IN THE SUPERIOR COURT OF STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
THOMAS F. HEGLUND, )
)
Claimant Below – Appellant, )
)
v. ) C.A. No. N15A-01-009 ALR
)
AFL NETWORK SERVICES, )
)
Employer – Appellee. )
Submitted: July 2, 2015
Decided: July 23, 2015
MEMORANDUM OPINION
On Appeal from Decision of the Industrial Accident Board — REVERSED
Gary S. Nitsche, Esquire and Samuel D. Pratcher, II, Esquire, Weik, Nitsche,
Dougherty & Galbraith, Attorneys for Claimant Below – Appellant
Linda Wilson, Esquire, Marshall, Dennehy, Warner, Coleman & Goggen, Attorney
for Employer Below – Appellee
ROCANELLI, J.
On March 29, 2004, Thomas F. Heglund (“Appellant”) suffered a cervical
spine injury while working for his employer, AFL Network Services
(“Employer”). After the work injury, Appellant had two cervical spine surgeries,
on June 17, 2004 and November 16, 2011, to treat his injuries. 1 Appellant was
compensated by his employer for a thirty percent permanent impairment of the
neck, a ten percent permanent impairment of the upper extremity, and for
disfigurement of the neck.
The first surgery after the work-related injury was on June 17, 2004, in
which Appellant had a cervical fusion involving the C5 and C6 corpectomy
(surgical approach was anterior and posterior), C4-C7 interbody fusion, C4-C7
segmental instrumentation, local autograft and removal of the anterior cervical
plate. Appellant also received injections.
Sometime after the 2004 surgery, Appellant developed increasing pain in the
neck and posterior headaches that included pain in both shoulders and down the
arms. Appellant’s doctor, Dr. Rastogi, recommended against additional surgery on
multiple occasions. Appellant continued to experience chronic neck and bilateral
arm pain.
1
Prior to the work injury at issue here, Appellant had surgery on April 3, 2002. Appellant’s
2002 surgery consisted of a C7 anterior cervical discectomy, a C6-7 interbody fusion, a right
structural iliac crest bone graft, and anterior cervical plating. Appellant was symptom-free after
the 2002 surgery.
1
Dr. Bose, a board-certified neurosurgeon, began treating Appellant on
November 15, 2010 for chronic pain. Dr. Bose concluded additional surgery was
necessary to reduce Apellant’s need for medication, to realign his spine, and to
improve kyphosis. On November 16, 2011, Dr. Bose performed decompression
and fusion surgery at C3-4 and at C7-T1.
Appellant was doing well shortly after the 2011 surgery. However,
Appellant began to report pain in his right shoulder, pain in his left side, pain
worsening in time and functional ability decreasing. Appellant reported that
physical therapy was not helping and continued to feel worsening and new pain in
the neck and arm areas. Also, it was necessary for Appellant to take a significant
amount of pain medication.
Dr. Bose recommended additional surgery to treat Appellant’s chronic and
worsening pain. Appellant sought compensation for this surgery through his
Employer. His Employer opposed payment for the additional surgery.
Appellant filed a Petition for Additional Compensation with the Industrial
Accident Board. On September 19, 2013, a hearing was held before a Workers’
Compensation Hearing Officer, sitting in place of the Industrial Accident Board
(“Board”) pursuant to 19 Del. C. § 2301(B) by stipulation. The Decision on
Petition to Review Additional Compensation Due was issued November 6, 2013
(“Board Decision”). An appeal followed. By Opinion and Order dated July 3,
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2014, this Court reversed the Board Decision’s conclusion that the proposed
additional surgery was not reasonable and necessary because this conclusion was
inconsistent with the record findings set forth in the Board Decision. The matter
was remanded to the Hearing Officer for consideration of conclusions consistent
with the factual findings set forth in the Board Decision.
Without supplementing the factual record, the Hearing Officer again denied
additional compensation even though such a conclusion is inconsistent with the
Board’s own findings. Specifically, despite the Board Decision’s findings that the
additional proposed surgery will, in part, fix screws that may need to be tightened
or replaced and agreement between the doctors that loose screws should be
surgically addressed, the Board Decision concluded that the proposed additional is
not reasonable or necessary. This appeal followed.
In reviewing a Board decision, the Court must determine whether substantial
evidence exists to support the Board’s findings. 2 Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” 3 The Court does not make its own factual findings, weigh the
evidence or determine questions of credibility. 4
2
Patterson v. Red Clay Consol. Sch. Dist., 2013 WL 4522167, at *3 (Del. Super. June 28, 2013).
3
Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1160 (Del. 2009).
4
Id.
3
The Board Decision’s conclusion that the proposed surgery to repair the T2
screws and C6 screw was not reasonably necessary does not logically follow the
factual findings. Specifically, the Board Decision accepted Dr. Bose’s opinions
that the T2 and C6 screws were loose, that the loose screws contribute to
Appellant’s pain, that surgical tightening and/or replacement of those screws is
required and is reasonable and necessary to reduce Appellant’s pain. Moreover,
the Board Decision recognized that Dr. Rushton’s review of the T2 and C6
diagnostic results was consistent with Dr. Bose’s opinion. Nevertheless, the Board
Decision concludes that, although Appellant requires surgery to fix the screws, the
proposed surgery is not a reasonable or necessary approach to correcting such
problems if they exist. This conclusion is inconsistent with the findings set forth in
the Board Decision.
NOW, THEREFORE, the Court REVERSES the Board Decision’s
conclusion that the proposed additional surgery is not reasonable and necessary
because this conclusion is inconsistent with the record findings set forth in the
Board Decision. The Court REMANDS the Board’s Decision to the Board with
instructions to provide Appellant additional compensation for the additional
surgery consistent with the Board’s own findings that the T2 and C6 screws were
loose, that the loose screws contribute to Appellant’s pain, that surgical tightening
4
and/or replacement of those screws is required and is reasonable and necessary to
reduce Appellant’s pain.
IT IS SO ORDERED this 23rd day of July, 2015.
Andrea L. Rocanelli
____________________________________
The Honorable Andrea L. Rocanelli
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