In The Gang of Seven Episode III, I featured Dr. Dennis Chong. The Gang is a blog series devoted to identifying some of the insurance industry’s most frequently-used “independent” medical examiners. The Gang of Seven include: Dr. David Bauer, Dr. Lynne Bell, Dr. Dennis Chong, Dr. Keith Holley, Dr. Stephen Marble, Dr. Patrick Radecki, and Dr. Marilyn Yodlowski. This episode is devoted to Dr. Keith Holley.
If your insurance company sends you to any of these doctors, beware!
Keith Holley MD is an orthopedic surgeon practicing in Idaho. He was previously licensed to practice in Alaska however his license is now inactive. Under Alaska Workers Compensation law, he must be licensed in the state in which he performs an Employer Medical Evaluation or the so-called “independent medical evaluation” so at this time he shouldn’t be performing EMEs in Alaska. But it is still possible that an insurance company will send an injured worker to see him in Idaho or some other state where he might be licensed.
His evaluations have shown up quite a bit in Alaska workers compensation cases but interesting, not many of them go to hearing. The logical conclusion is that despite the insurance company going to the expense of obtaining Holley’s opinion, if the employee fights the case, the insurance company is likely to settle.
The trend of Dr. Holley’s reports is to opine that the employee’s need for treatment and disability are related to a pre-existing condition or some other non-work related event. Despite this opinion, employees have fought their cases and won despite the insurance company’s reliance upon Dr. Holley. Following are a sample of such cases which can be accessed on the Alaska Workers Compensation Board website at: http://appeals.dol.alaska.gov/SearchRoot/workerscomp/
Innes v Vend and Commerce and Industry Ins Co., AWCB Decision No. 10-0005 (1/24/10)
The employee injured her lower back when she fell from the back of a truck, landing on a concrete floor on May 24, 2005, while working as a driver for the employer.
Lawrence Stinson, M.D., of the Advanced Medical Centers of Alaska, saw the employee on May 22, 2008, noted the persistence of the employee's symptoms from her 2005 work injury and diagnosed multilevel lumbar spondylosis and degenerative changes with positive slump testing indicative of epidural inflammation, primarily right-sided and L5/S1 disc protrusion. Dr. Stinson referred her to physical therapy for spinal stabilization and prescribed a lumbar brace. Dr. Stinson recommended an epidural steroid injection to palliate her symptoms to permit her to pursue physical therapy rehabilitation. Dr. Stinson administered a caudal epidural steroid injection on May 23, 2008
At the employer's request, Keith Holley, M.D., of the Objective Medical Assessments Corporation, Seattle, Washington, performed an EME examination of the employee on August 1, 2008, and opined the employee suffered a work related injury in 2005, but her current condition was degenerative in nature. Dr. Holley opined the work injury was not the substantial cause of her symptoms.
At the Board's direction, the employee underwent a second independent medical evaluation (“SIME”) with physiatrist Larry Levine, M.D., on August 20, 2009. In his August 20, 2009, report Dr. Levine stated the employee's 2005 work injury is a substantial cause of her continuing low back symptoms, her medical care has been reasonable, and there is no evidence of back problems pre-existing the employee's work injury. Dr. Levine opined the degenerative changes in her original X-ray were asymptomatic. Dr. Levine indicated the facet blocks and rhizotomy treatments received by the employee provided good relief to permit her to get good exercise for core stabilization. He recommended she continue to be trained in proper lifting and posture and dynamic stabilization, and should be involved in a core exercise program.34 He recommended she stop smoking and control her weight. Dr. Levine indicated he “… would not have ongoing recommendation for interventions such as injections, rhizotomies, etc., for a long period of time. This would be recommended for the pain issues, but not solely for the work injury from 2005.” Dr. Levine rated the employee with a one percent whole person partial impairment (“PPI”), under the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Ed.,
At the beginning of the hearing on December 17, 2009, the employer accepted liability for the claimed TTD benefits from April 28, 2008 through October 13, 2008, accepted liability for one percent PPI benefits based on Dr. Levine's rating, and accepted liability to hold the employee harmless for all medical benefits through the date of the hearing.
Employee won.
Serafin v Denali Alaska Federal Credit Union and Liberty Northwest Insurance Co, AWCB Decision No 17-0332 (3/21/17)
On February 24, 2010, Employee was working as a receptionist for Employer when she reported experiencing pain in her back, right leg, and foot while she and a co-worker were moving a small refrigerator in the office
On April 22, 2010, Employee had an MRI of her lumbar spine. The impressions were:
1. Mild degenerative disc disease lower lumbar spine L4-L5 and L5-S1 including 3-4 mm central disc protrusion L5-S1. Central canal and foramen are adequate.
2. Dissection-degenerative changes L4-L5 and L5-S1 discs. There may be local internal derangement of the superior aspect of the L4-L5 disc at the interface with the endplate resulting in small fluid collections. (Diagnostic Health Chart Note, April 29, 2010).
On May 5, 2012, Employee was seen by orthopedic surgeon Keith Holley, M.D., for an employer's medical examination (EME). Dr. Holley diagnosed:
1. Lumbar strain with right lower extremity radicular component, related to occupational Injury of February 24, 2010.
2. Mild lumbar spondylosis with degenerative disk changes by MRI. These are age-related degenerative changes, pre-existing, and not occupationally related.
3. Current symptoms of low back pain and right lower extremity radiculopathy in January 2012 after prolonged computer gaming at home, now improved after epidural steroid injection and physical therapy. This is not occupationally related to the injury of February 24, 2010.
Dr. Holley opined the February 24, 2010 work injury is the substantial cause of the first diagnosis but not the substantial cause of diagnoses 2 and 3. Dr. Holley opined the work injury is not the substantial cause of Employee's then-current need for medical treatment and that all treatment from January 2012 onward is substantially caused by the computer gaming incident at home in combination with the pre-existing degenerative changes in Employee's lumbar spine. Dr. Holley did not believe did not believe the February 24, 2010 incident permanently aggravated or accelerated the pre-existing condition. No further treatment was recommended. Dr. Holley opined Employee was medically stable as of July 6, 2010.
On September 20, 2013, orthopedic surgeon Mark Flanum, M.D., performed a right side microdiscectomy with no complications
On May 16, 2014, neurosurgeon James Coulter, M.D., performed a second independent medical examination (SIME). Dr. Coulter concluded the February 24, 2010 work injury aggravated and combined with pre-existing lumbar spondylosis to cause a permanent change of the right L5-S1 nerve root radiculopathy. In answer to the question concerning the need for the September 20, 2013 microdiscectomy, Dr. Coulter concluded the 2010 MRI showed a disc herniation rather than a protrusion. Dr. Coulter stated:Yes, the work injury of 02/24/2010 was the substantial cause of the need for L5-S1 microdiscectomy. Ms. Serafin's escalation of symptoms, in my opinion, was related to the enlarging L5-S1 disc herniation which reached 9 mm in size, occupying about three quarters of AP diameter of the spinal canal on the right side at that time. At surgery the extruded disc fragment was found lying beneath the traversing right S1 nerve root, and there was subtle indications that disc extrusion was present at the time of the first MRI in April 2010, compressing and minimally dorsally displacing the right S1 nerve root.
On November 4, 2015, an MRI was taken of Employee's lumbar spine. On reviewing the study, Dr. Flanum opined:This shows interval resection of the large disc herniation that was not present previously. Now there is some facet arthropathy and thickening of the ligamentum flavum, along with recurrent disc extrusion that looks a little more far lateral. This is consistent with a compression of the S1 nerve root.Dr. Flanum's report indicates Employee reported her pain is “intermittent at best.” Dr. Flanum recommended revision L5-S1 microdecompression and microdiscectomy.
On January 14, 2016, orthopedist David Bauer, M.D., preformed an EME and opined the degenerative disc disease at L4-S5 and L5-S1 pre-existed the February 24, 2010 work injury. Dr. Bauer recommended Employee proceed with a nerve root injection. If the injection was successful, Employee might then be a candidate for surgery. Dr. Bauer concluded the February 24, 2010 work injury was not the substantial cause of any then-current disability or need for medical treatment, including surgery.
On July 24, 2016, Dr. Coulter performed an addendum SIME on the issue of the need for the revision surgery. Dr. Coulter performed a physical examination of Employee, as well as a records review, and opined: It remains my neurosurgical SIME opinion, counter to the historical inconsistencies pointed out supra, that there exists substantial factual support for the claimant's assertion that she did not have S1 radiculitis and radiculopathy prior to the February 2010 lifting injuries in the course and scope of her employment ...I consider the patient's presentation to be credible in view of the general findings including definite radicular S1 nerve root motor and sensory impairment, limited lumbar ranges of motion and limited right straight leg raising ...Dr. Flanum has continued to recommend a second disc excision in this case at the L5-S1 level. He continues to opine that the second operation is directly related to the 2010 work injury, and as the neurosurgical SIME, I would agree with Dr. Flanum concerning causation and need for surgical treatment ...The objective MRI and physical examination evidence supports the previous SIME opinion that the February 24, 2010 work injury did aggravate and combine with the pre-existing lumbar spondylosis at the L5-S1 level, and accelerated L4-L5 disc degeneration to cause increasing impairment, and need for treatment, including the L5-S1 lumbar discectomysurgery performed 09/20/2013.
In response to the question of whether he agreed with Dr. Bauer's opinion that Employee should pursue only conservative care in the form of transforaminal nerve root injection prior to surgery, Dr. Coulter opined:No, I do not agree with Dr. Bauer that Ms. Serafin should pursue any further care of epidural injection prior to reasonable and necessary surgical treatment ... She had lumbar epidural steroid injection in the past, which was of only brief transient benefit of a few weeks pain modification.
The Alaska Workers Compensation Board held that “the lack of significant prior back pain or radicular symptoms in Employee's medical history, combined with her credible testimony and the credible testimony and opinions of Drs. Johnston and Flanum receive more weight than the EME opinions of Drs. Bauer and Holley.”
Employee won.
Johnston v Chez Lmtd and Commerce and Industry Insurance Co., AWCB Decision No 17-0004 (1/11/17)
On March 11, 2008, Employee was working for Employer on a frame machine in an auto body shop. A clamp and chain slipped off a vehicle and Employee fell about three feet trying to avoid injury. Employee landed hard on his right foot on a concrete floor and immediately noticed sharp stabbing pain, like he had been electrocuted, radiating from his knee up and down his right leg into his groin and lower back. He also injured his right shoulder
On July 24, 2008, on referral from Dr. Valentz, Employee had his first lumbar spine magnetic resonance imaging (MRI). His symptoms included low back and right posterior thigh pain. Radiologist Ronald Lewis, M.D., read decreased signal intensity at L1, L3 and L4 interspaces with a moderate posterior protrusion at L3-4. Dr. Lewis noted no other abnormalities at the L1-2 or L2-3 levels. There was a circumferential disc protrusion at L3-4 with severe facet joint disease much greater on the left than right, and a protruding disc into the left neural foramen but without compressing the nerve root. At L4-5, Dr. Lewis saw a circumferential disc protrusion with mild impingement on the lateral recess with facet joint hypertrophy, which caused “some definite encroachment on the exiting L4 root.” The “major abnormality is at L4-5, where a combination of facet joint disease and disc protrusion intrude into the right neural foramen with some compression of the right L4 root as it exits through this foramen.” Dr. Lewis stated, “Potentially, this may correlate with the patient's current symptoms.”
On July 24, 2008, after reviewing the MRI results, Dr. Valentz noted Employee's leg numbness and tingling was on the anterior right thigh and said, “It looks like he has disc protrusion at L4-L5 involving the right lateral recess. His pain is mainly at right L4 nerve root. I recommend an epidural steroid injection.
On July 25, 2008, Dr. Valentz performed a right L4 epidural steroid injection for right leg pain
On August 21, 2008, Dr. Valentz performed another right L4 epidural steroid injection. Employee reported good relief for one week. Dr. Valentz referred Employee to Dr. Wright for surgical consultation
On September 19, 2008, Employee had a lumbar spine CT without contrast. Radiologist Christopher Kottra, M.D., found moderate L4-5 degenerative disc disease with mild degenerative disc disease present throughout the remaining lumbar levels. At L4-5, there was a small, broad, posterior disc protrusion resulting in at least mild canal stenosis and some degree of right foraminal stenosis, and moderate bilateral facet degenerative joint disease. At L3-4 there was a small, mild, broad, posterior disc protrusion accompanied by degenerative hypertrophic ligamentum flavum on both sides and pronounced left-sided facet degenerative joint disease resulting in mild canal stenosis. At L2-3 there was “very slight disc bulging as well as bilateral facet ligamentous flavum hypertrophy resulting in canal stenosis.” Dr. Kottra did not mention any soft tissue mass at or near L2-3.
Dr. Wright opined Employee's sciatica symptoms, precipitated “by his on-the-job injury,” arose from the foraminal stenosis at L4-5 associated with marked facet disease. Dr. Wright surmised Employee probably “jammed” the joint when he fell, narrowing the neural foraminal and precipitating sciatica. He recommended a contrast-enhanced MRI scan to verify the suspected soft tissue mass
On October 4, 2008, Keith Holley, M.D. performed an employer's medical evaluation (EME) on Employee. Employee's chief complaints were low back and right leg pain. Dr. Holley reviewed Employee's medical records, including two MRIs and noted nothing from those reports referencing L2-3, except Dr. Wright's reference. He also reviewed both lumbar MRIs and the lumbar CT digitally. (Deposition of Keith Holley, M.D., August 2, 2016, at 5-6). Dr. Holley said the CT “more clearly shows what appears to be a broad-based disc osteophyte complex far lateral to the right at L2-3.” When asked about Employee's July 2008 MRI scan, Dr. Holley said the MRI showed facet joint arthritis. He stated, “The arthritic changes in the facet joints are certainly traumatic in nature.” On examination, Employee demonstrated weakness on the right side on heel walking. Dr. Holley saw no leg atrophy but found decreased sensation on the right, anterior, medial thigh consistent with an L2 dermatome. Dr. Holley diagnosed right lower extremity radiculopathy with examination findings suggesting sensory loss in the L2 dermatome, and corresponding imaging suggesting a far right lateral disc osteophyte complex at L2-3, both related to the work injury. He also diagnosed multilevel lumbar spondylosis, degenerative disc and facet joint changes, preexisting and not caused by the work injury, but temporarily aggravated. Dr. Holley concurred with Dr. Wright's recommendation for surgery at L2-3.
On October 20, 2008, Dr. Wright performed surgery on Employee at L2-3. Employee had brief relief he attributed to surgical medications, but his symptoms returned.
On February 3, 2010, Dr. Wang reviewed the July 24, 2008 MRI and noted a broad-based disc protrusion at L4-5 causing bilateral, lateral recess stenosis and severe facet joint hypertrophy at this level. Relevant findings included right L3 and L4 radiculopathy. Dr. Wang recommended another MRI with and without contrast, and a possible lumbar epidural steroid injection followed by PT and pain medication
On June 17, 2010, Employee's primary complaint was right-sided spasm in his low back. Dr. Wang diagnosed right L3 and L4 radiculopathy, with right-sided muscle spasms possibly secondary to lumbar facet arthropathy.
On May 13, 2011, Employee received a right L3 and L4 medial branch and L5 dorsal rami block. The May 9, 2011 reference to a “left” injection was a dictation or typographical error. On June 2, 2011, Employee received right L3 and L4 medial branch blocks and an L5 injection. On June 27, 2011, Employee received a right L3 and L4 medial branch block and an L5 dorsal rami radiofrequency neurotomy. The prior two medial branch and dorsal rami injections resulted in greater than 80 percent pain reduction. The radiofrequency neurotomy was done for therapeutic purposes. On June 30, 2011, Employee said the recent medial branch and L5 dorsal rami radiofrequency neurotomy provided 90 to 95 percent lumbar pain relief and he had significantly reduced his pain pill use as a result. On August 24, 2011, Employee reported doing better since his radiofrequency neurotomy and was able to sit in a car for a longer period. He continued to have right-sided radicular symptoms, which were unresponsive to epidurals. Dr. Wang again diagnosed right L3 and L4 radiculopathy, ““unchanged.” On November 23, 2011, Employee had restarted his pain medication. Dr. Wang continued to diagnose right L3 and L4 radiculopathy, “unchanged” and lumbar spondylosiswell-controlled following radiofrequency neurotomy.
On April 16, 2012, Employee received another right L3 and L4 medial branch and L5 dorsal rami radiofrequency neurotomy. On May 29, 2012, Employee told Dr. Wang the recent injections and radiofrequency neurotomy provided 90 to 100 percent pain relief. His remaining pain was localized in the right low back and groin and he described it as an aching cramping sensation radiating down his right anteromedial thigh. By July 24, 2012, Employee reported low back pain relief but continued right anterolateral thigh pain. He used Percocet daily to control pain
On October 20, 2012, Dr. Holley performed another EME. Employee told Dr. Holley when his symptoms did not improve with conservative care Dr. Wright performed an “L2-L3-L4 lateral discectomy.” The surgery did not help. Employee moved to Michigan and had additional steroid injections and PT, which did not help. Employee still exhibited diminished sensation over the medial right thigh. Dr. Holley reviewed the February 9, 2010 MRI on a CD-ROM, which he interpreted to show multilevel degenerative disc disease with a broad-based posterior bulge most prominent at L4-5 creating mild, central, lateral recess narrowing but no nerve root impingement. The L2-3 and L3-4 levels were mildly degenerative with lesser bulging and there was no recurrent herniation at L2-3. Dr. Holley diagnosed a right L2-3 far lateral disc herniation with associated right lower extremity radiculopathy, status post discectomy in October 2008. He attributed this disc herniation to the March 11, 2008 work injury. He also found multilevel spondylosis, degenerative disc disease and facet arthropathy, which in his view were all preexisting but temporarily aggravated by the March 11, 2008 work injury. Dr. Holley opined the substantial cause of Employee's current disability and need for medical care was natural progression of his degenerative lumbar changes and not the March 11, 2008 work injury. Dr. Holley found no intervening factors affecting Employee's lumbar spine. In his view, Employee needed no further diagnostic studies, tests or treatment. Dr. Holley opined pain medications, Flexeriland epidural steroid injections were not reasonable or necessary going forward, though they were medically acceptable in the past. The substantial cause of the ongoing need for these modalities was, in Dr. Holley's opinion, natural progression of Employee's degenerative lumbar spine condition and not the March 2008 work injury.
On January 12, 2015, given these results Dr. Morris advised bilateral medial facetectomies without fusion at L4-5. Employee wanted to proceedOn March 26, 2015, Dr. Morris performed lumbar surgery on Employee. The surgical records are not found in the agency file.
On June 25, 2015, Alan Roth, M.D., saw Employee for a second independent medical evaluation (SIME). Employee had “significant degenerative spine and disc disease” prior to his work injury, which was not caused by the injury. However, he also had “some significant disc protrusion, particularly pushing against the right L4 nerve root,” which Dr. Roth opined “probably was related to the — more likely than not, was related to the work injury.” Dr. Roth said it was possible the disc protrusion at L4 could have been caused by or impacted by the July 22, 2008 rock incident at home, but further stated “it's my understanding that he had some radicular complaints in the distribution of L4 and L3 levels at the time of — subsequent to the time of his work injury, that he didn't have before his work injury, and that he continued to have and, possibly, became more significant after the home injury.”
Employee's symptoms progressively got worse from the beginning. His right foot drop was always present, continuous and gradually got worse.
Board weighed evidence and Employee won.
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Keenan Powell has practiced Workers Compensation law in the State of Alaska for over 35 years and has dedicated her practice to Workers Compensation representing injured Alaskans handling hundreds of cases. www.keenanpowell.com.
All consultations are free. To make an appointment, email: keenan@keenanpowell.com or call: 907 258 7663.