Opinion
C.A. No. 00A-05-003-FSS
Submitted: January 9, 2001
Decided: April 30, 2001
Upon Appeal From the Industrial Accident Board.
AFFIRMED in part, REVERSED in part, and REMANDED.
John J. Schmittinger, Esquire, Schmittinger Rodriguez, Attorney for Appellant.
Anthony M. Frabizzio, Esquire, Attorney for Appellees.
ORDER
1. Employer, George Lynch, appeals the Industrial Accident Board's April 7, 2000 decision in favor of Jeffery Donaway and one of his health care providers, Christiana Health Care. The dispute is whether the last in a series of back surgeries, and other medical procedures performed on Donaway were necessary, reasonable and causally related to a November 9, 1989 work accident. Donaway's experts testified that the final surgery and other treatment were both medically necessary and reasonable, but neglected to discuss causation specifically. Even so, the Board found that Donaway's back surgery and other treatment were related to the accident. It concluded that medical expenses, approximately $18,000, were compensable.
2. On appeal, Christiana Health Care Systems was the only one of the seven health care providers joined under Delaware Workers Compensation Code § 2346 that filed an answering brief. The claimant also chose not to file an answering brief. Additionally, at the hearing, the Medical Center submitted Donaway's itemized medical bills. George Lynch, however, presented no alternative causes or explanations for the surgery and other medical procedures and treatments. Further, George Lynch passed up its opportunity to offer evidence that the surgery or other procedures and treatments were unreasonable.
3. Donaway hurt his back while working for George Lynch. George Lynch acknowledged that the injury was compensable. Donaway underwent four surgical procedures, which failed. In May 1996, Donaway was hospitalized for failure to void, and later that year he sought psychiatric care. Donaway testified that in 1996 he was in so much pain, he "just couldn't stand it." After he factitiously said, "give me a small gun and a big bullet," he was referred to a psychiatrist. He also testified that at another point he was in "much pain" and he could not urinate. His "bladder was spasming real bad," and that required hospitalization, as mentioned above. The Board awarded compensation for the costs associated with that treatment.
In April 1997, Donaway underwent a fifth surgery to remove "instrumentation and scar tissue from prior surgeries." The Board also awarded compensation for that. Finally, Donaway received a "course of acupuncture therapy" on his own. He testified that he was "seeking relief" from his pain and he said the acupuncture did some good. Again, the Board awarded compensation.
4. At the Board's December 14, 1999 hearing on his Petition to Determine Additional Compensation Due, Donaway offered his testimony and the depositions of Drs. Watson and Rosenthal. Dr. Watson, a rheumatologist and pain specialist who treated Donaway, testified about Donaway's pain level and its potential duration. She specifically stated, however, that she was not addressing causation, nor could she speak to the fifth surgery's reasonableness. Dr. Rosenthal, an anesthesiologist specializing in pain treatment, testified about Donaway's postaccident medical history. He also opined generally that Donaway's treatment "so far seems very reasonable." As mentioned, the Board concluded that Donaway's medical expenses were compensable under 19 Del. C. § 2301 et. seq.
5. The Court's authority on appeal is limited by 29 Del. C. § 10142 and 10161(a)(8). It does not reexamine the evidence or make its own factual findings. So long as substantial evidence supports the factual findings, and it has no legal error, the Board's decision stands. Substantial evidence, to a reasonable mind, is adequate to support a conclusion It is Donaway's burden to show that his medical expenses, were reasonable, necessary and causally related to the original injury.
General Motors Corp. v. Jarrell, Del. Super., 493 A.2d 978 (1985).
Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., Del. Supr., 636 A.2d 892, 899 (1994).
See Turnbill v. Perdue Farms, Del. Super., C.A. No. 98A-02-001, Lee, J. (May 18, 1998) (Letter Op.), aff'd, Del. Supr., 723 A.2d 398 (1998).
6. Donaway met his burden for the fifth surgery and the costs directly associated with it, e.g. anesthesia, but not for the other treatments. Although no expert testified in so many words, it was reasonable for the Board, even as lay people, to infer that the fifth surgery was a direct sequel to the fourth surgery. The prior back surgeries admittedly were related to the accident and the fifth surgery removed "instrumentation and scar tissue from prior surgeries." At least for purposes of meeting Donaway's initial burden, that is enough to tie together all five surgeries and the accident. And the fifth procedure clearly was linked by the medical record to the previous four. So, on the record presented, the Board was justified in concluding that the surgery to remove instrumentation and scars associated with prior surgery was causally connected to the work accident. George Lynch offered no evidence to rebut the apparent tie between the five surgical procedures and the fifth surgery's reasonableness. Nor did it establish any alternative causes or explanations for the surgery. At best, George Lynch suggests that Donaway's problems were degenerative or related to a fall when Donaway's porch collapsed.
7. In contrast to the evidence concerning the bladder and psychiatric problems, discussed below, the evidence supporting the Board's finding as to the fifth surgery was substantial. As mentioned, based on expert testimony, the Board knew that the first four surgical procedures were medically indicated and they were necessitated by the work injury. The Board also knew that the fifth surgery was directly linked to the previous four.
8. Donaway's experts testified that the other treatments were reasonable and medically necessary. There is no medical evidence, however, that the treatments associated with Donaway's bladder and psychiatric problems and the self-prescribed acupuncture were causally related to the 1989 work accident.
The Board concluded:
The radiology bill relates to his low back, the psychiatric treatment relates to his psychological response to the severe chronic low back pain. The hospitalization for his inability to void was related to his pain . . . [A]nd the acupuncture was for low back pain. Therefore, the Board finds that all requested expenses are causally related to the work injury.
While the Board's assumption that Donaway's inability to void, his psychiatric problems and the acupuncture were accident-related makes sense, there is no expert testimony actually tying the problems to the accident in the first place. The Board can rely on common sense and the absence of alternative explanations to a degree. But common sense alone is not enough to prove that bladder problems, psychiatric problems and acupuncture are causally related to a work accident that occurred over ten years earlier. That requires expert medical opinion. In order to conclude that the other procedures and treatment were causally related to the 1989 injury, the Board relied impermissibly on its own expertise or it speculated impermissibly. That part of the Board's decision cannot stand.
See, Turbiti v. Blue Hen Lines, Inc., Del. Supr., 371 A.2d 1214, 1216 (1998).
See e.g., Fiorelli v. N.K.S. Distribs., Del. Super., C.A. No. 93A-07-5, Herlihy, J. (Nov. 22, 1993) (Mem. Op.).
For the foregoing reasons, the Board's April 7, 2000 decision is AFFIRMED in part, and REVERSED in part, and REMANDED for proceedings consistent with this decision.
IT IS SO ORDERED.