Medical Maintenance Benefits Can Include Surgery

The claimant injured his shoulder while working as a bus driver, and began treating with Dr. Craig Stagg. Dr. Stagg initiated a referral to Dr. Witwer, a neurosurgeon, who opined that ongoing symptomology stemmed from the back and suggested treatment options including physical therapy, epidural steroid injections, and a foraminotomy surgical procedure. The physical therapy and injections seemed to improve the claimant’s symptoms. Therefore, Dr. Stagg placed the claimant at maximum medical improvement (“MMI”) on December 1, 2016, and assigned a 17% whole person permanent impairment rating. The respondents filed a Final Admission of Liability (“FAL”) adopting this rating and allowing for maintenance medical benefits subsequent to MMI. The claimant did not dispute the FAL nor did he seek a Division sponsored Independent Medical Evaluation (“DIME”) to question MMI or the impairment rating.

After the claim closed, the claimant continued treating with Dr. Witwer who  recommended the claimant undergo the previously suggested cervical foraminotomy surgery. The respondents denied authorization for the surgery on the basis that the claim closed through the FAL for any medical treatment other than maintenance care. The respondents asserted the surgery was designed to cure the claimant of his disabling condition.

The claimant filed an application for a hearing endorsing solely the issue of medical benefits as represented by Dr. Witwer’s suggested foraminotomy surgery. The claimant did not seek to reopen his claim. Following the hearing, the ALJ relied on Dr. Stagg’s report endorsing Dr. Witwer’s recommendation in determining that the surgery qualified as medical maintenance treatment, as its aim was to improve the claimant’s condition, but not to cure him. As such, the ALJ held that respondents were liable for the cost of the surgery.

On appeal, the respondents asserted that because the surgery was designed to significantly improve the claimant’s condition, it does not qualify as maintenance treatment, and they are not liable for the surgery. A Panel of the Industrial Claim Appeals Office (“Panel”) disagreed and affirmed the ALJ’s order. The Panel explained that surgeries are not “curative” as a matter of law, and because surgeries can be designed to relieve the claimant from the injury’s effects without curing them, they can be awarded as post-MMI maintenance benefits. The Panel stated that resolution of this issue does not depend on the type of treatment, but rather the reason for the treatment. Because this is a question of fact, the Panel gives deference to the ALJ’s conclusions, so long as they are supported by substantial evidence. Indeed, even though the Panel noted that there was evidence that Dr. Witwer stated the surgery would improve claimant’s radicular pain, there was also ample evidence to hold the respondents liable for the surgery, and as such, affirmed the ALJ.

Claims Administration Tip:

If the claim is resting on an final admission of liability (FAL) which admits for maintenance care but all other issues are closed, do not automatically assume if the claimant has surgery that TTD must be restarted, or that a general admission of liability (GAL) needs to be filed to reopen the claim.   There may be an argument that the injured worker is still at MMI, and it is advisable to check with counsel prior to initiating payment of indemnity benefits.

If a claimant undergoes surgery after MMI, it does not mean that the claimant is automatically entitled to temporary disability.  Under this claim, Respondents can maintain that the medical procedure is maintenance only and not begin indemnity benefits, depending upon the facts.  Consult counsel prior to determining position.

Hughes v. MV Transportation, Inc., W.C. No. 5-015-855-01 (ICAO Apr. 12, 2018).

Would you like to know more? Contact Eric Pollart at or 720-488-9586.


From the May 2018 Pollart Miller Newsletter