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Industrial accident board overturns utilization review determination and finds that disc replacement surgery was necessary and reasonable treatment for the claimant's compensable back injury.

July 1, 2010
Lee McDonough v. Southern Wine Spirits Of America, (IAB # 1321348) decided 4/15/10

The claimant sustained a low back injury on May 21, 2008, which was accepted as compensable by the employer. The claimant was paid compensation for total disability and certain medical expenses. Eventually, after failing conservative care, the claimant underwent disc replacement surgery at the L5-S1 level performed by a surgeon on February 17, 2009. The employer challenged this treatment, and the utilization review ("UR") found that it was not within the Healthcare Practice Guidelines. The claimant filed a Petition to determine additional compensation due, and a de novo hearing took place before the Board. The Board overturned the UR ruling and found that the disc replacement surgery was necessary and reasonable treatment. The testimony of the treating surgeon, as the claimant's expert, was accepted as credible. That testimony noted that a discogram had confirmed that the pain emanated from the L5-S1 disc. The treating doctor testified that under the Guidelines, the claimant's options were a spinal fusion or disc replacement and that he believed the disc replacement was less invasive than a fusion and had a higher success rate. The claimant testified that following the surgery, his condition was improved, and while that fact is not dispositive to the outcome, the Board found that it supported the claimant's medical expert's theory. In rejecting the testimony of the defense expert, who said the surgery did not satisfy the criteria of the Guidelines, the Board noted that he does not even perform disc replacement surgery. The Board ordered payment of the medical bills associated with the surgery as well as a counsel fees and medical witness fees.

Case Law Alert - 3rd Qtr 2010

Affiliated Attorney

Paul V. Tatlow
Shareholder
(302) 552-4035
pvtatlow@mdwcg.com

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