        IN THE SUPERIOR COURT OF STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY


THOMAS F. HEGLUND,                 )

     Claimant Below-Appellant,     )

           v.                      )      C.A. NO. N13A-11-003 ALR

AFL NETWORK SERVICES,              )

     Employer-Appellee.            )

                           Submitted: April 3, 2014
                            Decided: July 3, 2014

          On Appeal from Decision of the Industrial Accident Board
                 REVERSED in part and REMANDED



                        MEMORANDUM OPINION




Gary S. Nitsche, Esquire and Samuel D. Pratcher, II, Esquire, Weik, Nitsche,
Dougherty & Galbraith, Attorneys for Claimant Below - Appellee

Linda Wilson, Esquire, Marshall, Dennehy, Warner, Coleman & Goggen,
Attorneys 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

pursuant to 19 Del. C. § 2301(B) by stipulation. The Decision on Petition to




                                           2
Review Additional Compensation Due was issued November 6, 2013 (“Board

Decision”). This appeal followed.


      Dr. Bose testified at the hearing that the surgery proposed involves a

posterior exploration, a C2-3 decompression and fusion and revisions of the T2 and

C6 screws. Dr. Bose suggested surgically exploring the previous fusion sites to

ensure the T2 screws are not loose, as well as extending the decompression and

fusion to C2.   Dr. Bose’s opinion was that there is likely a micromotion or

loosening of the C6 screw on the left side and loosening of both of the T2 screws.

According to Dr. Bose, these issues are best be explored by disconnecting the rods

and toggling on the screws. If a screw is loose, Dr. Bose stated that he must

replace it with a bigger screw or get fixation on the level below where the vertebra

pedicle is normal. The Board Decision notes Dr. Bose’s stated goals for the

surgery.


      Dr. Bose conceded that surgery would not increase Appellant’s function and

not enable Appellant to return to work. However, Dr. Bose testified that the

surgery is reasonable and necessary to achieve the ultimate goal of decreasing

Appellant’s pain level and reducing Appellant’s use of pain medication.

Moreover, Dr. Bose opined that Appellant’s other options, a spinal cord stimulator

and pain pump are not ideal for Appellant because his body will eventually adapt


                                         3
to the medications used in these options, thereby necessitating an increase in

dosage and decrease in effectiveness over time.


      Appellant also testified at the hearing. Appellant stated that after the 2011

surgery, he initially did not have headaches and considered the surgery to be

beneficial. However, according to Appellant, a few months after the 2011 surgery,

his headaches, pain in his neck, his shoulder and his arms returned and gradually

increased. Appellant testified that he is currently experiencing severe continuous

pain in the back or the left side of his head, in his neck, and in both shoulders.

Appellant also testified to periodic severe pain in his collar bone area. Appellant

admitted that he has fibromyalgia. Appellant also testified that his functional

ability is significantly limited and that he has a very limited range of motion.


      Dr. Scott Rushton, a board-certified orthopedic surgeon, testified on behalf

of Employer. Dr. Rushton examined Appellant three times prior to Appellant’s

2011 surgery. Dr. Rushton opined that the additional proposed surgery is not

reasonable or necessary. Dr. Rushton testified that a surgical approach may be a

viable option, but that the surgery will likely fail and increase Appellant’s

disability. For example, Dr. Rushton opined that Appellant’s 2011 surgery failed

because Appellant’s cervical thoracic kyphosis was not addressed, and would not

be addressed properly by Dr. Bose’s proposed third surgery. Dr. Rushton opined

that Appellant’s neck pain and headaches would likely not be improved with
                                          4
surgery and that Appellant should manage his symptoms without surgical

intervention.


      In connection with Dr. Rushton’s review of Dr. Bose’s medical notations

from December 24, 2012, Dr. Rushton acknowledged that the diagnostic testing

results contained therein raised concerns about the T2 screws and the C6 screw.

While Dr. Rushton agrees with the diagnostic test results, he states that more than

diagnostic test results are required for Appellant to be a candidate for surgery. As

the Board Decision notes, however, Dr. Bose relies on more than diagnostic test

results to conclude that additional surgery should be performed.


      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.

On the other hand, the Board Decision stated in the conclusion, “[Appellant] may

require surgery to fix any screws that may be loose, but the surgery as proposed

does not appear to be a reasonable or necessary approach to correcting such

problems if they exist.” Appellant’s Petition for Additional Compensation Due

was denied.




                                         5
       Appellant appealed the Industrial Accident Board’s denial of additional

compensation for the additional surgery proposed by Dr. Bose. Appellant argues

that the Board’s Decision should be reversed and compensation should be awarded

because the proposed surgery is reasonable and necessary for the treatment of

Appellant’s chronic pain symptoms as a result of the work-related accident.

Employer argues that the Board’s Decision should be affirmed because the Board’s

findings are supported by substantial evidence on the record.


       In reviewing a Board decision, the Court must first 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 Next, the burden is on the

Appellant to show that the Board acted “contrary to law, fraudulently, arbitrarily or

capriciously.” 5 The Board will be reversed where “the Board’s findings are clearly




2
  Patterson v. Red Clay Consolidated School District, 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.
5
  Odessa National Golf Course LLC v. New Castle County Office of Finance, 2014 WL 1101470,
at *2 (Del. Super. March 14, 2014).
                                              6
wrong and its conclusions [are] not the product of an orderly and logical deductive

process.”6


       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 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. Moreover, the Board Decision recognized that Dr.

Rushton’s review of the T2 and C6 diagnostic results were 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.




6
 Id. (quoting Tatten Partners, L.P. v. New Castle County Bd. of Assessment Revies, 642 A.2d
1251, 1256 (Del. Super. 1993).
                                              7
      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.     This matter is REMANDED to the Hearing Officer for

consideration of conclusions consistent with the factual findings set forth in the

Board Decision.


      IT IS SO ORDERED this 3rd day of July, 2014.


                                     Andrea L. Rocanelli
                                     __________________________________
                                     The Honorable Andrea L. Rocanelli




                                        8
