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Saif Corp. v. Leland5/19/1999
Judicial Review from Department of Consumer and Business Services.
Argued and submitted September 15, 1998.
Affirmed.
Employer Reedsport School District 105 and SAIF Corporation seek review of a final order in which the Director of the Department of Consumer and Business Services (the Director) determined that surgery performed on claimant's back was appropriate treatment for her condition. On review, employer contends that the Director either misunderstood or misapplied the substantial evidence standard in setting aside the order of the medical review unit (MRU) that held that claimant's back surgery was not appropriate medical treatment. We conclude that the Director properly applied the substantial evidence standard and affirm.
Claimant has a long history of chronic back pain, including an October 1988 low back injury and a May 1992 mid-thoracic injury. Claimant had worked as a school cook since 1983. On May 26, 1995, she sustained a compensable back injury while lifting a case of frozen food at work. Dr. Bert, claimant's treating physician, concluded that the L2-3 disk level was causing claimant's back pain. He recommended physical therapy and medication. SAIF accepted the claim for low back strain and herniated disks at L2-3 and L5-S1.
Between May 1995 and January 1997, when Bert performed a L5-S1 discectomy, numerous other physicians examined claimant, reviewed her medical records, and offered a variety of opinions about the cause or source of claimant's back pain. A number of those physicians concluded that claimant did not have a herniated disk or that her pain was due to extensive degenerative disk disease and that surgical intervention would not relieve her pain. Bert disagreed with those opinions but initially took a slow approach, continuing conservative treatment and deferring surgery, because claimant's diffuse pain made it difficult to determine whether surgery at the L2-3 level, which was what was being considered at the time, would resolve her back condition. At Bert's request, Dr. Karasek performed a four-level lumbar discography in June 1996, which revealed that the L5-S1 disk was the only painful disk. Bert then requested authorization for surgery at L5-S1. Despite recommendations by other doctors against surgery, Bert performed a L5-S1 discectomy in January 1997. Bert's surgical and postoperative report confirmed his opinion that claimant's back pain had its origin in a herniated disk at the L5-S1 level:
"The interspinous ligament and ligamentum flavum were removed at 5-1 on the inferior portion of the lamina of L5 and superior portion of the lamina of S1. With gentle retraction of the dura a large bulging L5-S1 disk was identified. "Interestingly, there were large synovial cysts pushing into the neural foramina bilaterally. These were removed and partial fasciectomies performed leaving two-thirds of the facet joints at 5-1."
Dr. Bert also reported that the surgery had, in fact, relieved most of claimant's pain.
In February 1997, Dr. Rohrer, another neurosurgeon, conducted a file review at the request of the Director and concluded from the preoperative radiographic data alone that the L5-S1 surgery was neither necessary nor appropriate treatment for claimant.
On April 3, 1997, the MRU disapproved the surgery that Bert had performed on claimant's L5-S1 disk. The order relied on the expert opinion of six physicians who stated that back surgery was not appropriate. The MRU concluded that, although claimant no doubt suffered back pain, the "overwhelming majority of medical evidence" suggested that the pain was the result of her degenerative disk disease and that surgery would n
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