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State ex rel Conrad v. Industrial Commission of Ohio5/17/2000
Workers' compensation - Industrial Commission's denial of payment for claimant's surgery an abuse of discretion - Gay relief ordered.
Submitted February 22, 2000
Appellee-claimant, Bridget Conrad, sustained an industrial injury in 1975, while employed by appellant, Kroger Company. Her workers' compensation claim was allowed for "back injury, pre-pyloric ulcer; trochanteric bursitis of right hip." She had three surgeries related to her low back condition prior to 1994.
In October 1994, claimant was examined by Dr. James H. Rutherford. He reported numerous disc abnormalities and other lumbar instability. He also noted that claimant had been forced to adapt her lifestyle to accommodate her pain:
"On reviewing the records it is my opinion that her treatment has not been excessive. Her three surgeries have been appropriate for her clinical findings and they at least were initially of therapeutic value.
"It is my medical opinion at this time, however, that she has reached maximum medical improvement. On reviewing her records[,] it is my medical opinion that she would not benefit from any further surgical procedure at this time. It is my medical opinion that her functional capacities will not be improved by any further surgical procedure. The patient has also not been able to lose any weight over the last two years and this is a contra-indication of doing a surgical procedure at this time. She has also adjusted reasonably well to her symptoms and impairments and she has indicated, at least to Dr. Miely, that she did not choose to have any further surgical procedures done at this time.
"At the present time it is my medical opinion that Ms. Conrad needs only maintenance treatment. * * *"
One month later, claimant had an acute exacerbation of her low back condition. She contacted Dr. Ralph G. Rohner on November 18, complaining of "severe pain stating that she could hardly walk." By the time of her examination three days later, her condition had worsened. Dr. Rohner noted that claimant "cannot sit for exam[.] She cannot stand up erect, lists to the side, stands flexed at hips. SI tender, SN severely tender. Lumbar Pathology[:] acute intractible pain."
Dr. Rohner sought emergency hospitalization with intravenous morphine drip and physical therapy. Unable to obtain prior authorization from claimant's self-insured employer, appellant, Kroger Company ("Kroger"), claimant was hospitalized anyway, and an MRI was performed. Among other problems, the test showed epidural fibrosis secondary to claimant's earlier surgeries.
Claimant asked the Industrial Commission of Ohio to order Kroger to pay for the November 1994 hospitalization. A district hearing officer granted that request, and no appeal followed. In mid-October 1995, Dr. Rohner sought emergency authorization for further surgery. In an accompanying letter, he wrote:
"Bridget Conrad sustained an industrial injury to her low back, which was recognized. She subsequently underwent a decompression, laminectomy and diskectomy at the L4-5 level only to experience a recurrence. As a result of the recurrence, she underwent an extensive decompression of the L4-5, L5-S1 levels * * *. With her last surgery, she underwent an associated transverse process fusion. Relief was obtained for a while, only to experience a recurrence. Subsequent testing had shown development of a pseudarthrosis in her fusion, a retrolisthesis at the L4-5 level and a recurrent entrapment of the L4-5 nerve root in scar tissue. This is the level of previous pathology recognized by the Bureau of Workers' Compensation . It is a recurrence.
" * * * The purpose of thi
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