Opinion
C.A. No. 05A-03-004 (CHT).
Submitted: February 28, 2006.
Decided: May 1, 2006.
On The Appellant's Appeal from the Decision of Industrial Accident Board.
Neal J. Levitsky, Esquire and Seth A. Niederman, Esquire, FOX ROTHSCHILD LLP, Wilmington, DE, Attorneys for Employee-Below/Appellant.
Maria P. Newill, Esquire, HECKLER FRABIZZIO, Wilmington, DE, Attorney for Employer-Below/Appellee.
OPINION AND ORDER
Before the Court is the appeal by the Appellant, Lisa Tenaglia-Evans, denying her petition for permanent injury to her cervical spine she alleges occurred as a result of an accident during the course of her employment with the Appellee, St. Francis Hospital, in 1994.
STATEMENT OF FACTS AND NATURE OF THE PROCEEDINGS
Ms. Tenaglia-Evans was employed as a nurse by St. Francis on January 18, 1994, when she was injured while moving a patient. An agreement to pay compensation for disability and permanent impairment to her lumbar spine and left leg resulting from that accident was entered into between Ms. Tenaglia-Evans and St. Francis in 1996. A lump sum commutation of that award was made in 1998. The documents preserving those transactions as well as other aspects of the events associated with Ms. Tenaglia-Evans' 1994 accident, referenced the injury to the lumbar spine only. There were no references or mention of any claim of injury to the cervical spine up to that point in time.
Those agreements and commutation were entered into pursuant to the Worker's Compensation Act, 19 Del. C. Ch. 23, hereinafter referred to by section only.
Ms. Tenaglia-Evans initially sought treatment from her primary care physicians, Dr. Weaver, and ultimately Dr. Lifrak, who provided most of that care. Dr. Lifrak saw Ms. Tenaglia-Evans at least thirty-seven times between 1994 and 2000. She was also seen by Drs. Bose and Sugarman, orthopedic surgeons. It was Dr. Bose who performed the surgery on Ms. Tenaglia-Evans' lumbar spine to remove a herniated disk in 1995. At no point during the period of time from 1994 until 2000, do the medical records of any of the medical personnel who treated or examined her in connection with the 1994 accident, make reference to any injury to her cervical spine or complaints by Ms. Tenaglia-Evans in that regard.
Notwithstanding the absence of any such references in the compensation agreements or her medical records referenced above, Ms. Tenaglia-Evans claims to have made constant complaints about the difficulties she was experiencing with her cervical spine. However, she alleges that the medical personnel who treated her made the lumbar spine injury a higher priority and addressed them first. In any event, at some point in time in 2000, Dr. Lifrak's records do reflect a compliant by Ms. Tenaglia-Evans concerning her cervical spine. Dr. Lifrak referred her in response to Dr. Rudin, an orthopedic surgeon.
Dr. Rudin first saw her in July 2001 and diagnosed her as having suffered a "severe cord compression" at the C5-C7 level of her cervical spine. Based upon his examination and the history that she related to him, he concluded that the 1994 accident caused the injury he diagnosed. Dr. Rudin subsequently performed two surgeries, August 7, 2001 and August 7, 2003, to correct that condition. The costs associated with both surgeries was paid by St. Francis without initiation of formal proceedings before the Board by Ms. Tenaglia-Evans. Dr. Rudin rated Ms. Tenaglia-Evans' cervical impairment at eighty-eight percent.
Dr. Rudin did so, however, without the assistance of a review of any of the medical records of the other physicians who had treated her prior to July 2001.
Before she was injured in 1994, Ms. Tenaglia-Evans appears to have suffered injury to her cervical spine on three separate occasions. In 1987, she was involved in an automobile accident, and in 1989, she was hurt while in nursing school. Finally, there seems to have been a fall while employed at a construction site when Ms. Tenaglia-Evans was eighteen years old. The injuries were resolved with conservative treatment without surgical intervention.
On April 12, 2004, Ms. Tenaglia-Evans filed a petition seeking compensation for permanent injury to her cervical spine pursuant to § 2326. The petition was based upon her claim of a causal link between the injury about which she complained and the 1994 accident as well as the payment of the costs of the cervical surgeries by St. Francis. St. Francis denied the existence of a causal link between the two or that it was otherwise obligated to pay worker's compensation benefits by virtue of having paid for the aforementioned surgeries.
The Board heard the matter on January 26, 2005. Dr. Rudin testified by deposition on behalf of Ms. Tenaglia-Evans. Ms. Tenaglia-Evans appeared and testified as well in support of her petition. St. Francis offered testimony from Dr. Jerry I. Case, an orthopedic surgeon, and Tiffany Menendez, the adjuster who processed Ms. Tenaglia-Evans' claim. Records relating to her medical and employment history were introduced along with statements Ms. Tenaglia-Evans made to St. Francis representatives.
In addition to testifying as to having made a continuous course of complaints relative to her cervical as well as her lumbar spine, Ms. Tenaglia-Evans acknowledged that her treatment from 1994 through 2001 focused on her lumbar spine. She admitted that Dr. Rudin was the first physician to focus entirely on her cervical spine, beginning in 2001. Dr. Rudin recited his findings and his opinion as to the cause of problems he found. However, his conclusion as to the causal link between the injury and the 1994 accident was based upon the history that Ms. Tenaglia-Evans had provided him since he was not provided with copies of her medical records and related information. That opinion further assumed that the prior cervical complaints recorded in her medical records were resolved with conservative treatment as indicated.
Dr. Case had examined Ms. Tenaglia-Evans on four occasions from 1994 to 2004 on behalf of St. Francis. During the course of that contact, he testified that she did not complain or reference any problems with her cervical spine. The only reference in her medical records relative to her cervical injury prior to treating with Dr. Rudin, was the complaint to Dr. Lifrak in 2000. Given the severity of the problem that Dr. Rudin diagnosed and subsequently treated, there would have been complaints in her medical records in the six or seven years between the 1994 accident her complaint to Dr. Lifrak. He therefore concluded, in light of all of the circumstances, that there was no causal link between Ms. Tenaglia-Evans' cervical problems and the 1994 accident.
Ms. Menendez testified that the payments for two cervical surgeries were made in error and that St. Francis never intended to assume any obligations to Ms. Tenaglia-Evans in that regard. The error was not discovered until Ms. Tenaglia-Evans presented her claim for permanent injury to her cervical spine in 2004. She also indicated that no claims were presented for payment relative to problems with Ms. Tenaglia-Evans' cervical spine between 1994 and 2000. St. Francis took the position as a result that there was no causal link between the 1994 accident and Ms. Tenaglia-Evans' cervical problems. Nor did St. Francis agree or otherwise feel obligated to provide compensation for permanent injury to the aforementioned area of her body.
According to Ms. Menendez, payment for the first cervical surgery was approved by an adjuster who was terminated for improper handling and payment of claims. She assumed responsibility for handling the Tenaglia-Evans claim after that event. Ms. Menendez acknowledged authorizing payment for the second surgery, testifying that she did so based upon what her predecessor did regarding the first operation. Tr. Tenaglia-Evans, IAB Hearing No. 1020433 at 83-84.
On February 24, 2005, the Board, after considering the evidence, ruled that Ms. Tenaglia-Evans was not entitled to the compensation sought. Specifically, the Board found that she had not met her burden of proof. That conclusion was apparently based upon inconsistent testimony by Ms. Tenaglia-Evans upon which Dr. Rudin relied in reaching his opinion as to causation. It found the testimony of Dr. Case more credible and relied upon that testimony in finding that Ms. Tenaglia-Evans had failed to establish a causal connection between the 1994 accident the cervical injury in question. The Board went on to conclude that St. Francis paid for the cervical surgeries in error and not out of a belief that the payments were required under the Workers' Compensation Act. As a result, there were no facts upon which an agreement to pay compensation for that injury could legally be implied.
Ms. Tenaglia-Evans timely appealed the Board's decision. Reduced to its essence, the appeal challenges the sufficiency of the evidentiary support for the Board's decision in the record as well as the legal viability of the ruling that there was no implied agreement. The matter having been briefed, that which follows is the Court's resolution of the issues so presented.
DISCUSSION
Standard of Review
Board findings which are supported by substantial evidence are binding upon this Court absent abuse of discretion or error of law. "Substantial evidence" in this context is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." As a reference, it "is more than a scintilla and less than a preponderance" of the evidence. It is the Board who is free to accept or reject the testimony of one or more experts in favor of another expert or experts. This Court shall not weigh the evidence, determine questions of credibility or make its own findings of fact. Its role is to determine simply if the evidence is legally adequate to support the factual findings below. Plenary review of alleged errors of law is authorized however. It is in light of this authority that the Board's decision must be examined.
Ohrt v. Kentmere Home, 1996 WL 527213, at *3 (Del.Super.).
Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998); Streett v. State, 669 A.2d 9, 11 (Del. 1995).
City of Wilmington v. Clark, 1991 WL 53441, at *2. (Del.Super.).
Lewis v. Formosa Plastics Corp., 1999 Del. Super. LEXIS 39, at *8.
Johnson v. Chrysler, 213 A.2d 64, 66 (Del. 1965).
Brooks v. Johnson, 560 A.2d 1001 (Del. 1989).
Causation
In Delaware, no award of workmen's compensation may be made unless the claimant establishes by probative evidence that an injury resulted from an accident taking place within the course and scope of employment. The Board denied Ms. Tenaglia-Evans' petition because she failed to demonstrate that but for the industrial accident the cervical injury would not have occurred. The central focus of this appeal is whether that decision was substantially supported by the evidence. If so, that result cannot be disturbed.
Jones v. Wendy's, 1996 Del. Super. LEXIS 2, at *3.
The Board's view of Ms. Tenaglia-Evans' credibility clearly influenced its decision. Contradictions in the record relating to her cervical injury did nothing to aid her in this regard. There were no recorded complaints regarding cervical spine problems for six years following the 1994 accident notwithstanding her testimony that she voiced them to each of the medical personnel from whom she sought treatment during that period. Yet Dr. Case testified that given the severity of her condition, Ms. Tenaglia-Evans would have suffered extreme discomfort which should have been brought to someone's attention during those six years and numerous medical examinations.
There is also Dr. Rudin's testimony relative to causation. Again, he stated that he did not have any of Ms. Tenaglia-Evans' medical records before 2000, and relied upon her recitation of her medical history to form his opinion as to the causation of her cervical spine injury. Most significantly, Dr. Rudin indicated that if the history given him was not accurate, then his opinion as to causation would likely change. Given that qualification by Dr. Rudin, it is readily apparent that the Board rejected his opinion altogether because it was based in large part on Ms. Tenaglia-Evans' subjective history which conflicted with her medical records.
McDowell v. Johnson Controls, 2004 Del. Super. LEXIS 199, at *3.
After it considered all of the evidence relative to causation of the cervical spine injury issue, the Board chose to rely upon the opinion proffered by Dr. Case. The law in that regard is clear. Not only is the Board empowered to resolve issues of credibility among witnesses generally. It can also accept or reject expert testimony in whole or in part, and rely on the opinions of one expert while refusing to adopt the views proffered by another on the same subject.
Saunders v. Daimlerchrysler Corp., 2006 Del. LEXIS 84, at *11-12.
Lewis, 1999 Del. Super. LEXIS 39, at *8.
In light of the foregoing, the only viable conclusion is that the Board's decision is supported by substantial evidence with regard to the causation of the injury to her cervical spine. Nor is there any indication that the Board erred as a matter of law in making that determination.
The Existence of an Implied Agreement
Notwithstanding the Board's conclusions regarding causation, Ms. Tenaglia-Evans argues that she is entitled to compensation for the cervical injury since St. Francis paid for the two related surgeries. There was, as a result, an implied agreement to compensate her for the resulting impairment. The Delaware Supreme Court recognized in Starun v. All American Engineering Co. and more recently in New Castle County v. Goodman, that parties may enter into an "implied-in-fact" agreement as to compensation without a formal filing with the Board. In order to find this agreement, the finder of fact must first ascertain that the employer "considered itself obliged" or "felt compelled" under the Worker's Compensation Act to make the payment.
350 A.2d 765 (Del. 1975).
461 A.2d 1012 (Del. 1983).
McCarnan v. New Castle County, 521 A.2d 611 (Del. 1987).
The Board found credible the testimony of Ms. Menendez in this regard, which it was free to do. She related that approval of the second surgery was based solely on the recorded approval of the first. Ms. Menendez admitted that relying upon the first adjuster was a mistake because there were no compensation agreements on file regarding the cervical injury, the initial surgery on the cervical spine occurred seven years after the industrial accident and there were no cervical complaints recorded during the intervening period of time. Ms. Tenaglia-Evans presented no evidence to prove that the costs of the surgeries were paid for any reason other than the errors made by Ms. Menendez and her predecessor. Stated differently, Ms. Tenaglia-Evans has failed to establish that St. Francis was motivated to compensate her for the injury because it felt obligated to do so.
The only argument proffered by Ms. Tenaglia-Evans in this regard is that by making payments, St. Francis tendered an offer which she could either accept or reject. Accepting payment for the surgeries was therefore sufficient to establish an agreement to pay worker's compensation benefits as a result of the injury to her cervical spine. She cites Starun in support of that proposition though it can be distinguished from the instant case.
In Starun, the employer acknowledged the work related injury and compensated the employee for three consecutive years based upon that injury, but did not enter into any written agreement with that claimant. Here, there was a written agreement providing for compensation for injury received as a result of the 1994 accident, but only to Ms. Tenaglia-Evans' lumbar spine. This was followed by payments, seven and nine years later, of the costs related to the cervical spine surgeries. And, those payments were made without the filing of a claim or the institution of proceedings of any kind or specifically acknowledging that the cervical spine injuries were proximately caused or resulted from the 1994 accident.
The extent to which St. Francis felt it was obligated to pay worker's compensation benefits was limited to the agreements between it and Ms. Tenaglia-Evans. At the risk of being repetitive, those agreements acknowledged that the lumbar spine injury was compensable and payments were structured in accordance with levels of disability and impairment to that area of the body alone. There was no mention of the cervical injury on file and no agreement with regard to compensation. As a result, there is substantial evidence to support the Board's finding that there was no agreement by implication. That finding is also free from legal error.
CONCLUSION
When the Court takes all of the foregoing into account, the only viable conclusion is that the Board's decisions with regard to causation and the existence of implied agreement were supported by substantial evidence in the record. The Court also finds that the Board did not commit legal error in reaching those decisions. The appeal must be, and hereby is, denied.