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Poole v. State

Superior Court of Delaware, New Castle

December 4, 2012

Raymond POOLE, Appellant
STATE of Delaware, Appellee.

Submitted: Aug. 17, 2012.

Corrected Cover Page: Dec. 5, 2012.

Page 311

Upon Appeal from the Industrial Accident Board.

Gary S. Nitsche, Esquire, and Michael B. Galbraith, Esquire, of Weik, Nitsche & Dougherty, Wilmington, Delaware, Attorneys for Appellant.

Dennis J. Menton, Esquire, and Andrew M. Lukashunas, Esquire, of Tybout, Redfearn & Pell, Wilmington, Delaware, Attorneys for Appellee.



A 2007 amendment to the Delaware Workers' Compensation laws made significant revisions in the regulation of and payment for medical expenses incurred in the treatment of injured workers. Among the features established was a system for creating guidelines of allowable fees and extent of treatment. Employers and insurers could seek what that law labels " utilization review" of bills for treatment if there were a dispute over expenses incurred. That review would be available to employers and/or insurers for injuries which have been " acknowledged" as compensable.

Where, however, the employer disputed that an injury occurred or the extent of injury or other related injury issues, the matter went, as before, to the Industrial Accident Board. Traditionally, if the Board found there was a work related injury, it would also determine what medical expenses were reasonable and necessary. However, in some cases but not all, since the new law came into effect, the Board has, after finding there was a work-related injury, referred the determination of " reasonable and necessary" for utilization review by a person or body other than the Board.

That is what the Board did with appellant Raymond Poole's petition for compensation

Page 312

due as the State of Delaware, his employer, disputed whether an injury was causally related to his job. After first finding that Poole had suffered a work-related injury and that his medical expenses were reasonable and necessary, the Board submitted the medical expenses for utilization review.

The issue of first impression in this case is whether, since the State disputed injury and did not " acknowledge" it, is it entitled to utilization review of Poole's medical expenses, or does that function continue to reside exclusively with the Board for utilization review? The Court holds the Board in disputed injury cases retains the sole authority to determine reasonable and necessary medical expenses within the parameters of the guidelines and may not refer that issue for utilization review. The Board erred in referring Poole's medical expenses for utilization review. Accordingly, the Board's decision is REVERSED and REMANDED.

Procedural History

Poole filed a petition to determine compensation due. He worked at the Delaware Psychiatric Center. The State disputed that an injury occurred or that his medical situation was caused by a work injury. After a full hearing, the Board found Poole was injured at work and found his medical expenses were reasonable and necessary. But it referred Poole's medical bills to utilization review. The State applied for such review. It also moved for reargument seeking to have the Board remove the finding of reasonable and necessary from its initial decision. The Board granted the State's motion and removed the phrase " reasonable and necessary."

Poole appealed to this Court the Board's decision: (1) sending the medical expenses for utilization review; and (2) removing the phrase " reasonable and necessary." This Court remanded the matter to the Board to answer two questions: (1) whether it was appropriate for the Board to change a substantive finding regarding the reasonableness and necessity of Poole's medical expenses based on a motion for reargument without a hearing and presentation of additional evidence; and (2) whether it was appropriate for the Board to make a post-hearing finding on a prior decision involving the same parties after issuing a final decision? At the same time, the State moved to stay any utilization review. The Court denied that motion.

On remand, the Board's response was that it acted appropriately in not having a hearing on the State's reargument motion. It stated that there was no new evidence to consider and that it merely corrected its error of law. Further, the Board replied that its own Rule 21 permits it to entertain motions for reargument.

The matter is now back before this Court for disposition on the merits.

Factual Background

The State has not cross-appealed the Board's finding that Poole suffered a work-related injury during his employment at the Delaware Psychiatric Center, nor has it cross-appealed the Board's decision that his injuries were causally related. What is important for purposes of this opinion, however, is the extensive medical testimony each side presented to the Board.

Dr. Peter Bandera, who treated Poole, testified (by deposition) which the Board summarized as follows:

Dr. Peter Bandera, a physical medicine and rehabilitation doctor, testified at the hearing on behalf of the Claimant. In relationship to the low back injury Dr. Bandera began treating Claimant on April 21, 2010 and he reviewed the pertinent medical records. In his opinion

Page 313

Claimant's low back problem is related to a work incident on April 13, 2010 and Claimant is totally disabled as a result.
By way of history, in April or May of 2004 Claimant was seen by his family doctor, Dr. Tucker, for back pain, with notation of his back and knees giving out. Lumbosacral spine tenderness and a negative straight leg raise test were noted. Dr. Bandera could not distinguish the note as to whether Dr. Tucker wanted to rule out degenerative joint disease or possibly a herniated nucleus pulpous. From that point until April of 2010 there are no other notations of low back pain in Claimant's medical record.
Claimant also has a history of a left shoulder injury and left total hip replacement. Dr. Bandera began treating Claimant in 2005 due to the left should injury. Dr. Bandera notes that Claimant has ongoing symptoms in relationship to this injury.
Claimant has cognitive slowing issues and, thus, he was seen by Dr. Bandera with his sister. Claimant informed Dr. Bandera that his low back pain began when he had to move heavy chairs at work. He developed radiating component. Initially he was seen by Dr. Tucker for low back tenderness. A muscle relaxant was prescribed.
Upon physical examination Claimant had a positive bilateral straight leg raising sign of 35 degrees and pain on facet loading of the lumbar spine, extending predominately at the L4 to S1 levels. He had a slightly decreased ankle reflex which is a sign of radiculopathy involving the S1 level. Claimant walks with a stooped, antalgic gait. Dr. Bandera diagnosed Claimant with lumbar syndrome with strain, sprain, and radiculopathy. He also wanted to rule out intervertebral disc dysfunction. A lumbar spine MRI and EMG were ordered and Claimant was placed on total disability status because he was still in significant distress due to the back pain. He was functioning extremely poorly and could not perform basic material handling.
A May 4, 2010 MRI of his low back revealed moderately severe and central spinal canal stenosis at L4-L5 and L5-S1. There was some mild central lumbar stenosis at L2-L3 and L3-L4, and moderately severe bilateral neuroforaminal narrowing at L5-S1 and moderate neuroforaminal narrowing at L4-5 and L2-L3 bilaterally. He also had generalized spondylitic disc bulges and degenerative facet changes throughout the lumbar spine. Essentially, Claimant has significant stenosis of the low back and facet changes in the small joints of the back. This acts like a disc herniation because the nerves are choked by stenosis which sets up a classic radiculopathy pattern. Dr. Bandera believes that these degenerative findings on MRI were present before the date of the work accident, but the mechanism of injury of the work accident was competent to cause an aggravation or exacerbation of Claimant's underlying condition. Claimant was functioning at a high level without complaints prior to the work accident. His MRI findings warrant surgical consideration by a neurosurgeon.
A May 7, 2010 EMG was consistent with a bilateral radiculopathy involving the L5-S1 were root with acute features. There are no findings on EMG indicative of a chronic injury.
Claimant was placed in chiropractic and physical therapy with some limited medications. Claimant did not have access to other interventions, including a nerve block, which would be usual and customary. Claimant continues to be seen for ongoing low back pain with positive radiation

Page 314

and paresthesia. He also developed muscle spasm and guarding in the back region. By August of 2010 he noted that the therapy and medication helped him with basic functional activity at home, however, he still had problems getting up from a chair and transferring from a sit to stand position.
Dr. Bandera opines that Claimant has lumbar syndrome with sprain, strain, radicul[o]pathy, traumatic expression of lumbar stenosis and lumbar facet syndrome all related to the April of 2010 work injury. Claimant has an essentially unremarkable history for six years predating the work injury and had significant mechanism of injury, lifting heavy chairs, which comports with the positive MRI findings, his symptoms and the EMG which identified an acute radiculopathy process. Dr. Bandera testified that his billing statement showing a balance of $11,064.00, reflecting treatment from April 21, 2010 through July 21, 2010, represent reasonable, necessary and causally related medical treatment for Claimant's work related low back injury. As far as future treatment Dr. Bandera hopes to perform an injection program and monitor Claimant's progress. He would also like to order a functional capacity evaluation and a conditioning program.
Dr. Bandera disagrees with Employer's expert that Claimant's primary pain complaints were of the right hip and thigh and only minimally the lower back. Dr. Bandera notes that Claimant has reported ongoing low back pain complaints to him, with a bilateral radiating component. This complaint was confirmed many times by Claimant's sister, his caretaker, and was corroborated by objective test results. Dr. Bandera agreed that Employer's expert did not fully examine Claimant's back or perform any range of motion testing.
On cross-examination Dr. Bandera agreed that Claimant and his sister told him that the work accident occurred on April 14, 2010 when Claimant was executing a lot of buffing activities and had to move old, heavy chairs. Dr. Bandera explained that Claimant was describing what he did on that day and that Claimant has cognitive slowing and this has to be taken into account when considering causation as he may not be totally focused. As far as whether it was one or several chairs that Claimant was moving, Dr. Bandera's opinion as to causation remains the same. ...

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