Benjamin K. Durstein

The Delaware Superior Court reverses and remands a decision of the IAB that had determined a total knee replacement surgery was not reasonable or necessary. The court held that the IAB erred as a matter of law when it misapplied the Delaware Healthcare Practice Guidelines and failed to consider the claimant’s subjective rationale for foregoing conservative treatment prior to surgery. Additionally, the IAB decision was so conclusory that it was not supported by substantial evidence. 

On March 15, 2021, Ms. Cline was injured at work when a pediatric patient kicked her in the right knee. She attempted to return to light duty after the accident, but her knee gave out and she was not able to continue working. At the recommendation of her treating orthopaedic surgeon, Dr. Rubano, she took time off of work, took anti-inflammatories and tried light therapeutic exercises. Two months later, on May 17, 2021, Dr. Rubano performed a total knee replacement surgery. Ms. Cline testified that one reason she decided to move forward with surgery was because she needed to return to full-duty work in four to six months or the employer would need to replace her position.

The employer disputed the reasonableness, necessity and causal relationship of the surgery. Specifically, the employer contended that conservative measures, such as formal physical therapy or injections, should have been attempted before rushing to surgery. The IAB accepted the opinions of Dr. Schwartz, the employer’s medical expert, over those of Dr. Rubano and concluded that proceeding to the total knee replacement without first exhausting conservative treatment was not reasonable or necessary. Moreover, the surgery was not compliant with the Delaware Practice Guidelines.

On appeal, the Superior Court cited the Supreme Court opinion Brittingham v. St. Michael’s Rectory for the proposition that the Board is required to make an individualized determination of the reasonableness of the treatment for the claimant. The standard was not to make an objective decision regarding treatment for similarly situated claimants, generally. Further, the Practice Guidelines require exhaustion of reasonable conservative measures prior to a total knee replacement, not all conservative measures. The court felt the Board failed to apply Brittingham and the Guidelines correctly because it did not discuss the conservative care the claimant did receive; did not advise what other conservative treatment should have been attempted; did not consider Ms. Cline’s attempt to return to light-duty work; and did not consider her pressing need to return to full-duty work or lose her job.

The court also determined there was not substantial evidence in the record. The judge emphasized that the Board credited x-ray and MRI descriptions of arthritis in non-testifying radiologist reports over Dr. Rubano’s own interpretation, even though Dr. Rubano had personally reviewed the studies and documented the level of arthritis in the operative report when he had performed the surgery. Dr. Schwartz had not personally reviewed the studies. The Board had even suggested it was interested to know what Dr. Schwartz thought upon his own review of the studies, but still deferred to the reports over Dr. Rubano’s testimony. The court noted that there may be substantial evidence in the record but could not make that determination based on the Board’s decision. It was highly critical of the conclusory nature of the Board’s reasoning and the decision was reversed and remanded.
 

 

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