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Worker's latest insurer must cover neck injury comp, disability

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Gallagher Bassett Services Inc. is responsible to pay for a health care worker's surgery for a degenerative cervical disc condition that worsened after a 2011 injury, even though she suffered previous neck injuries that had been covered under a workers compensation policy issued by Liberty Mutual Insurance Co., a Connecticut appeals court has ruled.

Ms. Wilson worked as a certified nursing assistant with Trumbull, Connecticut-based Maefair Health Care Center. She injured her neck at work in 2006 but resumed her work duties without any restrictions after a brief period of medical treatment, court records show.

Ms. Wilson injured her neck at work again in April 2010 and spent several days out of work after the accident, records show.

She continued to receive chiropractic treatment for her neck injury from April 2010 to August 2010 and reported to claims adjusters that her condition had significantly improved, according to court filings. She did, however, note that she continued to experience numbness from her left elbow to three of her left fingers.

At her doctor's request, Ms. Wilson underwent an MRI in August 2010, which determined that she suffered multiple levels of degenerative disc disease, filings show. She was referred to an orthopedic surgeon, who found that Ms. Wilson was also beginning to show symptoms in her right hand, and he recommended that she receive surgery.

Ms. Wilson was then referred to a neurosurgeon, but Liberty Mutual — Maefair's workers comp insurer at that time — did not authorize the appointment, filings show. Because of that, Ms. Wilson did not see the neurosurgeon and received no further treatment for her neck injury until she reinjured it in March 2011 while working for Maefair.

At the time of the 2011 accident, third-party administrator Gallagher Bassett was handling Maefair's workers comp claims, records show. Court filings, which call Gallagher Bassett a “carrier,” do not identify what payer the TPA was representing at that time.

Ms. Wilson's doctor assigned her to light-duty work, but Maefair was unable to accommodate her restrictions, and she ceased employment with the company.

Ms. Wilson met in August 2011 with the recommended neurosurgeon, who suggested surgery and noted that she had been a surgical candidate prior to her March 2011 accident, filings show. She later met with another neurosurgeon selected by Liberty Mutual.

That doctor determined that Ms. Wilson's April 2010 accident was 30% responsible for her need for surgery, that the March 2011 accident was 10% responsible for her need for surgery and that an underlying cervical disc disease was 60% responsible for her condition, filings show.

A Connecticut workers comp commissioner found in August 2012 that Ms. Wilson's work accidents in 2010 and 2011 made surgery a reasonable and necessary treatment for her condition, according to records. The commissioner also found that Gallagher Bassett was responsible to pay for her surgery, as well as temporary total disability workers comp payments, since it appeared that Ms. Wilson had been able to work until the March 2011 accident worsened her underlying condition.

The full Connecticut Workers' Compensation Review Board affirmed that decision, and Gallagher Bassett appealed to the Connecticut Appellate Court. The TPA argued in filings that Liberty Mutual held responsibility since doctors found Ms. Wilson was a surgery candidate prior to 2011.

A three-judge panel of the appellate court found Tuesday that Gallagher Bassett is liable to pay for Ms. Wilson's surgery. Connecticut law holds that in cases where an employer's comp insurer changes between a worker's first and second injury, the second insurer retains sole liability for the second injury.

Additionally, while medical experts opined that Ms. Wilson was a candidate for surgery prior to 2011, the appellate court said the workers comp commission was correct to note that Ms. Wilson had been able to work without restrictions until the 2011 accident.

“All three physicians (that treated Ms. Wilson) clearly opined that the March 22, 2011, incident played a part in Wilson's current condition, worsening the symptoms that she had suffered prior to the latter incident,” the ruling said.