Home > 4600, Defenses > Lap Band Surgery as NOT Medically Necessary

Lap Band Surgery as NOT Medically Necessary

Are there limits to the Labor Code § 4600 duty to provide all medical treatment reasonably necessary to cure or relieve the worker from the effects of an industrial injury?  The cynical California Workers Compensation defense attorney might answer “no,” but in fact there are.

Labor Code § 4600 not only requires employers to provide treatment for industrial injuries, but for non industrial injuries as well (as in some cases, discussed in a previous post).  But in a recent workers’ compensation case, the Workers’ Compensation Judge and the Workers’ Compensation Appeals Board rejected a push for the limits of § 4600 and treatment of non-industrial injuries to be expanded even further.

In Navarro v. Vengroff Williams Associates, applicant sought to have her non-industrial obesity treated with lap-band surgery (at employer’s expense).  Applicant’s attorney tried valiantly and repeatedly to lead the Agreed Medical Evaluator to agree that lap band surgery was reasonably necessary to treat applicant’s industrial injury.

Fortunately, all applicant’s attorney came away with from the deposition was the AME’s concurrence that a healthy weight (a lower weight in applicant’s case) would benefit her health, as it would anyone else’s.

Utilization Review had non-certified the request for treatment and applicant went charging for the Board.  The Workers’ Compensation Judge and the Workers’ Compensation Appeals Board were not impressed.

My favorite quote from the WCAB panel’s opinion denying reconsideration?

“It is no surprise that Dr. Wertheimer agreed with applicant’s attorney that losing weight would be beneficial to applicant, who is pre-diabetic, and would decrease her symptoms and increase her activities.  Those improvements might occur for any individuals weighing over 300 pounds who lost weight, regardless of whether they had sustained any injury, industrial or otherwise.  However, that losing weight is beneficial is not equivalent to the medical necessity of Lap Band surgery.

The panel also rejected the “highly improper” request that the Utilization Review report be considered untimely because a request for treatment “should have been presumed” to be made orally at the AME’s deposition.  We have covered the procedural requirements for a request for treatment in this post and this one.

Clearly, applicant’s attorney would benefit from becoming a regular reader of this blog (as would anyone… hint-hint).

If nothing else, this opinions shows that the reasonable and necessary standard of § 4600 still has some teeth peeking out of its otherwise harmless gums.  And that is something that even a workers’ compensation defense cynic can be happy about.

Categories: 4600, Defenses
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  1. October 27, 2011 at 8:07 am

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