Matteliano v. Trinity Health Corp.

194 A.D.3d 1227

148 N.Y.S.3d 273

In the Matter of the Claim of Caitlyn MATTELIANO, Claimant,

v.TRINITY HEALTH CORPORATION et al., Appellants.

Workers' Compensation Board, Respondent.

531582

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: April 27, 2021

Decided and Entered: May 13, 2021

Williams & Williams, Buffalo (Jared L. Garlipp of counsel), for appellants.

Letitia James, Attorney General, New York City (Marjorie S. Leff of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch and Colangelo, JJ.

MEMORANDUM AND ORDER

Egan Jr., J. Appeal from a decision of the Workers' Compensation Board, filed December 16, 2019, which granted a request for authorization of multi-lumbar fusion surgery and use of an external bone growth stimulator.

In 2015, claimant, a nurse assistant, was injured at work while assisting a patient back into bed, and her subsequent claim for workers' compensation benefits was established for injuries to her left knee and left leg. In February 2018, claimant was again injured while transferring a patient into a bed, and her ensuing claim for workers' compensation benefits was established for an injury to her lower back and included her prior established injuries to her left knee and left leg.¹ In January 2019, Franco Vigna, the orthopedic surgeon who had been treating claimant since March 2018, requested authorization from the employer's workers' compensation carrier to perform multi-level lumbar fusion surgery and for the use of an external bone growth stimulator. The requested surgery involved three stages: the first would be a lateral lumbar interbody fusion at L3–L4 and L4–L5, the second would be an anterior lumbar interbody fusion with interbody cages and anterior lumbar plates and screws at L5–S1, and the third would be a posteriorly instrumented fusion with pedicle screw placement and possible laminectomy from L3–S1. The employer and its workers' compensation carrier (hereinafter collectively referred to as the employer) subsequently denied the request for authorization of the surgery based upon the findings of Anthony Leone, who conducted an independent medical examination of claimant on behalf of the employer. Following a hearing, a Workers' Compensation Law Judge (hereinafter WCLJ) denied the request for authorization of the surgery. Upon administrative review, the Workers' Compensation Board approved the prior authorization request, finding that, because claimant had already undergone conservative treatment without success and has discogenic back pain and worsening degenerative disc disease, authorization of the surgery was appropriate under the applicable Medical Treatment Guidelines. The employer appeals.

We affirm. "Initially, it is well settled that [t]he Board has the authority to promulgate medical treatment guidelines defining the nature and scope of necessary treatment" ( Matter of Czechowski v. MCS Remedial Servs., 175 A.D.3d 1759, 1760, 109 N.Y.S.3d 487 [2019] [internal quotation marks and citation omitted]; see Matter of Kigin v. State of N.Y. Workers' Compensation Bd., 24 N.Y.3d 459, 463, 999 N.Y.S.2d 800, 24 N.E.3d 1064 [2014] ; Matter of Forte v. Muccini, 181 A.D.3d 1135, 1136, 121 N.Y.S.3d 395 [2020], lv denied 35 N.Y.3d 912, 2020 WL 5181626 [2020] ). Whether a particular medical treatment is appropriate under the guidelines and should be authorized is a factual issue for the Board to resolve, and its determination in this regard will be upheld if supported by substantial evidence (see Matter of Quigley v. Village of E. Aurora, 193 A.D.3d 207, 215, 142 N.Y.S.3d 636 [2021] ; Matter of Forte v. Muccini, 181 A.D.3d at 1138, 121 N.Y.S.3d 395 ; Matter of Czechowski v. MCS Remedial Servs., 175 A.D.3d at 1761–1762, 109 N.Y.S.3d 487 ; Matter of Oparaji v. Books & Rattles, 147 A.D.3d 1165, 1166, 47 N.Y.S.3d 150 [2017], lv denied 29 N.Y.3d 918, 2017 WL 4015669 [2017] ).

The applicable guidelines here pertain to mid and lower back injuries where the suggested course of treatment is lumbar fusion surgery, which requires prior authorization (see State of New York Workers' Compensation Board, Mid and Low Back Injury Medical Treatment Guidelines at 66–69 [Sept. 2014]; see generally 12 NYCRR 324.2 [a][1]; [d][2][i]). The guidelines provide, in relevant part, that lumbar fusion surgery, in general, "is recommended as a treatment for spinal stenosis when concomitant instability has been proven" and that it is not recommended "for spinal stenosis without instability" (State of New York Workers' Compensation Board, Mid and Low Back Injury Medical Treatment Guidelines at 67 [Sept. 2014]). Among other indications, the "lack of responsiveness or unsatisfactory response(s) to adequate conservative treatment over a minimum 6 to 8 week period that may or may not include an epidural steroid injection" should also be present before lumbar fusion surgery is recommended (State of New York Workers' Compensation Board, Mid and Low Back Injury Medical Treatment Guidelines at 67 [Sept. 2014]). In cases where there is no instability, lumbar fusion surgery may still be recommended as a treatment for degenerative disc disease or discogenic back pain "in selected patients for whom non-surgical management has failed to relieve symptoms and improve function" (State of New York Workers' Compensation Board, Mid and Low Back Injury Medical Treatment Guidelines at 68 [Sept. 2014]).

Here, the evidence before the Board contained conflicting medical narratives regarding whether, in light of claimant's condition, the requested surgery should be authorized under the guidelines. In support of the denial of the requested authorization, the employer offered the independent medical examination and report of Leone, who, upon examining claimant and reviewing her medical history, found that the requested three-stage lumbar fusion surgery was an "aggressive" procedure that was not appropriate for claimant who is still at a young age. Leone opined that, in June 2018, claimant underwent an unsuccessful L5–S1 laminotomy and discectomy to resolve lower extremity symptoms and that claimant has not had any pain management since...