Like a Virgin: IAB Denies Surgery and What a Difference a Year Makes!

Today’s post comes to us from my dear colleague Jessica Leigh Julian of Marshall Dennehy.  And it seems to me that there have been a flurry of proud defense lawyers standing up against the call of the scalpel.  Jess joins Wade Adams this week in a successful challenge to a DACD Petition for surgery.   Attached is Bryan Gatta v. State of Delaware, IAB Hr’g No. 1364816 (Mar. 12, 2015).  I will let Jess share with you her spoils of victory:

I’m not Irish but yesterday was my birthday (the day the Board mailed this decision).

There were two issues—a Petition to Terminate and a DACD for surgery.  If the surgery were found related, the carrier would have lost on the Petition for Review.

By way of background, claimant sustained compensable back and neck injuries in January 2011.  In 2013, claimant wanted cervical spine surgery.  Carrier had Dr. Fedder evaluate the claimant and he opined that the claimant had an issue at C5-6, but because there was degeneration at C6-7, a two level fusion was reasonable, necessary and related.  However, Dr. Rudin did not perform a two- level fusion in 2013.  Instead, he decided to perform a disc replacement at C5-6 in May 2103. Carrier paid for the disc replacement surgery

Fast forward to 2014 when Claimant began experiencing a worsening of symptoms.  Dr. Rudin goes in and removes the disc replacement and performs a two- level fusion of C5-6 and C6-7.  Dr. Fedder re-evaluates the claimant to address the compensability of the fusion in 2014.  Dr. Fedder opines that the surgery was not reasonable, necessary or related to the work injury.  He noted that the C5-6 disc replacement resolved the issues down the arm.  The imaging studies did not support any adjacent segment disease at C6-7 caused by the 2013 surgery.  He also noted a significant distinction between a fusion on virgin disc versus removing an artificial disc and then fusing the levels.

So, although the 2013 DME of Dr. Fedder reflected an opinion that the two-level fusion would be appropriate, the Hearing Officer, appreciating the nuances of the medical history in this case, denied the surgery, granting the employer’s Petition to Terminate based on the 2014 DME.

So, are we seeing a trend here?  Putting the surgery under the microscope in a manner that is heretofore unknown?

Take from this what you will, dear ones, but for my part I am going to remember that buzzword that carried the day . . . the virgin disc.

Irreverently yours,

Cassandra Roberts