I Get a Kick Out of You: Superior Court Kicks Back IAB Denial of TKR Surgery
The little gem of an appeals decision is a gift to the claimants, nurses, and those heroes whose lifeblood mandates a return at the promptest possible opportunity. Case in point: a pediatric nurse who is kicked in the knee by a combative adolescent and is rendered out of commission. What to do? What to do? Fix the problem and get back to work or allow time — and the Practice Guidelines — to take their course and risk losing your job. Claimant underwent a total knee replacement (TKR) two months post-injury by Dr. Rubano and returned to work three months later without restrictions.
In Cline v. Nemours Foundation, the Industrial Accident Board denied payment of Claimant’s total knee replacement surgery based on the Health Care Practice Guidelines requiring exhaustion of conservative treatment as a precursor to surgical intervention, and Claimant “should have pursued some type of conservative treatment first… it may have helped.” Props to claimant counsel Jessica Welch for not being satisfied with this outcome and pursuing an appeal (when you know, you know, right?)
Even bigger accolades to her associate Caroline Kaminski for both developing appellate arguments and educating the Court on how to reconcile Brittingham v. St. Michael’s Rectory, 788 A.2d 519 (Del. 2002) with the later-adopted Health Care Practice Guidelines to conclude that whether medical treatment is reasonable and necessary is a specific inquiry and analysis as to that specific claimant and an incorrect standard of the Guidelines was applied by the Board with a paucity of factual support. Specifically, on appeal, Caroline argued:
The Board failed to consider the Brittingham factors and determine whether the total knee replacement was reasonable specifically for Ms. Cline – not generally for someone with the same condition.
The Board incorrectly applied the Guidelines in its application of review of Claimant’s Petition when it held that “proceeding to a total knee replacement surgery without exhausting conservative care was not reasonable or necessary,” and disregarded that the Guidelines specifically identify that a knee replacement is reasonable when there is “severe osteoarthritis and all reasonable conservative measures have been exhausted and other reasonable surgical options have been considered.”
The Board’s finding of Dr. Schwartz’s medical testimony more credible than Dr. Rubano was not supported by substantial evidence because (1) Dr. Schwartz’s opinion lacked a factual foundation as he never reviewed the diagnostic films; (2) Dr. Schwartz offered contradictory and inconsistent opinions regarding Ms. Cline’s diagnosis and treatment; and (3) Dr. Rubano’s opinions regarding the diagnostic films were uncontradicted.
Before the Superior Court, Judge Wharton concluded that:
Left unsaid was any discussion of the conservative care [Claimant] 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 [Claimant] should have pursued or how that treatment might have helped her.”
The Board's failure to discuss the conservative treatment [Claimant] 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.
Board failed to expressly apply the Brittingham standard that the necessity and reasonableness of a claimant’s surgery is specific to that claimant and
Failed to consider whether all reasonable conservative measures had been exhausted to that Claimant’s treatment specifically
Failed to discuss what conservative treatment she did undergo and what additional treatment she should have underwent
Failed to explain why it was willing to discount Dr. Rubano’s testimony about what the actual films showed without having its stated interest in Dr. Schwartz’s interpretation of the actual films satisfied
Failed to explain how or even if it considered Claimant’s pressing need to return to full-duty in its evaluation of the reasonableness of her surgery
The Board did not correctly apply the Guidelines when it stated that the Guidelines call for the “exhaustion of conservative treatment” – not reasonable conservative treatment
Board’s decision was not supported by substantial evidence as the Board “couched its decision in such a conclusory fashion” that the Court was unable to identify specific facts it relied upon in determining that Claimant’s surgery was not reasonable or necessary. Moreover, the Board failed to explain why Dr. Rubano’s medical opinion was discredited when he reviewed the diagnostic films and confirmed his readings of the films when he performed the TKR.
[T]he 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. It did so despite being “interested” in hearing Dr. Schwartz's interpretation of the films. . . . 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. In the Court's view, a better explanation is required.
The Court reversed and remanded this matter back to the Board for further action consistent with its opinion. It is not known whether an appeal will be taken by the carrier.
A treasure of an outcome for injured workers as it stresses that Brittingham is still good law and when analyzing whether medical treatment is reasonable and necessary, it is incumbent to assess the reasonableness of the treatment as to that specific claimant and not generally for anyone in his/her position. It customizes the inquiry to personalize the treatment scrutiny to the individual patient, noting in this case the claimant was a nurse, had a compelling need to return to her life’s vocation, and had a greater-than-usual insight into what would likely be required medically to fix her problem.
Can you tell I just love this case? Even from the defense side of the vee, it smacks of a happy ending. And you know…. there is just something so eerily familiar about the arguments and mindset of that appeals brief author. 😊
Irreverently yours,
Cassandra Faline Roberts
