Opinion
C.A. No. 99A-08-012 WCC.
Submitted: June 19, 2000.
Decided: October 31, 2000.
On Employer's Appeal from Decision of Industrial Accident Board. Affirmed.
H. Garrett Baker, Esquire; 1201 N. Market Street, Suite 1401, P.O. Box 1630, Wilmington, DE 19890-1630. Attorney for Employer-Appellant.
William W. Erhart, Esquire; 300 Delaware Avenue, Suite 1130, P.O. Box 234, Wilmington, DE 19899-0234. Attorney for Employee-Appellee.
ORDER
This 31st day of October, 2000, after considering Zany Brainy's ("Employer") appeal from the Industrial Accident Board's (the "Board") decision, it appears that:
1. Nancy Healy (the "Employee") was a key punch operator and receptionist for the Employer for several years. On December 21, 1998, the Employee complained of severe left arm pain. Ultimately, aneurysms were revealed in both upper extremities, and she was diagnosed with thoracic outlet syndrome. She had surgery on her left and right upper extremities in March and May 1999. Thereafter, she sought compensation for total disability benefits from December 28, 1998 to July 28, 1999.
2. The Board held a hearing on July 13, 1999. It was undisputed that the Employee's problems on her left side and subsequent surgery resulted from her work duties. The dispute centered on whether her condition on the right side and subsequent surgery resulted from her work duties.
Beginning in August 1994, the Employee worked for the Employer as a key punch operator. Due to the set up of her work area and the placement of her equipment, she was forced to contort and twist her body in different positions. Her work conditions were cold, and her arms and hands would often tire during her work day. The Employee stated that on December 21, 1998, she woke up with a big bump on her shoulder and could not move her left arm. Although she went into work that day, she only stayed for three hours and went to a chiropractor. Due to the increased pain, she went to the hospital several times that week. She was ultimately referred to Dr. Bakst who prescribed therapy, and on February 16, 1999, Dr. Bakst referred her to Dr. Bruce Fellows, a vascular surgeon, who detected aneurysms on her left and right sides and subsequently performed surgery on both. She further testified that from December 1998 until July 1999, she did not work because she was physically incapable. She admitted that she did not have right-sided symptoms when asked by Dr. Bakst and was only minimally symptomatic on the right side by the end of April 1999. She further testified that she had a car accident in 1993, which resulted in frequent headaches and pain and numbness in her arms.
Ultimately, she took additional responsibilities as a receptionist.
Bill Patberg, Director of Distribution for the Employer, stated that her work area was located in the front receptionist area with an "L" shaped desk, swivel chair, and a computer located in the corner of the work station. In addition, Deborah Bennett, a data entry operator, testified that it was more difficult to work at the Employee's desk than her own.
Peter Hackett, a warehouse manager at Zany Brainy, stated that the Employee complained about her work environment. Deborah Bennett also stated that the Employee complained about her arms hurting, mostly her left arm.
On July 7, 1999, the Employee felt she was ready to return to work.
Dr. Bruce A. Fellows, a vascular surgeon, testified for the Employee by deposition. He first saw the Employee on February 16, 1999. Upon examination, Dr. Fellows stated that all the muscles in her left neck area were in severe, tight spasm and that the motion in her neck and arm was limited. He diagnosed her with thoracic outlet syndrome, which is a term that describes complex symptoms of numbness and pain in the neck, shoulder, and arm region. Dr. Fellows admitted that initially, the Employee primarily complained of pain in the left upper extremity and that his opening report indicated no complaints of right-sided pain, only to the left side, but he also stated that his findings on examination were bilateral. As a result of a February 23, 1999 arteriogram, he confirmed that there was a mild dilatation of the right subclavian artery even though she was not symptomatic on her right side at that time. He explained that she had an innate anatomical situation that predisposed her to the thoracic outlet problem and that her work threw her over the edge to "start this degenerating spiral into this entity of the clinical pathological thoracic outlet syndrome." Dr. Fellows found that her tight, cramped work area, her constant twisting positioning, the stress of deadlines in her job, and the cold conditions were all things that would aggravate the thoracic outlet syndrome and cause the formation of the aneurysms. When asked whether her work activities caused her to develop right-sided pain, he stated:
"It is usually due to a compression of the nerves as they come from the neck down to the arm and as they pass over the first rib and underneath the collarbone and between the scalene muscles." (Fellows Dep. at 4.)
He specifically stated "Not only on the left side but those similar changes with manipulation on her arm were present on the right side, as well." (Fellows Dep. at 3-4.)
(Fellows Dep. at 11-12.)
After reviewing the Employee's emergency room records, Dr. Fellows stated that they substantiated his ultimate findings.
Well, let's put it this way. I do not know that the work activity did not cause her to develop right-sided pain. What I do know is that the intensity of her pain and limitation made her report her problems on the left. I do not know whether the intensity of her limitations and pain so overwhelmed any kind of problems on the right that she never reported them.
(Fellows Dep. at 24.)
He performed surgery on the Employee's left side on March 18, 1999. While he stated she was only minimally symptomatic on the right side on April 30, 1999, he performed surgery to her right side on May 5, 1999 "[i]n light of the anatomical deformity on the right and the damage or involvement to her artery on the right." He also stated that since his first examination, he had always intended to perform surgery on both sides but that the timing was imminent on the left and more elective on the right, because her aneurysm was not as big and not as emergent an issue as the left side. With regards to the 1993 car accident, he stated that according to the Employee and her records, her pain and limitations had resolved completely.
(Fellows Dep. at 5.)
(Fellows Dep. at 29.)
Dr. John B. Townsend testified for the Employer. He examined the Employee on May 11, 1999 and reviewed her records. He stated that the notes in her records only indicated complaints on her left side and no complaints on the right side. Dr. Townsend testified that the thoracic outlet syndrome was a congenital problem and became symptomatic on the left side due to key punching. He agreed that it was appropriate to have the left-sided surgery, but he characterized the right-sided surgery as elective. In addition, he testified that he could not relate the right-sided symptoms to the key punching because she was not key punching when she developed the symptoms on the right side. He further stated that it was not clear whether her symptoms were related to the 1993 car accident or ongoing irritation as a result of structural abnormalities in the thoracic outlet region. He also explained that twisting persistently or a car accident could produce thoracic outlet syndrome.
He explained that the congenital abnormality was present before she had symptoms.
There were several other witnesses who testified but their testimony is not relevant to the issues at hand.
3. Relying upon the medical expert opinion of Dr. Fellows, the Board found that in addition to the left side, the Employee's thoracic outlet syndrome on the right side and the subsequent surgery were related to her work duties. In addition, the Board, again relying upon Dr. Fellows, concluded that she was totally disabled from December 28, 1998 until July 7, 1999. Lastly, the Board awarded the Employee medical witness and attorney's fees. The Employer appeals the Board's decision.
While the Employee sought benefits until July 28, 1999 and Dr. Fellows believed that she was only capable of gradually returning to work after July 7, 1999, the Board relied upon the Employee's testimony that she was capable of returning to work on July 7, 1999. As such, the Board made that date the end of the benefits.
4. In reviewing a Board decision, the Court's role is limited to determining whether the decision is supported by substantial evidence. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The Court does not weigh the evidence, determine questions of credibility, or make its own factual findings.
General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960).
Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., Del. Supr., 636 A.2d 892, 899 (1994).
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965).
5. First, the Employer appeals the decision on the grounds that the Board erred in concluding that the Employee's thoracic outlet condition was related to her work duties. The Employee argues that contrary to the Board's conclusion, the Employee did not develop thoracic outlet syndrome as a result of her work duties because thoracic outlet syndrome is congenital in nature. Instead, the issue before the Board was what caused the pre-existing condition to become symptomatic.
In essence, this argument is a baffle of semantics, and the Court finds no merit in it. It appears that the Employer's argument is based upon a concern that due to its choice of words, the Board did not understand the issue and consequently did not make the correct conclusion. And, while the Board may have phrased the issue as whether the thoracic outlet syndrome was related to her work duties instead of whether her condition became symptomatic as a result of her work duties, the Court finds that the record supports the Board's ultimate decision and that the Board did not confuse the issues. It was undisputed that the Employee's condition was congenital, and according to both medical experts, the record reflects that her condition on the left side became symptomatic as a result of her work duties. In addition, the Board summarized Dr. Fellows's opinion in the following statement, "Dr. Fellows testified that although Claimant had a physical predisposition to thoracic outlet syndrome, it was her work activities that set the process in motion." As such, the Board did not confuse the condition and the cause, and the isolated statements referenced by the Employer were not made in error.
(Bd. Dec. at 8.)
6. Next, the Employer argues that there was not sufficient competent evidence to support the Board's decision that the Employee's right-sided thoracic outlet treatment was related to her work duties. The Employer specifically relies on the fact that the Employee's right-sided symptoms did not surface until several months after she ceased working for the Employer.
The Court also finds no merit in this argument. The Board accepted Dr. Fellow's opinion over Dr. Townsend's opinion. The Board was entitled to accept the testimony of one medical expert over the views of another, and a reviewing Court will not disturb this assessment of credibility. While Dr. Fellows admitted that the Employee's initial complaints were primarily directed to her left side and that there were no documented complaints on her right side, Dr. Fellows also stated that based upon his first examination, he recognized a problem on both sides. The arteriogram on February 23, 1999 indicated a problem on the right side, and while the left side was more severe, he found a similar aneurysm on the right side. He further stated that the pain was not as prominent on the right side as it was on the left and that "most of the time in medicine, symptoms have only mild correlation with the gravity of the disorder . . . the gravity of her situation is not necessarily related to her pain." He concluded that the thoracic outlet syndrome on both sides became symptomatic as a result of her working conditions. While there was a few months delay in the documentation of complaints on her right side, the condition was identical to the left side; there was no other injury sustained between December 1998 and April 1999, and Dr. Fellows ruled out that the cause arose from the 1993 car accident. This is a classic situation of a baffle of the experts with the Board giving greater weight to the testimony and findings of Dr. Fellows. And, that decision is clearly supported by the record. Despite Dr. Townsend's contrary opinion, the Court finds that there was sufficient competent evidence in the record to support the Board's finding that the Employee's thoracic outlet syndrome on her right side became symptomatic from her working conditions.
Standard Distrib. Co. v. Nally, Del. Supr., 630 A.2d 640, 646 (1993).
(Fellows Dep. at 27.)
7. For the reasons set forth above, the Court AFFIRMS the Board's decision.
IT IS SO ORDERED.