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A waitress injured her lower back carrying heavy trays from the basement to the first floor of a restaurant. The restaurant accepted that the injury was compensable under an agreement. Following her injury, the waitress was referred to an orthopedic surgeon, who prescribed conservative treatment such as medication and physical therapy. The surgeon determined that her condition was not severe enough to require surgery.

The surgeon referred the waitress to a physician for pain management. The physician administered two steroid injections to control her pain.

The waitress went to another orthopedic surgeon for a second opinion who recommended conservative treatment and physical therapy.

A second expert witness and surgeon evaluated the waitress. This surgeon noted that virtually no treatment helped her and that she was not a candidate for surgery.

The waitress's back pain continued to get worse, so she sought treatment from a neurologist. She paid for this treatment through her private insurance. The neurologist placed her on medications.

The waitress went back to work handling telephone duties for a new employer. She had to leave the position because she could not commit to working everyday and she had to leave work sporadically due to her back pain.

The waitress then met with a neurosurgeon who opined that he would not recommend surgery. He suggested she meet with another neurosurgeon. This neurosurgeon recommended disk replacement surgery to alleviate the waitress's back pain.

The waitress requested that the restaurant pay for her back surgery. A commissioner's examiner did not agree that the waitress should undergo surgery because he did not think surgery would give the waitress a dramatic difference in her level of pain.

Was the commissioner correct in denying benefits for surgery?

A. No. The last neurosurgeon's recommendation was sufficient to require a finding that her surgery was medically reasonable or necessary.

B. No. If a treatment might help a claimant, the commissioner was required to find that the treatment was medically reasonable or necessary.

C. Yes. Based on the opinions of all of the doctors, the surgery was not warranted. The commissioner should give more weight to the opinion of the majority of doctors.

How the court ruled: C.

The court ruled that the commissioner based his decision on the opinions of all of the doctors and the finding was based on sufficient evidence. Cervero v. Mory's Association, Inc., et al., No. AC 31110 (Conn. App. Ct. 06/22/10).

The court also mentioned that the commissioner found that disk replacement surgery was not reasonable and necessary medical treatment.

A is incorrect. The court noted that numerous physicians determined that the waitress was not a good candidate for surgery. Two of the waitress's physicians recommended conservative treatment, as did the restaurant's expert witness.

B is incorrect. The court stated that a commissioner has discretion to approve a treatment with a low chance of success, but he is not required to approve it simply because the claimant found a physician who suggests the treatment would be "worthy of attempt."

CHRISTINA DIFONTE is the legal editor of the WorkersComp Forum.

This feature is not intended as instructional material or to replace legal advice.

Read more at the WorkersComp Forum homepage.

August 25, 2010

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