GA Court: Establishing Res Judicata is Difficult as to Medical Issues

Stressing that because a claimant’s course of treatment is fluid and may evolve over time as either the claimant’s condition changes, the recommendations of the authorized treating physician change, or the authorized treating physician herself or himself changes, a Georgia appellate court held a claimant could re-litigate a proposed course of treatment following the appointment of a new authorized treating physician and the claimant’s failure to respond to more conservative treatment alternative [Trejo-Valdez v. Associated Agents, 2020 Ga. App. LEXIS 631 (Oct. 29, 2020)]. Accordingly, the court held the doctrine of res judicata did not bar an ALJ from concluding, in 2019, that a spinal cord stimulator trial was reasonably required to treat an injured employee where the ALJ, in 2018, had determined that the evidence did not establish that a stimulator was reasonably required to treat the injured employee at that time.

Background

Claimant sustained an admitted occupational injury to his lower back in 2014. Following conservative treatment measures for more than one year, Claimant underwent back surgery in January 2016. In April 2016, Claimant’s authorized treating physician recommended either a spinal cord stimulator or complete discectomy and fusion. Claimant opted for the additional back surgery in June 2016.

Dueling Medical Opinions

In October 2016, Claimant still had symptoms with no improvement following the surgery. The treating physician concluded that Claimant’s only remaining treatment option was the spinal cord stimulator. In April 2017, two other physicians performed independent medical examinations of Claimant and concluded that there was no basis for the stimulator. Then, in February and March 2018, two additional physicians performed independent medical examinations and concluded that Claimant could benefit from the stimulator.

New Treating Physician

Based on the conflict, the ALJ entered an order in July 2018, which designated a new treating physician. As part of the order, however, the ALJ denied Claimant’s request for a spinal cord stimulator found “at this time” [emphasis by the court]. In that regard, the ALJ noted that “the preponderance of the evidence does not establish that the spinal cord stimulator is reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment at this time” (emphasis by the court, Opinion pp. 3-4].

Res Judicata?

The new treating physician subsequently recommended that Claimant receive authorization for a stimulator for a trial period. At the ensuing hearing, the employer contended that Claimant’s request should be denied pursuant to res judicata. The ALJ concluded that, because the employer contended that Claimant’s stimulator trial was not reasonable and necessary, it bore the burden of proof to demonstrate that the proposed treatment was not compensable. Noting Claimant’s history of continuing pain and his increased reliance upon opioid agents to control his pain, as well as the new treating physician’s diagnosis and thorough medical reasoning in support of a trial of a new spinal cord stimulator, the ALJ determined the stimulator was reasonably required to treat Claimant. The Board’s Appellate Division affirmed and the employer appealed.

Superior Court Reverses

The superior court reversed the Appellate Division’s order, concluding that the doctrine of res judicata was binding upon the Board and precluded the relitigation of the issue. The superior court also found that the Board erroneously placed the burden of proof upon the employer. Claimant appealed.

Court of Appeals Decision

The appellate concluded that res judicata did not Claimant’s request for a spinal cord stimulator trial for two reasons. First, the ALJ’s 2018 order only denied Claimant’s request for a stimulator at that time. The order recognized that, in view of the appointment of a new treating physician, the nature of Claimant’s treatment could change. Taken together, these factors revealed that the ALJ’s 2018 order was not intended to forever preclude any further review of the availability of a spinal cord stimulator to address Claimant’s injury.

Second, the issues decided by the ALJ in the two orders were not identical. The court stressed that the ALJ initially denied Claimant’s request for a spinal cord stimulator proposed by the first treating physician. Following a change in physician, however, Claimant’s health did not improve and he became more reliant on opioid treatments to control his constant pain. The new treating physician, rather than recommend permanent installation of a stimulator, suggested that a trial period with a higher frequency stimulator would not only determine whether the permanent implantation of the stimulator was appropriate, but it would also resolve the conflict between the multiple physicians as to Claimant’s need for the stimulator. The court concluded, therefore, that in view of Claimant’s health, the appointment of a new physician, the new physician’s recommendation for a different course of treatment, and the differences in the stimulator and the manner in which the stimulator would be applied (on a trial basis, as opposed to permanent installation), Claimant’s request for a stimulator trial period was not identical to the issues raised before the ALJ’s 2018 order.

The court added that, carried to its ultimate conclusion, the employer’s argument would automatically foreclose any additional treatment following an ALJ’s award.

Burden of Proof

The court noted that Claimant further argued that the superior court improperly placed upon him the burden of proof. The court agreed again. In issues concerning a change of condition for the worse [see OCGA § 34-9-104 (b)], the burden of proof rested with the claimant. However, in cases such as this one, in which medical treatment was controverted on the grounds that the treatment was not reasonably necessary, the burden of proof fell upon the employer [see State Board of Workers’ Compensation Rule 205(d)(1)].

Based upon the foregoing, the appellate court reversed the superior court’s order reversing the Appellate Division’s final award and the court further affirmed the Appellate Division’s final award.