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Case # G0097093
Date of Accident: 12/2/2008
District Office: NYC
Employer: Four Seasons Hotel
Carrier: Zurich American Insurance Co.
Carrier ID No.: W228001
Carrier Case No.: 2450106057
Date of Filing of Decision: 07/26/2013
Claimant's Attorney: Kelman, Winston & Vallone, PC
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on July 16, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on October 9, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the C-8.1 forms for treatment related to the claimant's surgery on May 21, 2010, were properly resolved in favor of the carrier.

In a decision filed on May 17, 2011, the Workers' Compensation Law Judge (WCLJ) found that the authorization for back surgery performed on May 21, 2010, was obtained fraudulently, but that the claimant had no knowledge of said fraud; resolved C-8.1 forms related to the back surgery on May 21, 2010, in favor of the carrier; and resolved other C-8.1 forms related to treatment to the established site of injury in favor of the provider. An amended decision was filed on October 14, 2011, in which the WCLJ clarified that the other C-8.1 forms that were resolved in favor of the provider, are those C-8.1 forms other than those from the hospital; and that those bills are resolved in favor of the provider pursuant to the guidelines.

In a Memorandum of Decision filed October 9, 2012, the Board Panel majority modified the WCLJ's decision and amended the decision filed on October 14, 2011, solely "to clarify that the C-8.1(b) objections pertaining to the May 21, 2010, surgery (including preoperative testing, surgery, and post-operative hospitalization) are resolved in favor of the carrier; and that the C-8.1(b) objections pertaining to treatment post-hospitalization (including rehabilitation and treatment with Dr. Gallina) are resolved in favor of the medical provider."

The dissenting Board Panel member agreed with the Board Panel majority's decision to find that the carrier is not responsible for the bills related to the surgery, but disagreed with the direction for the carrier to pay any medical bills related to the claimant's post-surgery recovery since the surgery itself was not properly requested and/or authorized.

In their application for Mandatory Full Board Review filed on October 16, 2012, the attorneys for the claimant request that the Board Panel decision be reversed.

No rebuttal was filed.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This claim is established for a back injury that resulted from an accident on December 18, 2008.

Dr. Thomas, the carrier's consultant in pain management, submitted an IME-4 of an examination on January 7, 2010, and diagnosed the claimant with lumbar degeneration with radiculopathy and myofascial pain, resolving. Dr. Thomas opined that the claimant's injuries are 50% causally related to the accident on December 18, 2008, and 50% related to a pre-existing back injury. Regarding further treatment, Dr. Thomas would authorize further diagnostic testing, including a discogram, and he "would authorize surgical lumbar laminectomy, if conservative management did not relieve the patient's radiculopathy." Dr. Thomas concluded that he expects the claimant to have full recovery with the above treatment plan, but that if further medical care is required after six months, he recommends a repeat examination to evaluate if further medical care is indicated.

The IME-3 form that was issued to Dr. Thomas prior to the examination on January 7, 2010, indicates that he was asked to examine the claimant and provide his opinions on diagnosis, causal relationship, need for further testing and treatment (including discogram and physical therapy), and maximum medical improvement, and to obtain the claimant's past medical history and history of prior or subsequent injuries/accidents. There is no indication that there was a specific request for an opinion on the need for surgery, or that there was any authorization requested for surgery at the time of Dr. Thomas' examination of the claimant.

The record reflects that the claimant had anterior/posterior lumbar spinal fusion surgery on May 21, 2010, performed by Dr. Gallina, and that she was in the hospital from May 21, 2010, to May 29, 2010.

On June 1, 2010, the carrier submitted a C-8.1 form to report that it was denying authorization for lumbar fusion surgery requested by Dr. Gallina, based on the conflicting medical opinion of Dr. Thomas. The carrier explained that Dr. Gallina did not put his request on a C-4 authorization form, and that only a fax cover sheet was received. The carrier stated that the procedure was not authorized. Attached to the carrier's C-8.1 form is a fax cover sheet dated May 2, 2010, from Nancy, the office manager for Dr. Gallina, to "Michelle" at fax number 631-845-2530, and the note on the cover sheet states that Dr. Gallina is requesting lumbar spine surgery for the claimant.

On June 1, 2010, the carrier also submitted a letter to the Board to report that it did not authorize the surgery that was performed on May 21, 2010. The carrier explained that it does not authorize any procedure on letterhead other than its own. The carrier further stated that it never received a C-4 authorization from Dr. Gallina, and no C-4 authorization is in the Board's file. Attached to the carrier's letter is a copy of a fax that was forwarded to the carrier by the hospital where the surgery was performed. The fax is on UniMex letterhead and purports to authorize anterior/posterior lumbar spinal fusion. The fax is dated February 2009 and is signed by "Michelle" at 800-524-5585.

On June 25, 2010, the carrier submitted more C-8.1 forms to object to additional bills related to the May 21, 2010, surgery.

On July 2, 2010, the carrier filed an RFA-2 to request a hearing to address whether it should be directed to pay for a procedure that it did not approve.

In a decision filed on October 5, 2010, the WCLJ directed the carrier to produce an addendum from Dr. Thomas to address whether conservative measures failed.

Dr. Thomas submitted a follow up peer review report dated October 21, 2010, based on the carrier's request for his opinion regarding whether anterior/posterior lumbar spinal fusion surgery is causally related to the accident on December 18, 2008 (ECF Doc ID #173277498 and ECF Doc ID #173192232). Dr. Thomas opined that the anterior/posterior lumbar spinal fusion surgery performed on May 21, 2010, is predominately related to her pre-existing back injury. Dr. Thomas explained that the accident that occurred on December 18, 2008, "probably had some minor contributing factor but … could not be the cause of her present condition and subsequent need for extensive fusion surgery."

The record contains another report from Dr. Thomas dated November 17, 2010, in which he opined that conservative management treatments had been exhausted prior to the surgery on May 21, 2010.

In a decision filed on December 1, 2010, the WCLJ directed the parties to submit transcripts of depositions of Dr. Gallina and Dr. Thomas regarding back surgery that was done on May 21, 2010. The WCLJ continued the case for testimony on the issue of whether the carrier authorized the surgery.

On February 14, 2011, Dr. Gallina testified that he received an authorization letter dated February 11 for the fusion surgery, which occurred on May 21, 2010.

On March 10, 2011, the owner of UniMex, an IME company, testified that UniMex was hired by the carrier in this claim to schedule an IME for the claimant. UniMex does not provide authorization for any procedures. Her company has never employed a person named "Michelle."

On May 10, 2011, a former claims examiner for the carrier testified that she worked for the carrier from 2003 or 2004 until August 2010, and while she worked there, she worked on the claimant's case. The carrier had an 800 number but she did not use it. She does not recall the 800 number. When the carrier was considering a request to authorize surgery, there was a procedure: the doctor's office would call or send a C-4 authorization form, and if authorized, the claims examiner would call them or fax an authorization on the carrier's letterhead with the claims examiner's signature. She never received a request for authorization for the claimant's fusion surgery and she never authorized this surgery. She first became aware of the surgery when the hospital contacted her after the surgery had been performed. The hospital faxed her the authorization it had received and she advised the hospital that she did not issue the authorization. She confirmed that the authorization the hospital faxed to her was the authorization on UniMex letterhead that was dated February 2009.

On May 10, 2011, the claimant testified that Dr. Gallina informed her in early May 2010 that fusion surgery had been authorized. The claimant preferred to wait until late May or early June for the surgery to occur. She stopped working on May 18, 2010, in preparation for the surgery that took place on May 21, 2010 (Friday). She was told to leave the hospital on May 24, 2010 (Monday), because the insurance company would not pay for her stay. She had never seen the authorization letter.

In a decision filed on May 17, 2011, the WCLJ found no compensable lost time for the period from April 4, 2009, to May 18, 2010, and for the period from November 15, 2010, to May 10, 2011; made awards for the period from May 18, 2010, to November 15, 2010, at the rate of $550.00 per week; awarded a fee in the amount of $2,100.00 to the claimant's attorney; found that the authorization for the May 21, 2010, surgery was obtained fraudulently and without the claimant's knowledge; resolved C-8.1 forms related to the back surgery on May 21, 2010, in favor of the carrier; and resolved other C-8.1 forms related to treatment to established site of injury in favor of the provider. On September 22, 2011, the claimant's attorney filed an application for administrative review.

An amended decision was filed on October 14, 2011, in which the WCLJ clarified that the other C-8.1 forms that were resolved in favor of the provider, are those C-8.1 forms other than those from the hospital; and that those bills are resolved in favor of the provider pursuant to the guidelines. The carrier filed an application for administrative review of the amended decision.

LEGAL ANALYSIS

Workers' Compensation Law (WCL) § 13(a) states that the claimant shall be provided with such medical treatment as the nature of the injury and the process of recovery may require.

However, WCL § 13-a(5) states that,

"[n]o claim for specialist consultations, surgical operations, physiotherapeutic or occupational therapy procedures, x-ray examinations or special diagnostic laboratory tests costing more than one thousand dollars 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 board."

Here, the record contains insufficient evidence that the carrier authorized the lumbar spine surgery that was performed on May 21, 2010. An authorization for surgery was purportedly requested on the fax cover sheet dated May 2, 2010, that was sent from the office of Dr. Gallina. However, although the fax cover sheet indicates that it was sent to "Michelle" at fax number 631-845-2530, the claims examiner at the carrier credibly testified that she never received a request for authorization for the claimant's fusion surgery and that she never authorized this surgery. The claims examiner testified that she did not become aware of the surgery until the hospital contacted her after the surgery had already been performed. A copy of the "authorization" received by the hospital reflects that it was not provided on the letterhead of the carrier but was sent on the letterhead of UniMex. However, the owner of UniMex credibly testified that UniMex is an IME company that schedules examinations, and does not authorize procedures.

Notwithstanding the issue of whether the surgery was properly authorized, the claimant relies on the opinion of Dr. Thomas that "the surgery was necessary and causally related and authorized," and argues that the Board Panel should have considered this issue in its decision. As noted herein, Dr. Thomas examined the claimant on January 7, 2010, and opined that he "would authorize surgical lumbar laminectomy, if conservative management did not relieve the patient's radiculopathy." While Dr. Thomas specifically recommended a repeat examination to evaluate if further medical care is indicated, no such repeat examination was ever done. However, Dr. Thomas did submit two addendums to his initial report, and opined that although conservative management treatments had been exhausted prior to the claimant's surgery on May 21, 2010, the anterior/posterior lumbar spinal fusion surgery performed on May 21, 2010, is predominately related to her pre-existing back injury. Dr. Thomas explained that the accident that occurred on December 18, 2008, could not have caused her "subsequent need for extensive fusion surgery." As such, the reports of Dr. Thomas provide insufficient evidence to show that the claimant's surgery was causally related to the accident that occurred on December 18, 2008. Moreover, even if Dr. Thomas had unequivocally opined that the surgery was necessary and causally related in his addendum reports subsequent to the surgery, that opinion would not alter the finding that the carrier is not liable for the cost of the surgery based on the lack of prior authorization for the procedure.

Therefore, the Full Board finds that the C-8.1 forms for treatment related to the claimant's surgery on May 21, 2010, should be resolved in favor of the carrier.

Turning to the claimant's argument that she should not be expected to pay for the surgery because she is innocent of any wrongdoing and should not be penalized for an alleged procedural error, the Full Board notes that notwithstanding the finding that the C-8.1 forms are resolved in favor of the carrier, the claimant is not personally liable for any of the medical bills.

Therefore, the Full Board finds that the claimant is not liable for the bills.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on May 17, 2011, as amended by the decision filed on October 14, 2011, is MODIFIED to clarify that the C-8.1(b) objections pertaining to the May 21, 2010, surgery (including preoperative testing, surgery, and post-operative hospitalization) are resolved in favor of the carrier; that the C-8.1(b) objections pertaining to treatment post-hospitalization (including rehabilitation and treatment with Dr. Gallina) are resolved in favor of the medical provider; and that the claimant is not liable for the bills. The rest of the WCLJ decision remains in effect. No further action is planned by the Board at this time.