Trimming the Fat: Is the Employer Obligated to Provide Incidental Treatment so that a Related Condition can Receive Treatment?
Providing medical treatment for work-related injuries is an essential function of the workers’ compensation system. In most cases, the recommended treatment is directly related to the injured body part; nobody questions how back surgery is related to an injured back. In some cases however, this linear relationship does not exist and treatment for an unrelated condition is recommended before addressing the compensable work injury. The most obvious example of this is when a doctor recommends bariatric surgery prior to performing back surgery on an obese claimant. Whether an employer must provide treatment to an unrelated condition so that a related condition can be addressed raises an issue not squarely settled in the South Carolina.
In 2005 the South Carolina Workers’ Compensation Commission considered this issue for the first time and ordered the employer to provide gastric bypass surgery to enable treatment for a compensable hernia. Stalvey v. Fuji K-5 Kajami PMD, 2005 SC Wrk. Comp. LEXIS 731 (2005).
In Stalvey, the claimant’s morbid obesity caused the authorized doctor to recommend gastric bypass surgery before proceeding with a hernia repair. The employer denied the recommendation, forcing the Commission to determine whether to order the surgery. The Hearing Commissioner relied on outside jurisdictions which have held that a surgery not causally related to the compensable injury is compensable when it must be dealt with to achieve optimum treatment of the compensable injury, or if the treatment is necessitated by or related to the work related injury. The Hearing Commissioner awarded the Claimant gastric bypass surgery, reasoning that without such a procedure the Claimant's condition could not be fully diagnosed or treated.
Although not precedential authority, following Selvey it appeared the Commission would order employers to provide unrelated treatment in cases where it was necessary to treat the underlying compensable injury. Just four years later however, the Commission reversed course when it reached a decision in Joyner v. Sumter County, 2009 SC Wrk Comp. LEXIS 2 (2009).
In Joyner, the claimant sustained a compensable back injury. The claimant’s physician wanted to provide injections but claimed he was unwilling to proceed unless the claimant first loss weight. The physician recommended the claimant receive gastric bypass surgery before proceeding with treatment to the back. The Commission analyzed the causal relationship between the recommendation for gastric bypass surgery and the compensable work injury and determined the claimant could not establish a causal relationship between the treatment and the injury. The Commission emphasized the injury involved the back, not the stomach, and denied the claimant gastric bypass surgery. Again, Joyner does not represent binding authority to any degree but the case does suggest the Commission, at least as it was formulated in 2009, was willing to deny treatment unrelated to the injury, even if the treatment could potentially lessen the period of disability.
Viewing the issue through a pragmatic lens however, in many cases it may actually serve the employer well to provide unrelated treatment. Assume a claimant is on a running award and cannot receive surgery unless he or she can lose 50 pounds. The carrier’s options are to a.) provide unrelated treatment in order for the related treatment to proceed or b.) become ensnared in a situation where the claimant is receiving temporary disability benefits, is not at MMI, but cannot receive treatment that will bring him or her to MMI. Avoiding this situation usually involves either finding a doctor to proceed without the unrelated treatment (which creates additional exposure in its own right) versus obtaining an IME to place the claimant at MMI, an opinion which may or may not be awarded sufficient weight by the Commission.
Ultimately, any decision to authorize or deny unrelated treatment will be decided on a case by case basis, taking into consideration the severity of the unrelated treatment recommended, the length of recovery time, the likelihood of a successful outcome, and the cost of defending against such treatment, among other factors. But in those situations where authorizing unrelated treatment becomes untenable, the Commission’s history suggests it would support a denial.
This article originally appeared on February 11, 2013 on the Workers’ Compensation Institute’s website, and is republished here with permission.
This legal update is published as a service to our clients and friends. It is intended to provide general information and does not constitute legal advice regarding any specific situation.
ABOUT THE AUTHORS
Benjamin T. Cruse is an attorney with McAngus Goudelock & Courie. Founded in 1995, MG&C is a full-service law firm with offices in Columbia, Greenville, Charleston and Myrtle Beach, SC, and Asheville, Charlotte and Raleigh, NC. The firm’s practice areas include workers’ compensation defense, employment, banking and consumer law, administrative law, government relations, construction litigation, commercial litigation, products litigation, business law, real estate law and health care and regulatory issues. Mr. Cruse may be reached at 843.576.2900 or by email.
James H. Lichty is an attorney with McAngus Goudelock & Courie. Founded in 1995, MG&C is a full-service law firm with offices in Columbia, Greenville, Charleston and Myrtle Beach, SC, and Asheville, Charlotte and Raleigh, NC. The firm’s practice areas include workers’ compensation defense, employment, banking and consumer law, administrative law, government relations, construction litigation, commercial litigation, products litigation, business law, real estate law and health care and regulatory issues. Mr. Lichty may be reached at 803.779.2300 or by email.