STATE BOARD OF WORKERS' COMPENSATION Suite 600, 270 Peachtree Street, NW Atlanta, Georgia

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1 Trial STATE BOARD OF WORKERS' COMPENSATION Suite 600, 270 Peachtree Street, NW Atlanta, Georgia (404) STATEMENT OF THE CASE On or around September 22, 1994, while working for the employer, the employee suffered a work-related back injury. After timely reporting his accident and back injury to the employer, the employer/self-insurer accepted the employee s claim as compensable. Counsel for the employee filed a hearing request requesting: (1) back surgery as recommended by the employee s ATP, Dr. James Chappuis, be authorized; and (2) assessed attorney fees. The employer/self-insurer asserts that: (1) back surgery, as recommended by Dr. Chappuis, is not reasonable or necessary medical treatment based upon the opinions of Dr. Cassinelli and Dr. Sutton and as such, it should not be authorized; and (2) assessed attorney fees are not due. A hearing was held on July 25, 2011 in Atlanta, Georgia. The record consists of J-1 through J-21. The record closed at the hearing. Since this is a compensable claim, the parties stipulated to jurisdiction, the employer being subject to the Act, venue Fulton County, average weekly wage being $721.00, yielding a comp rate of $ per week, coverage, employment, notice, and accident/back injury. The employee s ATP is Dr. James L. Chappuis. The transcript was filed with the Board on August 2, By August 19, 2011, both attorneys filed a well-written brief in support of their respective positions. After a review of the record as a whole, while close, I find the employee is entitled to the back surgery as recommended by Dr. Chappuis as I find such medical treatment is reasonable and necessary medical treatment for the employee s work-related injuries and is likely to provide relief and continue to return the employee to suitable work. Further, at this time, since the employer/self-insurer has two doctors disputing Dr. Chappuis surgery recommendation, I find assessed attorney fees are not due. After a review of the record as a whole, including consideration of the credibility of the witnesses and the documents admitted into evidence, I find the preponderance of competent and credible evidence reveals as follows:

2 FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. In 1973, the employee was hired by the employer. (T. 8). 2. By the early 1990s, the employee was a lineman/facility technician wherein he was responsible for laying/repairing cables. (T. 8-9). 3. On September 22, 1994, while working for the employer, the employee was sitting in a pit, repairing/splicing cables. The job required the employee to sit for approximately 10 hours. At the end of the day, when the employee got up, he felt a pop in this back. (T. 7-9). 4. The employee timely reported his accident and back injury to the employer. 5. The employee initially treated with Dr. Rajiv Pandya. (J-10). Dr. Pandya treated the employee conservatively. When the employee did not improve, the employee was referred to Dr. James L. Chappuis. The employee began treating the employee in January of (J-1). 6. After an MRI was performed, Dr. Chappuis diagnosed the employee with herniated discs at L3-4, L4-5, and L5-S1. For approximately three years, the employee was treated conservatively. 7. In 1998, when the employee s back condition did not improve, and a discogram came back positive, Dr. Chappuis recommended a two-level fusion at L4-5 and L5-S1. 8. On August 25, 1998, Dr. Chappuis performed the two-level fusion at L4-5 and L5-S1. 9. It appears in early 1999, the employee experienced an exacerbation of his back lifting a cabinet. Shortly thereafter, the employee was involved in a vehicle accident where his truck was side swiped. This accident exacerbated the employee s back condition for a short period of time. 10. It appears in around 2000, the employee was promoted by the employer from a laborer position into management. The employee testified that he was a manager in special services high speed internet services, and then, quality control. 11. The employee continued to treat conservatively for his back condition, receiving injections with Dr. Dennis Doherty. 12. In 2001, the employee reported to medical providers left leg pain which would cause his leg to give out. After testing, Dr. Chappuis indicated that the employee had an L3-4 disc herniation, causing nerve root impingement. Dr. Chappuis recommended surgery. On August 8, 2001, Dr. Chappuis performed a micro-discectomy at L In 2003, the employee continued to have leg, ankle and back pain. A repeat MRI was performed which revealed a recurrent disc herniation at L3-4. In May of 2003, Dr. Chappuis recommended a micro-discectomy or fusion at L2-3 and L3-4. The employer/insurer denied authorization for the recommended discectomy, asserting a fusion was appropriate. 14. After surgery was denied, over the next number of years, when the employee s condition worsened, the employee was treated conservatively with medications, injections, radiofrequencies, and a TENS unit.

3 15. The employee continued to commendably work with the employer. 16. In 2010, after years of conservative care, the employee indicated his back was worsening and his pain was increasing. In response, Dr. Chappuis recommended fusion surgery as he believed this would improve and stabilize the employee s back condition. 17. On July 29, 2010, the employee underwent an IME with Dr. Ezequiel H. Cassinelli. (J-14). Dr. Cassinelli indicated that the employee s symptomatic back condition was degenerative in nature, and indicated, that surgery was not appropriate to alleviate his condition. 18. On October 30, 2010, the employer/self-insurer filed a Form WC-3 controverting the surgery recommended by Dr. Chappuis. 19. On January , the employee underwent an IME with Dr. J. Carl Sutton, Jr. (J-15). Dr. Sutton indicated fusion surgery was not appropriate. However, Dr. Sutton indicated that the employee suffered an aggravation of his pre-existing back condition in his accident. Dr. Sutton indicated back surgery was appropriate. However, Dr. Sutton indicated a four level decompression and bilateral medial facetectomies would be appropriate for the employee s back condition. 20. In February of 2011, Dr. Barry McCasland performed EMG/NCS testing. (J-9). The studies revealed the employee s left lower extremity was normal and there was no evidence of left lower extremity radiculopathy or peripheral entrapment. Based upon these results, Dr. Chappuis indicated that decompression surgery, as recommended by Dr. Sutton, at L4-5 and L5-S1 was not indicated. 21. On April 12, 2011, Dr. Sutton indicated a CT myleogram would be appropriate. (J-15, pp. 6-7). Dr. Sutton again indicated that a fusion was not the best course of treatment at this time. 22. On May 4, 2011, Dr. Chappuis was deposed. (J-20). Dr. Chappuis reaffirmed that a fusion was appropriate to stabilize the employee s disks and provide the best opportunity for relief to the employee. (J-20, pp , 26-29). 23. On June 3, 2011, Dr. Sutton responded to Dr. Chappuis opinions from his deposition. (J-15, pp. 8-10). Dr. Sutton essentially indicated that there were no easy answers for the employee s current back condition and indicated a conservative course of treatment was the best option. 24. On June 29, 2011, Dr. Cassinelli provided a supplemental response. (J-21). Dr. Cassinelli indicated that surgery was not appropriate in light of the employee s current back condition. 25. The employee requests authorization of back surgery as recommended by Dr. Chappuis. 26. In interpreting the Workers Compensation Act, it has long been stated, "The Board is a creature of the statute, and has no inherent powers and no lawful right to act except as directed by the statute. See New Amsterdam Casualty Company v. McFarley, 191 Ga. 334, 12 S.E.2d 355 (1940). Further, I am mindful that in construing the Act that The Workers Compensation Act constitutes a complete code of laws upon the subject and the recoverability of workers compensation benefits is strictly a matter of statutory construction because there is no common law right to such benefits. Mickens v. Western Probation Detention Center, 244 Ga. App. 268, 534 S.E.2d 927 (2000) (citing Abernathy v. City of Albany, 269 Ga. 88, 495 S.E.2d 13 (1998)). In construing a statute, a primary rule is that the courts must try to ascertain the purpose and intent of the legislature and then try to construe the law to implement that intent. Hollowell v. Jove, 247 Ga. 678, 279 S.E.2d 430 (1981). Further, [B]ecause the Workers Compensation Act is in derogation of common law, its provisions must be strictly

4 construed. Reid v. Georgia Building Authority, 283 Ga. App. 413, 641 S.E.2d 642 (2007); MARTA v. Bridges, 276 Ga. App. 220, 623 S.E.2d 1 (2005). 27. In a compensable claim, the employer/self-insurer is responsible to provide and pay for reasonable and necessary medical treatment for the employee s work-related injuries that grants relief, effects a cure, or restores the employee to suitable employment. See O.C.G.A (a). 28. In workers compensation claims, although all medical opinions must be considered, acceptance of an opinion is not required. See Liberty Mutual Ins. Co. v. Nobles, 147 Ga. App. 81 (1978). Further, the weight and credit to be given to expert testimony is a question exclusively for decision by the fact-finder, making the opinions of expert witnesses advisory and binding the fact-finder only to the extent to which credence is given to the opinion. See Department of Revenue v. Graham, 102 Ga. App. 756, 759; 117 S.E.2d 902 (1960)(internal citations omitted). Thus, the Board may accept the testimony of one expert over the testimony of another. Further, the rejection of an expert medical opinion is within the authority of the Board, as the Board is not absolutely bound to accept such expert opinions, even when uncontroverted. See Fulton County Board of Education v. Taylor, 262 Ga. App. 512, , 586 S.E.2d 51 (2003). Therefore, the Board is free to accept the testimony of one doctor over that of another or reject an expert medical opinion outright. 29. After personally observing the employee s testimony as well as his demeanor, I find the employee s testimony regarding his back condition, his pain, and his need for medical treatment, including surgery, to be credible. See, e.g., Parham v. Swift Transportation Company, 292 Ga. App. 53, 663 S.E.2d 769 (2008). I find the employee s work ethic to be tremendous as he has continued work, despite his work-related back condition, and in fact, has been promoted over time. Further, after years of progressively getting worse, due in part to continued work with the employer, I find the employee s testimony credible that this recommended surgery would likely provide relief for the employee s current back condition. (T , 21-22). 30. After a review of the record as a whole, I find the preponderance of competent and credible evidence in the record reveals the employee s current back condition is directly related to his compensable work-related accident and work with the employer. Moreover, I find that any of the employee s personal activities fishing, hunting, etc., and any prior accidents, suffered years ago, have not broken any causal relationship between the employee s current back condition and its relatedness to work. 31. After a review of the record as a whole, including careful consideration of the medical opinions, while very close, I find the preponderance of competent and credible evidence reveals the surgery recommended by Dr. Chappuis is reasonable and appropriate for the employee s current workrelated back condition. I have carefully considered the record, especially the opinions of the physicians who have examined the employee. After doing so, I find Dr. Chappuis opinion most persuasive. Dr. Chappuis was deposed. He opined that the surgery recommended by Dr. Sutton would probably not be a success for the employee because such surgery would not stabilize the employee s back condition. As such, Dr. Chappuis testified that it would be better to perform the recommended fusion surgery, rather than possibly two surgeries laminectomy first and then, fusion. In light of the employee s back condition, I find this to be most likely true. In light of the employee s current back condition, I find the best course of treatment and the best opportunity for success at this time is the surgery recommended by Dr. Chappuis. As such, I find the employee is entitled to the surgery recommended by Dr. Chappuis.

5 32. Counsel for the employee is requesting assessed attorney fees and litigation expenses. (T , J- 19). 33. Assessed attorney fees may be awarded upon the determination that a proceeding has been prosecuted or defended in whole or in part without reasonable grounds. See O.C.G.A (b)(1). In addition, if any provision of O.C.G.A is violated without reasonable grounds and the employee engages the services of an attorney to enforce his right, assessed attorney fees may be awarded. See O.C.G.A (b)(2). Further, litigation expenses may be awarded. See O.C.G.A (b)(4). Whether unreasonable grounds exist for the imposition of assessed attorney fees is a question of fact to be determined by the Board. See Printpack, Inc. v. Crocker, 260 Ga. App. 67, 579 S.E.2d 225 (2003); Mt. Vernon Mills, Inc. v. Gunn, 197 Ga. App. 109, 397 S.E.2d 603 (1990). 34. After a review of the record as a whole, I find the employer/self-insurer has reasonably defended this claim. I find there is sufficient evidence in the record supporting the employer/self-insurer s position that the recommended surgery by Dr. Chappius is not reasonable and/or appropriate. As such, I find assessed attorney fees and litigation expenses are not due. AWARD 1. Based upon the foregoing findings of fact and conclusions of law, the employee s request for authorization and approval of back surgery as recommended by Dr. Chappuis is granted. 2. The employer/self-insurer shall pay any and all reasonable and/or necessary medical expenses, including surgery, associated with the employee s work-related back injury. 3. Since this is a compensable claim, the employer/self-insurer is responsible to provide and pay for reasonable and necessary medical treatment, including surgery, for the employee s work-related injuries with Dr. Chappuis that grants relief, effects a cure, or restores the employee to suitable employment. See O.C.G.A (a). Dr. Chappuis, as the employee s authorized treating physician, may refer the employee for other specialized medical services and treatment as required by the nature of the employee s injury, without prior authorization of the Board. See O.C.G.A (b)(1). If a dispute arises as to whether the medical treatment the employee is or is not receiving is reasonable, necessary, or related to the employee s injuries, either party may request a hearing to resolve a dispute. 4. Counsel for the employee s request for assessed attorney fees and litigation expenses is denied. IT IS SO ORDERED, this the 06th day of September, STATE BOARD OF WORKERS' COMPENSATION This order is electronically signed and approved. /s/ David K. Imahara ADMINISTRATIVE LAW JUDGE

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