By Cassandra Roberts, Young Conaway Stargatt & Taylor
In a series of recently released decisions, the Delaware Industrial Accident Board on appeal consistently upheld the propriety of surgery, overturning the Utilization Review declaration that such surgery was non-compliant with the newly-enacted Delaware Health Care Practice Guidelines. Of the four cases discussed below, only one case affirmed the decision of the Utilization Review examiner:
·Courtney Kenton v. HCR Manor Care, IAB # 1315603 (12/8/09). A singular ruling in which the IAB denied the Petition seeking surgical reimbursement, thus affirming UR. The claimant's case was complicated by a co-morbidity of diabetes and medications included Percocet, Skelaxin, Lyrica and Kadian, as well as Chantix for smoking cessation. Dr. Bruce Katz testified that he would allow claimant to select between a two-level fusion and an artificial disc replacement. He acknowledged that a UR determination concluded that surgery was not warranted in part due to concerns with narcotic abuse. Claimant testified that at one juncture she had four physicians prescribing narcotics for her simultaneously. Dr. Robert Gordon testified for the employer and in support of the UR ruling below, acknowledging no evidence of random drug testing or other prescription abuse safeguards in the records of Dr. Yadhati, the pain management physician in this case. The Board deemed Dr. Gordon more persuasive than Dr. Katz, observing that Dr. Katz was inconsistent in his testimony as to whether the claimant's diabetes was under control; clearly from the evidence it was not consistently under control. There was the fact that the claimant had not ceased smoking. Most troublesome, however, for the Board was the assumption of Dr. Katz that Dr. Yadhati had narcotic abuse controls in place and the fact that Dr. Katz had not contacted Dr. Yadhati to confirm that the claimant's issues with prescription abuse had been resolved. "Claimant also testified that she never signed a drug contract with any of her doctors, indicative that both of Dr. Katz's assumptions of Dr. Yadhati's close monitoring and regular drug screenings were not accurate. Further bolstering this notion, Dr. Gordon testified that nowhere in Dr. Yadhati's notes did it indicate that claimant had had any drug screens."
·Daniel Meier v. Tunnell Companies, IAB # 1326876 (2/17/10) A Utilization Review below found a surgery performed by Dr. Bruce Rudin on July 9, 2009 non-compliant with the Health Care Practice Guidelines. The surgery in question was described by Dr. Rudin as a "hybrid" procedure involving a combined interbody fusion at L5-S1 and a disc replacement at L4-5. According to Dr. Rudin the only contraindication for this intervention was the claimant's pre-operative medication usage, which included a large dose of narcotics, which would render post-operative pain management a challenge. Dr. Kalamchi testified for the defense and opined that there were numerous disqualifications for this surgery in his opinion: claimant's age (60), his deconditioning, his multi-level degenerative changes, his osteopenia and his status as a smoker. The Board awarded this surgery and adopted the opinion of Dr. Rudin. There is commentary that FDA approval is not a prerequisite to reasonable patient care and does not set the standard of care in the medical community. Dr. Rudin was acknowledged for his role as part of the FDA clinical trials for disc replacements and for his expertise in performing in excess of 200 of such surgeries.
·William Ford v. Wilmington Recycling, IAB # 1224599 (4/14/10) In another instance in which the UR decision was discredited and the surgery was awarded, the employer disputed the propriety of a fourth surgery and a Utilization Review examiner concluded that the procedure was outside the Delaware Low Back Practice Guidelines. This surgery was the second performed by Dr. Pawan Rastogi, a local neurosurgeon, and claimant's fourth spinal intervention. The prompt for the surgery was Dr. Rastogi's belief that claimant's pain generator was a non-fusion at the prior surgery site. Claimant had submitted to a lumbar fusion at L4-5 and L5-S1 with decompression of the nerve root and transforaminal interbody fusion at both levels in October 2006. Claimant testified that following the fourth surgery he achieved significant functional benefit and was no longer bedridden, and his pain level reduced from a 9 out of 10 to a 4-5 out of 10. Dr. Christopher Chenault, orthopedic surgeon, testified for the employer as the physician who performed the Utilization Review; he did not physically examine the claimant. He opined that this surgery was outside the Guidelines with reference to Section 126.96.36.199 and was neither reasonable or necessary. He explained that he did not agree with Dr. Rastogi that there was a non-union . He commented that there was a solid fusion at the anterior from L4 to S1, at the posterior from L4-5, and an incomplete fusion from L5 to S1. In his opinion the failure of the fusion on the anterior side of L5-S1 did not warrant another surgery. The Board did not agree. [And permit me to add that he does not perform anterior fusions. He is not sure how Dr. Rastogi placed the interbody cages during the third surgery and he did not review the 2006 operative report. So is anyone really surprised by the result?]
·Lee McDonough v. Southern Wine Spirits of America, IAB # 1321348 (4/15/10) In the most recent of the "surgeons on parade" trend coming out of the IAB, a Dr. Bruce Rudin disc replacement surgery was successfully challenged at the Utilization Review level. The procedure in question was an L5-S1 disc replacement performed in February 2009. Dr. Stuart Gordon testified for the employer and offered the opinion that the surgery was unreasonable, unnecessary and controversial due to the claimant's obesity and diabetes. According to the Practice Guidelines there could be only single level disease prior to performing a disc replacement; the discogram in this case produced concordant results at L4-5 and L5-S1 and an MRI established pre-existing disease at L4-5, a major herniation. The outcome? The Board reversed the UR decision and adopted the testimony of Dr. Rudin as authoritative on the surgical issue. Highlighting the Board's explanation of its ruling is a concession by Dr. Gordon that he does not perform disc replacement surgery and that "for a more thorough assessment, a spine surgeon should be consulted." [Well how about Dr. Rudin? It seems to me that in this case the defense deposition should have come with the option to return for a refund if not satisfied for any reason in 30 days. ]
Bottom Line: In the opinion of this humble blogger, it is not looking good for carriers seeking to second-guess surgery. No doubt these rulings will be peppered with a few exceptions here and there as we see in the Courtney Kenton case. One would also submit that engaging the Utilization Review examiner as an expert in an UR appeal is about as clever as calling the company physician to perform a defense medical evaluation. At first blush the idea would seem to have merit, but Dr. Chenault took a pounding in the Ford case. And as my final observation, I guess the Board envisions there are a few of us out there that are not aware that Dr. Rudin is on the Health Care Advisory Panel or was instrumental in authoring the Health Care Practice Guidelines.