ALJ BERGSTROM FINDS THAT RIGHT ELBOW SURGERY RECOMMENDED BY TREATING PHYSICIAN IS NOT REASONABLE AND NECESSARY

Read Johnson vs. Huntington Ingalls

II. Claimant has not established that the right elbow ECRB repair surgery recommended by his treating physician is reasonable and necessary.

Under § 907 of the LHWCA an employer is required to furnish to the employee “such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus, for such period as the nature of the [work-related] injury or the process of recovery may require.” In order for medical expenses to be assessed against the employer, the medical expense must be both reasonable and necessary for addressing the work-related injury. See Ballesteros v. Willamette Western Corp., 20 BRBS 184 (1988); Pernell v. Capitol Hill Masonry, 11 BRBS 532 (1979). The claimant has the burden to establish that the medical treatment provided for a work-related injury is both reasonable and necessary. Weikert v Universal Marine Service Corp., 36 BRBS 38 (2002); Newport News Shipbuilding & Dry Dock Co. v. Loxley, 934 F.2d 511 (4th Cir. 1991), cert. denied 112 S. Ct. 1941 (1992); Maryland Shipbuilding & Drydock Co. v. Jenkins, 594 F.2d 404 (4th Cir. 1979), rev’g 6 BRBS 550 (1977). Functionality, cost, professional accreditations, success rates, and experience of providers are factors that may be considered on the issue of reasonableness of competing viable courses of medical treatment. Green v. Ceres Marine Terminals, Inc., 43 BRBS 173 (2010), rev’d on other grounds, 656 F.3d 235 (4th Cir. 2011); Monta v. Navy Exchange Service Command, 39 BRBS 104 (2005); Amos v. Director, OWCP, 153 F.3d 1051 (9th Cir. 1998), amended, 164 F.3d 480 (9th Cir. 1999), cert. denied, 528 U.S. 809 (1999); Schoen v. U.S. Chamber of Commerce, 30 BRBS 112 (1996).
A claimant establishes a prima facie case for compensable § 907 benefits when a qualified physician reports that the medical treatment was/is necessary for the work-related injury. Monta v. Navy Exchange Service Command, 39 BRBS 104 (2005); Turner v. Chesapeake & Potomac Telephone Co., 16 BRBS 225 (1984); Barbour v. Woodward & Lothrop, Inc., 16 BRBS 300 (1984). A claimant need not file a separate claim for medical benefits, and if a prima facie case for medical treatment is established, the employer must present substantial evidence in opposition to rebut the reasonableness or necessity of the medical treatment or demonstrate that the medical expense is the result of a subsequent intervening cause unrelated to the work-related injury. See Salusky v. Army Air Force Exchange Service, 3 BRBS 22 (1975). If credible rebuttal evidence is presented, then the evidence as a whole must be evaluated to determine if the claimant has met the burden of establishing that the medical care for the work-related injury is both reasonable and necessary. Where the credible evidence of record is in “equipoise,” that is evenly balanced, the party proponent with the burden of proof (persuasion) must lose. Schaffer v. Weast, 546 U.S. 49 (2005); Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 281 (1994).
In this case, Claimant put on evidence that his treating orthopedist, Dr. Wardell, recommended the ECRB repair surgery in 2011. (CX 1, EX 7). This recommendation is the only medical
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evidence directly supporting Claimant’s need for surgery. The Employer submitted as rebuttal evidence two reports from Dr. Baddar opining that surgery would not help Claimant. (EX 8, EX 9). Dr. Baddar reasoned that Claimant’s symptoms of increased pain and loss of motion in his elbow were the result of arthritic spur formation, not epicondylitis. (EX 8 at 16-17, EX 9 at 3). Dr. Baddar believed that surgery would not prove beneficial because it would not cure Claimant’s underlying arthritis. Because the Employer has presented this credible rebuttal evidence, the evidence as a whole must be evaluated to determine if Claimant has met the burden of establishing the recommended surgery is reasonable and necessary.
Dr. Wardell’s recommendation of surgery appears in his treatment notes. (CX 1, EX 7). He did not provide any details about what the surgery entailed or explain how it was expected to help Claimant’s condition. His treatment notes document Claimant’s symptoms of lateral epicondyle tenderness, pain, swelling, and mild loss of motion in the elbow, and show that more conservative treatment options had little impact on Claimant’s condition. However, Dr. Wardell did not attribute Claimant’s symptoms to epicondylitis or relate them to a need for surgery, nor did he explain how the symptoms and the condition led him to choose ECRB repair surgery as the preferred course of treatment. Also, he did not directly state that the surgery was necessary. Because Dr. Wardell did not offer any reasoning to support his recommendation or to show the necessity of the surgery, thus his medical opinion is not well-reasoned.
The other medical evidence does not establish the necessity of surgery, either. Claimant testified that his pain management specialist, Dr. Pennington, agreed he needed surgery. (EX 10 at 21-22, TR at 18-19). However, Dr. Pennington’s progress notes do not explain the need for surgery but merely comment that after a slight increase in the patient’s pain symptoms, he planned to discuss potential surgical options with his doctor. (CX 5, EX 6). The less recent medical evidence flatly contradicts Dr. Wardell’s recommendation of surgery. Dr. Davlin indicated in his 2004 report that future surgery would not be useful because Claimant was already at maximum medical improvement (MMI) for his work-related elbow injury at that time, although he noted as an aside a finding of degenerative osteoarthritis that could cause increasing stiffness and pain in Claimant’s elbow in the future. (EX 12 at 4-5). Dr. Stiles, who served as Claimant’s treating orthopedist from shortly after his injury in summer 2000 until late 2010, performed a right elbow arthroscopy in 2001 (CX 3, EX 2) but declined to recommend further surgery on the elbow. On October 17, 2007, Dr. Stiles reported that an MRI showed right lateral epicondylitis, but noted that this was an old injury and that the patient did not believe his symptoms warranted surgery. (CX 2). On February 7, 2009, Dr. Stiles reported MRI results substantially the same as before, but again declined to recommend surgery, stating that in his opinion surgical intervention would not help Claimant very much. (EX 3 at 5). On January 26, 2010, he reiterated that he did not feel Claimant’s symptoms warranted further surgery. (EX 3 at 6). His treatment notes do not mention surgery after this date. It appears that the only change in Claimant’s symptoms since this time has been a slight increase in pain and mild limitation of motion in his elbow. As Dr. Baddar pointed out, these symptoms are consistent with arthritic changes and thus may not even represent a worsening of Claimant’s work-related injury. (EX 8 at 16-17). Based on all the foregoing evidence, it is not clear that surgery would benefit Claimant.
We are left with a collection of evidence showing Claimant’s symptoms did not warrant surgery before 2011, along with Dr. Wardell’s recommendation of surgery without further explanation
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and without evidence that Claimant’s condition changed significantly in 2011. As discussed above, Claimant bears the burden of proving by a preponderance of the evidence that medical treatment is reasonable and necessary. After evaluation of the evidence as a whole, this Administrative Law Judge finds that the Claimant has not established the reasonableness and necessity of the recommended right elbow ECRB repair surgery by a preponderance of the evidence. Accordingly, his claim for medical benefits in the form of right elbow ECRB repair surgery must be denied.