Opinion
Civil Action No. 99A-11-001.
Submitted: April 26, 2000.
Decided: July 25, 2000.
Appeal from decision of Industrial Accident Board — Affirmed.
Henry C. Davis, Esquire, Henry Clay Davis, III, P.A., Attorney for Appellant, Bertha Brittingham.
H. Garrett Baker, Esquire, Elzufon Austin, P.A., Attorney for Appellee, St. Michael's Rectory.
MEMORANDUM OPINION INTRODUCTION
This matter is before the Court on Bertha Brittingham's ("Appellant") appeal from a decision of the Industrial Accident Board ("the Board") terminating Appellant's total disability benefits. For reasons set forth below, the Board's decision is affirmed.
STATEMENT OF FACTS
Appellant injured her neck in a compensable industrial accident on December 22, 1998. The injury occurred when Appellant lifted a 20 to 25 pound carton in the course of her employment with St. Michaels Rectory ("Employer"). Appellant felt something snap in her neck along with a burning sensation in her neck area. An agreement was entered into by both parties as to compensation for total disability after the injury.
On May 25, 1999, Employer filed a Petition to Review the Compensation Agreement pursuant to 19 Del. C. § 2353 (a) . In the petition, Employer sought to terminate Appellant's total disability benefits because Appellant has refused surgery that would correct her neck problem and allow her to work. The Board held a hearing regarding Employer's petition on October 14, 1999.
19 Del. C. § 2353, "Forfeiture of right to compensation", states in part:
(a) If the employee refuses reasonable surgical, medical and hospital services, medicines and supplies tendered to the employee by the claimant's employer, the claimant shall forfeit all right to compensation for any injury or any increase in the claimant's incapacity shown to have resulted from such refusal. Reasonable medical services shall include, if the Board so finds, vocational rehabilitation services offered by any public or private agency.
Where rehabilitation services require residence at or near the public or private agency away from the employee's customary residence, reasonable costs of board, lodging and travel shall be paid for by the employer. Refusal to accept rehabilitation services pursuant to order of the Board shall result in a loss of compensation for each week of the period of refusal.
Paul Asdourian, M.D., a board certified orthopedic surgeon who specializes in spinal surgery, testified by deposition on behalf of Employer. Dr. Asdourian examined Appellant twice, in February and September of 1999, and reviewed her medical records. Dr. Asdourian diagnosed Appellant's injury as a symptomatic degenerative disk at 05-06. Dr. Asdourian agreed with Appellant's treating surgeon, Dr. Venkataramana, in recommending that a cervical fusion using an anterior approach would help Appellant and offer her the best chance of a long-term recovery. Also, Dr. Asdourian believed that the anterior approach would be the best choice for Appellant because, as disclosed in her most recent exam, Appellant was starting to experience left-sided complaints and the anterior approach would address both sides of Appellant's body. An anterior cervical fusion entails an incision on the left, front-side of the neck, exposure of the cervical spine and removal of a disk. The disk space is then filled in with a piece of bone graft. A plate can be used to aid the fusion.
Dr. Asdourian testified that since Appellant is a cigarette smoker he would recommend the use of a plate to help the healing of the bone graft. Dr. Asdourian explained that he would use the plate because cigarette smokers have a decreased healing capacity when it comes to bone grafts and the plate would increase the chances of a successful fusion. When asked if the plate would increase the risks faced by Appellant, Dr. Asdourian responded that any additional risks would be minimal.
Dr. Asdourian testified that a cervical fusion has a 95% predictable success rate and if the surgery is performed properly the risk involved to the Appellant is not more than 1%. The risks inherent in this type of surgery are the possibility of damage to the larynx and esophagus and nerve damage. Dr. Asdourian testified that the anterior and posterior approaches to this surgery pose similar risks.
Dr. Asdourian stated that Appellant's condition would only get worse with the passage of time. The reason Appellant's condition will get worse is that Appellant could develop permanent nerve dysfunction in both of her arms. Dr. Asdourian testified that the longer Appellant waits the longer a nerve will be irritated and, thus, the lower the probability that the nerve will recover completely when the cause of the problem is eliminated.
Dr. Asdourian testified that it would not be totally unreasonable for Appellant to decline surgery because not having the surgery is an option and the decision is Appellant's to make. Along with this, Dr. Asdourian stated that Appellant is capable of sedentary work on a part-time basis. This work would have to entail not lifting more than ten pounds, the use of a headset to answer the phone and not typing for long periods of time.
Father William Grainey, the pastor of Employer, testified that Employer has held Appellant's secretarial position open and would make accommodations to help Appellant perform her work duties. These work duties include receiving visitors, answering the telephone, typing, completion of various Employer records and the payment of bills. Father Grainey stated the Employer's staff would be able to help Appellant if she needed assistance.
Thomas Dimeo, a vocational consultant, testified on behalf of the Employer. Mr. Dimeo conducted a labor market survey that identified ten positions of sedentary employment available for Appellant, which exceeded Appellant's wage at the Employer before her injury. The positions allowed the use of a telephone headset and there was no lifting over ten pounds. Mr. Dimeo testified he did not know to what extent these potential employers would go to accommodate Appellant.
Henry Shuey, M.D., a board certified neurosurgeon, testified by deposition on behalf of Appellant. Dr. Shuey examined Appellant and reviewed her medical records on March 31, 1999. After examining Appellant and reviewing her records, Dr. Shuey diagnosed Appellant with 06 nerve root impingement syndrome associated with neurologic deficits. Dr. Shuey remarked that Appellant's previous neck surgery in 1990 probably contributed to Appellant's current condition.
Dr. Shuey recommended the posterior approach if Appellant was to have this surgery because he believes it would pose fewer risks to Appellant. The posterior approach involves making an incision on the skin over the spine then taking down the muscles. After the muscles have been taken down, the doctor drills out the area between the lamina, creating a doorway for the nerves. Dr. Shuey testified that the posterior approach would be better for Appellant because she is a cigarette smoker and has unilateral pain. Dr. Shuey's examination and recommendation occurred before Appellant's second examination with Dr. Asdourian. At the time of Dr. Shuey's examination, Appellant was not experiencing the left-sided complaints that she was experiencing in the second examination with Dr. Asdourian. Dr. Shuey also testified that when using the posterior approach there is less of a chance that a spinal cord injury will occur and there are not as many structures in the way of the surgery, such as the esophagus and carotid artery.
Dr. Shuey remarked that because Appellant is a cigarette smoker there is a higher risk for failure of the fusion surgery. He agreed that using a plate increases the success rate for the fusion, but added that using a plate adds a 10% chance of esophageal dysfunction with swallowing difficulties.
Dr. Shuey testified that even with the difference in risks between the anterior and posterior approach the success rates are nearly the same. Those rates are 80% complete success, 10 to 15% satisfactory results with some residual symptoms, and a 5% failure rate. Overall, the surgery, whichever way it is done, has a 95% chance of positive results. However, the anterior approach has a 1% chance of creating swallowing difficulty and a 5% chance that the bone graft will not fuse. Dr. Shuey remarked that, ultimately, the form the surgery takes depends on both the surgeon's and the patient's preference.
Dr. Shuey stated that even though the identified risks are in the 1% range, the decision to have this surgery is a personal choice and it would not be unreasonable for Appellant to decline to have it. He testified that although some people chose to live with the pain, Appellant could expect to have a marked reduction in pain and an overall improvement of her neurologic disk function if she did have the surgery.
Stephen Berlin, M.D., a specialist in obstetrics and gynecology, testified by deposition on behalf of Appellant. Dr. Berlin testified that a May 1997 Dexascan performed on Appellant showed evidence of early osteopenia, which is a precursor to osteoporis. Dr. Berlin remarked that the Dexascan study only suggests that Appellant was at risk for osteoporosis, not that she had osteoporis. Dr. Berlin testified he had ordered a follow-up Dexascan and the results of the scan were not back at the time of his deposition. He stated this follow-up could either show improvement or progression of the problem. Dr. Berlin also stated that Appellant currently is taking estrogen as a measure aimed at preventing osteoporosis.
Dr. Berlin stated that Appellant had some concerns about the possible fusion surgery and that he stated she should discuss those matters with her neurosurgeon. Also, Dr. Berlin testified that he was not qualified to comment on the likely success of a surgery which involved a bone graft, even when taking into account Appellant's condition. The bone used to do a bone graft can either come from the patient's own donor site, which is usually the pelvis, or a cadaver bone.
Appellant also testified. She explained she began working for her Employer in January of 1996. Appellant worked four days per week amounting to twenty-one hours per week. Appellant performed various functions for her Employer, such as completing payroll, typing bulletins, filing and bookkeeping.
Appellant testified that Dr. Venkataramana recommended physical therapy, but she only went three times because she could not tolerate it. After she stopped physical therapy, Appellant saw Dr. Venkataramana one more time and continued to take her pain medication and a muscle relaxant.
Appellant testified at the hearing she would rather learn to live with the pain than have the fusion surgery that Dr. Ventakantaramana recommended because Appellant underwent neck surgery in 1990 and does not want to go through it again. Also, Appellant stated she is concerned about the risks of surgery because she is a heavy cigarette smoker and has osteopenia. Appellant testified that no physician ever mentioned her osteopenia would pose a problem with the fusion surgery, but in her mind it could be a risk.
In its decision of October 26, 1999, the Board made the following findings and conclusions:
St. Michael's seeks to terminate Claimant's total disability benefits by way of the forfeiture provision from 19 Del. C. § 2353 (a). Under this section, if Claimant refuses reasonable surgery, she forfeits all right to compensation for an injury, or any increase in her incapacity, shown to have resulted from her refusal. § 2353(a). For the following reasons, the Board finds that Claimant forfeits her right to compensation for total disability, pursuant to § 2353(a).
The medical experts agree that Claimant has a 95% chance of improvement with disk surgery. The chance that surgery will be completely successful in correcting Claimant's condition is over 80%. The risk of complications from surgery is in the 1% range. Dr. Venkatarama, Dr. Shuey, and Dr. Asdourian have all recommended surgery and no doctor has advised against surgery. Claimant's condition will not improve without surgery. Claimant has elected to forgo surgery and, instead, she hopes to learn to live with the pain. For these reasons, the Board finds that Claimant has refused reasonable surgery.
Claimant argues that Claimant's refusal of surgery is reasonable, in light of the fact that the physicians do not agree on the specifics of the surgery. Dr. Shuey recommends a posterior approach while Dr. Venkataramana and Dr. Asdourian prefer the anterior approach. First, Dr. Shuey made this recommendation without knowing that Claimant has developed left-sided complaints. The anterior approach, which includes a bone graft, addresses both sides. Second, the apparent difference of opinion regarding the approach does not affect the Board's finding that Claimant has refused reasonable surgery. As noted by Dr. Shuey, if Claimant ever elects surgery, the decision as to which approach to take is up to her and her treating surgeon.
Under § 2353(a), St. Michael's must also show that Claimant's incapacity has resulted from her refusal of disk surgery. Because Claimant's current limitations are a byproduct of Claimant's pain complaints, surgery would likely serve to reduce, if not eliminate, her work restrictions. The medical experts agree that Claimant would likely see a marked improvement in her functional abilities. Therefore, it is likely that corrective surgery would enable Claimant to work without significant restrictions. St. Michael's labor market survey showed that suitable employment is available to Claimant at no wage loss, even if Claimant were restricted to sedentary work. In addition, St. Michael's has kept her old position open for her. For these reasons, the Board finds that Claimant's refusal of reasonable surgery has caused her continuing incapacity. Therefore, § 2353(a) requires forfeiture of her total disability benefits.
This result is supported by the Superior Court's holding in General Motors v. Vannicola, Del. Super., CA. No. 91A-02-05, Gebelin, J. (August 14, 1992) (MEM. OP.) In Vannicola, the Court found that the Board erred as a matter of law in determining that the claimant's refusal to undergo surgical correction of his disabling condition was reasonable. In that case, the claimant sustained a serious injury, which, if uncorrected, was permanent. However, the medical evidence before the Board indicated that the claimant's condition could be corrected by reasonable medical treatment with a minimal risk of complication. The Court found that the risks are death, paralysis, infection, or no improvement, which were inherent risks of any operation and did not render the surgery unreasonable. The Vannicola case is very similar to the instant case.
The Board emphasizes that it is not directing Claimant to undergo surgery. That decision, of course, is hers. However, by declining reasonable surgery that would correct her condition, she forfeits eligibility for total disability benefits. The Vannicola Court noted the following:
It is not the intent of the Court to force a person to undergo a medical procedure which that person does not wish to have. However, Delaware Workmens' Compensation Law requires that an injured worker must submit himself to reasonable medical treatment in order to be eligible for benefits. "Reasonable medical treatment" is to be interpreted objectively based on the treatment, not subjectively based on the claimant. Granted, the final decision of which course of treatment to follow will always remain with the employee; however, he will only receive benefits if this treatment is reasonable.
Id. at 2 Claimant argued that the Board should follow the ruling in Rash v. Wilkinson Roofina and Siding, Del. Super., C.A. No. 95A-02-004-NAB, Barron, J. (September 28, 1995) (MEM. OP.), where the Superior Court found that the claimant's refusal of surgery was reasonable. In Rash, however, the claimant's treating physician advised him not to have the surgery. Thus, the present case is clearly distinguishable from Rash because here Claimant's treating physician recommends surgery.
Because the Board has found that Claimant forfeits total disability compensation because of her refusal to undergo reasonable corrective surgery, it need not address St. Michael's alternative contention that Claimant currently is able to return to work without loss of earnings.
SUMMARY OF THE ARGUMENTS
Appellant argues that the Board improperly applied the standard appropriate to this case and that proper application of Delaware law does not result in the forfeiture of Appellant's benefits. Appellant maintains the Board should not have used the standard set forth in General Motors v. Vannicola, Del. Super., C.A. No. 91A-02-05, Gebelin, J. (Aug. 14, 1992) (Mem. Op.) to find that Appellant's refusal of surgery was unreasonable and the Board, in doing this, used an incorrect standard with respect to the law. Appellant contends that Rash v. Wilkinson Roofing and Siding, Del. Super., C.A. No. 95A-02-004, Barron, J. (Sept. 28, 1995) is in accord with the principles governing Delaware worker's compensation statutes and that Rash should have been used by the Board to determine the question of whether Appellant's refusal of surgery was reasonable or not. Also, Appellant argues that because both Dr. Asdourian and Dr. Shuey have recommended two different options for surgery that are not unreasonable in this case, under Delaware law, Appellant, not the Employer, is permitted to choose which option to take and only if she refuses all reasonable options with respect to treating her injury may the Board determine that she refused medical treatment. Along with this, Appellant maintains that both doctors acknowledged that it would not be unreasonable for Appellant to decide to forgo surgery under the circumstances of her case.In response to Appellant's arguments, Employer maintains that the Board's conclusion that Appellant's refusal of surgery was unreasonable is supported by substantial evidence in the record and that the decision of the Board was free from any errors of law. Furthermore, Employer asserts that the Board used the proper standard from Vannicola in finding that Appellant's unreasonable refusal of surgery terminates her total disability benefits under 19 Del. C. § 2353 (a). Finally, Employer argues that there was a consensus expectation among the doctors that this surgery would improve Appellant's life, allowing her to go back to work and alleviating her constant pain, with a minimal amount of risk to the Appellant.
STANDARD OF REVIEW
The duty of this Court on an appeal from the Board is to determine whether the Board's decision is supported by substantial evidence and is free from legal error. Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965); Devine v. Advanced Power Control, Inc., Del. Super., 663 A.2d 1205, 1209 (1995). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del Super., 517 A.2d 295, 297 (1986), app. dism., Del. Supr., 515 A.2d 397 (1986). The Superior Court, sitting as an appellate court, does not weigh the evidence, determine questions of credibility, or make its own factual findings. Johnson v. Chrysler Corp., 213 A.2d at 66. lt merely determines if the evidence is legally adequate to support the agency's factual findings. 29 Del. C. § 10142(d). In reviewing the record for substantial evidence, the Court will consider the record in the light most favorable to the party prevailing below. General Motors Corp. v. Guy, Del. Super., C.A. NO. 90A-JL-5, Gebelein, J. (August 16, 1991). Delaware law provides that an employee's refusal of reasonable medical treatments will terminate compensation. 19 Del. C. § 2353. Determining whether claimant's refusal falls under this standard requires the Court to apply the law to the facts. Rash v. Wilkinson Roofing and Siding, supra at 10. As such, the Court must decide an issue of law and therefore has plenary review over the Board's decision. Id. at 10. See E.l. DuPont de Nemours v. Shell Oil Co., Del. Supr., 498 A.2d 1108 (1985).
DISCUSSION
19 Del. C. § 2353(a) requires that the Board make at least three factual findings before compensation may be forfeited. The Board must find, first, that there was a refusal of service and, second, that the refusal caused an injury or increase in incapacity. Third, the Board must find that the particular services offered, whether involving vocational rehabilitation or regular medical services, were reasonable or, in other words, that the injured employee's refusal was unreasonable. Wilmington Housing Authority v. Gonzalez, Del. Super., 333 A.2d 172 (1975).
In General Motors v. Vannicola, supra, the Court held that the Board erred as a matter of law when it determined that claimant's refusal to undergo surgery was reasonable. The Court stated that when dealing with 19 Del. C. § 2353 (a), the phrase "reasonable medical treatment' is to be interpreted objectively based on the treatment, not subjectively based on the claimant." Id. at 5. In General Motors v. Vannicola, supra, there was medical testimony and evidence that indicated the claimant's condition would improve with medical treatment and that treatment involved minimal risk of complication. The Court held that it was unreasonable for the Claimant to refuse surgery based on the inherent risks, such as death, paralysis, infection or no improvement, that one encounters in every surgical procedure.
Appellant argues that the Board should have followed the holding in Rash when it was deciding whether Appellant had reasonably or unreasonably refused to have the surgery. In Rash, supra, the Court held that the claimant acted reasonably in refusing to undergo surgery under 19 Del. C. § 2353 (a). Therein, the Court stated that a treatment's success rate should not be viewed in a vacuum without considering the aspects of the individual case. The doctors in that case considered risks that were unique to the claimant and advised him not to have the proposed surgery. However, in making this ruling the Court addressed theVannicola holding by stating:
Thus, the present case is clearly distinguishable from Vannicola because here claimant's treating physicians cautioned him not to have the surgery. Claimant is completely justified in relying on such advice despite the high success rate of the triple arthrodesis.
From this, the Court concludes that Vannicola sets forth the proper standard to follow when deciding the reasonableness of a refusal of surgery. The Court in Rash followed Vannicola, but there were different facts to apply to the law when the Court conducted its plenary review. In the case before the Court now, Appellant's reason for not having surgery is fear. In Rash there was doctor's testimony that he recommended claimant not to have the surgery.
Appellant's case is distinguishable from Rash in that there are no doctors cautioning her not to have the surgery. In fact, the doctors agree that surgery would help Appellant with her condition. The treatment success rate was not looked at in a vacuum, either. The doctors considered the factors that were unique to Appellant, her osteopenia and her smoking, and still recommended the surgery with the use of a plate to help the bone graft. Dr. Shuey recommended a different approach to the same surgery because Appellant was a cigarette smoker and there were fewer risks with the posterior approach. However, Dr. Shuey testified there is a 95% chance of positive results with either approach and which approach would be Appellant's choice. Also, Dr. Shuey stated that although it would not be unreasonable for Appellant not to have this surgery, if she did have it there would be a marked reduction in pain and her neurological disk function would improve.
The doctors agree that having this surgery would improve Appellant's life. There is disagreement between Dr. Shuey and Dr. Asdourian regarding the approach to take for this fusion surgery, but no disagreement that Appellant would benefit from this surgery no matter what approach. In fact, there might not even be a disagreement in regards to the approach to take for this surgery. If Dr. Shuey knew that Appellant was now having leftsided complaints that were revealed in Appellant's most recent examination with Dr. Asdourian, his opinion might have changed as to the approach. Even though the two doctors might have recommended a different approach, they still recommended the same surgery and stated that in the end it is Appellant's choice of which approach to take.
Appellant argues that it is not unreasonable not to want to have this surgery. Both doctors stated that it would not be unreasonable for Appellant to decide not to have this surgery and that is always her option. It is an alternative, but the only reason for her deciding not to have the surgery is her desire not to go through the surgery. This Court cannot force Appellant to have this surgery. That is still her decision. However, the Court, when deciding if a refusal of surgery is reasonable under § 2353(a), needs more than just Appellant's desire not to have this surgery to decide that her refusal of this surgery was reasonable.See General Motors v. Vannicola, supra.
Statutory policy encourages injured employees to accept employers' efforts to return them to the labor force by both physical and vocational rehabilitation. Zdroiewski v. State, Del. Super., CA. No. 85A-AU-1 7, Martin, J. (Feb. 5, 1987) (Let. Op.) at 3 (citing Wilmington Housing Authority v. Gonzalez, 333 A.2d). The Delaware Supreme Court, in Mosley v. Bank of Delaware, Del. Supr., 372 A.2d 178, 179 (1977), discussed the legislative purpose of 19 Del. C. § 2353 by stating:
As has been noted, the § 2353 right of an employer to require an injured employee to avail himself of reasonable medical services, including vocational rehabilitation, "is simply a parallel of the employee's right (under § 2322) to require that such medical treatment be provided in the first instance at his request'. [Citation omitted.] As "parallel sections' of the Act relating to medical services, a common legislative purpose has been ascribed them; namely, (1) to assure adequate medical assistance to the employee, and (2) to protect the employer against unreasonable charges and fraudulent claims by providing for forfeiture of the right to compensation as the price of refusal of the medical assistance offered. [Citations omitted.]
These two statutes, §§ 2322 and 2353, ensure the use of all reasonable medical efforts to reduce or eliminate disability. Bender v. Deflon Anderson Corporation, Del. Super., 298 A.2d 346, 348 (1972).
As stated in General Motors Corporation v. Vannicola, supra at 3:
It is not the intent of the Court to force a person to undergo a medical procedure which that person does not wish to have. However, Delaware Workmen's Compensation Law requires that an injured worker must submit himself to reasonable medical treatment in order to be eligible for benefits. . . . Granted the final decision of which course of treatment to follow will always remain with the employee; however, he will only receive benefits it this treatment is reasonable.
Thus, the Appellant can refuse to have the fusion surgery, but the price of that refusal, as the Board ruled, is the forfeiture of Appellant's right to compensation, her total disability benefits.
The Board found there was a refusal of service. Appellant did not want to have the proposed fusion surgery. The Board also found that the Appellant had refused reasonable surgery. This was stated in the Board's decision which referenced the fact that the chance of the is surgery being completely successful in correcting Appellant's condition is over 80%. The Board reiterated that Dr. Venkataramana, Dr. Shuey and Dr. Asdourian have all recommended the surgery and no doctor advised against it. From this testimony, the Board also learned Appellant's condition will not improve without surgery. Finally, the Board found that Appellant's refusal of reasonable surgery has caused her continuing incapacity. The Board stated that because Appellant's current limitations are caused by her pain complaints, this fusion surgery probably would reduce or eliminate her work restrictions. The Board concluded that if Appellant had the surgery she would likely see a marked improvement in her abilities and be able to work without significant restrictions. The Court finds the Board made the required three factual findings before deciding that Appellant's total disability compensation would be forfeited.
CONCLUSION
The Court concludes as follows. The Board did not commit an error of law when it decided that Appellant forfeited her total disability compensation because of her refusal to undergo reasonable corrective surgery. Also, there is substantial evidence in the record to support the Board's finding that Appellant refused to have a reasonable surgery. The choice of whether to have this surgery will always be Appellant's, but under 19 Del. C. § 2353 (a) only if Appellant's refusal of the surgery is reasonable will benefits continue. The Appellant's refusal here is not reasonable. The decision of the Board is affirmed.