When is a disputed surgery reasonable or unreasonable under worker's compensation if a patient has an existing incurable disease that would typically shorten his life expectancy to a few years? In a recent case affirmed by the Commission a consulting orthopedist flirts with the issue but the ALJ never resolves it because claimant's ALS is diagnosed after his disputed lumbar fusion.
Claimant reported he injured his back in 2002 after lifting 200 pound doors, and never returned to work. After the employer released claimant from care for his "facet syndrome", the claimant proceeded with an unauthorized 360 L5-S1 fusion performed by Dr. Piper in April 2003 for an "annular tear" and "internal disc disruption." The employer weeks before the surgery sent claimant to an orthopedic surgeon who advised against it, and concludedthat it was fraught with problems, and advised claimant for a work-up for CNS problems. Following the 2003 surgery claimant was diagnosed with ALS and died in 2006. The case eventually proceeded to hearing years later in September 2009, when ALJ Landolt awarded $141,877.87 representing the $84,748 in bills for the disputed surgery, 28 weeks TTD, and 30% BAW to the surviving widow. The employer's expert, Dr. Wagner, later declined to testify that the surgery itself was unreasonable, but questioned if ALS had it been diagnosed prior to the surgery if claimant would have been a surgical candidate for a fusion. The case is Adams v McBride & Sons Enterprises, DOLIR 5-13-10.
attorneys: Ann Dalton, Nanci Martin
experts: Dr. Volarich, Dr. Wagner, Dr. Raskas
treater: Dr. Piper
ALJ: Landolt award $141.877.87