It is easy to accept preauthorized surgeries as a foregone conclusion where the site of surgery is established and the procedure is approved by the Medical Treatment Guidelines. However, it shouldn’t be.
Earlier in 2019, Goldberg Segalla’s workers’ compensation team won an appeal on this very issue. The claimant underwent preauthorized left shoulder surgery on a file established to the left shoulder for an injury that occurred in 2016. However, the claimant underwent left shoulder surgery secondary to a 2004 motor vehicle accident prior to the work-related injury. At the hearing, which was held shortly after the claimant underwent surgery, Goldberg Segalla argued that there is a question as to causal relationship given that it is technically a repeat surgery. Additionally, the firm argued for a signed Health Insurance Portability and Accountability Act (HIPAA) release form from the claimant for access to treatment records associated with the 2004 injury and subsequent surgery. It was ordered, but awards after the more recent left shoulder surgery were brought up to the total rate. As a result, the surgery was deemed causally related by the law judge since it was preauthorized. Goldberg Segalla noted exceptions on the record and recommended an appeal.
The Board Panel agreed with the position that the record merited further development on the issue of causality. Awards following surgery were rescinded and the matter was put back on the calendar for development of the record on the issue with the benefit of the claimant’s 2004 treatment records. An independent medical examiner (IME) conceded causality for the second left shoulder surgery, but noted that he would amend his opinion should prior treatment records become available. This fact was noted in his arguments. Even so, the firm was successful in arguing that the record must be developed with the benefit of the 2004 treatment records.
The fight on causality began at a hearing in November 2018 and is ongoing. The Goldberg Segalla team first requested a HIPAA for access to treatment records. The claimant failed to comply with the direction. After initially vocalizing strong opposition, the claimant agreed to sign the HIPAA.
The lesson here is that HIPAAs are extremely important and useful for defense of a claim. The firm came to know about the claimant’s 2004 injury and surgery through the concessions to the IMEs. However, the failure to comply with the HIPAA direction led to a prolonged decision on awards following the claimant’s January 2019 surgery.
Attorneys should not fight tooth and nail against all surgeries, but it should not be made our practice to accept a surgery merely because it is preauthorized.