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Grabowski v. JJ. White, Inc.

Superior Court of Delaware

November 28, 2018

STEPHEN J. GRABOWSKI, JR. Appellant/Claimant-Below,
v.
JJ. WHITE, INC. Appellee/Employer-Below.

          Submitted: August 9, 2018

         Upon Consideration of Industrial Accident Board Appeal.

          Gary S. Nitsche, Esquire, and Katherine L. Hemming, Esquire, Gary S. Nitsche, P.A., Attorneys for Claimant-Below, Appellant.

          John J. Ellis, Esquire, Heckler & Frabizzio, Attorneys for Employee-Below, Appellee.

          MEMORANDUM OPINION

          CHARES E. BUTLER, JUDGE.

         INTRODUCTION

         This is an appeal from a ruling by the Industrial Accident Board ("IAB"). The grounds for appeal are based upon a single evidentiary ruling and a complaint that the decision is not supported by substantial evidence. Finding neither claim to be meritorious, the Court will affirm the finding of the IAB.

         FACTS

         Steven Grabowski, Jr. was injured in an assault that occurred at his work in 2000.[1] There is no dispute that it was a "work related injury" compensable under the Worker's Compensation system.

         From 2001 to 2017, Grabowski underwent surgery on his back in 2001 and again in 2005. In 2014, he had a third surgery to remove lumbar hardware, presumably left from the earlier surgeries. Although he did not testify at the IAB hearing, the Board was told that Grabowski has expressed a disinclination to undergo any further surgery to improve his condition.[2]

         Since 2001, Grabowski has been a patient of Dr. Balu.[3] Dr. Balu is a pain management specialist with a practice in Dover. For a "very long time," the primary treatment for the Claimant has been Percocet, a narcotic drug.[4]

         While this certainly seems like a long time to be prescribed a narcotic, Dr. Balu testified that he administered a DAST - 10 Opiate Risk Assessment tool that showed the Claimant to be at low risk for abuse of the drugs he was being prescribed. Thus, Dr. Balu saw no reason to curtail or alter the ongoing treatment.[5]

         Also practicing with Dr. Balu was a chiropractor, Dr. Brian Broskoski. The Claimant thus received narcotics as well as massages, stretching, and related treatment through the chiropractor. Finally, Dr. Balu created a compound topical mixture that he prescribed for Grabowski's pain.[6]

         Despite these various treatments, the record reflects no instance in which the Claimant's reported pain was less than a "7" on a scale of "1 to 10".[7] In addition, any improvement in his mobility can only be described as modest. For example, after a therapy session, he reported that he could now sit for thirty minutes, whereas before he could only sit for fifteen minutes.[8] He could sleep for four hours, but after therapy he could sleep for five hours.[9]

         PROCEDURAL HISTORY

         The employer sought a "Utilization Review" of both Dr. Balu's prescription treatment and Dr. Broskoski's chiropractic treatment.[10] While that record is not before the Court, the Claimant prevailed, which set up the de novo review by the IAB.

         The IAB held its de novo hearing, as a result of which it reversed the findings of the Utilization Review. The IAB concluded that the opioid and chiropractic treatments were not reasonable and necessary and ordered that Grabowski be weaned from the current treatment of narcotic drugs.[11]

         STANDARD ...


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