Doctor's Report Supports Decision to Grant Surgery

State, ex rel. Osco Industries v. Indus. Comm. (04/10/02), 95 Ohio St.3d 31:

Issue: Is a treating doctor's report that recommended surgery, but says the injured worker may not get better with surgery, evidence to support the granting of surgery?

Background: Neal was injured in 1990. His claim was allowed for ruptured disc L5-S1. He continued to be in significant pain. In 1996, Dr. R. recommended surgery due to the long-term pain.

The Employer scheduled an IME with Dr. B. The IME stated that Neal was not a good surgical candidate. The IME stated that Neal had disc pathology, which might not be any different from the population as a whole.

In 1997, Dr. R. stated that he agreed with many of the statements in the IME report and stated that "there is no question in my mind that Mr. Neal may not get better with surgery." Dr. R. stated that Neal had findings consistent with a radiculopathy secondary to disc disease.

The IC authorized surgery. Neal had the surgery and received TT.

Osco filed a mandamus. The Court of Appeals rejected the employer's arguments that Dr. R's 1997 report was influenced by non-allowed conditions and that his report was equivocal and contradictory on whether surgery would improve Mr. Neal's back.

Decision: Supreme Court affirms (7-0).

Court rejects the argument that Dr. R. was recommending surgery based on degenerative disc disease, which was not allowed in the claim. Court refuses to find that Dr. R. adopted Dr. B's finding of disc degeneration. Court states that Dr. R's reference to "disc disease" was a generic reference rather than a specific diagnosis. Court states IC did not abuse its discretion in finding that Dr. R's opinion did not include consideration of non-allowed conditions.

Court also finds that Dr. R's statements that the surgery might not help Neal were just a reluctance to guarantee success. Court states that these statements were not equivocal or contradictory to his recommendation of total back surgery.

Editor's Comment: Much of the treating doctor's pessimism about the outcome of the surgery was based on the delay in authorizing surgery. Interestingly, surgery was originally authorized in 1993 but could not take place due to a previously undetected heart condition. Surgery was again authorized by the Self-Insured Employer in 1996. Seven weeks later, the Employer withdrew authorization.

Click on the case name to view the  decision on the Supreme Court's web site.