Second Circuit Finds Award of Surgery by OWC Premature

Claimant was employed as a delivery truck driver.  While unloading an extremely heavy laundry bin, the bin tilted over onto Claimant, injuring his neck, back and shoulders.  Claimant was seen by a neurosurgeon, who recommended that Claimant undergo a three-level anterior cervical discectomy and fusion.  The neurosurgeon also disabled Claimant from returning to work.  Employer initiated TTD benefits, pending a second medical opinion from Employer’s SMO neurosurgeon.  Employer’s SMO neurosurgeon opined that Claimant’s objective findings resulted from a chronic and long-standing degenerative condition and that any disability was not causally related to Claimant’s employment.  Consequently, employer filed a Form 1002 controverting the surgical recommendation on the basis of causation and terminating TTD benefits.

Claimant then filed a Form 1008.  However, the Form 1008 was limited to the issue of termination of benefits and penalties/attorney’s fees.  The Form 1008 made no reference to the denial of Claimant’s cervical fusion surgery.  The matter went to trial on the merits, where the presiding OWC judge awarded reinstatement of benefits/back TTD benefits, awarded penalties and attorney’s fees, and awarded the cervical fusion surgery.

On appeal, the Employer argued that the OWC erred in making the factual and legal findings and awarding indemnity, medical, and penalties/attorney’s fees.  Particularly, the OWC erred by ordering the approval of surgery because the issue of entitlement to surgery was not properly brought before the OWC Medical Director through the 1009 process.  Although the Second Circuit affirmed the award of indemnity benefits and penalties/attorney’s fees, the appellate court reversed the OWC’s judgement ordering the approval of surgery.  The Second Circuit concluded, however, that Claimant was not precluded obtaining approval of surgery by following the proper administrative procedure.

Bradley v. St. Francis Medical Center