Appeals Board Upholds Decision of Trial Court

Aug 28, 2017 | Featured, News

By Courtney S. Paterson

Maury Endsley v. Benchmark Contractors, LLC, et al.                          

Docket No. 2016-05-0743

State File No. 76993-2014

Filed August 11, 2017


This is a case before the Appeals Board on the interlocutory appeal filed by the employer, and the dispute was whether the employer should be required to provide medical benefits.

The employee alleged suffering an injury to his low back and left leg on September 24, 2014, when he was exiting the cab of a truck and fell backward approximately eight to ten feet.  The Employer initially accepted the claim as compensable and the Employee received authorized treatment from Dr. John Klekamp, who performed a discectomy. Following the discectomy, Dr. Klekamp discussed the possibility of a spinal fusion but concluded the Employee was a poor candidate due to his ongoing status as a smoker.

Dr. Klekamp estimated a less than 50% chance the surgery would improve the employee’s condition, and referred the employee to pain management. However, when Dr. Klekamp was deposed on April 28, 2016, he testified that the fusion surgery was a “viable option.” When he referred the employee to pain management, the Employee requested a second opinion, which Dr. Klekamp endorsed. The employer provided a panel of physicians for the second opinion, and the employee chose Dr. Fish. Following receipt of an MRI report dated February 9, 2017, Dr. Fish recommended a spinal fusion.

Thereafter, he signed an affidavit in which he opined the Employee’s most recent MRI did not support a finding of recurrent disc herniation and that the proposed fusion surgery was not necessary. Following an expedited hearing, the trial court found that Dr. Klekamp was no longer the authorized treating physician, that his opinions were not entitled to a presumption of correctness, and that the opinions of Dr. Fish outweighed those of Dr. Klekamp. The trial court ordered the Employer to authorize additional medical care, including surgery and designated Dr. Fish as the authorized treating physician going forward.

The appeals board affirmed the decision of the trial court.

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