Opinion
C.A. No. 06A-12-005 JTV.
Submitted: June 20, 2007.
Decided: September 28, 2007.
Upon Consideration of Appellant's Appeal From Decision of Industrial Accident Board.
AFFIRMED.
Walt F. Schmittinger, Esq., Schmittinger Rodriguez, Dover, Delaware. Attorney for Appellant.
Danielle K. Yearick, Esq., Tybout, Redfearn Pell, Wilmington, Delaware. Attorney for Appellee.
OPINION
This is an appeal from the Industrial Accident Board's (" Board") decision dated December 7, 2006. The Board conducted an evidentiary hearing regarding Christine Rash's ("claimant") Petition to Determine Additional Compensation Due. She sought payment of permanent impairment benefits, surgical authorization, total disability benefits related to the proposed surgery, disfigurement benefits, and payment of outstanding medical expenses related to work-related injuries against Wal-Mart, Christiana Care Health Services, Bay Health Medical Center, and the State of Delaware Home and Hospital for the Chronically Ill ("State" or "DHHCI"). The Board denied claimant's petition. Claimant's appeal is limited to the Board's failure to award disfigurement benefits for arthroscopic knee sur gery performed by Dr. Rowe in July 2003, and the appeal is taken only against DHHCI. For the following reasons, the decision of the Board shall be affirmed .
FACTS
The facts are limited solely to those that relate to the disfigurement issue from which claimant is appealing.
Beginning in the mid-1990s, claimant suffered at least eleven injuries to her right knee, including both work and non-work-related incidents. The initial trauma was a February19,1994 industrial accident while claimant was employed by Presbyterian Hospital. Two non-work-related incidents occurred at home in April 1996 and May1996. The next injury occurred on October 30, 1996 when claimant slipped and fell while employed by Metro Basic Foods. Subsequent trauma occurred while claimant was working at Wal-Mart on February 17, 1998, Christiana Care Health Services on January 27, 2000, and Bay Health Medical Center on February 3, 2002. The two incidents relevant to this appeal are a December 8, 2002 slip and fall on ice while claimant was not at work and a June 10, 2003 twisting event while claimant was employed by DHHCI. Claimant underwent three s urgeries, the first two performed by Dr. Lawrence Piccioni in August 1996 and July 1997, and the third performed by Dr. Glen Rowe on July 11, 2003.
IAB refers to the incident as the "twisting event" because claimant twisted her knee while trying to support a patient who was falling.
In March 2003, claimant began seeing Dr. Rowe for problems with her right knee. Dr. Rowe first discussed a potential third knee surgery with claimant on April 28, 2003. Initially, claimant provided Dr. Rowe with inaccurate medical information in that she failed to mention problems with her right knee more than two years earlier and omitted one of her two prior knee surgeries. On May 12, 2003, Dr. Rowe scheduled the July 2003 surgery and filled out the Family Medical Leave Act ("FMLA") form indicating that claimant could not work after the surgery. Dr. Rowe performed an arthrosporic procedure, which was paid for by the State, on claimant's right knee on July 11, 2003. The surgery left claimant with two scars, three-eighths of an inch long and one-sixteenth of an inch wide, on both sides of her right knee.
With regard to the disfigurement issue, which is the only issue claimant raises on appeal, the Board made the following findings:
[T]he July 2003 surgery was scheduled prior to claimant suffering the June 2003 accident and the surgery was in response to her slip on ice in 2002 that occurred when claimant was not working. Since the State already paid for that surgery, based on claimant's false statements regarding the need for the surgery, it is up to the State to proceed as it finds appropriate regarding a fraud claim against claimant; however, the Board finds that the State is not liable for the disfigurement that is associated with that surgery.
Additionally, the Board found that claimant misapplied the last injurious exposure rule in her attempt to hold the State responsible for her disfigurement. The State is not responsible for all future workers' compensation claims solely because the June 10, 2003 twisting event is the last industrial accident. Claimant failed to prove a causal relationship between the July 2003 surgery which resulted in the disfigurement and the June 10, 2003 industrial accident.
PARTIES' CONTENTIONS
The only issue claimant raises on appeal is the Board's failure to award disfigurement benefits pursuant to 19 Del. C. § 2326(f) for the July 2003 surgery. Claimant argues that the Board erred in failing to award disfigurement benefits for surgery acknowledged as compensable and paid for by the State. It was error for the Board to conclude that claimant had committed fraud regarding the need for the July 2003 surgery because the State knew that the surgery was scheduled in May when claimant submitted an FMLA application. Additionally, claimant argues that the Board should have found that the June 2003 industrial accident was causally related to the need for the July 2003 surgery. Claimant contends that but for the June 10, 2003 industrial accident, she would not have required the July 2003 surgery. Claimant further argues that under the last injurious exposure rule and the Barkley line of cases, the July 2003 surgery was compensable and the State's knowing and voluntary acceptance of such is not subsequently subject to collateral attack.
Barkley v. Johnson Controls, 2003 Del. Super. LEXIS 21.
In response, the State argues that it is not liable for payment of additional disfigurement benefits where it agreed to pay for the July 2003 surgery, because newly-discovered medical evidence shows that the surgery was not related to a compensable work accident. The State entered into a voluntary agreement to pay for the surgery based on an incomplete understanding of claimant's medical histories, as inaccurately reported by claimant to her multiple treating physicians. Thus, the State paid for the surgery due to either claimant's misrepresentations or the parties' mutual mistake regarding the causal relationship between the June 10, 2003 industrial accident and the July 2003 surgery. Furthermore, the State argues that since there is no causal connection between the July 2003 surgery and the June 10, 2003 work-related injury, claimant's reliance on the last injurious exposure rule to recover disfigurement benefits from that surgery must fail.
STANDARD OF REVIEW
The scope of review for an appeal of a Board decision is limited to examining the record for errors of law and determining whether substantial evidence is present on the record to support the Board's findings of fact and conclusions of law. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. On appeal, this Court does not "weigh the evidence, determine questions of credibility, or make its own factual findings." Instead, this Court reviews the case to determine if the evidence is legally sufficient to support the Board's factual findings. The Board has the discretion to accept the testimony of one expert over that of another when the evidence is in conflict and the opinion relied upon is supported by substantial evidence. When an expert's opinion is based in large part on the patient's statements and the trier of fact finds the underlying facts to be different, the trier of fact is free to reject the expert's testimo ny. In reviewing the record for substantial evidence, this Court must consider the record in the light most favorable to the party prevailing below.
Histed v. E.I. DuPont de Nemours Co., 621 A.2d 340, 342 (Del. 1993).
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
ILC of Dover, Inc. v. Kelley, 1999 Del. Super. LEXIS 573, at *3.
Leisure v. BFI Waste Systems, 2006 WL 1148730, at *5 (Del.Super.).
Id.
Spencer v. Suddard, 1997 Del. Super. LEXIS 519, at *6.
DISCUSSION
For medical costs to be compensable under the Delaware Workers' Compensation Act, they must be reasonable, necessary, and causally related to the industrial accident. Such factual determination is within the purview of the Board and must be supported by substantial evidence on appeal. Claimant relies on Reese and Boulden in support of her argument that but for the June 10, 2003 industrial accident, claimant would not have had the July 2003 surgery. In Reese, the Delaware Supreme Court held that a pre-existing condition does not disqualify a claim for workers' compensation if the industrial accident aggravated or accelerated the disability. The "but for" definition of proximate cause is the appropriate standard "in fixing the relationship between an acknowledged industrial accident and its aftermath." "The [industrial] accident need not be the sole cause or even a substantial cause of the injury. If the [industrial] accident provides a `setting' or `trigger,' causation is satisfied for purposes of compensability." Claimant relies on the medical testimonies of Doctors Raisis and Rowe, who opine that the June 10, 2003 work-related incident aggravated claimant's underlying condition and accelerated the need for treatment. To the co ntrary, Doctors Piccioni, Gelman, Stephens, and Matz opine that the claimant has a developmental knee condition that is unrelated to and not worsened by the industrial accidents.The Board is entitled to accept one expert's opinion over that of another. The Board's acceptance of expert testimony, even when contradicted by another expert, qualifies as substantial evidence for purposes of appeal. In the case sub judice, the Board rejected the expert opinions of Doctors Raisis, Rodgers, and Rowe. Doctors Raisis and Rowe based their opinions in large part on claimant's subjective complaints, and the Board found that claimant was not credible. The medical histories that she provided to the physicians involved were inaccurate and unreliable. The Board's assessment of claimant as not credible was well within the discretion of the Board. Additi onally, Dr. Rodgers' opinions were rejected by the Board because he lacked necessary information and admitted that he was confused about claimant's medical history. The Court finds that the Board was justified in accepting the testimonies of Doctors Gelman, Stephens, and Matz and rejecting the testimonies of Doctors Raisis, Rodgers, and Rowe. The Board articulated its reasons for doing so, and this Court is satisfied that such is sufficiently grounded and constitutes sufficient evidence. Regarding the causation requirement, claimant's argument that the July 2003 surgery would not have occurred but for the June 10, 2003 industrial accident must fail. A medical expert's opinion regarding causality may be rejected if the Board finds the opinion to be based largely on claimant's subjective history and the claimant is found to be not credible. As discussed supra, the Board was justified in finding claimant not credible and rejecting the opinions of Doctors Rasis and Rowe regarding the causal connection between the June 10, 2003 industrial accident and July 2003 surgery. Furthermore, the chronology of events as determined by the Board support its finding that the need for the July 2003 surgery was not the June 10, 2003 work-related incident. Dr. Rowe initially discussed the surgery with claimant in April, two months before the June 10, 2003 work-related accident. The July 2003 surgery was scheduled in May, one month prior to the June 10, 2003 work-related incident. Ultimate ly, the Board found that the July 2003 surgery was not causally related to the June 10, 2003 industrial accident. Rather, the Board found that the July 2003 injury was in response to claimant's slip and fall on ice in December 2002 that occurred when claimant was not at work. The Court finds that the Board's conclusion is supported by the record because the June 10, 2003 industrial accident cannot be the "trigger" that brought claimant to surgery if the surgery was previously scheduled and would have occurred regardless of any subsequent work-related injury.
Walton v. Radiology Assoc., 2007 Del. Super. LEXIS 141, at *15.
Cottman v. Burris Fence Constr., 2006 Del. LEXIS 667, at *12.
Clark v. State, 2005 Del. Super. LEXIS 293, *5.
McDowell v. Johnson Controls, 2004 Del. Super. LEXIS 199, at *3.
With regard to the payment of disfigurement benefits, 19 Del. C. § 2326(f) provides, in relevant part, "[t]he [Industrial Accident] Board shall award proper and equitable compensation for serious and permanent disfigurement to any part of the human body up to 150 weeks, provided that such disfigurement is visible and offensive when the body is clothed normally." Claimant relies on the last injurious exposure rule for successive carrier liability to support her argument that the State should pay for disfigurement compensation resulting from the July 2003 surgery, which was acknowledged as compensable and paid for by the State. As cited by claimant, Barkley and Nally articulate the rule as follows:
The rule we endorse for determining successive carrier responsibility in recurrence/aggravation disputes places responsibility on the carrier on the risk at the time of the initial injury when the claimant, with c onti nuin g sympt oms and disability, sustains a further injury unaccompanied by any intervening or untoward event which could be deemed the proximate cause of the new condition. On the other hand, where an employee with a previous compensable injury has sustained a subsequent industrial accident resulting in an aggravation of his physical condition, the second carrier must respond to the claim for additional compensation.
Std. Distr. Co. v. Nally, 630 A.2d 640, 646 (Del. 1993).
In the present case, the Board found that the claimant misapplied the last injurious exposure rule. The State is not responsible for all future workers' compensation claims regarding claimant's right knee solely because the June 10, 2003 twisting event was the last industrial accident. The Board found that claimant failed to prove all of the necessary elements. Focusing on the causation factor, discussed supra, the Board found that the July 2003 surgery was scheduled in response to the December 2002 non-work-related incident. Therefore, claimant's condition necessitating the July 2003 surgery was neither brought about nor aggravated by the June 10, 2003 work-related incident thereby precluding liability on the part of the State. This Court finds that the record clearly supports the Board's findings.
Id. at 645.
Claimant further argues that the State's knowing and voluntary acceptance of the compensability of the July 2003 surgery is not subject to collateral attack. The State is not requesting reimbursement for the July 2003 surgery for which it already paid. Rather, the State argues that it is not responsible for disfigurement benefits resulting from the surgery, which is now shown to be non-compensable in light of newly-discovered evidence.
A case very close on point is Tenaglia-Evans v. St. Francis Hospital. There, the employee suffered a work-related back injury for which the employer paid compensation benefits. Subsequently, the employee underwent two cervical spine surgeries. Based entirely on information provided by the employee, the treating physician opined that the work-related incident was the need for the surgery. The employer agreed to pay for the surgeries without a formal agreement from the Board requiring it to do so. Subsequently, the employee filed a petition for permanent injury to her cervical spine. In light of new-found evidence that the employee suffered other non-work-related injuries to her back, the employer denied that the industrial accident was the cause of her disability. The Board found that the employee's condition was not caused by the industrial accident. The Board rejected the employee's argument that an implied agreement was created by reason of the employer having paid for the prior surgeries. There was no implied agreement to pay for the employee's medical expenses because the payment for the surgeries were made by mistake when they were carelessly authorized by claims adjusters.
Tenaglia-Evans v. St. Francis Hosp., 2006 Del. LEXIS 648.
Id. at *2.
Id. at *4, 9.
Id. at *5-6.
Id. at *3.
Id.
Id.
Id. at *5.
Id. at *6.
Id. at *9.
Similarly here, the State paid for the July 2003 surgery by mistake based on inaccurate information provided by claimant to the treating surgeon, Dr. Rowe. The issue of compensability was not previously litigated, and it appears that the State voluntarily agreed to pay for claimant's surgery based on inaccurate information it had at the time the surgery was approved. The Board found that the State is not liable for the disfigurement that is associated with the July 2003 surgery, which the State paid for based on claimant's false statements regarding the need for the surgery.
Based on the foregoing, the Board's decision is supported by substantial evidence and is free from legal error. Therefore, the decision of the Board is affirmed .
IT IS SO ORDERED.