IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
RAYMOND B. THOMPKINS, ) ) Claimant-Appellant, ) ) v. ) C.A. No. N20A-04-002 ALR ) REYNOLDS TRANSPORTATION, ) ) Employer-Appellee. )
Submitted: November 23, 2020 Decided: January 11, 2021
On Appeal from the Industrial Accident Board REVERSED and REMANDED
Upon Employer’s Motion to Strike DENIED AS MOOT
MEMORANDUM OPINION
Shakuntla L. Bhaya, Esquire, Alexis N. Stombaugh, Esquire, Doroshow, Pasquale Krawitz & Bhaya, Bear, Delaware, Attorneys for Claimant-Appellant.
Nicholas E. Bittner, Esquire, Heckler & Frabizzio, Wilmington, Delaware, Attorney for Employer-Appellee.
Rocanelli, J. This is an appeal from a decision of the Industrial Accident Board (“Board”)
which denied Raymond Thompkins’s Petition to Determine Compensation Due after
finding that recommended back surgery was not reasonable and necessary and
therefore not compensable.
BACKGROUND
Raymond Thompkins (“Employee”) was employed by Reynolds
Transportation (“Employer”) as a long-distance truck driver. From July 2017 to
January 2019 Employee worked without any medical restrictions. On January 15,
2019, Employee was rear-ended while driving in connection with his work.
After the accident, Employee was treated with physical therapy. After a
Magnetic Resonance Image (“MRI”) of Employee’s low back and neck, Employee
received lumbar injections. Employee reported radiating pain despite this
conservative treatment. Employee was refereed to Dr. Mark Eskander, a board
certified orthopedic surgeon (“Employee’s Surgeon”). Based on Employee’s
diagnostic testing, history and functionality, and the fact that Employee’s pain was
not reduced by conservative treatment, Employee’s Surgeon recommended
decompressive back surgery to unpinch the nerves and to pack in a bone graft where
the vertebrae shifted (“Proposed Spinal Surgery”).
In the meantime, Employee was examined by Employer’s physician, Dr. Eric
Schwartz, a board certified orthopedic surgeon (“Employer’s Doctor”). At his
1 appointment with Employer’s Doctor on May 6, 2019, Employee reported back and
neck pain. Employer’s Doctor found no evidence of neurological damage or injury
and observed that Employee had a normal gait.
PROCEDURAL HISTORY
Employee filed a Petition for Compensation Due seeking benefits in
connection with a work-related motor vehicle accident. There is no dispute
regarding the following: (i) that Employee was injured in a work-related motor
vehicle accident on January 15, 2019; (ii) the medical treatment Employee received
from January 15, 2019 through May 6, 2019 was reasonable and necessary and
therefore compensable; and (iii) Employee was totally disabled from January 16,
2019 through June 16, 2019. On the other hand, there is a dispute regarding whether
the Proposed Spinal Surgery is reasonable and necessary and therefore compensable.
At the Board hearing, Employee’s Surgeon offered an expert medical opinion
that Employee was the perfect candidate for the Proposed Spinal Surgery.
According to Employee’s Surgeon, the Proposed Spinal Surgery would alleviate
Employee’s symptoms so that Employee could return to the level of functionality
Employee enjoyed before the work-related accident.
Employer’s Doctor also testified at the Board hearing. While Employer’s
Doctor acknowledged that Employee had symptoms of radiculopathy after the work-
related accident, according to Employer’ Doctor, those symptoms had resolved by
2 May 2019. Furthermore, in his written report, Employer’s Doctor conceded that the
medical treatment Employee received through May 6, 2019 was reasonable,
necessary, and causally related to his work injury, including the lumbar injections.
Nevertheless, at the Board hearing, Employer’s Doctor testified that the lumbar
injections were not reasonable or necessary. When questioned about the discrepancy
between his written report and his verbal testimony regarding the lumbar injections,
Employer’s Doctor stated that he conceded in his written report that the lumbar
injections were reasonable and necessary based on the Employer’s Doctor’s
understanding that the Board would accept lumbar injections as reasonable and
necessary.1
1 Testimony of Employer’s Doctor via deposition on November 5, 2019: Q. Okay. Now, in your May 6, 2019 report you stated that the treatment to date that [Employee] had was reasonable, necessary, and causally related; is that correct? A. That’s correct. Q. And that included the injections . . . in April? A. That’s correct. Q. Yet today you said that those injections – let me use your word[s] . . . there was no reason for those injections to occur? A. Well, there’s two viewpoints. One is I testify a lot, I think the Board would acknowledge the reason for the injections, but the indications for the injections, from my viewpoint, were not reasonable or necessary. Q. Yet you wrote in your report they were reasonable and necessary? A. Well, based on my acknowledgement of what the Board would say. But if you’re asking me directly, the answer is, I don’t see a reason for them. 3 Moreover, Employer’s Doctor agreed with Employee’s Surgeon that
Employee had spinal stenosis.2 Nevertheless, Employer’s Doctor offered an opinion
that the Proposed Spinal Surgery should not be performed because there were no
clinical findings to support the Proposed Spinal Surgery. However, on cross-
examination, Employer’s Doctor contradicted himself again by stating that he would
accept the Proposed Spinal Surgery as reasonable and necessary if the doctor to
whom Employer’s Doctor referred patients, Dr. Yalamanchili3 (“Employer’s
Referral Doctor”), recommended the procedure.4
Q. So when you write your report, you do it based on what the Board would say— A. No, I— Schwartz Dep. 77–78. 2 Employer’s Doctor testified as follows: Q. Okay. And did you look at the actual films? A. I did not. Q. Okay. And you – since you read thoroughly [Employee’s Surgeon’s] deposition, you’ll recall that he actually was looking at the films while he was testifying. Do you agree or disagree with his reading of the films? A. That there’s spinal stenosis at L4-5, L5-S1? Totally agree there’s spinal stenosis. Schwartz Dep. 83. 3 Only Dr. Yalamanchili’s last name is provided. 4 Employer’s Doctor testified as follows: Q. If [Employer’s Referral Doctor] said, yes, this man needs surgery, what would you say? A. I would say absolutely. Q. Based on the exact same findings? A. Well, now you have two against one. I think that the risk of the surgery is tremendous. But I – Schwartz Dep. 90. Later in his trial deposition, Employer’s Doctor was asked: 4 The Board denied Employee’s Petition for Compensation Due finding that
Employee “failed to show that, more likely than not, the [Proposed Spinal Surgery]
is reasonable or necessary medical treatment for his complaints.”5 The Board
explained that it accepted the opinion of Employer’s Doctor over the opinion of
Employee’s Surgeon for the following reason: “before the concept of cutting into
[Employee’s] back to free up nerves can be deemed a reasonable procedure, there
should be sound evidence that neurological compromise is actually occurring.”6
Furthermore, the Board stated that “[t]he risk of such a [Proposed Spinal Surgery]
might be justified if [Employee] had objective evidence of actual neurological
Q. Right.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
RAYMOND B. THOMPKINS, ) ) Claimant-Appellant, ) ) v. ) C.A. No. N20A-04-002 ALR ) REYNOLDS TRANSPORTATION, ) ) Employer-Appellee. )
Submitted: November 23, 2020 Decided: January 11, 2021
On Appeal from the Industrial Accident Board REVERSED and REMANDED
Upon Employer’s Motion to Strike DENIED AS MOOT
MEMORANDUM OPINION
Shakuntla L. Bhaya, Esquire, Alexis N. Stombaugh, Esquire, Doroshow, Pasquale Krawitz & Bhaya, Bear, Delaware, Attorneys for Claimant-Appellant.
Nicholas E. Bittner, Esquire, Heckler & Frabizzio, Wilmington, Delaware, Attorney for Employer-Appellee.
Rocanelli, J. This is an appeal from a decision of the Industrial Accident Board (“Board”)
which denied Raymond Thompkins’s Petition to Determine Compensation Due after
finding that recommended back surgery was not reasonable and necessary and
therefore not compensable.
BACKGROUND
Raymond Thompkins (“Employee”) was employed by Reynolds
Transportation (“Employer”) as a long-distance truck driver. From July 2017 to
January 2019 Employee worked without any medical restrictions. On January 15,
2019, Employee was rear-ended while driving in connection with his work.
After the accident, Employee was treated with physical therapy. After a
Magnetic Resonance Image (“MRI”) of Employee’s low back and neck, Employee
received lumbar injections. Employee reported radiating pain despite this
conservative treatment. Employee was refereed to Dr. Mark Eskander, a board
certified orthopedic surgeon (“Employee’s Surgeon”). Based on Employee’s
diagnostic testing, history and functionality, and the fact that Employee’s pain was
not reduced by conservative treatment, Employee’s Surgeon recommended
decompressive back surgery to unpinch the nerves and to pack in a bone graft where
the vertebrae shifted (“Proposed Spinal Surgery”).
In the meantime, Employee was examined by Employer’s physician, Dr. Eric
Schwartz, a board certified orthopedic surgeon (“Employer’s Doctor”). At his
1 appointment with Employer’s Doctor on May 6, 2019, Employee reported back and
neck pain. Employer’s Doctor found no evidence of neurological damage or injury
and observed that Employee had a normal gait.
PROCEDURAL HISTORY
Employee filed a Petition for Compensation Due seeking benefits in
connection with a work-related motor vehicle accident. There is no dispute
regarding the following: (i) that Employee was injured in a work-related motor
vehicle accident on January 15, 2019; (ii) the medical treatment Employee received
from January 15, 2019 through May 6, 2019 was reasonable and necessary and
therefore compensable; and (iii) Employee was totally disabled from January 16,
2019 through June 16, 2019. On the other hand, there is a dispute regarding whether
the Proposed Spinal Surgery is reasonable and necessary and therefore compensable.
At the Board hearing, Employee’s Surgeon offered an expert medical opinion
that Employee was the perfect candidate for the Proposed Spinal Surgery.
According to Employee’s Surgeon, the Proposed Spinal Surgery would alleviate
Employee’s symptoms so that Employee could return to the level of functionality
Employee enjoyed before the work-related accident.
Employer’s Doctor also testified at the Board hearing. While Employer’s
Doctor acknowledged that Employee had symptoms of radiculopathy after the work-
related accident, according to Employer’ Doctor, those symptoms had resolved by
2 May 2019. Furthermore, in his written report, Employer’s Doctor conceded that the
medical treatment Employee received through May 6, 2019 was reasonable,
necessary, and causally related to his work injury, including the lumbar injections.
Nevertheless, at the Board hearing, Employer’s Doctor testified that the lumbar
injections were not reasonable or necessary. When questioned about the discrepancy
between his written report and his verbal testimony regarding the lumbar injections,
Employer’s Doctor stated that he conceded in his written report that the lumbar
injections were reasonable and necessary based on the Employer’s Doctor’s
understanding that the Board would accept lumbar injections as reasonable and
necessary.1
1 Testimony of Employer’s Doctor via deposition on November 5, 2019: Q. Okay. Now, in your May 6, 2019 report you stated that the treatment to date that [Employee] had was reasonable, necessary, and causally related; is that correct? A. That’s correct. Q. And that included the injections . . . in April? A. That’s correct. Q. Yet today you said that those injections – let me use your word[s] . . . there was no reason for those injections to occur? A. Well, there’s two viewpoints. One is I testify a lot, I think the Board would acknowledge the reason for the injections, but the indications for the injections, from my viewpoint, were not reasonable or necessary. Q. Yet you wrote in your report they were reasonable and necessary? A. Well, based on my acknowledgement of what the Board would say. But if you’re asking me directly, the answer is, I don’t see a reason for them. 3 Moreover, Employer’s Doctor agreed with Employee’s Surgeon that
Employee had spinal stenosis.2 Nevertheless, Employer’s Doctor offered an opinion
that the Proposed Spinal Surgery should not be performed because there were no
clinical findings to support the Proposed Spinal Surgery. However, on cross-
examination, Employer’s Doctor contradicted himself again by stating that he would
accept the Proposed Spinal Surgery as reasonable and necessary if the doctor to
whom Employer’s Doctor referred patients, Dr. Yalamanchili3 (“Employer’s
Referral Doctor”), recommended the procedure.4
Q. So when you write your report, you do it based on what the Board would say— A. No, I— Schwartz Dep. 77–78. 2 Employer’s Doctor testified as follows: Q. Okay. And did you look at the actual films? A. I did not. Q. Okay. And you – since you read thoroughly [Employee’s Surgeon’s] deposition, you’ll recall that he actually was looking at the films while he was testifying. Do you agree or disagree with his reading of the films? A. That there’s spinal stenosis at L4-5, L5-S1? Totally agree there’s spinal stenosis. Schwartz Dep. 83. 3 Only Dr. Yalamanchili’s last name is provided. 4 Employer’s Doctor testified as follows: Q. If [Employer’s Referral Doctor] said, yes, this man needs surgery, what would you say? A. I would say absolutely. Q. Based on the exact same findings? A. Well, now you have two against one. I think that the risk of the surgery is tremendous. But I – Schwartz Dep. 90. Later in his trial deposition, Employer’s Doctor was asked: 4 The Board denied Employee’s Petition for Compensation Due finding that
Employee “failed to show that, more likely than not, the [Proposed Spinal Surgery]
is reasonable or necessary medical treatment for his complaints.”5 The Board
explained that it accepted the opinion of Employer’s Doctor over the opinion of
Employee’s Surgeon for the following reason: “before the concept of cutting into
[Employee’s] back to free up nerves can be deemed a reasonable procedure, there
should be sound evidence that neurological compromise is actually occurring.”6
Furthermore, the Board stated that “[t]he risk of such a [Proposed Spinal Surgery]
might be justified if [Employee] had objective evidence of actual neurological
Q. Right. And just, in final, is that, you know—that—so the Board understands, if [Employer’s Referral Doctor] was the tiebreaker here and he had the exact same findings as you and [Employee’s Surgeon] had, then you would say to the Board that I –you have my blessing, go forward with the surgery, [Employee’s Surgeon]? A. If I was asked, I’d probably say something to this: Although I have significant doubts that the surgery would be successful based on my own exam but acknowledging [Employer’s Referral Doctor’s] opinion, I would not be able to say within a reasonable degree of medical probability that the surgery would not be reasonable and necessary. Q. Okay. A. And, again, emphasize that I have significant doubts that the surgery would be successful. Q. Okay. Thank you. Schwartz Dep. 112–13. 5 Thompkins v. Reynolds Transportation, Inc., No. 1482461, at 9 (Del. I.A.B. March 13, 2020). 6 Id. at 8. 5 compromise, but the Board does not consider it reasonable to operate to relieve nerve
compression for which there is no clinical evidence of symptomatic nerve
problems.”7 The Board notes that Employee’s Surgeon offered an opinion that
Employee’s “MRI shows nerve compression and ‘crowding’ of the nerve roots.”8
Also, both orthopedic surgeons note spinal stenosis. Yet, the Board found that “the
examinations simply do not present any evidence of pathology requiring surgery”
and denied Employee’s Petition.9
Employee appealed the Board’s rejection of the Proposed Spinal Surgery to
this Court.
STANDARD OF REVIEW
In considering an appeal from a Board decision, this Court’s role is limited to
determining whether the Board’s conclusions are supported by substantial evidence
and are free from legal error.10 The Court considers the record in the light most
favorable to the party prevailing on the Board’s appeal.11 This Court does not weigh
the evidence, determine questions of credibility, or make its own factual findings.12
7 Id. at 9. 8 Id. 9 Id. 10 Murphy & Landon, P.A. v. Pernic, 121 A.3d 1215, 1221 (Del. 2015). 11 Thompson v. Christiana Care Health Sys., 25 A.3d 778, 782 (Del. 2011). 12 Id. 6 The Court may “reverse, affirm or modify the award of the Board or remand the
cause to the Board for a rehearing.”13
DISCUSSION
A. The record does not include substantial evidence to support the Board’s rejection of the Proposed Spinal Surgery as reasonable and necessary.
According to the Board, in rejecting the compensability of the Proposed
Spinal Surgery, the Board accepted the opinion of Employer’s Doctor over the
opinion of Employee’s Surgeon. However, substantial evidence does not support
this conclusion. First, Employer’s Doctor offered inconsistent opinions regarding
the lumbar injections, and demonstrated a willingness to alter his opinion based on
what he understood the Board would accept. Second, Employer’s Doctor offered
contradictory opinions regarding whether the Proposed Spinal Surgery is reasonable
and necessary depending merely on which doctor recommended it.
The Board does not address the discrepancies in Employer’s Doctor’s
testimony. Also, the Board offers no explanation for accepting Employer’s Doctor’s
rationale that the Proposed Spinal Surgery was reasonable and necessary depending
merely on which doctor recommended it. While the Court “will not intrude on [the
Board’s] role as trier of fact by disturbing the [Board’s] credibility determinations
13 19 Del. C. § 2350(b). 7 or factual findings,”14 findings must be supported by substantial evidence which is
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”15
Moreover, the overall goal of the workers’ compensation statute is to provide
an injured worker with medical treatment in an attempt to get the worker back to
work. The record shows that Employee tried physical therapy as well as lumbar
injections, conservative treatment which did not relieve Employee’s pain.
Employee’s Surgeon stated that the purpose of Employee’s Proposed Spinal Surgery
is to alleviate Employee’s symptoms with the goal of getting Employee back to his
pre-work injury functionality.
The Board states that “[a]n operation is done because a patient currently has
a problem that has not responded to conservative treatment.”16 Despite
acknowledging this standard, however, the Board concluded that Employee’s
Proposed Spinal Surgery was not reasonable and necessary. Substantial record
evidence does not support the Board’s conclusion that the Proposed Spinal Surgery
was not reasonable and necessary. Accordingly, the Board’s findings do not
withstand appellate review and must be addressed by the Board on remand.
14 Toribio v. Peninsula United Methodist Homes, Inc., 2009 WL 153871, at *2 (Del. Super. Jan. 23, 2009). 15 Id. (quoting Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998)). 16 Thompkins, No. 1482461, at 9. 8 B. Stipulating to the expertise of a medical doctor is not a waiver of challenges to weight of the evidence presented by that medical expert.
Employer contends that Employee waived challenges to the opinions of
Employer’s expert by stipulating to the qualifications of Employer’s Doctor.
Employer conflates the standard for admissibility with challenges to the weight of
the evidence. The decision to admit expert testimony is not a conclusion that the
expert’s opinion is correct.17 Thus, conceding that a medical expert is qualified to
offer an opinion is not a concession that the expert’s conclusions are correct.
C. Employer’s motion to strike is moot because the Court does not rely upon the information to which Employer objections.
Employer objects to the presentation by Employee on appeal of a medical
journal article addressing spinal stenosis. This Court does not rely upon the medical
journal article in reaching its decision. Accordingly, Employer’s Motion to Strike
is moot.
17 “Once the trial court has determined that a witness is competent to testify as an expert, challenges to the expert’s skill or knowledge go to the weight to be accorded the expert testimony rather than its admissibility.” Perry v. Berkley, 996 A.2d 1262, 1270–71 (Del. 2010) (quoting Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 283 (8th Cir. 1995)).
9 CONCLUSION
While the Board’s findings are entitled to great deference by this Court, the
Board’s conclusions must be supported by substantial evidence and reflect a rational
consideration of the record. The record does not include substantial evidence to
support the Board’s acceptance of Employer’s Doctor’s opinions because those
opinions were inconsistent and contradictory. Accordingly, the decision of the
Board to reject Employee’s request that the Proposed Spinal Surgery be approved as
compensable does not withstand appellate review.
NOW, THEREFORE, this 11th day of January, 2021 the decision of the
Industrial Accident Board is REVERSED and REMANDED for further
proceedings consistent with this opinion. Defendant Reynolds Transportation’s
Motion to Strike is MOOT.
IT IS SO ORDERED.
Andrea L. Rocanelli ______________________________ The Honorable Andrea L. Rocanelli