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Gary Atkin

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A worker injured on the job filed for temporary total disability and medical benefits for an anticipated back surgery.  At the hearing, several doctors recommended psychological evaluation before deciding upon the surgery so the hearing was continued.  Two doctors in 2001 reviewed the symptoms and psychological issues and determined they did not think she would be a good surgical candidate at that time.  In 2003, Dr. Hood performed a surgical evaluation and recommended surgery. The case was referred to a medical panel for its input.  Subsequently, the employer submitted additional records and a videotape appearing to show the worker in activities with minimal pain to Dr. Hood, who then reversed his opinion and cancelled her scheduled surgery.  The Medical Panel, without knowledge of Dr. Hood's subsequent action, issued its report saying the surgery was reasonable and necessary.  The ALJ then found that, in view of Dr. Hoods changed report, there was no longer any conflicting opinion and the ALJ declined to accept the Medical Panel Report and concluded the surgery was not warranted.  The Commission, on appeal, agreed with our contention that the Medical Panel Report should have been considered.  It set aside the ALJ's opinion and instructed the ALJ to consider whether to reopen the record for Dr. Hood's subsequent opinion.  The ALJ decided to reopen the record, admit Dr. Hood's subsequent opinion, and then re-submitted the matter to the Medical Panel.  The Medical Panel again concluded that the surgery was reasonably medically necessary and the ALJ adopted that supplemental report and found the surgery to be appropriate.  The employer appealed, arguing there was no valid basis for submitting the case to the Medical Panel because there were no conflicting opinions after Dr. Hood's supplemental report.  Those arguments were rejected by the Commission and, subsequently, by the Court of Appeals which explained that the Commission made the determination that there were conflicting reports, even if by the same doctor and, further, that the use of a Medical Panel is only mandatory when there is a medical controversy but it may be permissibly used whenever an ALJ believes it would be helpful, even where there is no conflict in the opinions.  Unfortunately, finally securing those benefits entailed seven years of hearings, arguments and appeals.  Resort Retainers v. Labor Comm'n, 2010 UT App. 229, 238 P. 3d 108 (Utah App., 2010)  
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