Hunsucker v. Scott Paper Company

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
BILLY HUNSUCKER, )
)
Claimant-Below/ )
Appellant, ) C.A. No. K22A-11-001 RLG
)
SCOTT PAPER COMPANY, )
)
Employer-Below/ )
Appellee. )
Submitted: February 1, 2023
Decided: June 16, 2023
MEMORANDUM OPINION AND ORDER
Upon Appellant’s Appeal from a Decision of the
Industrial Accident Board – AFFIRMED.
Billy Hunsucker, Pro Se Claimant-Below/Appellant.
John W. Morgan, Esquire, Heckler & Frabizzio, Wilmington, Delaware. Attorney
for Employer-Below/Appellee Scott Paper Company.
GREEN-STREETT, J.
1
I. Introduction
Billy Hunsucker (the “Claimant”) filed an appeal with this Court seeking
review of the Industrial Accident Board’s (the “Board” or the “IAB”) decision
granting Scott Paper Company’s (“Scott Paper”) Petition for Review (“PFR”). Scott
Paper’s PFR challenged the continued reasonableness, necessity, and casual relation
of pain management treatment – namely, medication – for Claimant. Because there
is substantial evidence to support granting Scott Paper’s PFR, the decision of the
Board is AFFIRMED.
II. Factual and Procedural Background
A. Claimant’s Work Accident, Injuries, and Medical Treatment
On August 3, 1994, Claimant sustained a compensable work-related injury
while employed by Scott Paper.1 As a result of the work accident, he ultimately
underwent cervical fusion surgery and treated with Dr. Jay Freid (“Dr. Freid”) for
ongoing pain management, including narcotic pain medication.2 Scott Paper
compensated Claimant for lost wages and medical treatment through May 2, 2022,
the date the PFR was filed.3
1
Record, “Decision on Petition for Review,” at 2.
2
Record, “Claimant’s Exhibit #1,” at 6.
3
Record, “Joint Exhibit #1,” at 1; Record, “Employer’s Petition for Review,” at 1; Record,
“Decision on Petition for Review,” at 2.
2
B. The Board’s Hearing
On May 2, 2022, Scott Paper filed a PFR under 19 Del. C. § 2347, challenging
the reasonableness, necessity, and causal relation of pain management treatment for
Claimant.4 On September 28, 2022, the Board held a Hearing (the “Hearing”) to
consider Scott Paper’s PFR.5 At the Hearing, Scott Paper clarified that its challenge
focused on Claimant’s high dosage of opioid pain medication.6 Specifically, Scott
Paper sought reduction – not termination – of Claimant’s opioid pain medication.7
Scott Paper’s application was based on the opinions of its retained medical expert,
Dr. Jason Brokaw (“Dr. Brokaw”).
Dr. Freid and Dr. Brokaw provided all medical testimony at the Hearing.8
Both doctors testified by deposition.9 Both doctors previously examined Claimant
and rendered opinions as to the appropriate pain management for Claimant.10
Claimant also testified at the Hearing.11
4
Record, “Decision on Petition for Review,” at 2.
5
Id.
6
Record, “Decision on Petition for Review,” at 2.
7
Id.
8
Id. at 2, 3.
9
Id. at 2, 10.
10
Id.
11
Id. at 8, 9.
3
1. Dr. Freid’s Testimony
Dr. Freid, who testified on behalf of Claimant, opined that Claimant should
not be required to lower his dosage of pain medication, as he had done well with his
regimen, was stable, and had experienced no side effects.12 Dr. Freid outlined
Claimant’s medication regimen – noting that Claimant had been consuming a high
dosage of opiates since, at least, 2009.13 While Dr. Freid acknowledged that
reduction of Claimant’s medication consumption was optimal, he advocated against
any abrupt change.14
Dr. Freid further highlighted that rapidly tapering patients off, or abruptly
discontinuing, opiates creates a high risk of addiction, overdose, suicide, and overall
death rates.15 As such, Dr. Freid cautioned that any reduction of Claimant’s
medications should be executed very slowly – and that Claimant should be weaned
off his medication one dose at a time, over a lengthy period of time.16 Specifically,
12
Record, “Claimant’s Exhibit 1,” at 15:2-10.
13
Record, “Claimant’s Exhibit 1,” at 6:17-24, 7:1-11, 7:15-21, 13:21-14:2, 21:8-19, 30:18-31:4,
9-10, 31:15-32:5 (Dr. Freid testified that, since at least 2009, Claimant has taken OxyContin, 80
milligrams, three times per day. In addition to the OxyContin, Claim has taken 30 milligrams of
morphine at least twice and up to four times per day – a medication regimen which equates to 420
to 480 milligrams of morphine equivalence (“MME”) per day.).
14
Id. at 21:8-19.
15
Id. at 18:7-19.
16
Id. at 22:3-16.
4
Dr. Freid testified that a reasonable reduction of Claimant’s opiate usage would be
ten to thirty percent over the course of a year.17 Dr. Freid believed it was unrealistic
for Claimant to be safely reduced to under 200 MME per day within a year.18
2. Dr. Brokaw’s Testimony
Dr. Brokaw, who testified on behalf of Scott Paper, examined Claimant on
two separate occasions – once in December 2021 and once in July 2022.19 At the
December 7, 2021 appointment, Claimant’s overall objective examination was
benign.20 Although complaining of moderate-to-high levels of pain, “[Claimant] did
not exhibit any significant pain behavior.”21 At the time of that examination,
Claimant’s medication dosage was 450 MME per day.22
During Dr. Brokaw’s second examination on July 19, 2022, Claimant
informed Dr. Brokaw that he was “pretty much the same.”23 Since the December
2021 appointment, Claimant had reduced his morphine intake to 420 MME per
17
Id. at 32:6-33:19.
18
Id. at 37:9-38-10.
19
Record, “Employer’s Exhibit 1,” at 8:13-9:8.
20
Id. at 9:9-10:9.
21
Id.
22
Id. at 10:10-17.
23
Id. at 19:16-20:5, 32:8-18.
5
day.24 Dr. Brokaw opined that this reduction constituted a meaningful first step in
titrating Claimant down to safer dosages.25 However, in contrast to the slow titration
suggested by Dr. Freid, Dr. Brokaw recommended that Claimant’s opiate intake be
reduced by approximately ten percent every couple of weeks. At that rate, and with
the assistance of other forms of treatment, Claimant could be lowered to 90 MME
per day within approximately six months.26
In his testimony, Dr. Brokaw explained that the Centers for Disease Control
and Prevention issued its Guideline for Prescribing Opioids for Chronic Pain (“CDC
Guideline”) in 2016.27 Prior to the issuance of the CDC Guideline, similar
professional guidelines were followed by the pain management community for over
a decade.28 The CDC Guideline established acceptable opioid dosage ranges – with
any dosage above 90 MME per day being considered high dosage.29 While
24
Id. at 20:6-20.
25
Id. at 22:20-23:3, 24:5-11.
26
Id. at 23:4-24:2, 33:5-17.
27
Id. at 17:11-18:9, 33:20-38:11, 42:7-15, 45:4-22.
28
Id. at 34:11-35:20 (According to Dr. Brokaw, the standards set forth in the CDC Guideline were
already utilized by the pain management community, who followed a similar standard outlined by
the 2014 American Society for Interventional Pain Physician Guidelines. Prior to 2014, pain
management physicians followed guidelines issued by the American Academy of Physical
Medicine and Rehabilitation. In 2016, the CDC simply standardized opioid prescription protocols
for all physicians to follow.).
29
Id. at 17:11-17.
6
acknowledging that some patients might require 90 MME per day, Dr. Brokaw
emphasized that the CDC Guideline required careful documented justification for
dosages above 90 MME per day. 30 Dr. Brokaw noted that Dr. Freid did not provide
any such justification in his records for Claimant’s dosage of 420 MME per day.
Dr. Brokaw opined that Dr. Freid also failed to follow numerous pain
management standards.31 Specifically, in Dr. Freid’s records, there were no pain
contracts with Claimant;32 was no documentation of Claimant’s pill counts;33 was no
completed risk stratification questionnaires;34 or were no documented urine
screens.35 Dr. Brokaw also underscored Dr. Freid’s failure to rotate Claimant’s
medication properly or reduce his opiate dosage for over a decade.36 Dr. Brokaw
testified that, without other forms of treatment, Claimant’s long-term treatment with
high-dosage opiate medication was unreasonable and unnecessary.37
30
Id. at 36:1-3.
31
Id. at 11:4-12:1.
32
Id. at 13:14-14:13, 27:22-28:5.
33
Id. at 12:5-13:8.
34
Id. at 14:14-15:4, 16:2-17-3.
35
Id. at 12:22-13:13, 28:14-29:17.
36
Id. at 15:5-16:1, 30:9-23.
37
Id. at 18:10-22, 20:6-21:16.
7
3. Claimant’s Testimony
Claimant testified that, after his 1994 surgery, his pain was still excruciating.38
He further testified that he commenced post-surgical treatment with Dr. Freid in the
late 1990s. Claimant explored various pain management modalities and medication
concoctions. Despite these attempts, Claimant’s pain persisted.39
It was not until Claimant began the medication regimen of OxyContin and
morphine that he was able to perform daily activities with significantly less pain.40
Claimant conceded that Dr. Freid continuously told him his dosages should be
reduced.41 In 2018, Dr. Freid reduced Claimant’s dosage, as Claimant was not
experiencing “extreme peaks” of pain.42 When asked at the Hearing about his
position on the reduction of his pain medication, Claimant stated:
I don’t mind reducing it, but it’s working
well. I don’t want to reduce it too much, to
where I go back to being miserable and can’t
do anything. So I’m just – I don’t mind trying
to reduce it like Dr. Fried [sic] suggests, but
it’s working well where it’s at. It’s been
working well for a long period of time.
That’s why we haven’t changed anything.
38
Record, “Hearing Transcript,” at 27:3-9, 35:17-19.
39
Id. at 28:1-16.
40
Id. at 29:4-6, 30:13-18, 38:9-14.
41
Id. at 37:2-18.
42
Id.
8
I’m just a little leery of messing with what
works.43
C. The Board’s Decision
After hearing testimony and reviewing documentary evidence, the Board
rendered a decision granting Scott Paper’s PFR, deeming Claimant’s high dosage of
pain medication to be unreasonable and unnecessary.44 In its opinion, the Board
accepted the medical conclusions of Dr. Brokaw over those of Dr. Freid,45 finding
that the reduction of Claimant’s high dosage of opioids to a maximum level of 90
MME per day was in his best interest.46 Further, the Board agreed with Dr. Brokaw’s
six-month timeline for Claimant to titrate down and detoxify.47 As such, the Board
ordered Claimant to reduce his opiate intake from 420 MME per day to a maximum
of 90 MME per day within six months.48 The Board clarified that, if necessary, other
43
Id. at 38:1-8.
44
Record, “Decision on Petition for Review,” at 19-20.
45
Id. at 16.
46
Id.
47
Id. at 20.
48
Id. (The Board also found that Scott Paper was required to pay for Claimant’s opioid medications
during the six-month weaning process, in accordance with the Delaware Workers’ Compensation
Fee Schedule.).
9
categories of medication and treatment modalities might be helpful for Claimant
during the weaning period.49
In making its factual determinations, the Board was persuaded by the medical
testimony:
Even Dr. Freid admitted that Claimant is at a
substantial extra risk of death, overdose and
addiction because of his high dosage of
opiates. He also agreed that there has been a
push in the past five years to get patients on
less medication. Claimant’s combination of
OxyContin and morphine in December 2021
equated to 450 MME [per day], which is
500% greater than the dividing line between
moderate and high dosage [per the CDC
Guideline]. Dr. Brokaw explained that the
vast majority of pain management physicians
will not prescribe such a high dose of opiates
anymore, nor would they continue a patient
on that dose for decades without changing the
medication.50
The Board found that, while the CDC Guideline did not provide for a maximum
dosage of opiates, “the dosage [needed to] be safe and reasonable to be
compensable[,] and there [had to] be carefully documented justification for [ ]
dosages above 90 MME [per day].”51 The Board determined that continuing
49
Id. at 18, 20.
50
Id. at 17, 18.
51
Id. at 18.
10
Claimant on extremely high opioid doses was not only unreasonable and
unnecessary, but also dangerous and inappropriate.52 Given Dr. Brokaw’s medical
opinion and Dr. Freid’s concessions regarding Claimant’s high dosage, the Board
concluded that Claimant should reduce his opiate intake from 420 MME per day to
a maximum of 90 MME per day within six months. This appeal followed.
III. Standard of Review
When hearing a decision of the IAB on appeal, the reviewing court must
“determine whether the IAB’s decision is supported by substantial evidence and is
free from legal error.”53 Substantial evidence is defined as “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.”54 However,
in making this determination, the Superior Court does not “sit as a trier of fact with
authority to weigh the evidence, determine questions of credibility, and make its own
factual findings and conclusions.”55 The Court may not “substitute its judgment for
that of the Board below, unless the finding by the Board is manifestly against the
weight of and has no foundation in the evidence.”56 Thus, the reviewing Court will
52
Id.
53
Glanden v. Land Prep, Inc., 918 A.2d 1098, 1100 (Del. 2007) (internal citations omitted).
54
Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994) (citing
Onley v. Cooch, 425 A.2d 610, 614 (Del. 1981)).
55
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
56
General Motors Corp. v. Freeman, 157 A.2d 889, 894 (Del. Super. 1960) (emphasis added).
11
not reverse the IAB’s decision “when there is some evidence to support the Board’s
findings of fact and where there has been no error of law.”57 In reviewing a Board’s
decision, the Court must view the record “in the light most favorable to the prevailing
party.”58
IV. Discussion
On appeal, Claimant does not assert that the Board committed legal error.
Rather, Claimant contends that the Board’s decision was not supported by
substantial evidence. First, Claimant argues that the Board misconstrued and
mischaracterized the medical evidence – and that this faulty analysis led the Board
to accept Dr. Brokaw’s medical opinion over that of Dr. Freid. In support of this
position, Claimant posits that the Board’s bias against opioid use and opioid users
resulted in wrongful acceptance of Dr. Brokaw’s opinion.59 Tangentially, Claimant
argues that Scott Paper’s sole concern centered around the cost of the pain
medication, not his wellbeing.60
57
Dallachiesa v. General Motors Corp., 140 A.2d 137, 138 (Del. Super. 1958) (emphasis added).
58
Lopez v. Parkview Nursing Home, 2011 WL 900674, at *3 (Del. Super. Mar. 15, 2011).
59
Appellant’s Opening Br. at 1, 2; Appellant’s Reply Br. at 3.
60
Appellant’s Reply Br. at 2, 3.
12
Second, Claimant argues that the six-month timeline ordered by the Board is
unreasonable given his medical history. He suggests that, according to Dr. Freid’s
interpretation of his medical needs, that timeline should be extended.61 Both of these
arguments will be evaluated in detail below.
A. The Board’s Analysis of the Medical Testimony
Claimant contends that the Board misconstrued and mischaracterized the
medical evidence in this case. At the Hearing, the Board was presented with
competing medical opinions. Each doctor thoroughly addressed Claimant’s pain
management treatment and potential reduction of opioid medication. However, the
doctors reached differing conclusions concerning the timeline for Claimant’s
medication weaning. After reviewing the testimonies of both doctors, the Board
explicitly chose to accept the medical opinion of Dr. Brokaw over the medical
opinion of Dr. Freid.
The Board’s ability to accept one doctor’s medical opinion over another’s
finds substantial support in Delaware law.62 The Delaware Supreme Court has
61
Appellant’s Opening Br. at 1, 2; Appellant’s Reply Br. at 2, 3.
62
Munyan v. Daimler Chrysler Corp., 909 A.2d 133, 136 (Del. 2006) (“If the medical evidence is
in conflict, the Board is the finder of fact and must resolve the conflict.”); Playtex Prods., Inc. v.
Harris, 2004 WL 1965985, at *2 (Del. Super. Aug. 31, 2004) (“Where there is conflicting medical
testimony, it is well established under Delaware law that the IAB may rely on the opinion of either
expert and such evidence constitutes substantial evidence for the purpose of the IAB’s decision.”);
State v. Steen, 1999 WL 743326, at *3 (Del. Super. July 29, 1999) (“It is well-established that[,]
when qualified experts give conflicting medical testimony in a workers’ compensation case, the
13
determined that “the Board is free to choose between conflicting medical expert
opinions,” and the expert testimony which is relied upon will constitute substantial
evidence for purposes of appeal.63 There is no dispute that the Board’s decision to
accept the medical opinion of Dr. Brokaw over the medical opinion of Dr. Freid does
not constitute an error of law. The Board’s reliance upon Dr. Brokaw’s opinion is
supported by substantial evidence in the record. Further, Claimant’s arguments
concerning Board bias and Scott Paper’s focus on cost have no merit and are hereby
rejected. Accordingly, the Board’s analysis of the medical evidence will not be
disturbed by this Court on appeal.
B. The Board’s Determination on Claimant’s Weaning Schedule
Claimant argues that, because he has been stable on his opioid medication, the
timeline to reduce his dosages as set forth by Dr. Freid – as opposed to that of Dr.
Brokaw – is safer and will be more effective for him.64 He further posits that the
six-month timeline ordered by the Board is unreasonable. In making such an
argument, Claimant asks this Court to act as factfinder. This Court does not sit as a
Industrial Accident Board is free to rely on the opinion of either expert, and such evidence
constitutes substantial evidence for purposes of the Board’s decision.”).
63
Glanden, 918 A.2d at 1102 (Del. 2007) (quoting DiSabatino Bros. Inc., Wortman, 453 A.2d 102,
106 (Del. 1982)); Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009).
64
Appellant’s Reply Br. at 1, 3.
14
trier of fact when reviewing a decision of the Board on appeal. The sole trier of fact
in this case is the Board.65
Further, Delaware law supports that the Board has broad jurisdiction and
authority to order a claimant to act.66 The Board conducted the Hearing, made
factual determinations based upon testimony and documentation, and accepted Dr.
Brokaw’s testimony as more credible than the testimony of Dr. Freid. The Board
issued a decision, and, consistent with Dr. Brokaw’s testimony, ordered Claimant to
reduce his opioid intake to 90 MME per day over six months.67 Thus, there is
substantial evidence in the record to support the Board’s decision. Accordingly, that
decision will not be disturbed by this Court on appeal.
V. Conclusion
The essence of Claimant’s argument on appeal is that the Board should not
have accepted Dr. Brokaw’s medical opinion over that of Dr. Freid. In making this
argument, Claimant requests that this Court review the evidence, weigh each
witness’s credibility, and reach its own conclusions, substituting its own judgment
for the Board’s. This substitution of judgment is not the role of the reviewing Court.
65
Glanden, 918 A.2d at 1100 (Del. 2007).
66
See e.g. 29 Del. C. § 10102 (providing the IAB with authority to issue injunctive relief, to include
“requiring a named party to act”); Boone v. Syab Services/Capitol Nursing, 2012 WL 3861059, at
*2 (Del. Super. Aug. 23, 2012) (finding the Board has “administrative discretion” to compel a
claimant to use the Express Scripts program).
67
Appellee’s Answering Br., at 13.
15
Rather, the role of this Court is to conclude whether (1) there was substantial
evidence to support the Board’s decision; and (2) the Board committed legal error.
After reviewing the record, this Court concludes that there was substantial evidence
to support the Board’s decision and the Board did not commit legal error.
Accordingly, the decision of the Board is AFFIRMED.
IT IS SO ORDERED.
16