Tomford v. Mark’s Welding, Inc.,

Tomford v. Mark’s Welding, Inc., No. WC13-5655 (April 30, 2014) 


The WCCA held that the sacroiliac joint is not subject to the treatment parameters for the lumbar spine and that an employer and insurer’s request for appointment of a neutral physician is mandatory when made within two weeks of a renewed request for surgery.


The employee suffered a low back injury on June 2, 2005, which led to a fusion surgery at L5-S1.  The employee filed petitions regarding rehabilitation and seeking approval for an SI joint fusion surgery.  The compensation judge determined in a May 2, 2013 Order that the employee’s request for surgery was premature and that the employee must undergo additional diagnostic testing.


The employee underwent the required diagnostic testing, but the employer and insurer continued to refuse to pay for the proposed surgery.  The employee renewed his request for surgery and requested an expedited hearing.  A special term conference was held in less than two weeks, whereby the parties reiterated their positions.  Counsel for the employer and insurer indicated that her IME physician continued to disagree with the proposed surgery and requested the appointment of a neutral physician.  In addition, counsel for the employer and insurer contended, for the first time, that the proposed surgery was not consistent with the lumbar spine treatment parameters.


In an “Order on Special Term Conference,” the compensation judge requested formal legal briefs regarding the employee’s renewed surgical request. Ultimately, the compensation judge submitted a Findings and Order declaring the employer and insurer’s request for appointment of the neutral physician untimely and granting the employee’s request for the proposed surgery.


On appeal, the employer and insurer contend that their request for appointment of a neutral physician was timely and that the awarded surgery is contrary to the treatment parameters. Regarding the treatment parameters, the WCCA found that the SI joint is not a part of the lumbar spine, nor can the lumbar spine treatment parameters be applied to the SI joint by analogy. 


With respect to the request for a neutral physician, Minn.Stat.§176.155, subd. 2, requires that a compensation judge designate a neutral physician when requested by any party no later than 30 days prior to a prehearing conference.  Due to the unusual procedural history of the matter at hand, the WCCA considered the employee’s renewed request for surgery to be a new request for surgery.  As the employer and insurer requested a neutral physician be appointed less than two weeks after this new request was made, and more than 30 days prior to the scheduled conference, it was timely.  Affirmed in part and reversed in part.