Benjamin K. Durstein

Mr. Baxter was injured when he fell from a ladder on May 28, 2019, while working as a fiber optic cable installer. He had multiple injuries, one of which was to the left knee. He had an arthroscopic surgery a few months afterwards, but he continued to experience pain. The doctors believed the ongoing problem was now due to arthritis aggravated by the fall. The claimant tried both cortisone and viscosupplementation injections but was unable to progress beyond light duty. Verizon could not accommodate those restrictions. In 2020, it was recommended that Mr. Baxter have a total knee replacement to provide more lasting relief and, hopefully, return him to work. The claimant decided to move forward with surgery, and it was eventually performed on April 17, 2023. There was no causation defense, so the employer referred the surgery to Utilization Review (UR) where it was determined that it did not comply with the Guidelines. The claimant appealed that UR with a petition to the Industrial Accident Board.

An Industrial Accident Board hearing officer heard the case and denied the petition. The decision stated that the treating surgeon failed to pursue the cortisone injections or physical therapy specifically for osteoarthritis or to explain why those were not tried before resorting to surgery. The doctor did not exhaust conservative care and failed to explain why it was not exhausted. Therefore, the surgery was found not reasonable or necessary. The claimant appealed.

On appeal, the claimant argued that the hearing officer erred as a matter of law by requiring him to exhaust all conservative treatment before undergoing a knee replacement surgery rather than reasonable conservative treatment. The latter statement tracks the language in the Practice Guidelines exactly. The court agreed that the Industrial Accident Board’s decision was unclear as to whether the Guidelines were applied correctly. As part of the statement of the law, the judge added that, “In making its reasonable and necessary determination, the Board must consider whether all reasonable conservative measures have been exhausted as to the claimant's treatment specifically. This standard is undisputed.” 

Additionally, the court reasoned that the Board did not examine this individual claimant’s circumstances. In particular, the Board had failed to discuss whether the claimant’s inability to return to work impacted the reasonableness determination or to address how additional conservative treatments would have helped Mr. Baxter, specifically. The court advised that it was not confident that the hearing officer applied the correct standard of “whether Baxter exhausted all reasonable conservative treatment suitable for him.” Accordingly, the decision was reversed and remanded as the court was unable to conclude whether it was free from legal error and supported by substantial evidence. 

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