WA Legal Roundup: Division I
Lisa Rogers was hurt on the job when she slipped and fell. She then developed persistent low back pain. A surgeon performed two surgeries on her spine. Both surgeries were authorized and paid for by the Department of L & I. Both surgeries were unsuccessful.
Ms. Rogers still had pain in her back. She requested another surgery. The Department of L & I said no. The spine surgeon declined to second guess the decision when Ms. Rogers informed him that her private health insurer would pay for the additional surgery. Ms. Rogers had the surgery. It was also unsuccessful. Probably because the private health insurer decided not to pay for the surgery, Ms. Rogers asked L & I to pay for the most recent surgery. (Surgery is very expensive.)
The Court of Appeals determined that (1) its review would be guided by the substantial evidence test and would not be de novo, and (2) that Ms. Rogers could not show that her surgery was either curative or rehabilitative after the fact.
The Court suggested that Ms. Rogers should have gotten her surgeon to fight with L & I before going through numerous appeals. Since she didn’t do that, the Court said it wouldn’t second guess the lowers courts’ (Superior Court and Board of Industrial Appeals) findings.
Note to self: Watch out for the appellate court’s standard of review. They can hide behind it (e.g. rational basis, substantial evidence) if they want to kick a case, though they do not have to. See, e.g., Romer v. Evans, 517 U.S. 620 (1996).