Opinion
C.A. No. 00A-04-012
Submitted: October 11, 2000
Decided: May 31, 2001
Appellant Johnson Control, Inc.'s Appeal from the Industrial Accident Board Decision. Affirmed.
Anthony Frabizzio, Esquire, J.R. Julian, Esquire, Attorneys for Johnson Controls, Inc., Appellant.
R. Scott Kappes, Esquire, Attorney for Chris Mansfield, Appellee.
ORDER
This 31st day of May, 2001, upon consideration of Johnson Control, Inc.'s (the "Employer") appeal from the decision of the Industrial Accident Board (the "Board"), the following findings have been made:
1. On August 11, 1998, Chris Mansfield (the "Employee") sustained a cervical strain while he was working for the Employer as a formation conveyor specialist. He received total disability from August 12, 1998 until December 13, 1998. When surgery was subsequently recommended, the Employee filed a petition for additional compensation. At the hearing held on February 11, 2000, both sides presented medical experts. Accepting the testimony of the Employee's medical expert, Dr. Rafael Yanez, the Board found that the Employee's need for surgery was causally related to the work accident. The Employer appeals the Board's decision.
He received payments from August 12-16, 1998, August 19 — November 1, 1998, and November 25 — December 13, 1998.
The Board also awarded medical witness fees and attorney's fees.
2. This Court's standard of review for an appeal from a Board decision is to determine whether there was substantial evidence to support the Board's findings and conclusions. The Court does not sit as trier of fact with authority to weigh evidence, determine questions of credibility, nor make its own factual findings and conclusions. Weighing the evidence and determining questions of credibility, which are implicit in factual findings, are functions reserved exclusively for the Board. Where the medical evidence is in conflict, the Board is free to accept the testimony of one expert over contrary opinion testimony, and the substantial evidence requirement would be satisfied. Only where there is no satisfactory proof in support of a factual finding of the Board may this Court overturn it.
DiSabatino Bros. Inc. v. Wortman, Del. Supr., 453 A.2d 102 (1982).
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64 (1965).
Breeding v. Contractors-One-Inc., Del. Supr., 549 A.2d 1102, 1106 (1988), Conner v. Wells Fargo, Del. Super., C.A. No. 92A-11-006, Goldstein, J. (Oct. 4, 1994)(ORDER).
Carpenter v. Mattes Electric, Del. Super., C.A. No. 96A-07-005, Quillen, J. (Apr. 9, 1997) (Letter Op.) at 3.
Id.
3. The issue posed by this appeal is whether there is substantial evidence in the record that the Employee's need for surgery was causally related to his employment. At the hearing, Dr. Rafael Yanez, a neurosurgeon, testified by deposition for the Employee. He saw the Employee for a surgical consultation on May 27, 1999 based on the referral of Dr. Glen Rowe, who had treated the Employee since August 1998 for his neck problems. Dr. Yanez testified that Dr. Rowe's diagnosis was cervical strain and that when the Employee returned to regular duty, his symptoms worsened. After his initial examination, Dr. Yanez recommended that if the Employee was unable to cope with the pain that surgery should be considered to provide relief. Dr. Yanez further testified that the need for surgery was directly related to the August 1998 onset of symptoms. Dr. Yanez opined that the Employee had advanced degenerative disc disease, which means severe arthritis of the cervical spine, and that the work accident made the Employee's degenerative disc disease symptomatic. While Dr. Yanez agreed that the Employee was a candidate for progressive problems over his lifetime either with or without the exertion of his job and was bound to eventually have symptoms no matter where he worked, he opined that the work related cervical strain brought about the symptoms which could now be relieved by the surgery recommended.
The Employee decided that he wanted the surgery due to his neck pain. The type of surgery that would be performed was a fusion at level C4-5. In other words, the diseased or affected area would be removed completely and the space would be filled in with a bone graft and then reenforced by using a plate and screws.
He further stated that the Employee had bulging of the disc at C4-5, where the bulging becomes firm and calcified as the patient grows older, which is called a spur or osteophyte.
"It just so happens he presented with symptoms after that particular incident." (Yanez Dep. at 68, 69.)
The Employee, who was 42-years-old, testified that he had worked for the Employer for 22 years. During the summer of 1998, he was a formation conveyor specialist, whereby he would get under 60 foot conveyor tables to clean air pipes and take out bad rollers. In order to do his job, he had to put a lot of pressure on his left arm to support himself, i.e. to hold his weight up, while he worked with his other arm. In addition, he would have to extend his head back. He had been working in this position for approximately two years prior to the injury. Except for a two-day neck injury in 1979, he had no problems with his neck prior to August 1998.
Dr. Martin Gibbs, a board certified neurosurgeon, testified for the Employer. Dr. Gibbs saw the Employee twice and reviewed various medical records. After reviewing the MRIs of August 1998, Dr. Gibbs found that they showed multi-level, long standing degenerative changes, particularly at C5-6 and C6-7, that clearly preexisted the onset of symptoms in August 1998. He further stated that the Employee was a candidate for progressive problems either with or without the exertion of his employment. He opined that the proposed surgery was not related to the Employee's job because:
. . . his disorder is not related to his employment. His disorder in my view is and its a very commonly recognized condition is one that expresses his own biologic life and his own biologic clock. He started to degenerate diffusely, many segments of his spine, and reached the level of symptoms sometime in 1998. Something that was unrelated to what he was doing or what his employment was at the time.
(Tr. Bd. Hr'g at 87.)
He further explained that while the Employee's job evoked symptoms, the proposed surgery was not causally related to the injury sustained during his employment. He explained that the need for the surgery was due to a degenerative disease of the spine, which occurred irrespective of this occupation. He did agree however that the Employee's work activities made his degenerative disc disease symptomatic and that surgery was related to the Employee's job to the extent that the activities of employment increased his symptoms.
4. This case is unique in that there is a great deal of agreement by the experts as to the condition of the Employee. There is no question that the Employee suffered from degenerative disc disease and as such, it was likely that his present condition would occur at some point in his life regardless of his employment or activities. There is also general agreement that his employment activities reasonably caused his degenerative disc disease to become symptomatic and the condition was aggravated by his employment. The Employer's basic argument is that it was the Employee's general physical condition, not the employment that caused the injury.
What makes this case so difficult is that it appears to straddle the line between the "but for" test and the concept of precipitating or accelerating a person's dormant condition, which are both set forth in the Supreme Court decision of Reese v. Home Budget Center. In defining the causation relationship between an accident and an alleged injury the Reese Court stated:
Reese v. Home Budget Center, Del.Supr., 619 A.2d 907 (1992).
The "but for" definition of proximate cause in the substantive law of torts finds equal application in fixing the relationship between an acknowledged industrial accident and its aftermath. If the worker had a preexisting disposition to a certain physical or emotional injury which had not manifested itself prior to the time of the accident, an injury attributable to the accident is compensable if the injury would not have occurred but for the accident.
Id. at 610.
If the "but for" test is meant to exclude recovery when there is the future reasonable medical probability that the injury would manifest at some point anyway, the Employee would not be entitled to benefit. It is a fair reading of the doctors' testimony that they both agree that the degenerative condition of the Employee's spine had sufficiently advanced to reasonably conclude that the symptoms experienced by the Employee would manifest at some point in the future. This is in essence the argument now advanced by the Employer.
However, the Court believes that the "but for" language adopted by the Supreme Court must be interpreted so as to be consistent with the "trigger" language also included in the opinion. In three separate parts of the Reese opinion, the Supreme Court explained this concept by stating:
A preexisting disease or infirmity, whether overt or latent, does not disqualify a claim for workers' compensation if the employment aggravated, accelerated, or in combination with the infirmity produced the disability . . .
If the injury serves to produce a further injurious result by precipitating or accelerating a previous, dormant condition, a causal connection can be said to have been established . . .
The accident need not be the sole cause or even a substantial cause of the injury. If the accident provides the "setting" or "trigger," causation is satisfied for purposes of compensability.
Id. at 610.
There is no dispute that the injury suffered by the Employee aggravated, accelerated, precipitated or triggered the symptoms suffered by the Employee for which surgery is now recommended. Both doctors agree that the Employee work activities made the degenerative disc disease become symptomatic. It is this triggering concept that the employee now argues justifies the payment of benefits.
In considering the two concepts established by Reese, the Court believes they are only consistent if they are applied to a definitive time period. Thus the relevant question becomes would the Employee's injury have manifested itself on August 11, 1998 but for the accident? There is substantial evidence in the record to support the conclusion that the answer is no. While the Employer's doctor may reasonably speculate that the Employee would have suffered this injury anyway at some time in the future, the symptoms came to light on August 11, 1998 because of the work related injury. This is a sufficient causal link to make the injury compensable.
5. For the reasons set forth above, the Court finds substantial evidence to support the decision of the Board and so that decision is AFFIRMED.
IT IS SO ORDERED.