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Surgery Needed Before WC Case, Approved

Worker's Need for Back Procedure Was Due in Part to Work Injury:



A worker whose doctor had recommended an artificial disc-replacement procedure before she suffered a workplace injury was entitled to have the procedure paid for by her employer since her workplace injury aggravated the back problem that had given rise to her need for it to begin with, a New York appellate court ruled.


Case: Matter of Mallette v. Flattery's, No. 515501, 11/07/2013, published.


Facts: Janina Mallette began seeing a doctor in 2007 for her complaints of low back pain. Her doctor determined she had a disc herniation and she underwent surgery in 2008.


The surgery, however, failed to relieve her complaints. Mallette's doctor then recommended an artificial disc-replacement procedure, but Mallette's private health insurance carrier refused to authorize the procedure.


In March 2010, Mallette fell through a trapdoor while working at Flattery's. She filed a claim for workers' compensation benefits for several injuries, including an injury to her back.


After her accident, Mallette's doctor requested authorization from the Workers' Compensation Board to perform an artificial disc replacement on her.


Procedural History: A workers' compensation law judge determined that Mallette's need for the artificial disc-replacement procedure was due to her work injury and her preexisting condition, and the judge ordered Flattery's to pay for half the cost of the procedure.


The Workers' Compensation Board affirmed, but amended the judge's order to hold Flattery's wholly liable for the cost of the procedure, without prejudice to further consideration of apportionment after a finding of permanency has been made.


Analysis: The Appellate Division's 3rd Department said that substantial evidence supported the board's determination that Mallette's fall had aggravated her preexisting back problems and contributed to her need for the artificial disc-replacement procedure.


The court noted that the record established that Mallette had worked full-time in a physically demanding job without restrictions, despite the fact that she had been treated for back pain for several years and that she continued to work even after her doctor had recommended her artificial disc-replacement procedure.


After her fall, however, Mallete's back pain worsened to the point that she was no longer able to work, the court said. Also, all of her treating doctors, as well as the independent medical examiner, were of the opinion that her preexisting condition was aggravated by her fall and that, following her fall, she suffered from a causally-related total temporary disability.


Disposition: Affirmed.



To read the decision, click here.

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