Opinion
C.A. No. 07A-11-004 JRJ.
Submitted: April 7, 2008.
Decided: June 18, 2008.
Upon Appeal of the Decision of the Industrial Accident Board.
AFFIRMED.Frederick S. Freibott, Esq., Wilmington, DE, attorney for Appellant Richard Roy.
Robert W. Ralston, Esq., Wilmington, DE, attorney for Appellee, DuPont.
OPINION
I. INTRODUCTION
Employee sustained injuries to his head and lower back from a slip and fall accident at work. Currently before the Court is his appeal of the Industrial Accident Board's (the "Board") decision that pre-surgical diagnostic testing and surgery are not reasonable and necessary medical expenses and, therefore, not compensable. The Court finds that the Board did not err as a matter of law and its decision is supported by substantial evidence. Consequently, the Board's decision is AFFIRMED. II. STATEMENT OF FACTS
Employee Richard Roy ("Roy") was injured as the result of a slip and fall accident at the DuPont Country Club ("DuPont") where he worked as a groundskeeper. On February 12, 2006, after a significant snowfall, Roy slipped on ice as he attempted to unload a snow blower from a truck. He fell on the ice, striking his head and lower back. He was admitted to Christiana Hospital where he was treated for head and back pain. As a result of his injuries, Roy was unable to return to work until November 2006. DuPont accepted his injuries as compensable and he received total disability payments in the amount of $388.27 per week, based on his average weekly wage of $582.50 from May 17, 2006 to November 13, 2006. He was 47 years old at the time of the accident.
Appellant Richard F. Roy's Opening Br. on Appeal from the IAB ("Roy Opening Br."), Docket Item ("D.I.") 6 at 1.
As a result of his slip and fall, Roy experienced lower back pain and bilateral leg pain. His primary care physician, Dr. Carl Turner ("Dr. Turner"), referred Roy to Dr. Otto Medinilla, who subsequently referred him to Dr. Frederick Gooding. Roy was ultimately referred to Dr. Madgy I. Boulos.
In November 2006, Roy returned to work. Although he had undergone conservative treatment consisting of physical therapy, chiropractic care, epidural shots and prescription medications Skelaxin and Percocet, the treatment did not alleviate his pain. On March 21, 2007, he filed a Petition for Additional Compensation Due seeking coverage for certain pre-surgical diagnostic testing that had been recommended by Dr. Boulos. On July 26, 2007 while riding a mower at work, his back "went out" and he was unable to move. He was sent home by a nurse working for DuPont and he has not returned to work since that date.
Decision of Petition to Determine Additional Compensation Due, Oct. 12, 2007 at 3.
IAB Hr'g Tr. 20, Sept. 10, 2007.
Id. at 25-26.
On September 10, 2007, a hearing was held before the Board in order to determine, among other things, whether the pre-surgical testing and surgery are compensable (ie, reasonable, necessary and casually related to the work injury). The parties submitted the deposition transcripts of their respective medical experts concerning the reasonableness and necessity of diagnostic testing and surgery to treat Roy's condition.
Roy's Petition to Determine Additional Compensation Due asked the Board to find that (1) he sustained two herniated disks; (2) he has radiculopathy in his legs; (3) pre-surgical testing and surgery is compensable; and (4) he was totally disabled after June 27, 2007. The only issue on appeal is the Board's decision that pre-surgical testing and surgery is not compensable.
At the hearing, Roy testified that he wanted to undergo surgery because he was "tired of [the] pain." On cross-examination Roy admitted that, despite his earlier testimony to the contrary, he was treated at Dynamic Physical Therapy and Aquatic Rehabilitation Center in September 2005, before the work related fall. Although he testified that he underwent physical therapy for neck pain, his medical records state that he had "an insidious onset of back complaints."
IAB Hr'g Tr. at 15.
On direct examination, Roy testified that he did not suffer from any back problems or pain prior to his slip and fall accident on February 12, 2006.
Tr. Hearing at 22-23.
A. Roy's Medical Expert: Dr. Magdy I. Boulos
Dr. Boulos, Roy's neurosurgeon, first treated Roy on June 8, 2006. He testified that Roy's primary complaint has been back pain radiating predominately in the right hip, buttock, thigh, and down to his knee. According to Dr. Boulos, an MRI of Roy's lumbar spine taken on February 21, 2006 shows a focal disk herniation at the L3-4 on the right, as well as focal protrusion at L5-S1 and a mild disk protrusion at L4-5 but no significant root compression on the axial view. He explained that the most prominent herniation is at the C4 central and to the right side as well as at L5-S1. He testified that the results of the MRI are consistent with a back injury with radicular (radiating) pain, and confirmed Roy's subjective complaints of pain. He diagnosed Roy with lumbar radiculopathy, suspect herniated disk with focal stenosis and foraminal encroachment at the L3-4 on the right and L5-S1. Dr. Boulos recommended that Roy continue with conservative treatment.Dr. Boulos met with Roy again on July 10, 2006. Roy had completed physical therapy and was wearing a back support. The therapy did not help Roy's condition, however, and he continued to complain of back pain radiating down his right leg. Dr. Boulos performed a physical examination that revealed tightness, guarding and restriction of range of motion, with pain radiating down the right leg. As a result, Dr. Boulos referred Roy to Dr. Gooding for epidural steroid injections (the highest level of conservative treatment).
Id. 12:10-13.
Dr. Boulos Dep. 12:1-13:2.
On August 31, 2006, Dr. Boulos again examined Roy. Roy complained of persistent pain in his back radiating down his right leg, pain radiating from his buttock to the back of his thigh, calf and down to his foot and pain in his groin. A repeat MRI showed that Roy's disk herniation had progressed. Because Roy's condition was worsening and all conservative care options had been exhausted, Dr. Boulos recommended a three-level foraminotomy decompression on the right side and a microdiskectomy to relieve the root compression. At this point, Roy sought a second opinion from Dr. Katz. Dr. Katz concurred with Dr. Boulos' diagnosis and agreed that Roy should undergo a diskectomy, or other surgery. Surgery was not approved by DuPont and Roy returned to work in November 2006.
Id. at 14:6-13.
Id. at 13:8-15. Dr. Boulos testified that the MRI showed "further progression of the disk at L3-4 on the right as well as 4-5. There's a combination of facet hypertrophy, stenosis, as well as disk protrusion at that level. L5-S1 shows progression in the right paracentral disk protrusion with annular tear."
Id. at 14:14-18.
Id. at 13:16-14:22.
Roy Opening Br. at 8.
Dr. Boulos Dep. 16:4-6.
Roy saw Dr. Boulos for the last time on February 22, 2007. He complained of increased pain in his back that radiated to his right buttock and down to his knee. According to Dr. Boulos, the physical examination showed that Roy's radiculopathy was worsening. Despite his prognosis, Dr. Boulos did not place Roy on any work restrictions.
Dr. Boulos opines that Roy is a good candidate for surgery even though he is diabetic. He claims that he must perform further testing, specifically a lumbar myelogram and postmyelogram CT scan, before he can recommend either a microdiskectomy or spinal fusion surgery. He believes that Roy's recovery time will be six to eight weeks if a microdiskectomy is performed and several months if a spinal fusion surgery is performed. Dr. Boulos opines that Roy is suffering from disk herniations and that surgical treatment is reasonable, necessary and casually related to Roy's slip and fall accident at work on February 12, 2006.
B. DuPont's Medical Expert: Dr. Scott A. Rushton
Dr. Rushton is an orthopedic surgeon hired on behalf of DuPont. He testified that Roy has fully recovered from his slip and fall accident at work. He recommends that Roy transition to a home exercise program. He also recommends that Roy begin to wean himself from the narcotic medications that he is taking for pain.
Dr. Rushton Dep. 26:9-12, Sept. 4, 2007.
Dr. Rushton first met with Roy on October 16, 2006. He reviewed Roy's X-Rays and MRI's and found age-appropriate degenerative changes in his disks and facet joints. He also documented the presence of an acute disk herniation at L3-4. According to Rushton, Roy told him that 95% of his pain emanated from this lower back and only 5% from his legs. Roy also reported that he was experiencing pain 24 hours a day, 30 days out of the month with a pain level at 8 to 8.5 out of 10. During Dr. Rushton's physical examination of Roy, Roy was unable to complete manual muscle tests because he claimed that every test caused him severe lower back pain. Dr. Rushton noted that although Roy was unable to complete the muscle tests, he was able to get on and off the exam table and in and out of his chair without assistance or pain. He testified that Roy's subjective complaints and response to the muscle tests were inconsistent with his objective findings: "my impression was that his history and his exam findings did not correlate with any typical traumatic or degenerative condition of his lumbar spine. I thought they were extraordinarily inconsistent." Dr. Rushton concluded that there was no need for surgical treatment even though the MRI study showed a disk herniation. He explained that an MRI is only one component of an evaluation, and it must be correlated with the physical examination and the patient's history. He testified that he doubted the validity of Roy's complaints and that he believed Roy was capable of returning to work without any restrictions.
Id. at 10:15-19.
Id. at 11:21-23.
Id. at 8:10-13; 9:9-17.
Dr. Rushton Dep. 14:5-16:2.
Id. at 20:10-17, 18:10-15.
Id. at 20:7-21.
Dr. Rushton Dep. 21:1-7.
Id. at 22:11-22.
On May 7, 2007, Roy again met with Dr. Rushton. Roy had been working eight hours a day at DuPont and he was undergoing physical therapy three times a week. He told Dr. Rushton that he felt an overall 40% improvement. Dr. Rushton examined Roy and found significant improvement from the October 2006 exam.
Id. at 23:20-24:3.
Id. at 23:11-13.
Based on his "full picture" evaluation of Roy, Dr. Rushton testified that the surgical intervention suggested by Dr. Boulos is not reasonable or necessary. Based on this second evaluation, Dr. Rushton is of the opinion that Roy has recovered from his slip and fall injury. C. The Decision of the Board
Id. at 21:11-17.
Id. at 29:6-15.
On October 12, 2007, the Board held that the surgery and tests recommended by Dr. Boulos are not reasonable and necessary medical expenses. On November 17, 2007, Roy filed a timely appeal from the Board's decision. III. PARTIES' CONTENTIONS
Initial Complaint, D.I. 1.
Roy does not take issue with the Board's findings of fact. Instead, he claims that the Board erred as a matter of law when it rejected Dr. Boulos' opinion which was based upon objective findings, in favor of Dr. Rushton's opinion which he claims was based solely upon subjective complaints.
In Roy's Opening Brief, he references certain diagnostic testing performed after the Board hearing. To the extent that these tests were performed after the Board hearing and therefore are not part of the record below, the Court will not consider the tests in its consideration of the merits of this appeal.
DuPont argues that the Board did not commit legal error when it rejected Dr. Boulos' opinion in favor of Dr. Rushton's opinion, and the Board's decision is supported by substantial evidence.
IV. STANDARD OF REVIEW
In reviewing a decision on appeal from the Board, this Court must determine if the decision is supported by substantial evidence and is free from legal error. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. On appeal, the Court does not "weigh the evidence, determine questions of credibility, or make its own factual findings." "When conflicting expert opinions are each supported by substantial evidence, the Board is free to accept one opinion over the other opinion." The Court will only reverse a decision of the Board if its findings are not supported by substantial evidence, or where the Board has made a legal mistake. V. DISCUSSION
" Short v. Unemployment Ins. Appeal Bd., 1986 WL 17127 (Del.)" (citing " Unemployment Ins. Appeal Bd. v. Duncan, 337 A.2d 308 (Del. 1975)"; "19 Del. C. § 3323(a)"). See also " Unemployment Ins. Appeal Bd. v. Div. of Unemployment Ins., 803 A.2d 931, 936 (Del. 2002)".
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del.Super. 1994).
" Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)".
" Standard Distrib. v. Hall, 897 A.2d 155, 158 (Del. 2006)".
" Delgado v. Unemployment Insurance Appeal Bd., 295 A.2d 585 (Del.Super. 1972)".
When an employee has suffered a compensable injury, the employer is required to pay for reasonable and necessary medical services connected with that injury. "Reasonable medical services" is a determination of fact that must be decided by the Board on a case-by-case basis. When medical experts do not agree whether medical services are reasonable, the Board must rely upon all of the record evidence to determine whether to accept the opinion of one of the medical experts.
DEL. CODE ANN. Tit. 19, § 2322.
See Bullock v. K-Mart Corp., 1995 WL 339025 (Del.Super.).
See Clements v. Diamond Sate Port. Corp., 831 A.2d 870, 877 (Del. 2003).
In this case, the Board was confronted with two medical experts, each offering a different opinion as to the reasonableness and necessity of surgery and pre-surgical testing.
After considering both expert medical opinions, the Board found that:
[T]he L3-4 herniation was made symptomatic by the work accident. With regard to the radiculopathy, the Board finds Dr. Rushton's testimony persuasive that a finding of radiculopathy is inconsistent with Claimant's clinical presentation. Thus, even acknowledging causation at the L3-4 level, [Roy] is awarded no benefits because the Board finds that there is no radiculopathy and that the recommended surgery is not reasonable and necessary.
Decision of the IAB Board at 16, Oct. 12, 2007.
The Board did not err as a matter of law in reaching its decision to rely on Dr. Rushton's medical opinion and reject Dr. Boulos' opinion. It is clear from the record that Dr. Rushton's opinion that Roy does not suffer from radiculopathy is based on subjective and objective findings. Dr. Rushton reviewed Roy's X-Rays and the MRI scans of Roy's lumbar spine. He found age appropriate degenerative arthritis in his lumbar spine and short lumbar pedicles, indicating the development of congenital lumbar stenosis. Dr. Rushton agrees with Dr. Boulos that the MRI scans show a disk herniation at L3-4 which has an effect on the thecal sac. He also agrees that the second MRI shows the developmental stenosis, predominantly at L4-5, and a small increase in size of the disk herniation at L3-L4, which produced a mild effect on the thecal sac. But Dr. Rushton also notes that Roy's inability to complete manual muscle tests because of pain is inconsistent with his ability to get on and off an examination table and in and out of a chair without pain. And, Roy's response to the manual muscle tests was atypical because the majority of the muscle groups that Dr. Rushton attempted to test do not engage the lumbar spine muscles or disks.
Roy's subjective complaint that he was in pain 24 hours a day, 30 days out of the month at a pain level of 8 to 8.5 did not correlate with the objective test results. Dr. Rushton also noted that the surgery proposed by Dr. Boulos is used to treat leg pain, but Roy complained that 95% of his pain was in his lower back. Finally, Dr. Rushton explained that although the MRI scans show a disk herniation, an MRI is only one component of a diagnosis. The physical examination and history must also be taken into account. Based on the "full picture," Roy is not a good candidate for surgery.
Dr. Rushton was the last doctor to evaluate Roy on May 4, 2007. At that time, Roy reported an overall 40% improvement in his symptoms. He noted that all of his pain emanated from his lower back and that he was treating the pain with pain medications and an anti-inflammatory. He had returned to work full time and still attended physical therapy three times a week.
The Board did not supplant its judgment for that of a medical expert. It relied on the medical opinion of a board certified orthopedic surgeon. Dr. Rushton has testified in court proceedings in Pennsylvania and Delaware, he has previously testified before the Industrial Accident Board and Roy stipulated to his qualifications as an orthopedic surgeon. Based on all the evidence presented, the Board did not err by finding the opinion of Dr. Rushton's as more persuasive than Dr. Boulos' opinion.
Rushton Dep. 2:21-3:5.
Because there is substantial evidence in the record to support the Board's decision, the decision of the Board is AFFIRMED.
IT IS SO ORDERED.