The employee had an admitted right foot and ankle injury in 2008, and the employer and insurer had paid for multiple surgeries. In the summer of 2011, an additional surgery was recommended. In June 2011, when the insurance representative found out the surgery was scheduled, her repeated requests for information about the surgery and the rationale behind the doctor’s recommendation were unanswered. The surgery was performed as scheduled on August 15, 2011, and the employee put it under his health insurance. The employer and insurer scheduled an independent medical examination, and the employee then filed a claim petition on August 26, 2011, seeking approval for the surgery. The records attached to the claim petition constituted the first time the insurer had received any indication of the doctor’s rationale for recommending the surgery. The employee canceled a September 17, 2011 IME, and attended a rescheduled IME on October 12, 2011. In his report of November 10, 2011, the IME doctor agreed that the surgery was reasonable, necessary, and related to the work injury. The insurer then agreed to pay for the surgery. The employee’s attorney filed a statement of attorney’s fees (including a claim for Roraff fees and subdivision 7 fees), but the compensation judge declined to award any attorney’s fees since he found that there had not been a genuine dispute.
The W.C.C.A. affirmed the compensation judge. The failure of the treating surgeon to provide the insurer with information about the surgery, and the employee’s cancellation of the first IME appointment, were the causes of the delayed approval. The surgery was not an emergency procedure, and it was not delayed by the insurer’s actions. The insurer had not taken an unreasonable amount of time to take a position on liability for the surgery, considering the sequence of events.