Okay, that’s an edgy title, even for me. But you would think one would have figured out by now that the issue of surgery at the Board is sacred. And that Dr. Bruce Rudin’s arrival in Delaware approximately 15 years ago as the first certified spinal surgeon in the First State was akin to the “second coming”. The fact that he is a player on the Health Care Advisory Panel and is one of the authors of the Practice Guidelines is also old news.
In this case the UR examiner deemed the surgery, an arthroplasty at L4-5 and fusion at L5-S1, to be Guidelines-compliant. The decision to perform surgery was based on a discogram which produced concordant pain at L5-S1 and L4-5 although the pain at L5-S1 was not reproducible upon re-testing. A lumbar spine MRI was unremarkable. An appeal was taken to the IAB by the employer from the decision in favor of the claimant and provider.
Who were the players? Dr. Samuel Matz ,the defense medical expert, Dr. Rudin, the spinal surgeon, Jeff Gentilotti (claimant) and Gary Baker (employer) were the attorneys.
An unusual posture addressing both causation and reasonableness. In resolving the UR appeal, the Board commented that this case was initially presented as a lumbar contusion and not as a surgical injury, the employer not conceding that the findings in question prompting surgery were casually related to the claim. Nonetheless, in an abundance of caution and allowing for the potential of an adverse ruling on causation, counsel for the employer had astutely engaged UR on the surgical issue. Pivotal to the resolution causality was the discogram and its validity.
According to the Board, there was concurrence of medical opinion that the MRI findings were benign—non-traumatic in origin and consistent with age. More interesting still, the clinical exam was also fairly unremarkable with no evidence of neurological compromise. Thus, the entire case would rise and fall with that discogram in terms of it serving as the only corroborative evidence of the claimant’s subjective complaints and the only basis upon which the surgery would be appear to be reasonable, necessary and otherwise Guidelines-compliant. Of note, however, was a post-discogram CT scan indicating Grade 3 tears at L4-5 and Grade 4 tears at L5-S1. The discogram in tandem with the CT were deemed objective evidence of injury and causation was resolved in claimant’s favor.
The term of art? “An axial load injury resulting in internal disc disruption that remained hidden until the discogram and post-discogram CT…”
The case? Tonya Grimsley v. Citigroup Global Mark, IAB# 1308345 (6/24/10)
This Blogger’s comments: I know I will never walk on water like Jesus or Dr. Rudin. Aspiring to be more like Jesus or to enjoy Dr. Rudin’s unparallelled favor with the IAB is no doubt the subject of another blog another day. BUT-- The real hero in all of this? It’s Gary Baker, the employer’s counsel. Gary advanced a worthy appeal and like David, he took on Goliath and did not cower. As a practice pointer for the rest of us, he presented the medical defense knowing that for the sake of completeness he needed both UR for the propriety of the surgery issue and a DME (defense medical evaluation) for the causation issue….way to cover all your bases, Gary! Okay, so David did not best Goliath in this one but there is always another day at the Board, my esteemed colleagues…….and my money’s on Gary Baker for divine favor in the next round…..:>)
Sending you all my holiday best,
Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts
1) I think the Board addressed it well by saying this is a case where there is an admitted accident, the issues were did it meet the guidelines, if so was it still reasonable and necessary since the appeal was filed, finally was there any reason to conclude the admitted accident and injury were not the cause of the need for treatment under Delaware law?
UR established it met the guidelines, the DME did not dispute that or that the surgery was an appropriate one for a person with continuing back and leg pain. The DME either was unfamiliar with Reese and Sewell or does not understand the applicable standard of causation with respect to the degenerative changes, whereas the Board applied the correct standard.
2) the only thing mildly unusual we have here is the Board explicitly accepting that a provocative discogram coupled with the CT findings is a proper objective test for determining that the injured worker is a surgery candidate. Which I have seen them do, but never this clearly. Not to mention you have a "proof is in the eating of the pudding" case because the surgery was done and had good results.
3) this is yet another case of a carrier still believing the magic talisman of pre existing condition works to shield them from liability. As we know, it does not. DME testimony that fails to understand and deal with that using the applicable standard does a disservice to the carrier, the injured worker, and the Board.
This woman with no previous back problems fell on her butt and compressed her spine. Whether the need for the surgery comes from her pre-existing but latent degenerative changes made active by this event or from direct trauma causing new damage to her spine is not even relevant to whether or not the carrier owes for the treatment, however, as is common, the DME seems utterly hung up on trying to separate the two, to no good effect. Because DMEs are either uninformed or fail to understand the causation rules in this state, I expect to see such disputes continue to be litigated, but all we have confusing this case with thousands of others is the existence of UR and the relatively clear acceptance of the provocative discogram as a valid surgery evaluation tool.
Dr. Rudin did not walk on water, he rode through this on a properly inflated disc....
---Henry C. Davis.