Opinion
C.A. No. 03A-12-002 ESB.
Submitted: January 3, 2005.
April 29, 2005.
Raymond W. Cobb, Esquire, Three Mill Road, Wilmington, DE.
Walt F. Schmittinger, Esquire, Dover, DE.
Dear Counsel:
This is my decision on Delhaize America, Inc.'s, doing business as Food Lion ("Food Lion"), appeal of the Industrial Accident Board's ("Board") approval of Karen King's ("King") petition for lost wages and medical expenses. The Board's decision is affirmed in part and reversed in part.
STATEMENT OF THE CASE
King was a clerk for Food Lion. She hurt her back while mopping the floor at work in 1996. King missed time from work and received workers' compensation benefits, including temporary total disability and a nine percent permanent partial disability payment for her back injury. King eventually returned to work and was employed by Food Lion until she left in 1998. She then worked for several other employers. King's back pain never completely went away.
King was rear-ended by a drunk driver in 2000. She sustained neck and back injuries. King's pain increased after the automobile accident, but it eventually returned to the same level as before it. However, she now needs spinal fusion surgery. King filed a petition with the Board in 2003 for lost wages and medical expenses, alleging that her current back injury was related to the Food Lion accident.
The Board Hearing and Decision
King and two medical doctors testified at the Board hearing. King testified about the 1996 Food Lion accident, the 2000 automobile accident, and her medical history. Ganesh Balu, M.D., a specialist in physical medicine and rehabilitation, testified on behalf of King. His opinion was that the automobile accident made King's existing work-related back injury worse. John B. Townsend, M.D., a neurologist, testified on behalf of Food Lion. His opinion was that the automobile accident was the sole cause of King's current back injury.
The Board agreed with King and Dr. Balu, ruling that King's current back injury was a direct result of the 1996 Food Lion accident. The Board also ruled that King was totally disabled as of May 14, 2003, the date that Dr. Balu put her on "no work" status so that she could be evaluated by Ali Kalamachi, M.D., an orthopedic surgeon, for back surgery.
STANDARD OF REVIEW
The Supreme Court and this Court repeatedly have emphasized the limited appellate review of the factual findings of an administrative agency. The function of the Superior Court on appeal from a decision of the Industrial Accident Board is to determine whether the agency's decision is supported by substantial evidence and whether the agency made any errors of law. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. It merely determines if the evidence is legally adequate to support the agency's factual findings. Absent an error of law, the Board's decision will not be disturbed where there is substantial evidence to support it's conclusions.
General Motors v. McNemar, 202 A.2d 803, 805 (Del. 1964); General Motors v. Freeman, 164 A.2d 686 (Del. 1960).
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battisa v. Chrysler Corp., 517 A.2d 295, 297 (Del.), app. dism., 515 A.2d 397 (Del. 1986).
Johnson v. Chrysler Corp., 312 A.2d 64, 66 (Del. 1965).
29 Del.C. § 10142(d).
Dellachiesa v. General Motors Corp., 140 A.2d 137 (Del.Super.Ct. 1958).
DISCUSSION
I. Causation.The rule on causation where an employee's work-related injury is aggravated by a subsequent, non-work related accident is set forth in a line of cases beginning with Hudson v. E.I. DuPont de Nemours Co., Inc. In this case the Superior Court held that "a subsequent injury is compensable only if it follows as a direct and natural result of the primary compensable injury." If the subsequent injury is caused by the employee's own negligence or fault, then the chain of causation is broken and the subsequent injury is not compensable. Similarly, in DuPont Hospital for Children v. Haskins, the Superior Court stated that "an intervening independent cause of incapacity will not remove the employer's liability for benefits as long as the prior injury remains a "cause" of the accident's ongoing conditions. . . ."
245 A.2d 805 (Del.Super. 1968).
Id. at 810, citing 1 Larson, Worker's Compensation Law, § 13.12; Hartford Fire Insurance Company Group v. Beeler, 244 F.Supp. 188 (E.D.Tenn. 1965); See Fiorucci v. C.F. Braun Co., 4 Storey 79, 173 A.2d 635 (Del.Super. 1961).
Id. at 810. Amoco Chemical Corp. V. Hill, 318 A.2d 614 (Del.Super.Ct. 1974).
2001 WL 1198338 (Del.Super.Ct. 2001).
The most recent case to address causation in this area is Barkley v. Johnson Controls. In this case the Superior Court discussed the concept of "direct and natural results" as to compensable injuries, and how the chain of causation may be broken by an employee's own negligent behavior. It went on to state that, "[u]nder this rule, absent such negligence, a weakened condition stemming from a compensable injury may be deemed the cause of an aggravation of the injury which occurs in a subsequent non-work related accident." It is clear from this line of cases that an employer is not relieved of responsibility for an employee's work-related injuries that are aggravated by a subsequent non-work related event that was not caused by the employee.
2003 WL 187278 (Del.Super.Ct. 2003).
Id., 2003 WL at *3.
Id., 2003 WL at *4; See also DuPont Hospital for Children v. Haskins, 2001 WL 1198938 (Del.Super.Ct. 2001).
The Board ruled that King's current back problems are causally related to her 1996 Food Lion accident. The Board's decision in this regard is both in accordance with the applicable law and supported by substantial evidence in the record. King never completely recovered from the 1996 Food Lion accident. She had a permanent impairment to her back and she continued to experience back pain both before and after the 2000 automobile accident. Indeed, Dr. Kalamachi concluded that King's back problems were now so bad that she needed spinal fusion surgery.
Dr. Balu testified that King's current back problems were related to the 1996 Food Lion accident. His opinion was based on the fact that King had a bulging disc before the automobile accident that was made worse by the automobile accident. Dr. Balu's ultimate conclusion was that King had discogenic low back pain with a herniated disc that got worse after the automobile accident. Even Food Lion's own expert, Dr. Townsend, admitted that a portion of King's current back pain was related to the Food Lion accident. Thus, both Dr. Balu and Dr. Townsend agreed, at least to some extent, that King's current back problems were related to the Food Lion accident. It is obvious, as the Board concluded, that King's accident at Food Lion created a weakened condition in her back that was aggravated by the automobile accident. Given this, Food Lion is still responsible for King's injuries.
The Board discounted Dr. Townsend's testimony because of the manner in which he testified regarding the cause of King's current back problems. Dr. Townsend testified that "but for" the automobile accident, King would not have her current back problems and would not need treatment. The proper standard of causation to apply to King's injuries is whether or not they are a "direct and natural result" of the work-related accident. It was well within the Board's discretion to determine the proper weight to give to Dr. Townsend's testimony. The fact that Dr. Townsend applied the wrong standard of causation to the facts certainly supports the Board's decision to discount his testimony. Therefore, I affirm the Board's decision that King's current back injury was a direct result of the 1996 Food Lion accident.
II. Total Disability.
Food Lion argues that the Board erred as a matter of law when it ruled that King was totally disabled as of May 14, 2003, the day that Dr. Balu placed her on "no work" status so that she could make arrangements to see Dr. Kalamachi for a surgical evaluation. The Board relied upon the Supreme Court's holding in Gilliard-Belfast v. Wendy's to support this decision. In Gilliard-Belfast the employee was taken out of work by her treating physician pending surgery. The medical experts for the employer and employee both agreed that the employee's surgery was reasonable and necessary. However, the employer's medical expert believed the employee was capable of sedentary duties while awaiting surgery. The Board agreed with the employer's medical expert and denied the employee compensation while she was waiting for her surgery. The Supreme Court held that the Board's decision to deny compensation to the employee for total disability while she waited for her surgery was "contrary to well-established Delaware law." The Supreme Court went on to state that, "a person who can only resume some form of employment by disobeying the orders of his or her treating physician is totally disabled, at least temporarily, regardless of his or her capabilities."
Gilliard-Belfast v. Wendy's, 754 A.2d 251 (Del. 2000).
Id. at 252.
Id. at 253.
Id.
Id.
Id. at 254.
Id.
However, the Supreme Court's holding in Gilliard-Belfast cannot be divorced from the facts of that case and it certainly does not stand for the proposition that an employee is totally disabled merely because he is waiting for a surgical evaluation. The medical experts in King's case disagreed about whether King needed spinal fusion surgery. Indeed, Dr. Balu did not even know if King needed surgery at all when he placed her on "no work" status. He testified that he only put King on "no work" status so that she could have a surgical consultation with Dr. Kalamachi. Dr. Balu testified that King could do sedentary work. Dr. Townsend also testified that King could do sedentary work. The fact that both Dr. Balu and Dr. Townsend agreed that King could do sedentary work as of May 14, 2003, in conjunction with the fact that no doctor was of the opinion that as of May 14, 2003 King needed surgery, requires a finding that she was not totally disabled as of May 14, 2003. The Board's reliance on Gilliard-Belfast is misplaced. Therefore, I reverse the Board's decision that King was totally disabled as of May 14, 2003.
CONCLUSION
The Board's decision is affirmed in part and reversed in part for the foregoing reasons and remanded to the Board for further proceedings consistent with my decision.