IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
MICHELLE A. CLINE, ) ) Claimant Below-Appellant, ) C.A. No. N22A-11-003 FWW ) v. ) ) THE NEMOURS FOUNDATION, ) ) Employer Below-Appellee. )
Submitted: July 27, 2023 Decided: October 11, 2023
MEMORANDUM OPINION
On Appeal from the Industrial Accident Board: REVERSED and REMANDED
Jessica Lewis Welch, Esquire, DOROSHOW, PASQUALE, KRAWITZ & BHAYA, 1208 Kirkwood Highway, Wilmington, Delaware 19805, Attorney for Appellant Michelle A. Cline.
Keri L. Morris-Johnson, Esquire, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, 1007 N. Orange Street, Suite 600, P.O. Box 8888, Wilmington, Delaware 19899, Attorney for Appellee The Nemours Foundation.
WHARTON, J. I. INTRODUCTION
Michelle A. Cline (“Cline”) filed a Notice of Appeal on November 14, 2022
seeking a review of the October 13, 2022 decision by the Industrial Accident Board
(“Board”), mailed October 17, 2022. Cline contends that the Board erred when it
denied her Petition for Additional Compensation, concluding that she was not
entitled to additional compensation for total knee replacement surgery.
In this appeal, Cline asks the Court to determine whether the Board committed
legal error, or abused its discretion, by failing to apply the proper legal standards as
set forth by the Delaware Supreme Court and incorrectly applying the Delaware
Healthcare Practice Guidelines (“Guidelines”) in its application of 19 Del. C. § 2322.
She also asks the Court to determine whether the Board’s decision that her medical
treatment was not reasonable and necessary was supported by substantial evidence.
Specifically, Cline asks the Court to consider whether the Board failed to make an
individualized determination of the reasonableness of her treatment under
Brittingham v. St. Michael’s Rectory,1 and whether it misinterpreted the Guidelines
as requiring the “exhaustion of conservative treatment” rather than the “exhaustion
of all reasonable conservative treatment” before a knee replacement is reasonable.
She also asks the Court to consider whether the Board’s decision to accept the
opinion of her employer’s expert medical witness, Dr. Eric Schwartz (“Dr.
1 788 A.2d 519 (Del. 2002). 2 Schwartz”), rather than the opinion of her treating physician, Dr. James Rubano
(“Dr. Rubano”), was supported by substantial evidence. After considering the three
relevant paragraphs of the Board’s decision regarding the legal standard it applied
and the factual support for its decision, the Court concludes that it is unable to say
with confidence that the Board’s decision is free from legal error and supported by
substantial evidence. Specifically, the Court is unable to conclude that the Board
considered whether “all reasonable conservative treatment had been exhausted” as
to Cline’s treatment specifically and not generally as to anyone in her position.
Further, since the Board’s decision is almost totally conclusory, the Court cannot
say that the Board’s determination that Cline’s total knee replacement surgery was
not reasonable and necessary was supported by substantial evidence. Therefore, the
Court finds that the Board’s decision was not free from legal error and was not
supported by substantial evidence. Accordingly, the Board’s decision is
REVERSED and REMANDED for further proceedings consistent with this
Opinion.
II. FACTUAL AND PROCEDURAL CONTEXT
Cline has appended a Joint Stipulation of Facts for the hearing before the
Board on September 23, 2022 to her Opening Brief on appeal.2 That Stipulation
simply recites, in pertinent part, that: (1) Cline sustained a compensable work related
2 Stip. of Facts, App. to Op. Br. at A1., D.I. 13. 3 injury to her right knee while in the course and scope of her employment with
Nemours; (2) as a result of her injuries, she underwent a total right knee replacement
surgery with Dr. Rubano on May 17, 2021; and (3) she was paid total workers’
compensation benefits until her return to work following surgery.3 The Board set
out the procedural posture of the case as well as a detailed summary of the evidence
presented at the hearing before the Board on September 23, 2021 in its decision.4
Since neither party takes exception to the Nature and Stage of the Proceedings or the
Summary of the Evidence set out in the Board’s decision, the Court accepts them.5
On March 15, 2021, Cline sustained a compensable injury to her right knee
while she was working for Nemours when a pediatric patient kicked her in the knee
and punched her in the face.6 Two months later, on May 17, 2021, Dr. Rubano
performed a total knee replacement surgery to treat her right knee injury. Cline filed
a Petition for Additional Compensation on January 31, 2022 seeking
acknowledgment of the compensability of the total knee replacement surgery.7
Nemours disputed the reasonableness, necessity and causal relationship of the
surgery to the work injury.8
3 Id. 4 Cline v. Nemours Foundation, No. 1509418, at 2-9, (I.A.B. Oct. 13, 2022), App. to Op. Br. at A112-22, D.I. 13. 5 Id. 6 Id. at 2. 7 Id. 8 Id. 4 The Board held a hearing on September 23, 2022.9 At the hearing, Cline
presented the deposition testimony of Dr. Rubano, a board certified orthopedic
surgeon with a subspeciality in hip and knee replacement surgeries, who is also a
certified provider under the Delaware Workers’ Compensation Healthcare System.10
Dr. Rubano opined to a reasonable medical probability that the total knee
replacement was reasonable and necessary.11 He testified that Cline had a medial
meniscus tear and arthritis, and that, while the meniscal tear could have contributed
to Cline’s pain, her arthritis was the primary pain generator. 12 Were it not for the
work injury, Cline’s arthritis would not have become symptomatic.13
Dr. Rubano testified that he began treating Cline on April 9, 2021.14 He
reviewed reports and films of X-rays and an MRI and felt that both reports
downplayed the extent of Cline’s arthritis.15 In his opinion, the X-rays demonstrated
arthritis in the patella femoral joint and the MRI demonstrated moderate to severe
arthritis, particularly underneath the kneecap, under the patella femoral joint.16 Cline
had a meniscal tear and advanced medial and lateral arthritic changes underneath the
9 Id. 10 Id. 11 Id. 12 Id. 13 Id. 14 Id. 15 Id. 16 Id. at 3. 5 kneecap.17 Dr. Rubano added that a direct trauma or blow to the knee can cause the
kneecap to impact against the femur and exacerbate or accelerate arthritis or post-
traumatic arthritis.18 With Cline, the injury accelerated her preexisting
asymptomatic arthritis requiring the treatment he performed.19
When Dr. Rubano first saw her, Cline was having significant difficulty
performing her activities of daily living.20 She had tried to return to light duty after
the injury, but her knee gave out, causing her to nearly collapse.21 Dr. Rubano’s
notes from Cline’s initial appointment indicated that she had tried conservative
interventions such as taking time off from work and taking anti-inflamatories.22 He
discussed with her various treatment options, including conservative care and
surgery.23 In Dr. Rubano’s view, conservative treatments such as injections, anti-
inflamatories, and physical therapy would not provide a long term solution.24
Conservative care also would not address Cline’s arthritis, her primary pain
generator.25 Similarly, arthroscopic surgery would only address pain from the
meniscal tear, whereas, a total knee replacement would address both the arthritis and
17 Id. 18 Id. 19 Id. 20 Id. 21 Id. 22 Id. 23 Id. at 4. 24 Id. 25 Id. 6 the meniscal tear and give Cline the best chance of full pain relief and of returning
to work in a timely fashion.26 After surgery, Cline returned to her job as a nurse
without restrictions.27
Dr. Rubano acknowledged that he did not administer any conservative
treatment to Cline and that when Cline first visited him, he was not able to determine
whether the meniscal tear or the arthritis was the cause of her pain.28 Dr. Rubano
did dispute Dr. Schwartz’s opinion that the mechanism of Cline’s injury would not
have produced the fold slap tear of her medial meniscus.29 He explained that the
fold slap tear could not be dated and could have preexisted the work injury.30
Cline testified as well. She testified she is 51 years old and works as a
pediatric nurse in the Pediatric Intensive Care Unit.31 She has been a nurse for almost
31 years and at Nemours for 14 years.32 She believes the patient who punched her
in the face and kicked her in the knee to be about 13 or 14 years old.33 She typically
works 12 hour shifts, mostly on her feet.34 Her job can be strenuous and requires
26 Id. 27 Id. 28 Id. 29 Id. 30 Id. 31 Id. at 5. 32 Id. 33 Id. 34 Id. 7 lifting.35 There are no light duty jobs available.36 She also teaches nursing as a side
job and watches her two year old granddaughter.37
After her injury, she treated at Med Express for right knee pain. 38 She tried
to continue working, but eventually, her knee started to collapse, preventing her from
working.39 Between March 15, 2021 and April 9, 2021, she was on total disability.40
She self-treated with ice, Motrin, and rest.41 Light therapeutic exercises at home
only increased her pain.42 She was unable to stand for prolonged periods, sat in a
chair to cook and wash dishes, and relied on a seat when showering.43 Driving more
than 30 minutes was too painful and she stayed on the first floor of her house because
she was unable to use the stairs.44
When she first saw Dr. Rubano, he discussed several treatment options,
including exercises, several types of injections, physical therapy, arthroscopic
surgery, and total knee replacement surgery.45 In discussing the treatment options,
he was of the opinion that neither conservative treatment, nor arthroscopic surgery
35 Id. 36 Id. 37 Id. 38 Id. 39 Id. 40 Id. 41 Id. 42 Id. 43 Id. 44 Id. 45 Id. 8 would help because they would not address her arthritis.46 She felt she needed to
return to full duty work because Nemours would replace her job if she was out four
to six months.47
After discussing her options with her husband and doing additional online
research, she decided to proceed with a total knee replacement surgery because she
concluded that the more conservative options would not work or, in the case of
arthroscopic surgery, only be a temporary solution.48 She disputes a note in Dr.
Rubano’s records that a pre-surgical injection provided her with immediate pain
relief, testifying that she does not recall any relief from the injection.49 She
concluded that a total knee replacement would provide her with the greatest chance
of timely returning to work without restrictions.50
Cline was able to return to work full time in August 2021 after surgery.51 She
was very happy with the full knee replacement surgery.52 Her knee feels amazing
and she was able to return to nearly all her activities of daily living, including
46 Id. at 5-6. 47 Id. at 6. 48 Id. 49 Id. 50 Id. 51 Id. 52 Id. 9 navigating stairs and running.53 While kneeling continues to be problematic,
otherwise, she essentially is pain free.54
Dr. Schwartz testified by deposition for Nemours. Like Dr. Rubano, he is
board certified in orthopedic surgery and a certified provider under the Delaware
Workers’ Compensation Healthcare System.55 Although, unlike Dr. Rubano, he has
not performed a knee replacement surgery in 10 or 15 years.56 He examined Cline
on September 21, 2021.57 Dr. Schwartz questioned the causal relationship of the
replacement surgery to the injury, explaining that it would be unusual for a kick in
the knee by a pediatric patient to result in a significant meniscal tear.58 He further
believes that the mechanism of the injury would not have aggravated arthritis to
cause it to become symptomatic.59
Apart from causation, Dr. Schwartz opined that total knee replacement
surgery was neither reasonable, nor necessary.60 In his view, the “rush” to surgery,
either arthroscopic or total replacement, did not comply with the Guidelines,
Medicare Guidelines, or Highmark of Delaware Guidelines because all three
53 Id. 54 Id. 55 Id. at 6-7. 56 Id. 57 Id. at 7. 58 Id. 59 Id. 60 Id. 10 guidelines call for exhaustion of conservative treatment and documented
limitations.61 There was no evidence Cline had significant long term pain and no
documentation of how her quality of life was being limited.62
Dr. Schwartz explained that conservative treatment includes nonsteroidal anti-
inflamatories, therapeutic injections such as Cortisone injections, supervised
physical therapy, muscle strength exercises, use of assistive devices, and weight
reduction, none of which Cline underwent.63 Merely talking about conservative
options, as appears to be the case here, is not sufficient to comply with the
Guidelines.64 Dr. Schwartz testified that it was very likely that conservative
treatment could return a person to a pre-injury level of function and activity.65 In his
opinion, Cline should have been given time to get well.66
Dr. Schwartz further explained that Cline’s X-rays were essentially normal
and an April 2, 2021 MRI identified a medial meniscal tear, mild degenerative
changes, not apparent on the X-rays, a mild lateral patella tilt, and diffused left and
61 Id. 62 Id. 63 Id. 64 Id. 65 Id. at 7-8. 66 Id. at 8. 11 50% thickness loss, none of which were significant.67 Total knee replacement
requires severe degenerative joint disease, which was not present here.68
Dr. Schwartz acknowledged that Cline’s arthritis predated her work injury and
that it had been asymptomatic up until the injury.69 He also acknowledged that a
trauma could cause an asymptomatic condition to become symptomatic.70 On cross-
examination, Dr. Schwartz admitted that he did not review the films from the X-rays
or the MRI, only the reports.71 He was also unaware that there was a strict timeframe
for Cline to return to full-duty work to maintain her employment.72 Nor was he
aware that Cline had attempted to return to work before her surgery, but was unable
to do so because her knee gave out.73 Finally, Dr. Schwartz acknowledged that the
Guidelines are merely advisory and that treatment must be tailored to the individual
patient and not rendered to fit general scenarios.74
Based on the totality of the evidence presented, the Board found that
proceeding to total knee replacement surgery without exhausting conservative care
was not reasonable or necessary.75 In doing so, it accepted the medical opinions of
67 Id. 68 Id. 69 Id. 70 Id. 71 Id. 72 Id. at 8-9. 73 Id. at 9. 74 Id. 75 Id. at 10. 12 Dr. Schwartz over those of Dr. Rubano.76 In particular, it accepted Dr. Schwartz’s
testimony that a “rush” to surgery would not comply with the Guidelines, the
Medicare Guidelines, or the Highmark of Delaware Guidelines because all three
guidelines call for “exhaustion of conservative treatment and documented
limitations.”77 The Board acknowledged that the Guidelines are merely guidelines,
but found that Cline should have pursued some type of conservative treatment first.78
The Board concluded Dr. Rubano rushed the full knee replacement surgery.79
The Board was concerned that neither the reports from the X-rays, nor from the MRI
identified significant arthritis, yet Dr. Rubano testified that his review of the MRI
films identified moderate to severe arthritis.80 Further, his incorrect statement in his
medical records that Cline had exhausted conservative treatment when she had not
detracted from his credibility.81 Further, Dr. Rubano’s records did not sufficiently
support a diagnosis of severe degenerative joint disease, a requirement for total knee
replacement in Dr. Schwartz’s opinion.82 Finally, the Board appreciated Cline’s
76 Id. 77 Id. 78 Id. 79 Id. 80 Id. 81 Id. 82 Id. at 10-11. 13 need to return to full-duty work, but found that it was not reasonable or necessary to
rush to undergo a total knee replacement surgery.83
III. THE PARTIES’ CONTENTIONS
Cline contends that the Board’s decision should be reversed because the Board
committed legal error or abused its discretion and because its finding that her total
knee replacement surgery was not reasonable and necessary was not supported by
substantial evidence. First, Cline contends that the Board committed legal error
when it failed to address and apply the standards set forth in Brittingham v. St.
Michael’s Rectory.84 In particular, the Board failed to decide whether the treatment
was reasonable for Cline specifically by considering and analyzing various factors
including her age, prior surgical experience, general physical condition, likelihood
of success of the treatment, risk of worsening of the condition, or risk of death from
the offered treatment.85 Further, the Board incorrectly applied the standards set forth
in the Guidelines.86 The Board failed to give effect to the Guidelines’ statement that
services rendered by any Delaware workers’ compensation certified medical
provider, which Dr. Rubano is, “shall be presumed, in the absence of contrary
evidence, to be reasonable and necessary if such treatment and/or services conform
83 Id. 84 Op. Br. at 25 (citing Brittingham v. St. Michael’s Rectory, 788 A.2d 519 (Del. 2002), D.I. 13. 85 Id. (citing Brittingham, at 524-25). 86 Id. at 28. 14 to the most current version of the Guidelines.”87 Deviations from the Guidelines
may be acceptable, however.88 The Guidelines specifically identify that total knee
replacement is reasonable when there is “severe osteoporosis and all reasonable
conservative measures have been exhausted and other reasonable surgical options
have been considered.”89 The Board incorrectly applied that standard when it held
the Guidelines require the “exhaustion of conservative treatment,” not the
exhaustion of all reasonable conservative measures as the Guidelines require.90
Second, Cline contends that the Board’s conclusion that Cline’s total knee
replacement was not reasonable and necessary is not supported by substantial
evidence.91 Cline challenges the Board’s determination to accept the opinion of Dr.
Schwartz over that of Dr. Rubano.92 Specifically, she contends that Dr. Schwartz’s
opinion was invalid because it lacked a factual foundation93 and was contradictory
and inconsistent regarding Cline’s diagnosis and treatment.94 Finally, Dr. Rubano’s
opinion regarding Cline’s diagnostic films was uncontradicted.95
87 Id. at 28-29 (quoting 19 Del. C. 2322C(6)). 88 Id. 89 Id. at 29 (quoting Delaware Healthcare Practice Guidelines, 19 Del. Admin. C. § 1342-7.4.5). 90 Id. 91 Id. at 32. 92 Id. at 33-44. 93 Id. at 34-38. 94 Id., at 39-41. 95 Id. at 41-43. 15 In response, Nemours argues that, although Brittingham, decided in 2002,
still is good law, more recent decisions make it clear that Brittingham is “to be a
factor in evaluating the reasonableness and necessity of treatment, rather than a
bright-line rule permitting claimants to choose their own course of treatment with
complete disregard of the established Guidelines.”96 Nemours contends that here it
is clear that Cline “jumped over” more conservative care options in an effort to return
to work as soon as possible, but, because she did not exhaust those conservative care
options, the Board acted within its legal authority in denying her petition for
additional compensation.97 Further, the Board’s decision was based on substantial
evidence in the form of Dr. Schwartz’s testimony that Cline’s rushed surgery was
not reasonable and necessary.98
IV. STANDARD OF REVIEW
The Board’s decision must be affirmed so long as it is supported by substantial
evidence and is free from legal error.99 Substantial evidence is that which a
reasonable mind might accept as adequate to support a conclusion.100 While a
96 Answering Br. at15-16 (citing Nobles-Roark v. Burner, 2020 WL 4344551, at *2 (Del. Super. Ct. July 28, 2020)), D.I. 14. 97 Id. at 16. 98 Id. at 16-19. 99 Conagra/Pilgrim’s Pride, Inc. v. Green, 2008 WL 2429113, at *2 (Del. June 17, 2008). 100 Kelley v. Perdue Farms, 123 A.3d 150, 153 (Del. Super. 2015) (citing Person- Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009)). 16 preponderance of evidence is not necessary, substantial evidence means “more than
a mere scintilla.”101 Questions of law are reviewed de novo,102 but because the Court
does not weigh evidence, determine questions of credibility, or make its own factual
findings,103 it must uphold the decision of the Board unless the Court finds that the
Board’s decision “exceeds the bounds of reason given the circumstances.”104
V. DISCUSSION
The portion of the Board’s decision entitled “FINDINGS OF FACT AND
CONCLUSIONS OF LAW” consists of four paragraphs.105 It is in this section that
the Board sets out the legal standards it applied and the factual basis for its decision.
The first paragraph lays out the standard for an injury to be compensable as a work
related injury and the party bearing the burden of proof, neither of which are at issue
in this appeal.106 The remainder of the Board’s decision is reproduced below.
When an employee has suffered a compensable injury, the employer is required to pay for reasonable and necessary medical services/treatment causally related to that injury. 19 Del. C. §2322. What constitutes “reasonable medical services” for the purposes of Section 2322 is determined by the Board on a case-by-case basis. See Willey v. State,
101 Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988). 102 Kelley, 123 A.3d at 152–53 (citing Vincent v. E. Shore Markets, 970 A.2d 160, 163 (Del. 2009)). 103 Bullock v. K-Mart Corp., 1995 WL 339025, at *2 (Del. Super. May 5, 1995) (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66–67 (Del. 1965)). 104 Bromwell v. Chrysler LLC, 2010 WL 4513086, at *3 (Del. Super. Oct. 28, 2010) (quoting Bolden v. Kraft Foods, 2005 WL 3526324, at *3 (Del. Dec. 21, 2005)). 105 Cline, No. 1509418 at 9-12. 106 Id. at 9. 17 Del. Super., C.A. No. 85A-AP-16, Bifferato, J., 1985 WL 189319 at *2 (November 26, 1985). “Whether medical services are necessary and reasonable or whether the expenses are incurred to treat a condition causally related to an industrial accident are purely factual issues within the purview of the Board.” Bullock v. K-Mart Corporation, Del. Super., C.A. No. 94A-02-002, 1995 WL 339025 at *3 (May 5, 1995).
Based on the entirety of the evidence incorporated herein, the Board finds that proceeding to a total knee replacement surgery without exhausting conservative care was not reasonable or necessary. The Board accepts the medical opinions of Dr. Schwartz over the medical opinions of Dr. Rubano. Dr. Schwartz testified that such a rush to surgery (whether total knee replacement surgery or arthroscopic surgery) would not be compliant with the Practice Guidelines, with the Medicare Guidelines or with the Highmark of Delaware Guidelines. All three guidelines call for exhaustion of conservative treatment and documented limitations. While Practice Guidelines are merely guidelines, the Board finds that Claimant should have pursued some type of conservative treatment first. It may have helped.
Dr. Rubano did present as rushing to a significant surgery. Both doctors testified the X-rays were relatively normal. The MRI report did not identify significant arthritis. Dr. Rubano disputed the MRI report. He testified that when he reviewed the MRI films, he identified moderate to severe arthritis. It is concerning that the diagnostic reports did not identify significant arthritic findings, yet Dr. Rubano represented that there were. The Board would have been interested to have heard Dr. Schwartz’s interpretation of the MRI films. Dr. Rubano’s incorrect statement in his medical records indicating Claimant had exhausted conservative treatment when she did not, detracted from Dr. Rubano’s credibility. His medical records should have supported his opinion that conservative treatment would not have been beneficial. 18 Dr. Schwartz testified that total knee replacement requires severe degenerative joint disease – a finding the medical records did not sufficiently support. The Board appreciates Claimant’s need to return to full-duty work but under this set of facts, the Board finds that it was not reasonable or necessary to rush to undergo a total knee replacement surgery. The Board denies Claimant’s Petition for Additional Compensation.107
A. The Board’s Decision Was Not Free From Legal Error.
In pressing her argument that the Board committed legal error or abused its
discretion, Cline first contends that the Board failed to correctly apply the Delaware
Supreme Court’s decision in Brittingham.108 In Brittingham, the claimant sustained
a compensable injury to her cervical spine during the course of her employment at
St. Michael’s Rectory.109 Brittingham sought treatment from a board certified
neurosurgeon who recommended cervical fusion surgery.110 She declined the
surgery because years before she had undergone neck surgery and did not want to
undergo similar surgery again.111 She attempted physical therapy, but discontinued
it when she could no longer tolerate the pain and continued with pain medication.112
After researching her medical options, Brittingham believed her history of smoking
and a diagnosed precursor condition to osteoporosis might affect the outcome of
107 Id. at 9-11. 108 Brittingham, 788 A.2d at 520. 109 Id. 110 Id. 111 Id. at 520-21. 112 Id. at 521. 19 surgery requiring bone harvesting for fusion, such as the proposed surgery. 113 At
her employer’s request, she consulted with a board certified orthopedic surgeon who
specialized in spinal surgery as well as a neurosurgeon she chose.114 She determined
her options were two types of fusion surgery using different approaches or no
surgery with treatments to help her cope with her injury.115 She elected not to have
surgery and, as a result, her employer ultimately sought to terminate her total
disability benefits.116 It alleged that Brittingham had unreasonably refused to
undergo surgery and her refusal was the cause of her ongoing disability.117 The
Board determined that Brittingham had forfeited her right to total compensation by
refusing to undergo reasonable surgery.118 The Superior Court affirmed on appeal.119
Resolving a split in Superior Court opinions regarding a claimant’s refusal of
medical treatment so as to forfeit compensation benefits, the Delaware Supreme
Court reversed.120 It found that the record in Brittingham’s case reflected the
complexity of variables that had to be factored into determining the reasonableness
of Brittingham’s refusal to have surgery.121 First was that the recommended surgical
113 Id. 114 Id. 115 Id. 116 Id. 117 Id. 118 Id. at 522. 119 Id. 120 Id. at 522-23. 121 Id. at 524. 20 procedure was major.122 Second was Brittingham’s physical condition as a smoker
with a precursor condition to osteoporosis.123 Third, the risks of surgery were
significant.124 Fourth, although all three surgeons predicted a high rate of success,
their perspective on a low risk of serious injury or death might be different from the
person undergoing the surgery.125 Fifth, Brittingham was not pleased with the results
of a prior surgical experience.126 Finally, two doctors, one from each side, who
appeared before the Board testified that it would be reasonable for Brittingham to
decline the surgery.127 Accordingly, the Supreme Court held that the reasonableness
of Brittingham’s refusal of her employer’s offer of reasonable medical care must be
considered by the Board.128 It was error to interpret the term “reasonable medical
treatment” objectively based on the treatment, and not subjectively based on the
claimant.129 The Board “must determine whether the treatment is reasonable for the
specific claimant and not whether the treatment is reasonable generally for anyone
with the claimant’s condition.”130
122 Id. 123 Id. 124 Id. 125 Id. at 525. 126 Id. 127 Id. 128 Id. at 522. 129 Id. at 523. 130 Id. 21 Six years after Brittingham was decided, the Guidelines were adopted.131
“Services rendered by any health-care provider certified to provide treatment
services for employees shall be presumed, in the absence of contrary evidence, to be
reasonable and necessary if such treatment and/or services conform to the most
current version of the Delaware health-care practice guidelines.”132 With respect to
knee replacement surgery, such surgery is reasonable when there is “severe
osteoarthritis and all reasonable conservative measures have been exhausted and
other reasonable surgical options have been considered.”133
Brittingham and the Guidelines are not in conflict, and, as Nemours
acknowledges, Brittingham still is good law.134 Consistent with Brittingham, then,
in making its factual determination as to the necessity and reasonableness of Cline’s
surgery, it is incumbent upon the Board to consider whether “all reasonable
conservative measures have been exhausted” as to Cline’s treatment specifically,
and not generally for anyone in her position.
In the three relevant paragraphs of its Finding of Facts and Conclusions of
Law, the Board did not expressly apply that standard.135 At best, it alluded to a
requirement that it make its determination on a case-by-case basis, citing a case that
131 Answering Br. at 14, D.I. 14. 132 19 Del. C. § 2322C(6). 133 19 Del. Admin. C. § 1342-7.4.5. 134 Answering Br. at 15, D.I. 14. 135 Cline, No. 1509418, at 9-11. 22 was decided seventeen years before Brittingham.136 The only apparent consideration
the Board gave to Cline’s individual circumstances are three brief mentions at the
end of its decision.
First, the Board referenced Dr. Schwartz’s testimony that the “rush to surgery”
was not compliant with various guidelines and found that “[Cline] should have
pursued some type of conservative treatment first. It may have helped.”137 Left
unsaid was any discussion of the conservative care Cline did receive – time, rest,
anti-inflammatory medication, and light therapeutic exercises. Also left unsaid was
any finding as to what type of additional conservative treatment specifically Cline
should have pursued or how that treatment might have helped her. A subjective
assessment of Cline’s individual care would have taken those considerations into
account. Perhaps the Board did do that, but its broad statement that “some type of
conservative treatment” “may have helped” does not convince the Court that it did.
Then, the Board noted that Dr. Schwartz testified that the medical records
(presumably the X-ray and MRI reports) did not sufficiently support a diagnosis of
severe degenerative disease. At the same time, it stated that it would have been
interested in his interpretation of the actual MRI films. The Board did not explain
why it apparently was willing to discount Dr. Rubano’s testimony about what the
136 Id. at 9-10. 137 Id. at 10. 23 actual films showed without having its interest in Dr. Schwartz’s interpretation of
those films satisfied.
Finally, almost as an afterthought at the very end of its decision, the Board
writes that it “appreciates [Cline’s] need to timely return to full-duty work but under
this set of facts, the Board finds that it was not reasonable to rush to undergo a total
knee replacement surgery.”138 The Board did not explain how, or even if, it
considered Cline’s pressing need to return to full-duty work in its evaluation of the
reasonableness of her surgery.
These three references, expressed in conclusory terms, are insufficient to
convince the Court that the Board examined Cline’s case subjectively. For example,
there is no indication in its decision that the Board considered Cline’s unsuccessful
conservative treatment, consisting of at-home exercises, rest, icing her knee, and
taking anti-inflammatory medication for weeks before her surgery, in determining
whether she had exhausted all reasonable conservative measures. Nor did it appear
to consider Cline’s testimony that light therapeutic exercises only increased her pain.
The Board did not discuss what effect, if any, Cline’s testimony that she was unable
to stand for prolonged periods, sat when cooking, washing dishes, and showering,
limited her driving to 30 minutes, and stayed on the first floor of her house because
she was unable to use the stairs in considering her limitations and the reasonableness
138 Cline, No. 1509418, at 10-11. 24 and necessity of her surgery. Additionally, the Board did not discuss Cline’s
unsuccessful attempt to return to work when her knee started to collapse or why it
discounted Cline’s need to return to work. It simply said in accepting the medical
testimony of Dr. Schwartz over that of Dr. Rubano that the “rush to surgery…was
not compliant with the Practice Guidelines, with the Medicare Guidelines or with
the Highmark of Delaware Guideline.”139
Moreover, the Court is not confident that the Board correctly applied the
Guidelines. In order to find that the Board properly applied the Guidelines it must
find that the Board understood the Guidelines to require the exhaustion of all
reasonable conservative treatment. The Board wrote in its decision that the
Guidelines “call for exhaustion of conservative treatment and documented
limitations.”140 In fact, the Guidelines do not call for the exhaustion of all
conservative measures, but only for the exhaustion of all reasonable conservative
measures. Perhaps the difference is semantical and of no significance, but perhaps
not. An excerpt from Dr. Rubano’s cross-examination brings this point into focus:
Q. So your operative note referencing an exhaustion of conservative treatment is inaccurate; is that fair?
A. In this case I think the likelihood of other conservative measures working was very low. So in this case I think the conservative measures of giving it time
139 Id. at 10. 140 Id. 25 and taking off of work and anti-inflammatories, those, I believe were appropriate measures that were exhausted.
In my opinion, proceeding with the other conservative options, I don’t think they would have been successful.
Q. Doctor, I appreciate your opinion, Doctor, but I’m just talking about your note that she had exhausted conservative treatments. Did you prescribe physical therapy?
A. No.
Q. Okay. So is it fair to say that the universe of conservative therapy had not been exhausted at the time of the operation; is that fair?
A. That’s correct.141
A reasonable interpretation of Dr. Rubano’s testimony is that he viewed all
reasonable conservative measures to have been exhausted since he did not think
other methods would work. Clearly, he did not exhaust the universe conservative
measures. So, when he referenced conservative measures being exhausted in his
operative note, was he referring to reasonable conservative measures? In other
words, was he using “conservative measures” as shorthand for “reasonable
conservative measures”? The Board wrote that the Guidelines called for the
“exhaustion of conservative treatment.” When it used that phrase, did the Board
mean that the Guidelines called for the exhaustion of all reasonable conservative
141 Dr. Rubano Tr. at 37:8–38:7, App. to Op. Br. at A-12, D.I. 13. 26 treatment? If so, why was Dr. Rubano’s note not given the same interpretation by
the Board – that Cline exhausted all conservative treatment that was reasonable in
his opinion? It is not clear. The Board’s failure to discuss the conservative treatment
Cline did pursue and why that treatment did not exhaust all reasonable conservative
treatment leaves the issue of whether the Board properly applied the Guidelines in
doubt.
Given all of the above, the Court cannot be confident that the Board applied
the correct standard in determining whether Cline had exhausted all reasonable
conservative treatment. In particular, the Court is not confident that the Board made
a subjective determination as to whether Cline exhausted all reasonable conservative
treatment suitable for her specifically, or whether it made an objective determination
as to treatment for people in her situation generally. Further, the Court is not
confident that the Board properly applied the Guidelines.
B. The Board’s Factual Determination Was Not Supported By Substantial Evidence.
The Court’s role on appeal is not to re-weigh the evidence and decide whether
the Board reached the correct decision. Instead, it is to decide whether there was
substantial evidence to support the Board’s decision and whether that decision was
free from legal error. But, when the Board applies the wrong standard for
determining the reasonableness and necessity of Cline’s total knee replacement, it
runs the risk of failing to identify the substantial evidence supporting its decision. 27 After listening to the evidence, the Board found Dr. Schwartz’s medical
testimony more credible than Dr. Rubano’s testimony, which, of course, was within
its province to do. The problem for the Court on appeal is that the Board couched its
decision in such a conclusory fashion, that the Court is unable to identify the specific
facts it relied upon in deciding that Cline’s surgery was not necessary and
reasonable. The Board stated, “Based on the entirety of the evidence incorporated
herein, the Board finds that proceeding to total knee replacement surgery without
exhausting conservative care was not reasonable or necessary.142 No specific facts
were offered in support of that conclusion. Instead, the Board simply cited Dr.
Schwartz’s testimony that the “rush to surgery” did not comply with various
guidelines.143 This Court is tasked with determining whether the Board’s decision
is supported by substantial evidence. Rather than send the Court on a search of the
“entirety of the record” looking for substantial evidence, it would have been helpful
if the Board had undertaken that effort itself.
Similarly, the Board resolved the dispute between the doctors over the extent
of Cline’s arthritis by discrediting Dr. Rubano’s reading of the actual MRI films in
favor of Dr. Schwartz’s testimony concerning an interpretive report of those films.144
It did so despite being “interested” in hearing Dr. Schwartz’s interpretation of the
142 Cline, No. 1509418, at 10. 143 Id. 144 Id. 28 films.145 The Board did not comment, either in its Summary of the Evidence or in
its Findings of Fact, on Dr. Rubano’s surgical observation that:
[Cline] had advanced arthritis up underneath the kneecap, certainly worse than the report states. And then changes, significant changes on the medial and lateral compartments that would certainly justify the pain she was in. And not only proceeding with knee replacement, but further, in my mind, confirming that an arthroscopic procedure would not have addressed her problem.146
The Board explained that it favored Dr. Schwartz’s reading of the MRI report over
Dr. Rubano’s interpretation of the actual MRI films and his surgical observations
because of what it found to be an “incorrect” statement in Dr. Rubano’s medical
records regarding exhaustion of conservative care.147 But, interpreting diagnostic
films and making surgical observations are different than making an arguably
“incorrect” statement in a medical record. Concluding that Dr. Rubano’s actual
observations are to be discounted, especially when there is no on-point contradictory
testimony, on the basis of the Board’s interpretation of a comment Dr. Rubano made
in his medical records regarding exhaustion of conservative care is curious.148 In the
Court’s view, a better explanation is required.
145 Id. 146 Dr. Rubano Tr. at 22:22-23:8, App. to Op. Br. at A-8, D.I. 13. 147 Cline, No. 1509418, at 10. 148 See the Court’s discussion of Dr. Rubano’s testimony regarding exhaustion of conservative treatment, supra. 29 There may be substantial evidence in the record to support the Board’s
decision, but the Board failed to identify that evidence sufficiently and explain why
it supports the Board’s decision. Accordingly, the Court cannot conclude that the
Board’s decision is supported by substantial evidence.
VI. CONCLUSION
For the foregoing reasons, the Court is unable to conclude that the Board’s
decision was free from legal error and was supported by substantial evidence.
Therefore, the Board’s decision is REVERSED and REMANDED to the Industrial
Accident Board for further proceedings consistent with this Opinion.
IT IS SO ORDERED.
/s/ Ferris W. Wharton Ferris W. Wharton, J.