The Full Board, at its meeting held on May 15, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on July 22, 2011, which was subsequently amended on August 5, 2011.
The issue presented for Mandatory Full Board Review is whether the carrier is liable for the cost of cesarean section (C-section).
The Workers' Compensation Law Judge (WCLJ) amended the case to include a consequential C-section to her established back injury.
The Board Panel majority found that the claimant's C-section was not consequential to her established back injury, and that the carrier was not liable for the costs associated with the C-section.
The dissenting Board Panel member found that there is sufficient credible medical evidence to support a finding that the claimant's need for a C-section delivery was a consequence of her work-related back injury.
The claimant filed an application for Mandatory Full Board Review on July 22, 2011.
The carrier filed a rebuttal on August 12, 2011.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On August 18, 2008, the claimant, a sales representative for the employer, was injured when she slipped and fell down a flight of stairs. The case is established for a work-related injury to the claimant's back.
The claimant's treating OB/GYN, Dr. Dolisi, drafted a letter dated February 6, 2009, and submitted to the Board on February 9, 2009, wherein the doctor indicated that claimant was under his care for her pregnancy. Dr. Dolisi indicated that "[d]ue to chronic back ailments, she is scheduled to have a C-section on March 26, 2009." Claimant gave birth via C-section on March 26, 2009.
By a decision filed July 15, 2009, the WCLJ found prima facie medical for consequential C-section and directed the carrier to obtain a consultant's report on the issue of whether claimant's C-section was consequential to her established back condition.
The hospital discharge summary by Dr. Wayock, dated March 29, 2009, and submitted to the Board on January 25, 2010, indicated that the claimant was admitted on March 26, 2009, for primary elective C-section secondary to significant history of lower back pain, that the claimant underwent the C-section, and delivered a baby. Under the heading "final diagnosis," Dr. Wayock wrote: "current condition of mother complicating pregnancy; thoracic/lumbosacral neuritis/radiculitis, elderly primigravida…"
Dr. Dolisi testified on September 22, 2010, that he is a Board certified OB/GYN. He first started treating the claimant for her pregnancy on December 10, 2008. She was 24 weeks pregnant at that time. Her due date was April 1, 2009. The claimant reported that she was out of work on workers' compensation, and that she fell in her first trimester down a flight of stairs. A note from the claimant's previous doctor dated July 30, 2008 (before her work accident) indicated that the claimant had chronic back pain. Because of the extra stresses on the back caused by labor, a decision was made that the claimant should undergo an elective C-section. The main reason that a C-section was performed was the claimant's back pain. His notes indicate that the claimant "wants a primary C-section due to chronic back problem." The claimant had a history of chronic back pain even before her work-related accident. He has no records from any physicians that treated the claimant for her back prior to August 18, 2008, to compare whether or not there was any significant change in the claimant's chronic back problem before and after her work-related injury. He conceded that it is common for individuals who are pregnant to have back pain even if they never sustained a trauma to their back or experienced chronic back pain. There was no reason to do a C-section in this case based upon the positioning of the fetus during pregnancy. However, the claimant's baby was small for the gestational age of the baby. The baby was in the tenth percentile compared to other fetuses at that gestational age. The claimant may have been given the option for a C-section because sometimes smaller babies do not handle long labor well. However, there was nothing in the claimant's file indicating that he provided this type of choice to her. If the claimant's back was not an issue, he would have still given her the option to have a C-section due to the size of the baby. The claimant's C-section was paid for by her private insurance.
In a series of medical reports covering the period August 28, 2008, to June 30, 2010, the claimant's treating orthopedist, Dr. Haar, diagnosed the claimant with a contusion of the lumbar region and opined that the claimant was totally disabled.
Dr. Haar testified on September 15, 2010, that based on the claimant's history, physical examination, and functional status, he opined the claimant had a moderate partial disability. On cross-examination, Dr. Haar testified that at all times between August 28, 2008, and November 16, 2009, the claimant had a moderate partial disability.
In a series of medical reports covering the period February 3, 2010, to December 14, 2011, the claimant's treating pain management physician, Dr. Kirschen, diagnosed the claimant with thoracic/lumbosacral neuritis/radiculitis, other symptoms of the back, and sacroilitis, and opined that the claimant had a 60% impairment. Dr. Kirschen testified on November 19, 2010, consistent with his reports, claimant had an impairment of approximately 60%.
Claimant was examined by the carrier's consulting orthopedist, Dr. Moriarty, on October 22, 2008, and October 21, 2009. In an addendum dated March 23, 2010, Dr. Moriarty indicated that while the claimant does have a history of back pain, an MRI and x-ray failed to reveal any structural abnormality. Dr. Moriarty further indicated that there were no structural abnormalities identified that would preclude the claimant from participating in a normal vaginal delivery. Dr. Moriarty stated that the claimant elected to pursue a C-section due to her history of back pain and fears of exacerbating her back pain during delivery. Dr. Moriarty opined that based on a review of claimant's medical record, including a negative x-ray, a negative MRI testing, and no abnormality of the claimant's pelvis, there was no orthopedic reason that the claimant was precluded from pursuing a vaginal delivery. Dr. Moriarty recommended an additional opinion from a board certified obstetrician.
Claimant was again examined by Dr. Moriarty on May 26, 2010. In his resulting report, Dr. Moriarty opined that the claimant was not disabled from an orthopedic standpoint. Dr. Moriarty noted that the claimant has subjective complaints that are not supported by objective orthopedic findings or objective test results. Dr. Moriarty further opined that the claimant could return to gainful employment without restrictions.
Dr. Moriarty testified on September 17, 2010, that the question of whether the claimant's C-section was consequential to her compensable back problem would be a question for an obstetrician. However, in his opinion, there was no mechanical orthopedic problem that would have prevented the claimant from having a vaginal delivery. He noted that the claimant had no history of fracture to the pelvis, no herniated discs or spinal instability that would preclude her from having a vaginal delivery. From an orthopedic standpoint there was no structural abnormalities identified in the claimant's workup that would have precluded her from pursuing a normal vaginal delivery. It was his opinion that the claimant elected to pursue a C-section to avoid potential increased back pain, and "there was no actual orthopedic objective or test-related condition that would preclude her from a normal delivery" (p. 13). He last saw the claimant on May 26, 2010. From an orthopedic standpoint, he did not find any evidence of disability. He opined that the claimant had subjective complaints which were not supported by objective orthopedic findings. He felt that the claimant was capable of returning to gainful employment without restrictions.
The claimant testified on December 8, 2010, that she first started feeling back pain in relation to her pregnancy about two or three days after her accident. She did not feel any pain from her pregnancy prior to her accident. The back pain persisted during the whole course of her pregnancy. Her OB/GYN, Dr. Dolisi, approached her and told her that she should have a C-section. Before the accident she planned to give birth naturally.
At the conclusion of the hearing, the WCLJ amended the case to include a consequential C-section, found that the claimant was attached to the labor market, made awards at a 60% moderate-to-marked partial disability rate of $453.60 per week from July 14, 2010, to November 29, 2010, and held awards in abeyance after November 29, 2010. The WCLJ's findings were memorialized in a decision filed on December 13, 2010. The carrier filed a timely application for administrative review.
The case has been established for a work-related injury to the claimant's back. The claimant's treating OB/GYN, Dr. Dolisi, submitted a letter dated February 6, 2009, indicating that due to chronic back ailments, the claimant is scheduled to have a C-section on March 26, 2009. The discharge report from the delivery of the claimant's baby indicates that the claimant presented for primary elective C-section secondary to significant history of lower back injury, and that the current condition of the claimant complicating pregnancy was thoracic/lumbosacral neuritis/radiculitis.
Dr. Dolisi testified that the main reason the claimant decided to have a C-section was due to her back pain, as labor for a prolonged period could put more stress on the back. Dr. Dolisi noted the claimant had a history of chronic back pain even before her work-related accident.
The carrier's consultant, Dr. Moriarty testified that there was no orthopedic reason to support the claimant undergoing a C-section or to preclude a regular vaginal delivery. However, Dr. Moriarty, an orthopedist, conceded that whether the claimant's C-section was consequential to her compensable back problem would be a question for an obstetrician. In addition, Dr. Moriarty acknowledged that claimant's decision to have a C-section was based on her concern that her back pain would be exacerbated during delivery.
Therefore, the Full Board finds preponderance of the evidence in the record supports a finding that claimant's C-section was consequential to her established back injury.
WCL § 13-a(5) states, "[n]o claim for specialist consultations, surgical operations, physiotherapeutic or occupational therapy procedures, x-ray examinations or special diagnostic laboratory tests costing more than $1,000 shall be valid and enforceable, as against such employer, unless such special services shall have been authorized by the employer or by the board, or unless such authorization has been unreasonably withheld, or withheld for a period of more than thirty calendar days from receipt of a request for authorization, or unless such special services are required in an emergency, provided, however, that the basis for a denial of such authorization by the employer must be based on a conflicting second opinion rendered by a physician authorized by the workers' compensation board."
12 NYCRR 325-1.4(a)(1) provides, "[w]hen it is necessary for the attending physician to engage the services of a specialist, consultant, or a surgeon, or to provide for X-ray examinations or occupational therapy or physical therapy or special diagnostic laboratory tests costing more than $1,000, he or she must request and secure authorization from the employer or insurance carrier or the chair, by setting forth the medical necessity of the special services required." 12 NYCRR 325-1.4(a)(2) provides that "[t]his section also applies to hospitals, specialists, consultants and surgeons, who are actually engaged to perform such services."
12 NYCRR 325-1.4(b) requires that the authorization procedures created by WCL § 13-a(5) and 12 NYCRR 325-1.4 be followed even when the procedure is related to a condition which is currently being controverted, and the carrier will only be liable for the procedure in the event that the condition is ultimately established. However, prior authorization is not required when the procedure is performed on an emergency basis (WCL § 13-a).
Dr. Dolisi, in his February 6, 2009 letter, that "[d]ue to chronic back ailments, she is scheduled to have a C-section on March 26, 2009." That letter, which was submitted to the Board on February 9, 2009, clearly indicates that a claim was being made that the claimant's planned C-section was related to her compensable injury. However, there is no indication that prior authorization for scheduled C-section was ever sought from the carrier.
Therefore, the Full Board finds that the carrier is not liable for the cost of the claimant's C-section.
ACCORDINGLY, the WCLJ decision filed on December 13, 2010, is MODIFIED to find that although claimant's C-section was consequential to her established back injury, the carrier is not liable for the cost of the C-section based on the failure to request prior authorization. The decision is otherwise affirmed. No further action is planned by the Board at this time.