Res Judicata and Burden of Proof Issues in Case Involving Spinal Cord Stimulator

On October 29, 2020, the Georgia Court of Appeals held that (1) res judicata did not bar a claimant's second claim for a spinal cord stimulator, and (2) the employer, not the claimant, had the burden of proof regarding the medical necessity of the stimulator. Trejo-Valdez v. Associated Agents, No. A20A1499, 2020 WL 6335980, at *1 (Ga. Ct. App. Oct. 29, 2020). Claimant sustained a compensable back injury while working for Employer. Following two surgeries, the authorized treating physician (“ATP”) recommended a spinal cord stimulator. In a July 2018 order, the administrative law judge (“ALJ”) designated a new ATP at Employer’s request but denied Claimant’s request for a spinal cord stimulator. Thereafter, the new ATP recommended a stimulator for a trial period. In May 2019, after a hearing, the ALJ approved the stimulator. Employer appealed. The Appellate Division affirmed, but the superior court reversed, finding that Claimant's claim for a stimulator was barred by res judicata. On appeal, Claimant argued that the superior court erred: (1) in finding that his request for a spinal cord stimulator trial was barred by res judicata; and (2) by placing the burden of proof for authorization of the stimulator on him.

The Court of Appeals concluded that res judicata does not bar Claimant’s request for a spinal cord stimulator trial for two reasons. First, pursuant to OCGA § 34-9-200(a)(1), an injured worker is entitled to medical care and services “which are prescribed by a licensed physician ... [and] which in the judgment of the State Board of Workers’ Compensation shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.” The ALJ's 2018 order only denied Claimant’s request for a stimulator at that time, therefore recognizing that, in view of the appointment of a new treating physician, the nature of Claimant’s treatment could change. Second, the issues decided by the ALJ in the two orders were not identical. The ALJ initially denied Claimant’s request for a spinal cord stimulator proposed by Dr. Galan. But following a change in physician and no improvement in Claimant’s condition, Dr. Pollydore suggested a trial period with a higher frequency stimulator.

With regard to the burden of proof issue, Dr. Pollydore, Claimant’s authorized treating physician, recommended a spinal cord stimulator trial period, and Claimant requested a hearing for approval of the trial. Employer filed a notice of controvert, asserting that the proposed treatment was not “a reasonable and necessary medical procedure....” Therefore, under the plain language of Board Rule 205(d)(1), the burden of proof to demonstrate that Claimant’s proposed treatment was not reasonably necessary rested with Employer.