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WINNING RESULTS: LOIS Prevails on Medical Treatment Guidelines Defense in New York

Lois Law Firm was recently successful in procuring a denial of a request for a spinal fusion. The claimant’s treating doctor submitted a request for a spinal fusion a few months after the Claimant underwent a lumbar laminectomy. The Claimant subsequently underwent a post-operative MRI that showed multiple bulges without stenosis. After the MRI, the Claimant attended an examination with the doctor, at which time he reported trouble walking without pain and could not stand for more than a minute without pain. The doctor concluded that the Claimant was a candidate for a transforaminal lumbar interbody fusion with instrumentation and a request was submitted. The Carrier denied the request via a record review which noted that per the Medical Treatment Guidelines, which that spinal fusion is not recommended for the treatment of radiculopathy resulting from herniated nucleus pulposus. Further, there is no instability on x-rays.

The issue of surgery was joined at a subsequent hearing. During deposition, the treating doctor explained that the Claimant has severe post-traumatic degenerative changes that are not amenable to conservative treatment. He conceded that a disc herniation is the same as HNP. He further conceded that the Claimant has radiculopathy due to the herniation. The doctor stated that he would create possible instability in performing the surgery, which would create medical necessity for the surgery. LOIS attorney Jeremy Janis obtained a concession from the doctor that no instability was present in the MRI.

At the hearing to address the surgery, LOIS Attorney Jeremy Janis relied on Chapter E.4, Spinal Fusion of the New York Mid and Low Back Injury Medical Treatment Guidelines. Pursuant to E.4.a.i, a lumbar fusion is recommended as a treatment for spinal stenosis when concomitant instability has been proven. Lumbar fusion is not recommended for spinal stenosis without instability. Further, Pursuant to E.4.a.v, lumbar fusion is not recommended as a treatment for patients with radiculopathy from herniated nucleus pulposus (disc herniation) or for patients with chronic back pain after lumbar discectomy. As both apply, it was argued that the surgery must be denied. It was further noted that the possibility of a decompressive surgery creating instability is not sufficient for surgical authorization, and contention that providing the Claimant with decompression surgery will create instability is only speculation. See Employer: Univ. of Rochester, No. G099 9422, 2017 WL 1824100 (N.Y. Work. Comp. Bd. January 31, 2017), Employer: Formia Marble & Stone Inc, No. G162 0354, 2018 WL 3601526 (N.Y. Work. Comp. Bd. July 18, 2018). Through the use of effective cross-examination of the Claimant’s treating doctor, the Medical Treating Guidelines and case law, the surgery was denied by the Law Judge, resulting a cost savings for the client.

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We represent insurance carriers, self-insured employers, third party claim administrators, and employers before the New York State Workers' Compensation Board. We handle cases from cradle-to-grave. We want to be by your side, moving cases aggressively to closure from the start of litigation all the way through to settlement.

We only assign one attorney and one paralegal to each case. This means that your team members always have one contact to go to for any questions. We do not have 'hearing attorney' or a 'negotiation attorney' or 'appeal department' or anything else! All of our attorneys handle all of those roles – meaning cases are not 'passed around' as they move through the litigation process. Your risk professional or adjuster always knows who is assigned – because the attorney does not change.

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