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: Does a treating doctor’s report which recommends surgery, but says the injured worker may not get better with surgery, support a decision authorizing surgery?
Background: Neal was injured in 1990. His claim was allowed for ruptured disc L5-S1. He continued to have significant pain. In 1996, Dr. R. recommended surgery due to the long-term pain.
The employer scheduled an independent medical examination (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 Commission authorized surgery. Neal had the surgery and received temporary total.
Osco filed a mandamus. The Court of Appeals rejected the employer’s arguments that non-allowed conditions influenced Dr. R’s 1997 report 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. recommended surgery based on an unallowed degenerative disc disease. Dr. R. did not adopt Dr. B’s finding of disc degeneration. Court states that Dr. R made a generic reference “disc disease” rather than a specific diagnosis. The Commission 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 only indicated reluctance to guarantee success. These statements were not equivocal or contradictory to his recommendation of total back surgery.
Editor’s Comment: The treating doctor based much of his pessimism about the outcome of the surgery 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. The self-insurer again authorized surgery in 1996. Seven weeks later, the employer withdrew authorization.