ADJ10143466 · August 8, 2024

The WCAB found substantial evidence including medical opinions of Dr. Osborne, Dr. Paquette, and Dr. Feiwell, as well as the Utilization Review certification, supporting that the applicant's need for back surgery is related to the May 27, 2014 injury and that the surgery is medically necessary.

From the decision · page 1In the Findings of Fact issued on July 15, 2021, the Workers' Compensation Administrative Law Judge ("WCJ") found that on May 27, 2014, applicant, while employed by Insured Solutions/Fontana Logistics Center, insured by Lumbermans [sic] Underwriting Alliance, now in liquidation and administered by defendant California Insurance Guarantee Association ("CIGA"), sustained industrial injury to his lumbar spine and right leg. The WCJ also found that applicant needs further medical treatment for this injury, including but not limited to the Utilization Review ("UR") determination that back surgery is medically necessary, and that there is no factual or legal basis for CIGA to deny authorization for surgery.

Applicant sustained an industrial injury to his lumbar spine and right leg on May 27, 2014 while employed by Insured Solutions/Fontana Logistics Center.

Favours Applicant prevailed

This injury is the basis for the claim and the medical treatment dispute.

From the decision · page 1In the Findings of Fact issued on July 15, 2021, the Workers' Compensation Administrative Law Judge ("WCJ") found that on May 27, 2014, applicant, while employed by Insured Solutions/Fontana Logistics Center, insured by Lumbermans [sic] Underwriting Alliance, now in liquidation and administered by defendant California Insurance Guarantee Association ("CIGA"), sustained industrial injury to his lumbar spine and right leg. The WCJ also found that applicant needs further medical treatment for this injury, including but not limited to the Utilization Review ("UR") determination that back surgery is medically necessary, and that there is no factual or legal basis for CIGA to deny authorization for surgery.

Applicant underwent authorized back surgery with Dr. Osborne on February 9, 2016, involving laminectomies at three levels related to the 2014 injury.

Favours Applicant prevailed

Supports that the surgery was related to the 2014 injury and was authorized under that claim.

From the decision · page 3Evidence supports the applicant returned to Dr. Osborne for treatment resulting in a recommendation and authorization for surgery to his low back at three levels. Dr. Osborne performed laminectomies on "three levels", extending from L3 through S1. This surgery was authorized under the claim for injury of 5/27/14 (App Ex 1). Petitioner is silent as to the why surgery was performed and authorized under the 5/27/14 claim in 2016. Instead, Petitioner argues that the current recommendation for surgery is solely a result of the prior 2008 injury. Yet, records reflect that herniations were identified at only two levels under the 6/4/08 date of injury and now three levels following the 5/27/14 date of injury. Furthermore, Petitioner fails to consider that although a surgery was likely and may have been recommended, it cannot be ignored that the applicant was able to perform his usual and customary job duties at Insured Solutions for approximately a year prior to the 2014 injury and approximately a year and a half after the injury. Based on the AME report of Dr. Feiwell, the job duties at Insured Solutions required significant physical activity (Jnt Ex W, pg 2).

Utilization Review certified the spinal fusion and microdiscectomy surgery as medically necessary.

Favours Applicant prevailed

Supports the medical necessity of the surgery recommended by treating physicians.

From the decision · page 11Applicant recently selected Dr. Justin Paquette as his new PTP and authorization was provided by Petitioner in a letter dated 12/21/20 (App Ex 6). Applicant was initially seen by Dr. Paquette on 2/1/21 with complaints of severe low back pain and an MRI was requested (App Ex 7). In his 3/1/2021 report, Dr. Paquette requests authorization for a L4-5, L5-S1 spinal fusion and decompression and a microscopic decompression bilaterally at the L3-4 level (App Ex 8, pg 4). GENEX Utilization Review dated 3/23/2021 certified the spinal fusion and microdiscectomy (App Ex 9, pg 1). CIGA acknowledged the UR decision determining the recommended treatment was medically necessary, however, declined liability and authorization (App Ex 10). CIGA further noted that based on the findings of the AME, Dr. Feiwell, there was substantial findings that the applicant's need for back surgery pre-existing his 2014 claim.

AME Dr. Feiwell attributed at least some causation and impairment to the 2014 injury and confirmed the need for surgery, though he deferred exact apportionment to the trier of fact.

Favours Applicant prevailed

Supports the conclusion that the 2014 injury contributed to the need for surgery.

From the decision · page 14While the applicant may not have initially disclosed his prior injury to Dr. Osborne, it appears this was also not disclosed to AME, Dr. Feiwell. As the issue at hand is the need for medical treatment since the case at hand is accepted, [applicant's prior lack of disclosure does not help CIGA because] Dr. Feiwell after reviewing the reports of the prior injury and limited reports of the current injury still attributed causation at least in part to the 2014 [injury] and comments that medical care cannot be apportioned (Jnt Ex X, pg 21, ln 7) Additionally, Dr. Feiwell does mention L3-L4 level...in his review of records in the 9/20/19 report (Jnt Ex T pg 2). As previously discussed, absent from Dr. Feiwell's review are the full records of Dr. Osborne [.] [A]lthough requested on multiple occasions, [Dr. Feiwell's] request went unanswered. As such, this may have created some of Dr. Feiwell's uncertainty in his final cross-examination, in which Dr. Feiwell appears confused as to what levels were addressed following the 2008 injury versus the additional level following the 2014 injury. In review of all the reports, Dr. Feiwell is consistently concluding that the applicant is in need of the recently recommended back surgery and [overall the doctor's opinion reasonably suggests] that at least 1% of the causation is attributed to the 2014 injury.

Applicant was able to perform his usual and customary job duties at Insured Solutions for about a year before and a year and a half after the 2014 injury.

Favours Applicant prevailed

Indicates the 2014 injury was a separate and distinct injury that aggravated the condition requiring surgery.

From the decision · page 12Evidence supports the applicant returned to Dr. Osborne for treatment resulting in a recommendation and authorization for surgery to his low back at three levels. Dr. Osborne performed laminectomies on "three levels", extending from L3 through S1. This surgery was authorized under the claim for injury of 5/27/14 (App Ex 1). Petitioner is silent as to...why surgery was performed and authorized under the 5/27/14 claim in 2016. Instead, Petitioner argues that the current recommendation for surgery is solely a result of the prior 2008 injury. Yet, records reflect that herniations were identified at only two levels under the 6/4/08 date of injury and now three levels following the 5/27/14 date of injury. Furthermore, Petitioner fails to consider that although a surgery was likely and may have been recommended, it cannot be ignored that the applicant was able to perform his usual and customary job duties at Insured Solutions for approximately a year prior to the 2014 injury and approximately a year and a half after the injury. Based on the AME report of Dr. Feiwell, the job duties at Insured Solutions required significant physical activity (Jnt Ex W, pg 2).

Performed authorized laminectomies at three levels (L3 through S1) related to the 5/27/14 injury; supported need for back surgery.

From the decision · page 3Evidence supports the applicant returned to Dr. Osborne for treatment resulting in a recommendation and authorization for surgery to his low back at three levels. Dr. Osborne performed laminectomies on "three levels", extending from L3 through S1. This surgery was authorized under the claim for injury of 5/27/14 (App Ex 1). Petitioner is silent as to the why surgery was performed and authorized under the 5/27/14 claim in 2016. Instead, Petitioner argues that the current recommendation for surgery is solely a result of the prior 2008 injury. Yet, records reflect that herniations were identified at only two levels under the 6/4/08 date of injury and now three levels following the 5/27/14 date of injury. Furthermore, Petitioner fails to consider that although a surgery was likely and may have been recommended, it cannot be ignored that the applicant was able to perform his usual and customary job duties at Insured Solutions for approximately a year prior to the 2014 injury and approximately a year and a half after the injury. Based on the AME report of Dr. Feiwell, the job duties at Insured Solutions required significant physical activity (Jnt Ex W, pg 2).

Authorized treating physician recommending spinal fusion and decompression surgery certified by Utilization Review; supports need for surgery related to 5/27/14 injury.

From the decision · page 11Applicant recently selected Dr. Justin Paquette as his new PTP and authorization was provided by Petitioner in a letter dated 12/21/20 (App Ex 6). Applicant was initially seen by Dr. Paquette on 2/1/21 with complaints of severe low back pain and an MRI was requested (App Ex 7). In his 3/1/2021 report, Dr. Paquette requests authorization for a L4-5, L5-S1 spinal fusion and decompression and a microscopic decompression bilaterally at the L3-4 level (App Ex 8, pg 4). GENEX Utilization Review dated 3/23/2021 certified the spinal fusion and microdiscectomy (App Ex 9, pg 1). CIGA acknowledged the UR decision determining the recommended treatment was medically necessary, however, declined liability and authorization (App Ex 10). CIGA further noted that based on the findings of the AME, Dr. Feiwell, there was substantial findings that the applicant's need for back surgery pre-existing his 2014 claim.

Agreed Medical Evaluator who reviewed records and attributed at least some causation and impairment to the 5/27/14 injury; unable to apportion exact causation but confirmed need for surgery.

Dr. Feiwell's opinion was considered but the WCAB noted his reluctance to provide a firm medical opinion and his deferral of causation to the trier of fact; nevertheless, his reports supported the need for surgery and some causation from the 2014 injury.

From the decision · page 14While the applicant may not have initially disclosed his prior injury to Dr. Osborne, it appears this was also not disclosed to AME, Dr. Feiwell. As the issue at hand is the need for medical treatment since the case at hand is accepted, [applicant's prior lack of disclosure does not help CIGA because] Dr. Feiwell after reviewing the reports of the prior injury and limited reports of the current injury still attributed causation at least in part to the 2014 [injury] and comments that medical care cannot be apportioned (Jnt Ex X, pg 21, ln 7) Additionally, Dr. Feiwell does mention L3-L4 level...in his review of records in the 9/20/19 report (Jnt Ex T pg 2). As previously discussed, absent from Dr. Feiwell's review are the full records of Dr. Osborne [.] [A]lthough requested on multiple occasions, [Dr. Feiwell's] request went unanswered. As such, this may have created some of Dr. Feiwell's uncertainty in his final cross-examination, in which Dr. Feiwell appears confused as to what levels were addressed following the 2008 injury versus the additional level following the 2014 injury. In review of all the reports, Dr. Feiwell is consistently concluding that the applicant is in need of the recently recommended back surgery and [overall the doctor's opinion reasonably suggests] that at least 1% of the causation is attributed to the 2014 injury.

State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Sandhagen) (2008) 44 Cal.4th 230

Applicant has the burden of proving by a preponderance of the evidence that the treatment is medically reasonable and necessary, with a burden of reasonable medical probability, not scientific certainty.

Applicant met this burden with medical opinions and Utilization Review certification supporting surgery.

From the decision · page 2Based on our review of the record, and for the reasons stated below and in the WCJ's Report and Opinion, which are both adopted and incorporated as set forth in the attachment to this decision, we will affirm the Findings of Fact of July 15, 2021. We further note that "notwithstanding whatever an employer does (or does not do)" to contest medical treatment, applicant has the burden of proving, by a preponderance of the evidence, that the treatment in question is medically reasonable and necessary. (State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Sandhagen) (2008) 44 Cal.4th 230, 242 [73 Cal.Comp.Cases 981], citing Lab. Code, § 3202.5 & 4600.) However, applicant's burden of proof is one of reasonable medical probability, not scientific certainty. (McAllister v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 408, 413 [33 Cal.Comp.Cases 660]. See also, Guerra v. Workers' Comp. Appeals Bd.

Klee v. Workers' Comp. Appeals Bd. (1989) 211 Cal.App.3d 1519

The WCAB is the ultimate trier of fact and is not bound by the opinion of the AME, but must give it consideration.

WCAB gave great weight to AME Dr. Feiwell's opinion but made ultimate causation determination itself.

From the decision · page 6We disagree. Although an AME's opinion ordinarily is followed because the AME has been chosen by the parties for the physician's expertise and neutrality (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114]), it is the WCAB, and not the AME, who is the ultimate trier-of-fact. (See Klee v. Workers' Comp. Appeals Bd. (1989) 211 Cal.App.3d 1519, 1522 [54 Cal.Comp.Cases 251]; Robinson v. Workers' Comp. Appeals Bd. (1987) 194 Cal.App.3d 784, 792§ 793 [52 Cal.Comp.Cases 419]; Johns-Manville Products Corp. v. Workers' Comp. Appeals Bd. (Carey) (1978) 87 Cal.App.3d 740, 753 [43 Cal.Comp.Cases 1372].) Accordingly, the WCAB is not bound by the opinion of an AME; rather, its only obligation is to give consideration to the AME's opinion. (Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227, 241 [58 Cal.Comp.Cases 323].)

Almaraz/Guzman

Medical care cannot be apportioned; successive injuries may jointly produce the need for treatment.

WCAB found that the 2014 injury aggravated the condition requiring further surgery despite prior 2008 injury.

From the decision · page 19It has been well established that medical care cannot be apportioned. While it may be accurate that applicant's back condition was initially due to his 6/4/2008 injury, the above opinions of Dr. Osborne as well as Dr. Feiwell [who ultimately became aware of the 6/4/2008 injury] constitute substantial support [for the conclusion] that applicant's subsequent employment with Insured Solutions, aggravated his condition which required further surgical intervention. Applicant's work history reflects he was able to return to work in a full-time capacity subsequent to the 6/4/2008 injury and even following the 5/27/2014 injury. Whether surgery was recommended as a result of the 6/4/2008 injury, does not change the fact that the applicant continued to work and required surgery after the 5/27/2014 injury. AME, Dr. Feiwell attributes causation and provides some impairment due to the 5/27/2014 date of injury. As in this case, the need for medical treatment may be jointly produced by successive injuries.

Applicant was able to perform usual and customary job duties at Insured Solutions for approximately a year prior to the 2014 injury and approximately a year and a half after the injury.

From the decision · page 12Evidence supports the applicant returned to Dr. Osborne for treatment resulting in a recommendation and authorization for surgery to his low back at three levels. Dr. Osborne performed laminectomies on "three levels", extending from L3 through S1. This surgery was authorized under the claim for injury of 5/27/14 (App Ex 1). Petitioner is silent as to...why surgery was performed and authorized under the 5/27/14 claim in 2016. Instead, Petitioner argues that the current recommendation for surgery is solely a result of the prior 2008 injury. Yet, records reflect that herniations were identified at only two levels under the 6/4/08 date of injury and now three levels following the 5/27/14 date of injury. Furthermore, Petitioner fails to consider that although a surgery was likely and may have been recommended, it cannot be ignored that the applicant was able to perform his usual and customary job duties at Insured Solutions for approximately a year prior to the 2014 injury and approximately a year and a half after the injury. Based on the AME report of Dr. Feiwell, the job duties at Insured Solutions required significant physical activity (Jnt Ex W, pg 2).

Utilization Review certified the spinal fusion and microdiscectomy surgery as medically necessary.

From the decision · page 11Applicant recently selected Dr. Justin Paquette as his new PTP and authorization was provided by Petitioner in a letter dated 12/21/20 (App Ex 6). Applicant was initially seen by Dr. Paquette on 2/1/21 with complaints of severe low back pain and an MRI was requested (App Ex 7). In his 3/1/2021 report, Dr. Paquette requests authorization for a L4-5, L5-S1 spinal fusion and decompression and a microscopic decompression bilaterally at the L3-4 level (App Ex 8, pg 4). GENEX Utilization Review dated 3/23/2021 certified the spinal fusion and microdiscectomy (App Ex 9, pg 1). CIGA acknowledged the UR decision determining the recommended treatment was medically necessary, however, declined liability and authorization (App Ex 10). CIGA further noted that based on the findings of the AME, Dr. Feiwell, there was substantial findings that the applicant's need for back surgery pre-existing his 2014 claim.