Opinion
C.A. No. 10A-07-012 FSS.
Submitted: April 1, 2011.
Decided: July 26, 2011.
Upon Appeal From the Industrial Accident Board — AFFIRMED
MEMORANDUM OPINION AND ORDER
This is an appeal from the Industrial Accident Board about whether Claimant's injuries were caused by degenerative changes or a fall at work. The Board credited Employer's medical expert that Claimant's neck, back, shoulder, and right wrist injuries were caused by degenerative changes unrelated to the fall. On appeal, Claimant contends the Board erred because she is currently under work restrictions for her neck, back, shoulder, and right wrist that she was not under when she fell. As explained below, Claimant's premise that work restrictions like hers can only be caused by work accidents is contradicted by Employer's medical expert.
I.
It is undisputed that Cynthia Kelly, a long-time baker, fell at work on June 5, 2008, injuring her left hand, left ankle, and right elbow. She now seeks more money for previous injuries to her neck, back, shoulder, and right wrist. After a 2005 work accident, MRIs of her neck revealed osteophytes and an EMG of her right wrist showed carpal tunnel, which both sides agree is a cumulative trauma disorder likely caused by years squeezing frosting bags. After a car accident in 2007, X-rays "showed chronic degenerative narrowing" of Kelly's spine.
Dr. Jerry Case, Employer's medical expert, testified by deposition that Kelly's neck, back, shoulder, and right wrist injuries were degenerative and unrelated to the 2008 fall. When Dr. Case examined Kelly in August 2008, two months after the fall, she only complained about her right wrist. Dr. Case testified that when he re-examined Kelly in January 2010, she complained about her neck, back, stiffness and pain in her shoulder, and carpal tunnel symptoms in her right wrist. An MRI of Kelly's back taken five months after she fell "showed widespread degenerative disc problems." An MRI of Kelly's shoulder showed tendonitis and tendinopathy, which Dr. Case described as "[d]egenerative changes in the AC joint which are the same findings she had previously before" the 2008 fall.
Kelly's medical expert, Dr. Arnold Glassman, examined her in February 2009, at which time Kelly complained of neck pain. He testified that Kelly's back and shoulder were likely aggravated by the June 2008 fall. Based on an interventional physiatrist's treatment before the fall and Kelly's physical therapy after the fall, Dr. Glassman testified that the fall probably "aggravated those degenerative changes" in Kelly's back. As for the right shoulder, which Dr. Glassman did not treat, he testified that "it is also certainly likely that as a result of her injury to her right elbow that she could have jarred her right shoulder and caused an aggravation of her preexisting problem." He thought the shoulder was more of a cumulative trauma disorder but "the June fall could have aggravated things []."
In her pretrial memorandum, Kelly blamed the neck, back, shoulder, and right wrist injuries on the 2008 fall. She left the space provided for claiming the injuries were caused by the cumulative detrimental effect of her work duties blank. At the hearing, however, Kelly tried to argue that "the right carpal tunnel injury is indeed caused by her work[,] not the incident necessarily, but by her work." Accordingly, the Board sustained Delaware Supermarkets' objection to Kelly's new theory of recovery.
It bears mention that Board hearings like Kelly's are based on a static record. The parties were stuck with the record made before the hearing. The experts testified by deposition and it was impossible to deal with last-minute sea changes.
The Board accepted Dr. Case's testimony that Kelly's neck, back, shoulder, and right wrist injuries were caused by degenerative changes — not the 2008 fall. In its decision, the Board acknowledged "there was considerable evidence pointing to injuries caused by cumulative trauma from [Kelly's] repetitive work activities," but she "did not proceed under that theory." Delaware Supermarkets was "not prepared for the re-focus[,] and its medical evidence was unresponsive to the changed theory of work injury." The Board found "the evidence was sketchy to absent with respect to the two remaining body parts, the right knee and left elbow." Thus, the Board held Kelly did "not [meet] her burden of establishing additional injuries arising from the June 4, 2008 work accident."
II.
The primary issue on appeal is whether Dr. Case's testimony provides substantial evidence for the Board's decision. "`Substantial evidence' means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." If substantial evidence supports the decision, the court must affirm unless the Board abused its discretion. Unless the Board's decision "is based on clearly unreasonable or capricious grounds" or it otherwise "exceeds the bounds of reason in view of the circumstances[,] and ha[s] ignored recognized rules of law or practice so as to produce injustice," there is no abuse of discretion.
Histed v. E.I. DuPont de Nemours Co., 621 A.2d 340, 342 (Del. 1993).
Funk v. Unemployment Ins. Appeal Bd., 591 A.2d 222, 225 (Del. 1991).
K-Mart, Inc. v. Bowles, 1995 WL 269872 at *2 (Del. Super. Ct. March 23, 1995) (COOCH, J.).
On appeal, Kelly argues the Board's decision is not supported by substantial evidence because "[t]he June 4, 2008 work accident was a triggering event that caused an aggravation of [Kelly's] injuries to her right wrist, right shoulder, left, lower back and neck." Alternatively, Kelly argues the June 4, 2008 fall combined with the cumulative detrimental effect of her work injured her right shoulder, right hand, right knee, neck, left elbow and lower back. She contends it was "unreasonable to fail to connect the aggravation of the injuries with the work accident on June 4th."
III.
Kelly's appeal is built on the premise that only injuries caused by work accidents require work restrictions. Kelly is currently under work restrictions. Therefore, the work accident caused her injuries. The snippet's of Dr. Case's testimony that Kelly cites acknowledge the current work restrictions, but the conclusions she omits support a finding that the restrictions are unrelated to the fall. For example, as to her right shoulder, Kelly omits Dr. Case's opinion: "But I couldn't relate it to the 6-4-08 injury." Similarly, as to her neck and back, Kelly again omits Dr. Case's conclusion: "But those were not related to the 6-4-08 fall either." And, as to Kelly's right wrist, Dr. Case concluded: "I thought the surgery on the right [wrist] had been reasonable, but I couldn't relate it to the 6-4-08 fall where [Kelly] struck her right elbow and not her hand."
In other words, Dr. Case testified that no causal connection existed between Kelly's work restrictions and the 2008 fall. So, according to Dr. Case, Kelly would have had the same injuries to her neck, back, shoulder, and right wrist whether she had fallen or not. Thus, Dr. Case's conclusions, in toto, provide substantial evidence supporting the Board's decision that Kelly's back, neck, shoulder, and right wrist injuries were degenerative and unrelated to the 2008 fall.
B.
The decision that Kelly could not recover for the cumulative detrimental effect her work duties had on her right wrist was not unreasonable. As mentioned, Kelly's pretrial memorandum left the space for pleading cumulative detrimental effect blank. Under the Board's regulations, a claimant must provide "[a] clear statement of the basis for a petition." If necessary, a claimant "may modify a pretrial memorandum at any time prior to thirty (30) days before the hearing." If Kelly wanted to argue "the right carpal tunnel injury [was] indeed caused by her work[,] not the incident necessarily, but by her work[,]" as she did at the hearing, she should have notified Delaware Supermarkets before the hearing. Her method, as the Board acknowledged, left Delaware Supermarkets unprepared "for the re-focus and its medical evidence was unresponsive to the changed theory of work injury."
19 Del. Admin. C. § 1331-9.4.5.
19 Del. Admin. C. § 1331-9.5.
Incidentally, Kelly's attempt to blame her work duties also had the effect of lowering the proximate cause standard. As pleaded, Kelly had to prove the right wrist injury would not have occurred but for the 2008 fall. When she changed the cause to cumulative detrimental effect, she lowered her burden to whether "the ordinary stress and strain of employment [was] a `substantial factor' in causing the injury." Far from being unreasonable, the Board prevented an unfair advantage and that was not an abuse of discretion.
See e.g., State v. Steen, 719 A.2d 930, 932 (Del. 1998); Reese v. Home Budget Center, 619 A.2d 907, 910 (Del. 1992).
See e.g., Id. citing Duvall v. Charles Connell Roofing, 564 A.2d 1132, 1136 (Del. 1989).