerative disc disease, which was the underlying cause of his ongoing disability and need for treatment.

In September 2009, the employee reported his back pain and limp had worsened. Injections and blocks had only provided minimal relief. Physical therapy had not been particularly helpful. A discography was recommended by the treating doctor to identify pain generators; the subsequent discography showed concordant back pain at L4-5, and discordant pain at L3-4 that was higher than where the employee typically felt pain. Annular tears were shown by a 2009 CT scan at L3-4 and L4-5.

In 2010, the employee was still doing poorly and was referred to Dr. Jeffrey Pinto, orthopedic surgeon. Dr. Pinto ordered an EMG that was normal with regards to weakness in left leg. L2-3 facet blocks provided no significant relief. Dr. Pinto determined that if there was one bad looking disc, it was L4-5. Pinto stated in July 2010 that given the positive multi-level discogram findings, the only thing that may help would be a multi-level fusion. However, with two relatively normal discs, he reasoned that a three-level fusion was not likely going to be a wise choice, and advised chronic pain management.

In September 2010, the employee began treating with Dr. Todd Hess at United Pain Center who found no neurologic component and prescribed pool therapy, repeat injections, and medication for pain.

The employee’s condition worsened into 2013 and employee was referred out to Dr. Sunny Kim at Tristate Brain and Spine Institute. A repeat discogram from 2014 showed mild discordant pain at L2-3, and concordant low back pain at L3-4 and L4-5 with no leg pain. A tear was still visible at L4-5. Dr. Kim recommended a three-level fusion based on failed conservative treatment.

On September 4, 2014, the employee underwent L2-L5 fusion and had significant weakness in his leg following surgery. The employee underwent physical therapy and was recommended a bone growth stimulator.

In December 2014, the employee was examined by Dr. Albert Meric, neurosurgeon, at request of the employer and insurer. Dr. Meric found the surgery made the employee worse rather than better and that the employee had extreme weakness in left lower extremity with sensory loss in left foot from a surgical failure. He further found the employee’s condition was not related to the February 17, 2009 work injury, that the employee reached MMI on April 17, 2009, and that the surgery was not reasonable or necessary.

The employee filed a claim petition for medical expenses in 2015, which was denied by the employer and insurer. The compensation judge found the surgery to be not reasonable or necessary.

On appeal, the employee argued the applicable treatment parameters in this case involved Minn. R. 5221.6500, subp. 2.C.(1)(d)(i) (“lumbar arthrodesis surgery is reasonably required if the employee has incapacitating low back pain for longer than three months and degenerative disc disease with positive discogram at one or two levels of the spine involving lumbar segments L-3 and below”). The employee noted that discograms showed positive results at least two levels. The employee further argued Dr. Pinto’s 2010 opinion was outdated and should not be relied on, considering he had a 2014 surgical consultation with Dr. Kim due to persistent back pain. The employee additionally noted that conservative approaches, including significant narcotics, had failed.

The Workers’ Compensation Court of Appeals found the employee failed to raise these parameters at trial and therefore did not consider them on appeal. The court additionally found that because the employer and insurer denied medical causation at the time of fusion surgery and as far back as the independent medical examination in 2009, the medical treatment parameters did not apply pursuant to Minn. R. 5221.6020, subp.  2, which states parameters “do not apply to treatment of an injury after insurer has denied liability for an injury”. The employer insurer had denied causation in response to claim petition filed in 2015 and at time of surgery. The court found that the treatment parameters did not apply on this basis as well.

The employee also raised a notice issue under Stordahl v. Advanced Comm’ns, Inc., contesting this allowed him to proceed with the three-level fusion surgery in September 2014. The employee stated he employer and insurer failed to respond within the permissible time (45 days) after surgery was recommended by in July 15, 2014, based on a note from Dr. Kim that stated “we will get WC authorization for the procedure”. On this point, the employee failed to show at trial when or to whom Dr. Kim made this communication; the employee also failed to show that the employer or insurer responded in any way.

In affirming the compensation court’s determination, the court of appeals found that Dr. Pinto and Dr. Meric both advised against surgical intervention based on MRIs revealing mild-minimal disc degeneration without nerve root impingement or stenosis, along with negative results from the EMG. Doctors Pinto and Meric found there was a remote likelihood that a three-level fusion would offer any good relief; the only doctor to recommend the surgery was Dr. Kim. Ultimately, it was for the compensation judge to weigh the evidence.