What the panel treated as outcome-determinative, and which side it favoured.
Applicant sustained an industrial injury to his lumbar spine and right leg on May 27, 2014 while employed by Insured Solutions/Fontana Logistics Center.
Favours Applicant prevailed
This injury is the basis for the claim and the medical treatment dispute.
From the decision · page 1In the Findings of Fact issued on July 15, 2021, the Workers' Compensation Administrative
Law Judge ("WCJ") found that on May 27, 2014, applicant, while employed by Insured
Solutions/Fontana Logistics Center, insured by Lumbermans [sic] Underwriting Alliance, now in
liquidation and administered by defendant California Insurance Guarantee Association ("CIGA"),
sustained industrial injury to his lumbar spine and right leg. The WCJ also found that applicant
needs further medical treatment for this injury, including but not limited to the Utilization Review
("UR") determination that back surgery is medically necessary, and that there is no factual or legal
basis for CIGA to deny authorization for surgery.
Applicant underwent authorized back surgery with Dr. Osborne on February 9, 2016, involving laminectomies at three levels related to the 2014 injury.
Favours Applicant prevailed
Supports that the surgery was related to the 2014 injury and was authorized under that claim.
From the decision · page 3Evidence supports the applicant returned to Dr. Osborne for treatment resulting in
a recommendation and authorization for surgery to his low back at three levels. Dr.
Osborne performed laminectomies on "three levels", extending from L3 through
S1. This surgery was authorized under the claim for injury of 5/27/14 (App Ex 1).
Petitioner is silent as to the why surgery was performed and authorized under the
5/27/14 claim in 2016. Instead, Petitioner argues that the current recommendation
for surgery is solely a result of the prior 2008 injury. Yet, records reflect that
herniations were identified at only two levels under the 6/4/08 date of injury and
now three levels following the 5/27/14 date of injury. Furthermore, Petitioner fails
to consider that although a surgery was likely and may have been recommended, it
cannot be ignored that the applicant was able to perform his usual and customary
job duties at Insured Solutions for approximately a year prior to the 2014 injury and
approximately a year and a half after the injury. Based on the AME report of Dr.
Feiwell, the job duties at Insured Solutions required significant physical activity
(Jnt Ex W, pg 2).
Utilization Review certified the spinal fusion and microdiscectomy surgery as medically necessary.
Favours Applicant prevailed
Supports the medical necessity of the surgery recommended by treating physicians.
From the decision · page 11Applicant recently selected Dr. Justin Paquette as his new PTP and authorization was provided by
Petitioner in a letter dated 12/21/20 (App Ex 6). Applicant was initially seen by Dr. Paquette on
2/1/21 with complaints of severe low back pain and an MRI was requested (App Ex 7). In his
3/1/2021 report, Dr. Paquette requests authorization for a L4-5, L5-S1 spinal fusion and
decompression and a microscopic decompression bilaterally at the L3-4 level (App Ex 8, pg 4).
GENEX Utilization Review dated 3/23/2021 certified the spinal fusion and microdiscectomy (App
Ex 9, pg 1). CIGA acknowledged the UR decision determining the recommended treatment was
medically necessary, however, declined liability and authorization (App Ex 10). CIGA further
noted that based on the findings of the AME, Dr. Feiwell, there was substantial findings that the
applicant's need for back surgery pre-existing his 2014 claim.
AME Dr. Feiwell attributed at least some causation and impairment to the 2014 injury and confirmed the need for surgery, though he deferred exact apportionment to the trier of fact.
Favours Applicant prevailed
Supports the conclusion that the 2014 injury contributed to the need for surgery.
From the decision · page 14While the applicant may not have initially disclosed his prior injury to Dr. Osborne, it appears this
was also not disclosed to AME, Dr. Feiwell. As the issue at hand is the need for medical treatment
since the case at hand is accepted, [applicant's prior lack of disclosure does not help CIGA
because] Dr. Feiwell after reviewing the reports of the prior injury and limited reports of the current
injury still attributed causation at least in part to the 2014 [injury] and comments that medical care
cannot be apportioned (Jnt Ex X, pg 21, ln 7) Additionally, Dr. Feiwell does mention L3-L4
level...in his review of records in the 9/20/19 report (Jnt Ex T pg 2). As previously discussed,
absent from Dr. Feiwell's review are the full records of Dr. Osborne [.] [A]lthough requested on
multiple occasions, [Dr. Feiwell's] request went unanswered. As such, this may have created some
of Dr. Feiwell's uncertainty in his final cross-examination, in which Dr. Feiwell appears confused
as to what levels were addressed following the 2008 injury versus the additional level following
the 2014 injury. In review of all the reports, Dr. Feiwell is consistently concluding that the
applicant is in need of the recently recommended back surgery and [overall the doctor's opinion
reasonably suggests] that at least 1% of the causation is attributed to the 2014 injury.
Applicant was able to perform his usual and customary job duties at Insured Solutions for about a year before and a year and a half after the 2014 injury.
Favours Applicant prevailed
Indicates the 2014 injury was a separate and distinct injury that aggravated the condition requiring surgery.
From the decision · page 12Evidence supports the applicant returned to Dr. Osborne for treatment resulting in a
recommendation and authorization for surgery to his low back at three levels. Dr. Osborne
performed laminectomies on "three levels", extending from L3 through S1. This surgery was
authorized under the claim for injury of 5/27/14 (App Ex 1). Petitioner is silent as to...why surgery
was performed and authorized under the 5/27/14 claim in 2016. Instead, Petitioner argues that the
current recommendation for surgery is solely a result of the prior 2008 injury. Yet, records reflect
that herniations were identified at only two levels under the 6/4/08 date of injury and now three
levels following the 5/27/14 date of injury. Furthermore, Petitioner fails to consider that although
a surgery was likely and may have been recommended, it cannot be ignored that the applicant was
able to perform his usual and customary job duties at Insured Solutions for approximately a year
prior to the 2014 injury and approximately a year and a half after the injury. Based on the AME
report of Dr. Feiwell, the job duties at Insured Solutions required significant physical activity (Jnt
Ex W, pg 2).