As Susan Hauske might say, defense lawyers we are on a roll. Susan was prompted to share the ruling du jour in light of my recent (9/6/12) post titled Walks on Water?, a discussion of a recent ruling in which surgery was denied, a rare occurrence here in the First State. So says Susan:
In follow up to your recent blog note of Christopher Ned v. Garda Cash Logistics, attached please find another decision denying Claimant's petition for lumbar surgery, on Claimant's appeal from the UR denial of the proposed surgery. Perhaps the tide is changing? It definitely appears that the Board is examining these on a case by case basis ....."
So what was so special about this case, which yielded twofold unlikely results-that is, both surgery denied and a claimant's UR appeal succumbing to a failed outcome?
The background: Claimant had a compensable C-spine and L-spine injury occurring October 2009 and was post-op extensive surgical intervention at C5-6 including a fusion, performed by Dr. Rastogi. In November 2011 Dr. Rastogi proposed discectomy, fusion and laminectomy L3-4 and L4-5. A Utilization Review found the proposed procedure Guidelines non-complaint. Claimant appealed.
The players: Dr. Rastogi testified for the claimant and Dr. Kalamchi testified for the carrier.
The outcome: In a remarkably tightly-written decision (15 pages authored by Julie Pezzner), the Board denied the proposed surgery based on the following:
• Exaggerated subjective complaints
• Minimal objective findings on MRI
• Two initial EMG's within normal limits
• Two DME's occurring after Dr. Rastogi's most recent examination of claimant
• Positive Waddell signs
I give you Margaret Brennan v. Claymont Fire Co., IAB# 1346556 (9/12/12).
A new trend indeed........
Irreverently yours,Cassandra Roberts
Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts
For more information about LexisNexis products and solutions connect with us through our corporate site.