A Certified Nursing Assistant (CNA) injured her neck while lifting a patient. Doctors recommended surgery and said workers’ comp should pay for it. But one doctor said the surgery wasn’t due to her work injury. How did a court rule?
Nancy Bruce worked as a CNA for the Oklahoma Department of Human Services (DHS) for 26 years. Her duties included daily care of clients which included lifting them when necessary.
On May 14, 2012, Bruce was injured while lifting a client. She said she felt immediate pain in her neck and a “shocking and tearing sensation” which shot down her left arm and into her thumb.
An MRI showed two herniated discs. Bruce was referred to a neurosurgeon, Dr. Pollard, who recommended a two-level anterior cervical fusion. The case manager for DHS’s insurance company refused to authorize any further treatment.
Reason: Bruce was previously injured when a client hit her in 2003 and in a work-related car crash in 2004.
The insurance company noted that in 2006, Bruce testified she had pain and numbness in her left arm.
Bruce said the pain she felt years ago was different from what she felt after the 2012 incident. The earlier pain was more “achy” while the pain following the 2012 incident was more like an electric shock.
The case manager sent Bruce to Dr. Snell of Neuroscience Specialists. Dr. Snell found Bruce was temporarily totally disabled and recommended the fusion surgery.
“Apparently still unhappy with the surgical recommendation of Dr. Snell,” according to the court record, the insurance company deposed the doctor after presenting him with Bruce’s previous medical history. At this point, Dr. Snell said he could no longer say with a reasonable degree of medical certainty that the major cause of Bruce’s need for surgery was the 2012 injury.
On Feb. 7, 2013, Dr. Snell re-evaluated Bruce. His report says:
“The quality of her left arm pain changed significantly to a neuropathic kind of shocking type pain. It would appear that the onset of the shocking type neuropathic pain was related to her work-related injury, per her report.”
Dr. Snell said he made his 2013 report “based on a reasonable degree of medical certainty.” He still recommended she remain on temporary total disability until she had the surgery.
In November 2012, Bruce was also evaluated, at the insurance carrier’s request, by Dr. Munneke, who opined:
“Patient did sustain a strain injury to her cervical spine as a result of her accident [on May 14, 2012] … patient’s need for surgery is unrelated to her accident that occurred on the 14th of May 2012.”
Dr. Munneke said the recommended surgery was related to Bruce’s two prior injuries in 2003 and 2004.
Resolved … four years later
A trial court denied workers’ comp coverage for Bruce’s surgery. Bruce appealed to a three-judge panel. The panel reversed the trial court decision in July 2013, finding Bruce suffered an on-the-job neck injury that aggravated a pre-existing condition in 2012 and it was “the major cause of injury to the neck and need for surgery.” The three-judge panel awarded Bruce temporary total disability benefits and ordered DHS to provide her with reasonable and necessary medical treatment, including surgery.
DHS appealed, and a state appeals court vacated the order of the three-judge panel. Bruce took her case to the Oklahoma Supreme Court.
The state’s workers’ comp law says a compensable injury is “any injury or occupational illness, causing internal or external harm to the body, which arises out of and in the course of employment if such employment was the major cause of the specific injury or illness.” “Major cause” is defined as “more than 50% of the resulting injury, disease or illness.”
The Oklahoma Supreme Court found the appeals court had failed to note Dr. Snell’s report after he re-evaluated Bruce in 2013 in which he said the 2012 work injury was the major cause of her neck injury and that he continued to recommend surgery
The state’s highest court found “based on Dr. Snell’s unshakable opinion,” the three-judge panel’s findings were correct, that the 2012 injury was the major cause for Bruce’s need for surgery. The three-judge panel’s decision was ordered to be reinstated.
Cases involving previous workplace injuries and pre-existing conditions can be difficult. Have you experience such a case? Let us know about it in the comments.
(Department of Human Services and Compsource Oklahoma v. Nancy V. Bruce, Supreme Court of Oklahoma, No. 112070, 4/19/16)