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Heglund v. AFL Network Services

Superior Court of Delaware, New Castle

July 3, 2014

THOMAS F. HEGLUND, Claimant Below-Appellant,
AFL NETWORK SERVICES, Employer-Appellee.

Submitted: April 3, 2014

On Appeal from Decision of the Industrial Accident Board REVERSED in part and REMANDED

Gary S. Nitsche, Esquire and Samuel D. Pratcher, II, Esquire, Weik, Nitsche, Dougherty & Galbraith, Attorneys for Claimant Below - Appellee

Linda Wilson, Esquire, Marshall, Dennehy, Warner, Coleman & Goggen, Attorneys for Employer Below-Appellee



On March 29, 2004, Thomas F. Heglund ("Appellant") suffered a cervical spine injury while working for his employer, AFL Network Services ("Employer"). After the work injury, Appellant had two cervical spine surgeries, on June 17, 2004 and November 16, 2011, to treat his injuries.[1] Appellant was compensated by his employer for a thirty percent permanent impairment of the neck, a ten percent permanent impairment of the upper extremity, and for disfigurement of the neck.

The first surgery after the work-related injury was on June 17, 2004, in which Appellant had a cervical fusion involving the C5 and C6 corpectomy (surgical approach was anterior and posterior), C4-C7 interbody fusion, C4-C7 segmental instrumentation, local autograft and removal of the anterior cervical plate. Appellant also received injections.

Sometime after the 2004 surgery, Appellant developed increasing pain in the neck and posterior headaches that included pain in both shoulders and down the arms. Appellant's doctor, Dr. Rastogi, recommended against additional surgery on multiple occasions. Appellant continued to experience chronic neck and bilateral arm pain.

Dr. Bose, a board-certified neurosurgeon, began treating Appellant on November 15, 2010 for chronic pain. Dr. Bose concluded additional surgery was necessary to reduce Apellant's need for medication, to realign his spine, and to improve kyphosis. On November 16, 2011, Dr. Bose performed decompression and fusion surgery at C3-4 and at C7-T1.

Appellant was doing well shortly after the 2011 surgery. However, Appellant began to report pain in his right shoulder, pain in his left side, pain worsening in time and functional ability decreasing. Appellant reported that physical therapy was not helping and continued to feel worsening and new pain in the neck and arm areas. Also, it was necessary for Appellant to take a significant amount of pain medication.

Dr. Bose recommended additional surgery to treat Appellant's chronic and worsening pain. Appellant sought compensation for this surgery through his Employer. His Employer opposed payment for the additional surgery.

Appellant filed a Petition for Additional Compensation with the Industrial Accident Board. On September 19, 2013, a hearing was held before a Workers' Compensation Hearing Officer, sitting in place of the Industrial Accident Board pursuant to 19 Del. C. § 2301(B) by stipulation. The Decision on Petition to Review Additional Compensation Due was issued November 6, 2013 ("Board Decision"). This appeal followed.

Dr. Bose testified at the hearing that the surgery proposed involves a posterior exploration, a C2-3 decompression and fusion and revisions of the T2 and C6 screws. Dr. Bose suggested surgically exploring the previous fusion sites to ensure the T2 screws are not loose, as well as extending the decompression and fusion to C2. Dr. Bose's opinion was that there is likely a micromotion or loosening of the C6 screw on the left side and loosening of both of the T2 screws. According to Dr. Bose, these issues are best be explored by disconnecting the rods and toggling on the screws. If a screw is loose, Dr. Bose stated that he must replace it with a bigger screw or get fixation on the level below where the vertebra pedicle is normal. The Board Decision notes Dr. Bose's stated goals for the surgery.

Dr. Bose conceded that surgery would not increase Appellant's function and not enable Appellant to return to work. However, Dr. Bose testified that the surgery is reasonable and necessary to achieve the ultimate goal of decreasing Appellant's pain level and reducing Appellant's use of pain medication. Moreover, Dr. Bose opined that Appellant's other options, a spinal cord stimulator and pain pump are not ideal for Appellant because his body will eventually adapt to ...

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