Opinion
C.A. No. 06A-07-001 SCD.
Submitted: March 5, 2007.
Decided: April 10, 2007.
APPEAL FROM A DECISION OF THE INDUSTRIAL ACCIDENT BOARD AFFIRMED IN PART, REVERSED IN PART.
ORDER
This 10th day of April, 2007, the appellant's opening brief and reply brief, and the answering brief of employer, having been considered, it appears:
1. That the appellant sought workers compensation benefits as a result of an injury to her wrist which she said occurred on July 21, 2005. The matter was presented to the Industrial Accident Board ("Board") on March 3, 2006. Adecco Employment Svcs. ("employer") disputed the occurrence of a work injury and contended that the appellant's wrist injury was related to a pre-existing condition. The Board found in favor of the employer.
2. The standard of review for an appeal of a decision from the Board is well-established. In an appeal from the Board, the function of the Superior Court "is to determine only whether or not there was substantial evidence to support the findings of the Board. If there was, [the] findings must be affirmed." Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. When reviewing appeals from the Board, the Superior Court is not the trier of fact and does not have authority to weigh evidence, determine the credibility of witnesses or make independent factual findings.
State v. Daltan, 878 A.2d 451 (Del. 2005).
General Motors Corp. v. Freeman, 164 A.2d 686, 689 (Del. 1960).
Histed v. E.I. DuPont de Nemours Co., 621 A.2d 340, 342 (Del. 1983).
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
3. The appellant argues that the Board incorrectly applied the "but for" standard of causation, and that the Board failed to go into detail concerning the factual findings and conclusions of law on which its decision was based.
Reese v. Home Budget Center, 619 A.2d 907, 910 (Del. 1992).
4. The claimant presented the deposition testimony of Stephen Hershey, M.D., a board-certified orthopedic surgeon. Dr. Hershey began treating the appellant in September of 2003 for pain in her right wrist. Dr. Hershey recounted the claimant's medical history relevant to her right wrist. In September of 1996 the claimant had surgery to correct carpal tunnel syndrome. From September of 2003 through March of 2004 Dr. Hershey attempted to treat synovitis in the claimant's wrist with non-surgical procedures. In March of 2004, due to the claimant's continuing pain in her wrist, Dr. Hershey suggested that she undergo a surgical procedure called a synovectomy of the extensor tendon. Claimant did not have the surgery. She then ceased treating with Dr. Hershey. Dr. Hershey did not see the patient again until October of 2005. Dr. Hershey diagnosed the claimant with chronic extensor tendonitis synovitis dating back to her original injury in 2003. He expressed the opinion that the appellant's wrist injury was "re-aggravated" by the incident in July 2005.
The deposition of Stephen L. Hershey, M.D. was taken on Monday February 27, 2006. References to that testimony will be cited as (Hershey at .). Hershey at 4.
Id.
Id. at 4-9.
Id. at 28.
Id. at 10.
Id. at 13.
Q. Dr. Hershey, can you say to a reasonable degree of medical probability that but for the incident in July of 2005 that she would not now require the surgery that you just mentioned?
A. Well, it certainly re-aggravated an existing condition. There's no question about that. And I hadn't seen her in almost two years. And obviously she was functioning at some level, because there's not a big record of anybody else seeing her for that particular problem. So I have to say that that aggravated what had already been well established and going on as a workmen's comp injury in the first place. Id. at 15-16.
5. The employer presented the deposition testimony of Jerry Case, M.D., a board-certified orthopedic surgeon. Dr. Case agreed with Dr. Hershey's diagnosis of chronic synovitis of the extensor tendons on the back of the wrist. Dr. Case's recitation of the claimant's history was consistent with that of Dr. Hershey. Dr. Case expressed the opinion that the mechanism of injury as described by the claimant was inconsistent with the claimant's injury. He opined that any symptoms resulting from the incident in July of 2005 would be temporary, and that the incident in July of 2005 was not a "but for" cause of the need for surgery. Dr. Case also testified regarding the claimant's disability as a result of the July 2005 incident. He said that any pain would have been temporary and two to three visits after the reported injury would have been reasonable and related to the July incident.
The deposition of Jerry L. Case, M.D. was taken on Tuesday February 28, 2006. References to that testimony will be cited as (Case at .). Case at 12.
Q. With this mechanism of injury that was described — I mean how is the mechanism of injury in conjunction with her hand complaints?
A. Well, it doesn't make a lot of sense to me, at least the way described. She says she was separating two pieces of glass. I assume that she would be lifting with the glass in front of her; she would get her fingers underneath of each side of the glass and lift up. Well you're lifting it up with your flexor tendons. You're not really exerting any tension on the extensor tendons at all. So from the mechanism-of-injury standpoint, I'm not sure why that would cause any specific strain on this previously chronic problem that she had. Just the lifting effort alone may have caused some tension of the muscles in the forearm that might have caused some temporary aggravation. But the mechanism is not one that I would expect to cause any serious injury to the extensor portion of the hand.
Id. at 15-16.
Q. From your review of the records from Concentra and her history and your examination and description, what symptoms, if any, do you relate to this 7/21/05 incident?
A. Well, she may have had some temporary pain. As I've already described this, she's pulling with her hand to lift this up. But, basically, the mechanism, as I've already described, is not one that would cause a lot of strain on the extensor tendons, rather than just a tightening of the forearm muscles somewhat, and might have aggravated it a little bit. It wouldn't be enough to cause this condidtion to suddenly reappear and now needed surgery when it had been recommended she have surgery in 2003.
Q. And so anything, again — and as you stated in your report, it would have been a temporary discomfort?
A. I think so.
Q. That's how you would describe it?
A. Yes.
Q. And as you stated in your report, your opinion is that this event did not have anything to do with her chronic extensor tensynovitis which had been present previously?
A. It didn't cause that, no.
Q. And, again, your explanation was if it did cause any discomfort or aggravation, it would have been a temporary type of thing?
A. I think so.
Id. at 18-19.
Q. Any recommendation for surgery made by Dr. Hershey in November — or October of 2005, in your opinion would that be related to her previous condition which had been diagnosed since 2003?
A. Yes.
Q. And if you were going to use any but-for analysis, would you say that but for that prior problem, she would not have needed any surgery.
A. No.
Q. — that there would not be any recommendation for surgery?
A. No. I think she had already been advised to have the surgery in the past. For whatever reason, whether it wasn't approved or something, she didn't have it done. But, but the recommendation for surgery, as far as I'm concerned, is still carried on from her previous problem in 2003.
Q. So you would not say that but for this most recent incident it would, it would.
A. No.
Q. — she would not have needed surgery?
A. No. The amount of trauma that would have been exerted on those extensor tendons in the mechanism that she described would not be enough to cause that.
Id. at 19-20.
Q. With regard to any disability from work, do you believe that she was ever totally disabled from work related to any incident that's described in July of 2005?
A. No, I don't think she was ever totally disabled. She may have had to have been moved from the particular activity to something else, that she wasn't doing any heavy lifting with the right hand. But from this type of activity, she wouldn't have been totally disabled.
Q. So she would have been able to work but with some type of restriction against repetitive or heavy lifting with the right hand; is that fair?
A. Yes, that's correct.
Q. Okay. And with regard to any medical treatment, your indication was, if she had some kind of incident on 7/21/05, she may have needed several visits for any temporary flare-up?
A. Well, just to evaluate the thing again and see what was going on, and some local treatment to the area would have been appropriate. But the need for surgery I couldn't relate to this minor episode.
Q. So would it be fair to say that any treatment that began with Dr. Hershey again in October of 2005 would have been not — would have not been related to this incident?
A. Not to the point where he would now be considering surgery; that's correct.
Id. at 20-21.
Q. Your report also states that her period of evaluation of two or three visits after the reported injury would have been reasonable and related to her reported injury of 7/21/05. Did I read that correctly?
A. Yes.
Q. So she did suffer some sort of an injury on July 21, `05, that required follow-up medical treatment; correct?
A. Yes; assuming her history is correct.
Q. And that whatever injury she suffered did cause her to have work restrictions for a period of time imposed by Concerta?
A. Yes. Id. at 30-31.
6. The Board is free to accept one expert's opinion over another, and this Court does not second-guess such credibility determinations. The Board accepted the opinion of Dr. Case.
DiSabatino Bros., Inc. v. Wortman, 453 A.2d 102, 106 (Del. 1982) (citing General Motors v. Veasey, 371 A.2d 1074, 1076 (Del. 1977)).
Hernandez v. Boston Market, Inc., 878 A.2d 461 (Del. 2005).
7. The claimant did not meet her burden of proving that "but for" the accident on July 21, 2005 she would not have required the surgery. The record reflects that the need for surgery was established prior to the July 21, 2005 accident. Dr. Hershey described the July 2005 event as a "re-aggravation." Dr. Case rejected the causal connection between the incident and the surgery. The Board's conclusion that the surgery is not compensable is supported by the record.
8. The July 21, 2005 incident resulted in the termination of the claimant's temporary employment. Due to the restrictions imposed by Concentra, the health care provider to which claimant was directed, claimant was not able to return to work at GE. Dr. Case testified that the July 21, 2005 incident could have aggravated the synovitis and that two to three visits to Dr. Hershey for treatment was reasonable and related to the incident. On August 17, 2005 claimant began a new job as a security guard. The uncontested evidence in the record supports a finding that claimant is entitled to temporary total disability for the period of July 25, 2005 through August 17, 2005.
3/3/06 IAB Hearing Transcript at 33.
Case at 20-21, 30-31.
3/3/06 IAB Hearing Transcript at 59.
WHEREFORE, the decision of the Board is affirmed in part and reversed in part. The case is remanded for calculation of benefits for the period of July 25, 2005 through August 17, 2005.
IT IS SO ORDERED.