Pelowski v. K-Mart Corp.

• Court: Minnesota Supreme Court
• Writing for the Court: PAUL H. ANDERSON, Justice.
• Citation: Pelowski v. K-Mart Corp., 627 N.W.2d 89 (Minn. 2001)
• Decision Date: 07 June 2001
• Docket Number: No. C8-00-1644.,C8-00-1644.
• Parties: James PELOWSKI, Relator, v. K-MART CORPORATION, Self-Insured/IHDS of Michigan, Ltd., Respondents.

627 N.W.2d 89

James PELOWSKI, Relator, v. K-MART CORPORATION, Self-Insured/IHDS of Michigan, Ltd., Respondents.

No. C8-00-1644.

Supreme Court of Minnesota.

June 7, 2001.

Timothy J. McCoy, McCoy, Peterson, Jorstad & Brabbit, Ltd., Minneapolis, for Employee-Relator.

Lee J. Keller, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, for Employer-Respondents.

Considered and decided by the court en banc without oral argument.

OPINION

PAUL H. ANDERSON, Justice.

The relator, James A. Pelowski, challenges a compensation judge's denial of his claim for medical benefits for back surgery and the Workers' Compensation Court of Appeals' affirmance of that denial. We affirm.

On January 7, 1997, Pelowski sustained a low back injury while employed by respondent K-Mart Corporation. He injured his back when he lifted a pallet off the floor and then turned and threw the pallet into a return bin. At the time, he had been working for K-Mart for nearly 14 years.

Pelowski first sought medical care from his family physician, who diagnosed a lower back strain and prescribed physical therapy and pain medication. Pelowski's back pain persisted, and he was referred to an orthopedic surgeon, who diagnosed Pelowski's injury as a lumbosacral sprain. The orthopedic surgeon did not believe Pelowski was a candidate for back surgery, so he treated Pelowski with a series of epidural steroid injections. Pelowski subsequently was referred to another surgeon who diagnosed nonradicular low back pain and this surgeon similarly saw "no surgical indication." During a follow-up exam on March 24, 1997, Pelowski's family physician noted that he did not believe Pelowski had a "surgically treatable problem currently."

In April 1997, Pelowski saw a neurologist who thought Pelowski might have a lumbar radiculopathy related to an L4-5 abnormality, but the neurologist stated he did not have "solid evidence" of this diagnosis. The neurologist recommended conservative care and referred Pelowski to a physical medicine and rehabilitation specialist. This specialist noted that prior diagnostic testing, including a recent MRI, indicated degenerative disc disease, but the specialist found no "surgical indication on [Pelowski's] examination or symptoms." In November 1997, following a flare-up of lower back pain, Pelowski made a return visit to the neurologist. The neurologist again did not believe Pelowski was a candidate for surgery unless he developed "more constant pain or numbness or weakness in the legs."

In early 1998, the neurologist referred Pelowski to another orthopedic surgeon for a surgical evaluation. At this time, Pelowski described himself as being "basically just miserable." The orthopedic surgeon recommended surgery only as a "last option" and only if "after trying conservative treatment [Pelowski] feels the quality of his life is so badly affected that he wants to proceed with surgery * * *." During a follow-up visit in June 1998 with the same orthopedic surgeon, Pelowski reported a worsening of symptoms, but the surgeon still recommended conservative care. In September 1998, Pelowski told the surgeon he was unable to sleep or sit due to back-related symptoms and that he wanted to pursue a surgical option. Following a "positive discogram," in October 1998, the surgeon recommended a two-level arthrodesis. A neurologist later concurred with this recommendation.

Meanwhile, Pelowski was examined by K-Mart's medical examiner, also a neuro-surgeon, who diagnosed chronic lower back pain syndrome. K-Mart's medical examiner did not believe that surgery would be necessary unless conservative measures failed to alleviate Pelowski's low back symptoms and diagnostic testing showed lumbar instability. Following the orthopedic surgeon's subsequent recommendation for surgery, K-Mart's medical examiner reviewed the various medical records relied on by Pelowski's orthopedic surgeon who recommended surgery and again concluded that surgery was not appropriate. K-Mart then refused to authorize payment for the surgical procedure.

In March 1999, Pelowski filed a claim petition with the Department of Labor and Industry seeking approval for his back surgery. While the claim was still pending, he made arrangements for the surgery through his health insurer and obtained a second opinion from an orthopedic surgeon for that purpose. On September 22, 1999, he had an anterior interbody lumbar fusion at L3-4 and L4-5. In a follow-up visit on October 28, 1999, Pelowski told his surgeon that his back-related symptoms had improved.

Pelowski's medical benefits dispute came on for hearing before a compensation judge of the Office of Administrative Hearings in November 1999. The compensation judge found that the treatment parameter of Minn. R. 5221.6500, subp. 2C(1)(d), applied to Pelowski's claim; that the requirements of degenerative disc disease with a positive discogram at one or two levels had been met, but that Pelowski "did not have consistent symptoms which would indicate the need for fusion surgery." The judge then went on to find that Pelowski had failed to meet his burden of proving that the surgery was compensable and thus denied the claim. On appeal, the Workers' Compensation Court of Appeals (WCCA) affirmed on the grounds that the record supported the compensation judge's choice between conflicting expert opinions. By writ of certiorari, Pelowski has sought review of that decision.

When reviewing the findings of a compensation judge, the WCCA may not disregard the compensation judge's findings, but must affirm the findings unless they are "clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted." Minn.Stat. § 176.421, subd. 1 (2000). Substantial evidence is evidence that a reasonable mind might accept as adequate. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59 (Minn.1984). Although the WCCA is required to look at all the evidence in performing its review function, it must give due weight to the compensation judge's opportunity to evaluate the credibility of the witnesses and must uphold findings based on conflicting evidence or evidence from which more than one inference might reasonably be drawn. Id. at 59-60. When we review a matter on certiorari, we will not disturb findings affirmed by the WCCA unless the findings are manifestly contrary to the evidence or unless the evidence clearly requires reasonable minds to adopt a contrary conclusion. Id. at 61.

Minnesota Statutes § 176.135, subd. 1(a) (2000), states that an employer is to furnish "any medical, psychological, chiropractic, podiatric, surgical and hospital treatment * * * as may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury."¹ Under legislation enacted to control medical costs in the workers' compensation system, the Department of Labor and Industry promulgated treatment parameter rules for health care provider treatment. Hirsch v. Bartley-Lindsay Co., 537 N.W.2d 480, 483 (Minn.1995). The rules "provide the yardstick by which the treatment offered by the health care provider is measured" and aid the trier of fact "in identifying reasonable and appropriate medical treatment." Jacka v. Coca-Cola Bottling Co., 580 N.W.2d 27, 35 (Minn.1998). The rules endeavor to provide "a large measure of uniformity and certainty as to compensable treatment." Id.

The applicable parameter in this case, Minn. R. 5221.6500, subp. 2C(1)(d) (2000), provides that lumbar arthrodesis surgery is reasonably required if the employee has incapacitating low back pain for more than 3 months and degenerative disc disease with a positive discogram at one or two levels of the spine.² Here, the compensation judge found that although Pelowski had degenerative disc disease with a positive discogram at one or two levels, he had not had incapacitating low back pain. The WCCA stated the compensation judge's finding that Pelowski did not satisfy the treatment parameters was "questionable," but it affirmed the denial of benefits on alternate grounds—that the compensation judge's choice between expert opinions had the requisite evidentiary support.

As a general rule, the trier of fact's choice between experts whose testimony conflicts is upheld unless the facts assumed by the expert in rendering his or her opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 342-43 (Minn.1985), distinguished by Dille v. Knox Lumber/Division of Southwest Forest, 452 N.W.2d 679, 681 (Minn. 1990). But the treatment parameter rules provide the "yardstick" by which the propriety of treatment is measured and contemplate a "large measure" of "certainty as to compensable treatment." Jacka, 580 N.W.2d at 35. In the context of claims for medical treatment outside the rules, we have said that a compensation judge may depart from the rules only "in those rare cases in which departure is necessary to obtain proper treatment." Asti v. Northwest Airlines, 588 N.W.2d 737, 740 (Minn. 1999) (quoting Jacka, 580 N.W.2d at 35-36) (emphasis in original). With the exception of the "rare case," when the treatment parameter criteria have been satisfied, a claim for such treatment ought not to be defeated by...