Brittingham v. St. Michael's Rectory

788 A.2d 519, 2002 Del. LEXIS 9, 2002 WL 63108
CourtSupreme Court of Delaware
DecidedJanuary 11, 2002
DocketNo. 409, 2000
StatusPublished
Cited by5 cases

This text of 788 A.2d 519 (Brittingham v. St. Michael's Rectory) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brittingham v. St. Michael's Rectory, 788 A.2d 519, 2002 Del. LEXIS 9, 2002 WL 63108 (Del. 2002).

Opinion

HOLLAND, Justice.

This is an appeal from a final judgment of the Superior Court by the claimant-appellant, Bertha Brittingham. Britting-ham sustained a compensable injury to her cervical spine during the course of her employment by the employer-appellee, St. Michael’s Rectory. The Superior Court affirmed a decision by the Industrial Accident Board (the “Board”) that Brittingham forfeited the right to continued compensation by refusing her employer’s offer of reasonable medical treatment.

In this appeal, Brittingham argues that the Board and the Superior Court erred, as a matter of law, in construing the forfeiture provisions of DEL. CODE ANN. tit. 19, § 2353(a) (1995). In particular, Brit-tingham contends that a prior Superior Court decision, that was relied upon by the Board and the Superior Court in her ease, set forth an incorrect construction of the forfeiture provision in Section 2353(a).1 We have concluded that Brittingham’s argument is meritorious. Therefore, the judgment of the Superior Court must be reversed.

Facts

On December 22, 1998, Brittingham was injured in the course of her employment with St. Michael’s Rectory (the “Employer”). The injury occurred when Britting-ham lifted a carton weighing between twenty and twenty-five pounds. She felt something snap in her neck and experienced a burning sensation in her neck area as well as aching in her lower back. Following the accident, the parties entered into an agreement for total disability benefits as compensation due for the injury.

Subsequently, Brittingham began to seek treatment for her injuries from a board certified neurosurgeon, Dr. Balepur Venkataramana. Dr. Venkataramana advised Brittingham she was a candidate for cervical fusion surgery and he recommended using an anterior approach for the fusion. The proposed anterior approach entailed an incision on the left, front-side of the neck, exposure of the cervical spine, removal of a disk and filling the disk space with a piece of bone graft taken from Brittingham’s hip. Brittingham did not consent to the proposed surgery. In 1990 she underwent neck surgery and did not [521]*521want to undergo similar surgery again. Instead, she began a short course of physical therapy prescribed by Dr. Venkatara-mana, which ended when she could no longer tolerate the pain. Brittingham continued to take pain medication and a muscle relaxant.

Brittingham then sought additional medical opinions regarding the need for surgery and alternative options for treatment. When researching treatment options, Brittingham focused on her medical history. She believed her history of smoking and diagnosed osteopenia, a precursor condition to osteoporosis, might affect the outcome of the proposed surgery, which required bone harvesting to perform the fusion.

At the Employer’s request, Brittingham consulted Dr. Paul Asdourian, a board certified orthopedic surgeon specializing in spinal surgery. She sought an additional medical opinion from Dr. Henry Shuey, a board certified neurosurgeon. Britting-ham determined that she had three options: an anterior approach cervical fusion surgery; a posterior approach cervical fusion surgery; and no surgery, with treatments to assist her in coping with the injury’s effects.

After considering her options, Britting-ham chose not to have a cervical fusion surgery. The Employer insisted that she have the surgery or it would seek to terminate her total disability benefits. On May 25, 1999, the Employer- filed a Petition for Review of the compensation agreement pursuant to DEL. CODE ANN. tit. 19, § 2358(a) (1995). The Employer alleged Brittingham unreasonably refused to undergo surgery and her refusal was the cause of her ongoing disability. The Board conducted a hearing on October 14, 1999 to determine the merits of the Employer’s petition.

At the hearing, Dr. Asdourian testified by deposition for the Employer. Dr. As-dourian examined Brittingham in February and September 1999 and reviewed her medical records. He diagnosed her condition as a symptomatic degenerative disk at C5-C6 and opined that the anterior approach recommended by Dr. Venkatara-mana was preferred. Dr. Asdourian testified that Brittingham’s concerns for her smoking history could be addressed with minimal additional risks by inserting a plate during surgery to help the healing of the bone graft.

Dr. Asdourian testified that a cervical fusion had a ninety-five percent predictable success rate and if properly performed the surgery posed a risk of not more than one percent. Dr. Asdourian predicted Brittingham’s condition would get worse without the surgery since she could develop permanent nerve dysfunction in both arms. He further testified that it would not be totally unreasonable for her to decline the surgery. He believed that without the surgery she could continue her employment with minimal accommodations and was capable of sedentary work on a part-time basis.

Dr. Shuey testified by deposition for Brittingham. Dr. Shuey examined Brit-tingham and reviewed her medical records on March 31, 1999. He diagnosed her condition as a C6 nerve root impingement syndrome associated with neurological deficits probably stemming from her 1990 neck surgery. Dr. Shuey opined that Brit-tingham was a surgical candidate but that a posterior approach was a more appropriate method than the anterior approach for the fusion proposed by Dr. Venkatarama-na. The posterior approach entailed an incision on the skin over the spine, taking down the muscles, and drilling out the area between the lamina to create a doorway for the nerves.

[522]*522Dr. Shuey remarked that Brittingham’s history of smoking would increase the risk of failure for the fusion surgery. He believed the use of a plate would increase the surgery’s success but would add a ten percent chance of esophageal dysfunction with swallowing difficulties. Dr. Shuey testified the success rates for the anterior or posterior approach were eighty percent for complete success, ten to fifteen percent for satisfactory results with residual symptoms, and a five percent failure rate. He believed Brittingham could expect a reduction in pain and improvement in neurological disk function but did not find it unreasonable for her to decline the surgery.

On October 26, 1999, the Board issued a decision determining that Brittingham had forfeited her rights to compensation for total disability pursuant to DEL. CODE ANN. tit. 19, § 2353(a) (1995). The Board decided Brittingham had refused reasonable surgery. It determined the surgery “reasonable” since all medical experts recommended the surgery and no doctor advised against it, her chance of improvement with surgery was considerable while the risk of complications was slight and her condition would not improve without surgery.

Although medical experts differed as to the approach for the cervical fusion surgery, the Board found that differing opinions did not affect the reasonableness of Brittingham’s refusal since she could ultimately decide which approach she preferred. The Board further determined Brittingham’s refusal of reasonable surgery caused her continuing incapacity. The Board emphasized its decision did not direct Brittingham to undergo the proposed surgery but that her refusal of reasonable surgery forfeited her eligibility for total disability benefits.

Following the Board’s adverse decision, Brittingham filed a timely appeal to the Superior Court. On July 25, 2000, the Superior Court issued a Memorandum Opinion affirming the Board’s decision.

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Bluebook (online)
788 A.2d 519, 2002 Del. LEXIS 9, 2002 WL 63108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brittingham-v-st-michaels-rectory-del-2002.