Opinion
C.A. No. 99A-09-005-JOH.
Submitted: January 25, 2000.
Decided: June 12, 2000.
Upon Motion of Employer Below-Appellee to Affirm — GRANTED , in part, and AFFIRMED , in part and DENIED , in part, and Further Briefing Ordered.
Gary S. Nitsche, Esq., of Weik, Nitsche Dougherty, attorney for claimant below appellant.
John I. Klusman, Jr., Esq., of Tybout, Redfearn Pell, attorney for employer below appellee.
MEMORANDUM OPINION
Claimant, Charles Cross, appeals the Industrial Accident Board's decision denying his request for a finding of permanent impairment to his bowel, bladder and lower extremities. Cross argues that the Board's decision that the low back rating encompasses permanent impairment to the lower extremities is legal error.
The State has moved to affirm the Board's decision. It argues that a separate rating of permanent impairment to the legs is allowed in some cases, in addition to the low back rating, but this is not such a case. Furthermore, the State argues that there is no causal connection between the bowel and bladder symptoms and the back injury.
The Board accepted the testimony of Dr. Alan Fink and determined that Cross' low back rating includes the complaints of the legs; therefore, a separate rating for the legs is not appropriate. The Board held that Cross was unable to establish a connection between the bowel and bladder problems and the low back injury.
Therefore, the decision of the Board to deny a permanent impairment to the bowel and bladder is based on substantial evidence and is AFFIRMED. The issue of whether permanent impairment to the lower extremities is included in the low back permanent impairment rating, however, is not clearly controlled by settled Delaware law and requires further briefing from the parties. The motion to affirm denial of a permanency rating for the lower extremities is, therefore, DENIED. This Court orders further briefing on that issue within twenty days of the date of this decision.
FACTUAL BACKGROUND
Cross is 82 years old and was injured in July 1979, while employed by the State of Delaware at Emily P. Bissel Hospital. when a piece of ceiling fell on his head. This work accident resulted in his total disability. Since his injury, Cross and the State have entered into eight agreements as to compensation. They include (1) 59 percent permanent partial disability to the neck, (2) 40 percent to the back, (3) 27.5 percent for the left arm and (4) 21 percent for a leg. Also, since the injury, he has had two surgeries to his neck and five or six to his low back.
Presently Cross is only able to sit for about a half hour at a time and can only walk for eight to ten minutes before needing to stop. He cannot walk unassisted and usually only goes outside once a day to as far as his driveway. Cross' legs are very thin and he can hardly move his feet. He has a scar on his back from the surgeries that measures about six and a half inches long.
Dr. Stephen Rodgers, who is board certified in family medicine, emergency medicine and occupational medicine, testified on behalf of Cross. Dr. Rodgers reviewed Cross' medical records and noted that he had two cervical spine surgeries, a lumbar surgery for a herniated disk at LA-5. and a bilateral laminectomy partial at L3 and partial at L2. Cross was diagnosed in 1994 with cauda equina syndrome and severe "spondylethesis." Dr. Jerry Case examined Cross for the State in 1994 and 1996. In 1994, Dr. Case diagnosed Cross with severe "spinallesthesis" at L3-4, L2-3 with cauda equina syndrome. When Dr. Case saw Cross again for the State in July 1996, Dr. Case noted an acute onset of paralysis with loss of bowel and bladder function. Cross had emergency surgery.
Additionally, in July of 1996, Cross had another bilateral laminectomy at L3-4 and L5-S1 and was again diagnosed with cauda equina syndrome. Dr. Case related this to the work accident. In July of 1996, Cross was unable to walk and lost control of his bowels. Because of this, he had surgery on his back to relieve the pressure on his nerves. In 1998, Cross had his last surgery, which was another bilateral laminectomy at L3-4 and L5-S1 with a fusion of screws and plates. Currently, Cross' bowel and bladder problems are uncontrollable and intermittent, so he wears liners in his underwear. Cross lives in constant back pain.
Dr. Rodgers used the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition, specifically the Diagnosis Related Estimate, or DRE, model. He placed Cross in Category VII which is for someone with cauda equina syndrome and bowel and bladder involvement requiring the use of an assisting device, resulting in a conclusion of 80 percent permanent impairment rating to the low back.
Dr. Rodgers believes that Cross' legs are atrophic, but has no good leg with which to compare the legs. Both are thin and measure the same and both are severely weak. With respect to the legs, he placed Cross in the third level, which is for a patient who can rise to standing and maintain standing with difficulty, but is unable to walk without assistance. Dr. Rodgers gave a 50 percent impairment for each lower extremity.
Dr. Rodgers opined that it was appropriate to give a separate rating for the legs and cauda equina syndrome even though both are considered in evaluating the permanent impairment to the low back. He placed Cross in a Class I impairment which resulted in a 20 percent impairment to the bowels. The doctor testified that two of Cross' medicines had a constipating effect on the bowels, which would not contribute to Cross' loss of control, but that loss of control was not a normal consequence of aging. Dr. Rodgers found that Cross had a 30 percent bladder impairment.
Dr. Fink, who is a board certified neurologist, testified on behalf of the State. He examined Cross twice and reviewed medical records. Cross stated that when he was examined by Dr. Fink, he was not asked to undress and was never asked about any bowel or bladder problems. Dr. Fink states that when he examined Cross in 1998, he complained of low back pain with pain radiating down both legs, but stated his bowel and bladder problems had improved. Dr. Fink indicated that Cross' lower extremity strength was normal on the right, but showed weakness on the left. The functional sensory loss on the left had no anatomic basis and was characteristic of symptom magnification. Dr. Rodgers opined that neither he nor any of the other ten doctors who had examined Cross over the years agreed with Dr. Fink on this point.
Additionally, Dr. Fink concluded that Cross suffered from chronic lung disease, congestive heart failure, essential tremor and degenerative arthritis. Dr. Fink did not believe the low back problems were related to Cross' work accident. None of a number of physicians, including Dr. Case, agreed with this. Dr. Fink opined that any treatment to Cross' low back was related to arthritis, even though the State had already acknowledged the low back injury as related to the work accident. Dr. Fink stated that it is not unusual for someone of Cross' age to have bowel and bladder problems, and furthermore, he did not believe that the level at which the lumbar surgery was performed was high enough to cause bowel or bladder dysfunction.
This alignment of a number of physicians on one side of many issues in this case, and only Dr. Fink on the other side, is noteworthy in several respects. One is in light of the State's counsel's argument to the Board, "Our problem in this case, members of the Board is what do you do in this community when you want a higher permanency rating? You send your client to Dr. Rodgers and you get one, then you come to the Board." Board Transcript at 8. This is a statement which counsel would not be allowed to make to a jury and should not have been allowed to make to the Board.
Dr. Fink stated that Cross should receive a 10 percent whole person impairment for the first surgery and then additional percentages for subsequent surgeries equaling a 16 percent whole person impairment under the range of motion model. Using the DRE model, this translates to a regional impairment of 20 percent, which is higher because the leg complaints were taken into account. He stated, in contrast to the directions of the AMA Guide, he did not factor into this calculation the restricted range of motion. Dr. Fink believed the DRE factor took into account Cross' range of motion. If he would have used the DRE model as Dr. Rodgers did, he would have placed Cross in a DRE Category II with a 13 percent regional impairment to the low back.
Dr. Fink testified that Cross' lower extremities should not receive a separate impairment rating because the DRE rating for low back rating includes impairment to the legs. Furthermore, Dr. Fink opined that there was no impairment to Cross' bowel or bladder and noted there had been no objective testing to establish impairment and that Cross' medications could have an effect. Dr. Fink did not believe there was sufficient information to connect the bowel or bladder problem to the injury because the symptoms did not arise until long after the injury.
STANDARD OF REVIEW
The Board's decision will be affirmed without further briefing, if it is manifest that (1) the issue on appeal is clearly controlled by settled Delaware law, or (2) the issue on appeal is factual and clearly there is substantial evidence to support the Board's findings. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. In determining whether a Board's decision is supported by substantial evidence, the Court will consider the record in the light most favorable to the party prevailing below.
Superior Court Civil Rule 72.1(b).
Streett v. State, Del.Supr., 669 A.2d 9, 11 (1995).
Branum v. Franklin Co., Del.Super., C.A. No. 93A-04-17, Herlihy, J. (October 18, 1993).
DISCUSSION Permanency Rating for Legs
Cross argues that the Board's decision that the permanent impairment rating for the low back encompasses the permanent impairment claim for the lower extremities is erroneous as a matter of law. He argues that Dr. Fink's opinion violates the purpose of 19 Del. C. § 2326, which provides for permanency rating based on the loss of the lower extremities.The State's position is not that a claimant can never receive impairment rating to the extremities, in addition to a low back rating, but in this case, according to the medical opinion of Dr. Fink, that type of award is not appropriate. The symptoms of the legs were taken into account when he rated the back problem, it contends, so if a rating were given for both, that would allow double recovery.
The Board accepted Dr. Fink's opinion and held that the low back rating takes the complaints of the legs into account. The Court finds that the issue of whether the permanent impairment rating for the low back encompasses the permanent impairment claim for the lower extremities is not clearly controlled by settled Delaware law and requires further briefing from the parties. The motion to affirm the denial of a permanency rating for the lower extremities is DENIED. The Court orders further briefing on this issue within twenty days of the date of this decision.
Bowel and Bladder Permanency Claim
Cross argues that the Board overlooked evidence to support the bowel and bladder permanency claim and its relation to the initial work injury. He testified that he has bowel and bladder incontinence. The Board also overlooked, he claims, objective evidence presented that Cross suffers from cauda equina syndrome, which causes bowel and bladder dysfunction and was documented in an EMG. Testing was done by a urologist who could not find any abnormality to explain the symptoms and Dr. Rodgers testified that Cross' medications do not affect these functions.
The State argues that there is no causal connection between the bowel and bladder symptoms with the back injury because of the lapse of time between Cross' operation and the first report of complaints. Prostate problems have been ruled out, but there have not been any tests that can establish the exact cause. The State argues that one of Cross' medications is a diuretic and others affect bowel function.
The Board held that Cross has cauda equina-like symptoms, but no objective evidence of bowel and bladder impairment. The Board agreed with Dr. Fink that other potential causes have not been ruled out and, therefore, Cross is unable to establish a causal connection between the bowel and bladder problems and back injury because of the lapse of time since the accident or the lapse of time between any particular operation and the first complaints. No testing has been done to determine the effect of the medications and Cross is taking one diuretic and other medications that affect bowel function. Furthermore, Cross must have reached maximum medical improvement to be rated for this injury and there is no evidence presented on that point. Dr. Fink disagrees with the diagnosis of cauda equina because sometimes Cross has control and sometimes he does not and that is inconsistent with the disease.
The Board is free to accept the testimony of one expert over another. Furthermore, workers' compensation covers injuries arising out of and in the course of employment. There clearly must be shown a causal relation between the injury and the employment and that the injury arose out of the nature, conditions, obligations or incidents of the employment, or that a connection exists between the employment and the injury by which the employment was a substantially contributing, but not necessarily the sole or proximate, cause of the injury. Cross has the burden of establishing a work-related injury and the extent of the injury and was unable to do so through objective testing.
Reese v. Home Budget Ctr., Del.Supr., 619 A.2d 907, 909 (1992).
Dravo Corp. v. Strosnider, Del.Super., 45 A.2d 542, 544 (1945).
Histed v. E.I. DuPont de Nemours Co, Del.Supr., 621 A.2d 340, 343 (1993).
McCormick Transp. Co. v. Barone, Del.Super., 89 A.2d 160 (1952).
The Board is free to reject the testimony of Dr. Rodgers and accept the testimony of Dr. Fink. This is a factual question and there is substantial evidence to support it. Therefore, the decision of the Board to deny a permanent impairment to the bowel and bladder is AFFIRMED.
CONCLUSION
Based on the foregoing reasons, the motion to affirm the decision of the Industrial Accident Board to deny a permanent impairment to the bowel and bladder is based on substantial evidence is GRANTED and that part of the decision is AFFIRMED. The issue of whether the permanent impairment rating for the low back encompasses the permanent impairment claim for the lower extremities is not clearly controlled by settled Delaware law and requires further briefing from the parties. Therefore, the motion to affirm the denial of a permanency rating for the lower extremities is DENIED and the State is to submit its answering brief on this issue within twenty days from the date of this decision.
IT IS SO ORDERED.