AFL Network Services v. Heglund ( 2016 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
AFL NETWORK SERVICES, §
§ No. 238, 2016
Appellant Below- §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§
THOMAS HEGLUND, § CA No. N15A-09-002
§
Appellee Below- §
Appellee. §
Submitted: October 5, 2016
Decided: November 15, 2016
Before HOLLAND, VALIHURA, and VAUGHN, Justices.
ORDER
This 15th day of November 2016, upon consideration of the parties’ briefs and
the record of the case, it appears that:
1. AFL Network Services (“AFL”) appeals from a Superior Court order
affirming an Industrial Accident Board (“the Board”) decision to grant Thomas
Heglund’s (“the claimant”) Petition to Determine Additional Compensation Due. The
sole question before the Board was whether proposed surgery was reasonable and
necessary. AFL contends that the Superior Court committed reversible error by
impermissibly weighing the evidence, determining questions of credibility and
making factual findings. In other words, AFL contends that the Superior Court
exceeded the scope of review.
2. On March 29, 2004, the claimant suffered an acknowledged compensable
work injury to his cervical spine while employed by AFL. He subsequently
underwent two cervical spine surgeries on June 17, 2004 and November 16, 2011.
He sought to have a subsequent cervical spine surgery and filed a Petition to
Determine Additional Compensation Due for that surgery on April 2, 2013.
3. A hearing was held before a Workers’ Compensation Hearing Officer,
sitting as the Board, on September 19, 2013. The claimant presented testimony from
Dr. Bikash Bose, a board-certified neurosurgeon, who started treating the claimant
on November 15, 2010. The disputed surgery that Dr. Bose was proposing was
described as a posterior exploration, a C2-3 decompression, fusion and revisions of
the T2 and C6 screws. Dr. Bose wanted to surgically explore the previous fusion
sites and ensure the T2 screws are not loose and then incorporate extending the
decompression and fusion to C2. Dr. Bose testified that the proposed surgery should
reduce the claimant’s pain medications.
4. AFL presented testimony from Dr. Scott Rushton, who is board-certified in
orthopedic surgery. Dr. Rushton testified that the proposed surgery was not
reasonable or necessary. In summary, Dr. Rushton explained that while the
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diagnostic test findings may support a surgical approach, the proposed surgery will
likely fail and will likely increase the claimant’s disability. He explained that the
claimant has a cervical thoracic kyphosis that must be addressed in order for the
claimant to have a chance of a successful surgical outcome. Such condition,
however, cannot be addressed by a posterior-only approach. The claimant’s 2012
surgery failed because the claimant’s cervical thoracic kyphosis was not addressed.
Dr. Rushton stated that the cervical thoracic kyphosis is a deformity causing the
claimant’s symptomatology. Not only did the claimant not benefit from the 2011
surgery, the 2011 surgery likely worsened the claimant’s condition and symptoms;
the proposed surgery will likely do the same.
5. On November 5, 2013, the Hearing Officer denied the claimant’s Petition,
finding that the claimant failed to demonstrate the reasonableness and necessity of the
proposed surgery by a preponderance of the evidence. The Hearing Officer found the
opinions of Dr. Rushton to be more credible than those of Dr. Bose. In accepting Dr.
Rushton’s testimony over the testimony of Dr. Bose, the Hearing Officer analyzed the
testimony of each doctor and, in summary, made observations which included the
following: Dr. Bose, who performed the 2011 surgery, did so to decrease the
claimant’s medications, but there was no evidence that such a decrease occurred; that
after the 2011 surgery, the claimant’s symptoms returned and soon became worse;
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that another of the claimant’s doctors, Dr. Rastogi, had recommended against the
2011 surgery; that Dr. Rushton testified that surgery cannot be successful unless the
claimant’s kyphosis is addressed; that the claimant’s kyphosis cannot be addressed
by a solely posterior approach, which was the approach of the proposed surgery; that
Dr. Bose recommended the surgery to reduce the claimant’s medications, but Dr.
Bose could not identify the claimant’s medications without referring to a medical
record; Dr. Bose admitted that he does not anticipate that the proposed surgery would
increase the claimant’s functional ability; and that the additional fusion contemplated
would decrease the claimant’s movement in the cervical spine.
6. The Hearing Officer concluded that it did not appear from the evidence that
a third surgery would be successful. In her concluding paragraph, she stated as
follows:
Dr. Bose represented that the 2011 surgery was initially a
success because Claimant experienced a benefit for a few
months. I disagree. By March 2012, four months after the
surgery, Claimant complained of returning symptoms that
again progressed to a condition worse than Claimant’s
condition prior to the 2011 surgery. As. Dr. Rushton
testified, Claimant’s symptoms progressed despite the
surgery in 2004 and despite the surgery in 2011. It does
not appear by the evidence that a third surgery will be
successful. Claimant may require surgery to fix any screws
that may be loose but the surgery as proposed does not
4
appear to be a reasonable or necessary approach to
correcting such problems if they exist.1
7. On November 15, 2013, the claimant filed a Notice of Appeal. On July 3,
2014, the Superior Court reversed and remanded the case back to the Board. The
Superior Court reversed the Board’s decision, stating that “[t]he Board’s conclusion
that the proposed surgery to repair the T2 screws and C6 screw was not reasonable
and necessary does not logically follow the factual findings.”2 In substance, the
Superior Court concluded that Dr. Bose had testified that the T2 and C6 screws were
loose, that Dr. Rushton agreed with that, and that the Board found that the claimant
required surgery to fix the screws.
8. On remand, the case was presented to the same Hearing Officer, sitting as
the Board, on the same evidence and without further argument from counsel. The
Hearing Office issued a second decision on January 16, 2015. The Hearing Officer
again found the opinions of Dr. Rushton to be more credible than those of Dr. Bose,
and, therefore, determined that the proposed surgery was not reasonable and
necessary.
9. In doing so, the Hearing Officer noted that Dr. Rushton testified that
Heglund’s primary complaints of neck pain and headaches have a poor chance of
1
Heglund v. AFL Network Servs., No. 1249763, at 17 (Del. I.A.B. Nov. 5, 2013).
2
Heglund v. AFL Network Servs., 2014 WL 3510232, at *3 (Del. July 3, 2014).
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being improved with any type of surgery and have unpredictable surgical outcomes;
that the proposed surgery would not address the underlying problem of cervical
thoracic kyphosis; that it would be unreasonable to pursue a C2-3 fusion from an
isolated posterior approach because it will worsen the claimant’s condition; that not
only does Dr. Bose’s proposed surgery have a high risk of failure but there are very
high risks that it will increase the claimant’s disability and pain; will increase the
claimant’s immobility; and further compromise the claimant’s clinical status. Dr.
Rushton opined that the claimant may not need surgery, but the claimant especially
should not pursue the surgery Dr. Bose was proposing.
10. On January 29, 2015, the claimant filed a Notice of Appeal. On July 23,
2015, the Superior Court again reversed and remanded the case back to the Board.
In the Superior Court’s Memorandum Opinion, it again found that the Board’s
conclusion that the surgery was not reasonable and necessary “d[id] not logically
follow the factual findings.”3 Additionally, the Superior Court instructed the Board
“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
3
Heglund v. AFL Network Servs., 2015 WL 4498813, at *2 (Del. July 23, 2015).
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screws contribute to Appellant’s pain, that surgical tightening and/or replacement of
those screws is requires and is reasonable and necessary to reduce Appellant’s pain.”4
11. Subsequently, on August 6, 2015, the Board issued an opinion granting the
claimant’s Petition to allow for the additional surgery pursuant to the Superior
Court’s July 23, 2015 opinion. On September 3, 2015, AFL filed an Appeal. On
April 18, 2016, the Superior Court affirmed the Board’s decision. On May 12, 2016,
AFL filed this Appeal challenging the Superior Court’s July 3, 2014 and July 23,
2015 decisions.
12. The only issue before the Court is whether the Superior Court committed
reversible error by substituting its judgement for the Board’s. On an appeal of the
Board’s decision, both this Court and the Superior Court are to evaluate whether the
Board’s “decision is supported by substantial evidence and is free from legal error.”5
Neither this Court nor the Superior Court are to “sit as a trier of fact with authority
to weigh the evidence, determine questions of credibility, and make its own factual
findings and conclusions.”6 Questions of law are reviewed de novo.7 Absent errors
of law, the standard of review is abuse of discretion.8 The Board has abused its
4
Id.
5
Glanden v. Land Prep, Inc., 918 A.2d 1098, 1100 (Del. 2007).
6
Id.
7
Id. at 1101.
8
Id.
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discretion only when its decision has “exceeded the bounds of reason in view of the
circumstances.”9
13. A Board decision should be affirmed unless there is no substantial
evidence to support it.10 Substantial evidence exists when there is “such evidence as
a reasonable mind might accept as adequate to support a conclusion.”11 Additionally,
the Board “may adopt the opinion testimony of one expert over another; and that
opinion, if adopted, will constitute substantial evidence for purposes of appellate
review.”12 The were no issues of law presented in this case. The only question was
whether the proposed surgery was reasonable and necessary.
14. The Superior Court concluded that the Board’s decision did “not logically
follow the factual findings.”13 Specifically, the Superior Court found that “the Board
Decision accepted Dr. Bose’s opinion that the T2 and C6 screws were loose,
contributing to Appellant’s pain and requiring surgical tightening and/or replacement
of those screws as reasonable and necessary to reduce Appellant’s pain.”14 However,
this statement is an inaccurate representation of the Board’s findings.
9
Person-Gaines v. Pepco Holdings, 981 A.2d 1159, 1161 (Del. 2009).
10
Id.
11
Id.
12
Id.
13
Heglund, 2015 WL 4498813, at *2; Heglund, 2014 WL 3510232, at *3.
14
Heglund, 2014 WL 3510232, at *3.
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15. The Board in both the November 5, 2013 and January 16, 2015 decisions
determined “the opinions of Dr. Rushton to be more credible than the opinions of Dr.
Bose.”15 It is well within the Board’s authority to make determinations of credibility.
Specifically, the Board found Dr. Bose, The claimant’s treating physician, to be
unaware of the claimant’s overall condition, daily activities of living, and current
medications.
16. Here, the Board chose to adopt Dr. Rushton’s opinion that the surgery as
proposed would not address the claimant’s underlying problems. Specifically, in the
January 2015 Decision, the Board chose to adopt Dr. Rushton’s opinion that the
claimant may not need surgery and his opinion that if he does require surgery, he
should not pursue the proposed surgery as it does not address the underlying problem
of cervical thoracic kyphosis.
17. Furthermore, at no time did the Board conclude that the T2 and C6 screws
were loose. The Board also did not conclude that surgical tightening and/or
replacement of those screws was necessary and reasonable. At the conclusion of the
Board’s November 2013 opinion, the Board stated, “[c]laimant may require surgery
to fix any screws that may be loose but that surgery as proposed does not appear to
15
Heglund v. AFL Network Servs, No. 1249763, at 14 (Del. I.A.B. Nov. 5, 2013); Heglund v. AFL
Network Servs, No. 1249763, at 14 (Del. I.A.B. Jan. 16, 2015).
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be a reasonable or necessary approach to correcting such problems if they exist.”16
This statement is the closest the Board came to suggesting that the T2 and C6 screws
were loose and that they required surgical tightening/replacement.
18. The proposed surgery involved a posterior exploration, a C2-3
decompression and fusion. Fixing any screws that maybe loose, if any, was an
additional purpose. The Superior Court seems to have focused only on the screws.
Dr. Rushton’s testimony, taken as a whole, clearly provides that the proposed surgery,
taken as a whole, was not a reasonable approach to the claimant’s condition.
19. Therefore, the Superior Court committed reversible error when it reversed
and remanded the Board’s decisions on November 5, 2013 and January 16, 2015.
The Board weighed the evidence, determined credibility, and made factual findings
which were supported by substantial evidence.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is REVERSED.
BY THE COURT:
/s/ James T. Vaughn, Jr.
Justice
16
Heglund v. AFL Network Servs, No. 1249763, at 17 (Del. I.A.B. Nov. 5, 2013) (emphasis added).
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