SURGICAL TREATMENT

Gramercy Surgery Center v. Liberty Mutual Fire Insurance Company (5/26/2010)
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The physician conducting the independent medical examination stated that the condition (here, tendinopathy) “often can be successfully treated at home. Treatment usually includes resting the painful area, applying ice, taking pain relievers (such as nonsteroidal anti-inflammatory drugs) if necessary, and doing gentle exercises and stretching to prevent stiffness. These steps typically reduce pain and tenderness and allow the tendon to heal.” Here, the arbitrator found that the IME physician has not presented any clear standard of care. “What can ‘often’ be treated in a particular manner, or what steps ‘typically’ work with respect to an injury or condition, clearly do not cover the full spectrum of accepted treatments. There is no evidence whatsoever to suggest that [the treating physician] acted in contravention of any accepted medical protocol. I therefore defer to his judgment, as the treating physician.”

Day-Op Cneter of Long Island v. Geico Insurance Company (8/9/2010)
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The patient established a prima facie case of entitlement to reimbursement for arthroscoy of the right knee. The peer reviewer argued that, “based on a lack of significant findings that would require immediate surgical intervention and the lack of documentation of an appropriate program of conservative treatment of the knee prior to the surgery, the right knee surgery that was performed on the claimant should be disallowed.” Applicant rebutted that patient indeed underwent physical therapy and that the carrier was properly in possession of the records of such, and though the peer reviewer saw no need for surgery, the IME was conducted two days before the surgery and nonetheless contained positive orthopedic findings. Having reviewed all the submissions, the arbitrator determined that the peer reviewer had not met the burden of proving lack of medical necessity.

Day-Op Center of Long Island Inc. v. Fiduciary Insurance Co. of America (8/10/2010)
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The patient sought treatment three weeks after an accident, complaining of pain going down her left shoulder with numbness and tingling into her arm, lower back pain traveling down the leg with numbness and tingling and “significant pain” in the left shoulder and left knee pain. The physical examination revealed decreased range of motion in the left shoulder with “significant pain and limitation of rotational movements.” Arthroscopic surgery was performed on the patient’s left shoulder about nine weeks later. The peer reviewer argued that the condition complained of was not causally related to the accident, and also sought to rely on an orthopedic report conducted five weeks prior to the surgery, which indicated the patient’s condition had resolved; however, the peer reviewer did not provide supporting documentation (neither a complete explanation of causation issue nor a copy of the report alluded to). Having relied on a document not in evidence, the peer reviewer’s opinion was deemed to lack credibility, and the applicant for benefits prevailed.