Opinion
C.A. No. 99A-11-001-JRS.
February 16, 2001.
ORDER
This 16th day of February, 2001, upon consideration of the appeal of Ray Roeben ("Claimant" from the Industrial Accident Board's denial of his Petition to Determine Additional Compensation Due (the "Petition" and the parties' briefs, it appears to the Court that:
1. Claimant suffered an injury to his back while working as a bridge builder for James Julian, Inc. of Delaware ("Employer"). The injury occurred on August 1, 1997 while Claimant was carrying two forty-five pound paint containers. As a result of this injury, Claimant has received indemnity, medical expense, and permanency benefits from employer. Claimant underwent a significant surgical procedure on August 25, 1999, designed to alleviate lingering pain in his lower back and legs. The instant appeal concerns the Industrial Accident Board's denial of Claimant's Petition in which claimant sought compensation for the surgical procedure.
There is some confusion throughout the record as to whether the injury took place on August 1st or 2nd. The exact date of the occurrence, however, is irrelevant to the Court's determination and the Court will assume the injury took place on August 1st.
2. The Industrial Accident Board held a hearing on September 30, 1999 to determine whether the surgery was necessitated by the August 1, 1997 injury to Claimant's back. Claimant presented, through deposition, the testimony of Drs. Pramod K. Yadhati and Michael G. Sugarman, two of his treating physicians. Employer presented the live testimony of Dr. Jerry L. Case.
3. Dr. Yadhati, an anesthesiologist specializing in pain management, testified that he treated Claimant for low back pain. The treatment consisted mainly of a series of epidural and facet "blocks" to Claimants lower back. These blocks were intended to alleviate the pain Claimant was experiencing by reducing inflammation and swelling. The blocks were also designed to identify the specific area of Claimants back that was producing the pain symptoms. On March 3, 1999, Dr. Yadhati referred Claimant to Dr. Sugarman for a "surgical workup."
An "epidural block" is a steroid based injection administered to "the epidural space . . . that connects [spinal] discs and the nerve roots. . . ." (D.I. 8, Ex. C at 4)
A "facet block" is a steroid based injection administered to the joints between vertebra.
4. Dr. Sugarman, a neurosurgeon with expertise in spinal surgery, first examined Claimant on April 5, 1999. Dr. Sugarman ordered an MRI test, a provocative discography, and an additional series of facet blocks. Dr. Sugarman intended that this second series of facet blocks would reveal more precisely the source of Claimant's pain. After conferring with Dr. Yadhati about the results of the facet blocks, Dr. Sugarman determined that surgery was necessary at the L4/L5 and L5/S1 vertebrae levels. Dr. Sugarman operated on Claimant's back on August 25, 1999, specifically performing a:
The MRI and provocative discography are imaging technics designed to demarcate the source of Claimant's back pain.
Dr. Sugarman referred Claimant back to Dr. Yadhati for the second series of facet blocks.
[P]osterior lumbar decompression with laminectomies and removal of the discs bilaterally . . . [f]ollowed by interbody fusion using PLIF spacers, Posterior Lumbar Interbody Fusion, [and] spacers. . . . [The surgical team] also did the fusion with [a] right iliac crest bone graft, allograft, consisting of cortical and cancellous bone chips and grafton. [T]hat was followed by instrumentation from L3 to S1 with metal screws and rods . . . [a]nd bilateral, posterior lateral fusion from L4 down to S1. . . .
(D.I. 8, Ex. D at 11) Dr. Sugarman described the surgery as "[v]ery extensive." He explained that the failure of pain medication, physical therapy, and the steroid injections to alleviate Claimant's pain necessitated the surgery.
5. At the Industrial Accident Board hearing, Employer presented the live testimony of Dr. Jerry L. Case, an orthopaedic surgeon. Dr. Case had evaluated Claimant on five separate occasions prior to the surgical procedure performed by Dr. Sugarman. Dr. Case testified that the surgery was not reasonable or necessary in the treatment of Claimant's back injury because, simply stated, Claimant's injury was not serious enough to justify surgery. In reaching that opinion, Dr. Case relied on Claimant's flexibility and his lack of muscle spasms, sensory loss, abnormal reflexes, or atrophy. Dr. Case related that Claimant's test results showed "some degenerative disc changes but [did not reveal a] herniated disc." ( Id., Ex. B at 73) Dr. Case also explained that Claimant had extensive osteoporosis, and that "if [a person has] extensive osteoporosis, [they] are not a very good candidate for innerpardicular screw fixation that is expected to hold the mechanical devices in the back of the spine." ( Id. at 74) Additionally, Dr. Case opined that "[t]here are less extensive procedures that can be done for pain that's coming from the facet joints such as denervation of those nerves around the facets . . . by . . . radio [waves]." ( Id. at 74-75) He also stated that "such extensive surgery was [not] required for something as relatively mild as a degenerative condition of the facet joints. . . ." ( Id. at 75) Carrying forty-five gallon cans of paint, in Dr. Case's opinion, could not cause such extensive damage to the spinal structures as to require a decompression laminectomy, a posterior spinal fusion, and the removal of two intervertebral discs. Lastly, Dr. Case testified that when conservative treatment fails for someone in Claimant's position, specifically a middle-aged man with degenerative disc problems, treatment should be limited to medication, a back brace, and activity limitations.
The last of these evaluations took place on August 23, 1999, two days prior to the surgery.
6. The Industrial Accident Board issued its decision on October 13, 1999, specifically holding:
[T]he Board . . . finds the surgery was not reasonable and necessary. The Board accepts Dr. Case's opinion that the surgery was not reasonable and necessary in light of Claimant's complaints and the findings on examination and by diagnostic study. The examinations showed only some limitation in range of motion. There was no spasm, sensory loss, or atrophy and Claimant's reflexes were normal. The MRI showed degenerative disc changes consistent with Claimant's age and the discogram was unremarkable. The Board echoes Dr. Case's concern as to why Claimant's injury would require such an extensive surgical procedure.
The Board is very troubled by the fact that Claimant underwent such extensive surgery without any consideration for other alternative treatment. There was no explanation from Dr. Sugarman or Dr. Yadhati as to why other methods were not utilized or why the other methods would not have been successful in treating Claimant's condition. The only treatment Claimant received from Dr. Yadhati was a series of injections. Once Claimant's source of pain was located surgery was performed. The Board finds the surgery to be an extreme and radical measure in light of the fact [that] other treatment with less serious consequence was available but had not been attempted. Dr. Case testified that other less extensive procedures included denervation and less extensive surgery were [sic] possible options in treating Claimant's condition.
(D.I. 8, Ex. A at 8-9) Claimant disputes the Board's decision, asserting that its finding that Claimant's surgery was not reasonable and necessary is not supported by substantial evidence.
8. Appellate review by this Court of factual determinations made by administrative agencies is limited. This Court's function is to determine whether the agency's decision is supported by substantial evidence. "`Substantial evidence' means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." It is not this Court's function to weigh evidence, determine credibility issues, or to make its own factual findings. The determination of "[w]hether medical services are necessary and reasonable is a purely factual issue within the purview of the Board," and "[i]t is well settled Delaware law that the Board is free to accept one expert's opinion testimony over another's."
See Atkinson v. Delaware Curative Workshop, Del.Super., C.A. No. 00A-04-011, Cooch, J. (Jan. 8, 2001) (ORDER), 2001 WL 38787, at *2 (citing Johnson v. Chrysler Corp., Del.Supr., 213 A.d. 64, 66-67 (1965); General Motors v. Freeman, Del.Supr., 164 A.2d 686, 688 (1960)).
Oceanport Indus. v. Wilmington Stevedores, Inc., Del.Supr., 636 A.2d 892, 899 (1994) (citing Olney v. Cooch, Del.Supr., 425 A.2d 610, 614 (1981)).
Johnson, 213 A.2d at 66.
Dill v. Chesapeake Utils., Del.Super., C.A. No. 94A-03-005, Ridgely, P.J. (Feb. 14, 1995) (Mem. Op.), 1995 WL 109027, at *5 (citing Patterson v. Pappen Farms, Inc., Del.Super., C.A. No. 90-AP-3, Balick, J. (Dec. 26, 1990) (Op. and Order), 1990 WL 251377, at *1 (citing Keil's Wholesale Tire v. Marion, Del.Supr., No. 174, 1986, Moore, J. (Oct. 27, 1986) (ORDER), 1986 WL 18001, at *2))
Goldsborough v. New Castle County, Del.Super., C.A. No. 98A-03-002, Silverman, J. (May 28, 1999) (Op. and Order), 1999 WL 464002, at *2 (citing DiSabatino Bros. v. Wortman, Del.Supr., 453 A.2d 102, 106 (1982)).
9. In support of his contention that the Board's decision was not supported by substantial evidence, Claimant advances three arguments. First, he avers that "Claimant and Dr. Sugarman followed an orderly, logical, and reasonable process in arriving at the decision to perform and undergo a low back surgery." (D.I. 7 at 6) In an effort to show that treatments less extensive than the surgery at issue failed to relieve his pain, Claimant recounts the treatment he received following his back injury on August 1, 1997. Claimant specifically points to a period of rest, physical therapy, medication, steroid injections, and his unsuccessful return to work with activity limitations and contends that these facts preclude the Board's determination that the surgery was not reasonable or necessary. Claimant's efforts to justify his surgery, however, miss the mark, because they can only be read as supporting or bolstering Dr. Sugarman's decision to initiate the surgery. Claimant's factual recitation does not meaningfully challenge the sufficiency of the evidence presented by Dr. Case and relied upon by the Board in this case. Although Claimant's description of the treatment undertaken to alleviate his pain symptoms makes a good case for the reasonableness of the surgery, the Board, in its role as the trier of fact, was within its discretion to rely upon the opinion of Dr. Case, as opposed to the opinion of Dr. Sugarman, in its determination that the surgery was unreasonable and unnecessary. As stated, it is not this Court's function to weigh evidence and make its own factual determinations.
See Id.
See Johnson, 213 A.2d at 66.
10. Claimant's second argument is that the Board neglected to apply the legal presumption imposed upon the Board by Marion v. Keil's Wholesale Tire that "one must presume that the [C]laimant and his treating physician are seeking in good faith to reasonably treat the [C]laimant's condition." Initially, the Court notes that the Supreme Court reversed that decision on appeal, and although the Supreme Court specifically did not address the validity of the presumption applied below, the Supreme Court's affirmation of the Board's decision renders the continued viability of the presumption at the very least questionable. Further, the Board here did not necessarily draw any inferences that would be incompatible with that presumption. There were no allegations, nor did the Board hold that either Dr. Sugarman or Claimant acted in bad faith in any way in relation to the surgery. The Board simply held that, due to the extensive nature of the surgery and the nature of the injury, surgery was not reasonable or necessary in this case.
Del.Super., C.A. No. 84A-MR-12, Balick, J. (April 22, 1986) (Op. and Order), 1986 WL 4855, at *2.
Keil's Wholesale Tire v. Marion, Del.Supr., No. 174, 1986, Moore, J. (Oct. 27, 1986) (ORDER), 1986 WL 18001.
11. Claimant's third argument is that Dr. Case's experience and knowledge is insufficient under Delaware Uniform Rule of Evidence 702 for him to provide testimony concerning the necessity and reasonableness of the spinal surgery. Claimant points to Dr. Case's admission that he has not performed a similar surgery for ten years and that medical technology has advanced since that time. First, the Court notes that Claimant stipulated to Dr. Case's "qualifications . . . to testify as a medical expert with a specialty in orthopaedic surgery" at the hearing. (D.I. 8, Ex. B at 70) Second, the fact that Dr. Case has not performed a similar surgery in ten years actually bolsters the underlying theme of his testimony that the surgery was neither reasonable nor necessary. Specifically, Dr. Case appeared to indicate that he hasn't performed the surgery for 10 years because he doesn't endorse such extensive surgery on the spine. Moreover, even if Dr. Case does not perform the surgery, there is no evidence in the record to suggest that he is not qualified to opine when the surgery is or is not indicated. As a medical expert in orthopaedic surgery, Dr. Case is clearly qualified to "assist the trier of fact to understand the evidence or to determine a fact in issue."
12. Claimant has pressed the Court to supplant itself as the trier of fact in this case, a role the law clearly prohibits the Court from assuming in its appellate capacity. The Claimant has failed to impugn the Board's choice of one medical expert over another. Further, the Court has determined that the Board's determination in this case was supported by substantial evidence of record and was, therefore, proper. Accordingly, the Board's decision should be, and hereby is, AFFIRMED.
IT IS SO ORDERED.