Krumwiede v. GGNSC Slayton, WC18-6134 (W.C.C.A. July 10, 2018).
Employee appeals the compensation judge’s refusal to award benefits following a fusion surgery, where the medical opinion relied upon by the compensation judge was given proper to the actual surgery performed and the surgery differed from the procedure described in the medical opinion.
The employee sustained admitted work injuries to her low back with employer. Employee underwent physical therapy and a course of injections that did not resolve her radicular lumbar pain. On March 8, 2013, employee underwent an IME with Dr. Cederberg on behalf of employer and insurer. Dr. Cederberg found the employee suffered a temporary aggravation of underlying degenerative disc disease at L4-SI. Dr. Cederberg further opined that no further care was needed in relation to the work injury. On July 8, 2013, Dr. Cederberg performed a second IME, confirming his prior opinions.
In August 2014, one of the employee’s treating physicians recommended a fusion surgery. Employee’s second treating physician recommended additional therapy, injections, and an MRI. On October 8, 2015, Dr. Cederberg conducted a third IME, finding that the employee would be a poor candidate for the proposed L4-L5 fusion surgery because of her smoking history. Dr. Cederberg believed that a microdiscectomy could be reasonable, but due to employee’s degenerative disc disease.
The matter came before a compensation judge in November 2015, where it was found that the work injuries were the cause of employee’s low back condition, but that the proposed surgery had not been proven to be reasonable or necessary. The compensation judge also found the employee did not exhaust conservative care. After additional failed conservative treatment, the employee underwent a bilateral discectomy and fusion at L4-L5 and L5-S1 in April 2016.
The employee subsequently filed a claim petition seeking benefits following the April 2016 surgery. The compensation judge found that the employee’s low back pain was eliminated after the surgery, but that the fusion surgery was not reasonable or necessary to cure or relieve the employee of the effects of the work injuries. The compensation judge relied on Dr. Cederberg’s latest IME for the opinion.
Upon appeal, the WCCA pointed out that the compensation judge relied on an opinion that assessed a proposed one-level fusion, which was requested “before the employee underwent conservative treatment.” After the date of the IME, the employee underwent failed conservative care, and a subsequent fusion at two levels. The WCCA found that Dr. Cederberg’s opinion was adequate for addressing the issue of whether the proposed surgery was necessary or reasonable at that time. However, the present issue is whether the surgery, as performed, was reasonable and necessary to cure and relieve the employee of the effects of the work injuries. Dr. Cederberg’s opinion was delivered prior to the failed conservative care from November 2015 onward.
Citing to Gianotti v. Indep. Sch. Dist. 152, the WCCA concluded that “the absence of information in Dr. Cederberg’s assessment regarding any treatment undergone after October 22, 2015, under the facts of this case, results in the ‘speculation or conjecture’ that renders the medical opinion unreliable for deciding the issue before the compensation judge. Instead of reversing, the WCCA decided to remand the matter for specific findings on the reasonableness and necessity of the surgery as performed to determine if medical benefits provided are compensable. Lastly, the WCCA found that PPD and TTD/TPD benefits should have been awarded, and reversed that finding.