Bockus v. First Student Services – Bus Driver Back Injury

It’s not uncommon in workers’ compensation claims for the insurance carrier to resist the payment of benefits. It’s important in these cases for employees to know their rights – and consult with an experienced workers’ compensation attorney. fence

In Bockus v. First Student Services, a school bus driver injured his back at work while moving a gate. As a result of this injury, he needed to undergo two spinal surgeries and later needed a third surgery.

The issue was that while the third surgery was pending, his employer, which had paid for his medical coverage up until then, requested a medical evaluation. The doctor wouldn’t go forward with the surgery while the evaluation was pending. At that point, the employee filed a workers’ compensation claim.

Ultimately, the employer’s doctor, as a result of that examination, determined a third surgery was appropriate.

The state workers’ compensation board found the employer resisted benefits for the surgery and gave the employee a fee award. The workers’ compensation appeals board reversed, but that ruling was tossed and the original board’s decision reinstated.

Court records show the employee was a substitute bus driver in Fairbanks when he was injured in March 2013. He was pulling open a chain link fence when he felt a pop in his back, followed by severe pain that radiated down to his legs. He was taken by ambulance to the emergency room, where an MRI revealed a sizable disc herniation and spinal cord impingement (or impact).

There was no neurosurgeon available in that facility or even in the region, so he had to be flown to Anchorage for emergency surgery. That procedure did not correct the issue, and he was forced to undergo a second surgery.

It was known almost immediately after the second surgery that there were residual issues, but the doctor and patient decided conservative treatment should be tried first.

The back pain was recurring, and after several post-surgical visits, the worker’s doctor requested a third surgery. The doctor’s office called the workers’ compensation carrier to make sure there would be coverage for the surgery, and it was at that time that it was discovered the worker was scheduled for an independent medical evaluation. The scheduling assistant said it was their policy not to schedule surgeries in those cases, unless the carrier authorized it, since they did not want patients to be stuck with a huge bill they couldn’t pay. The carrier would not pre-authorize the surgery.

After that, the surgeon’s office contacted the workers’ compensation carrier numerous times about the surgery, seeking approval. The carrier refused to authorize it unless it was recommended by the carrier’s own doctor (via independent medical examination).

The worker attended the exam several months later, at which time the carrier’s doctor concluded the surgery was reasonable and the injury was work-related. He added an addendum to his report to respond to the insurer’s questions about the necessity of therapy after the injury. None of those questions pertained to the reasonableness or necessity of the surgery, which the carrier finally approved.

The question that arose after the fact was why it took so long for the carrier to approve – a full three months. The plaintiff underwent the procedure two weeks after approval.

The plaintiff alleged the delay was unnecessary and amounted to a resisting of benefits. The carrier insisted it had the statutory right to request an independent medical exam, and it was merely exercising that right.

On review, the board – and later the Alaska Supreme Court – held the employer had “resisted benefits.” The court noted that while it was not going to say that an employer’s duty to furnish medical care includes a general requirement to pre-authorize treatment, cases like this show how workers may not get needed treatment without some reassurance that the carrier is going to pay for it.

Here, the carrier was required to answer the claim and was required to give an answer after the doctor’s office asked for pre-authorization.

Contact the Carolina workers’ compensation lawyers at the Lee Law Offices by calling 800-887-1965.

Additional Resources:

Bockus v. First Student Services, Dec. 2, 2016, Alaska Supreme Court

More Blog Entries:

State Audit: N.C. Workers’ Comp. Oversight Needs Improvement, Dec. 30, 2016, Charlotte Workers’ Compensation Lawyer Blog

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