Opinion
C.A. No. 03A-09-004-FSS.
Submitted: June 17, 2004.
Decided: September 28, 2004.
On Appeal from the Industrial Accident Board — AFFIRMED
William D. Rimmer, Esquire and Cheryl A. Ward, Esquire, Attorneys for Employer/Appellant.
Michael I. Silverman, Esquire, Silverman McDonald, Attorney for Employee/Appellee.
MEMORANDUM OPINION
Here, an employer appeals an award of worker's compensation by the Industrial Accident Board. The Board's decision turned on its finding that the employee suffered a new injury on the job, rather than recurrence of an earlier one. In other words, this is a successive carrier liability case. To make its finding, the Board weighed conflicting medical expert testimony and relied on employee's doctor. The employer now argues that the Board's fact-finding was flawed.
I.
On May 8, 2001, while working at the Kirkwood Animal Hospital, Amanda Kunkel hurt her back. She filed a worker's compensation claim, which her employer denied. The Industrial Accident Board held a hearing on August 1, 2003. Kunkel asked the Board to determine whether the incident at Kirkwood caused her low back problems. She also sought total and partial disability benefits. Kirkwood denied that a compensable work accident occurred; rather it alleged that Kunkel suffered recurrence of a 1996 work-related accident Pennsylvania.
On August 18, 2003, the Board granted Kunkel's Petition to Determine Compensation Due. The Board determined that a work-related injury occurred on May 8, 2001 within the course and scope of Kunkel's employment, and found that the injury was not a recurrence. Kirkwood appealed and it filed its Opening Brief on April 30, 2004. Kunkel filed an Answering Brief on May 25, 2004 and Kirkwood filed its Reply Brief on June 8, 2004.
II.
The Superior Court has appellate jurisdiction under the Administrative Procedures Act. In reviewing an appeal from the Industrial Accident Board, the court must determine whether the Board's decision is supported by substantial evidence and free from legal error. Substantial evidence is enough evidence to support a conclusion. It is more than a scintilla, but not necessarily as much as a preponderance.
DEL. CODE ANN. tit. 29 §§ 10142 10161(a)(8) (2003).
General Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del. 1960); Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965); General Motors Corp. v. Jarrell, 493 A.2d 978, 980 (Del.Super.Ct. 1985).
Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994).
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
An appellate court does not weigh evidence, determine credibility, or do fact-finding. If the record supports the Board's findings, the court must accept them, even though, acting independently, the court might reach different conclusions. On appeal, the court merely decides whether the evidence supports the Board's factual findings. Similarly, when applying the substantial evidence standard, the court considers the record in a light most favorable to the appellee, "resolving all doubts in its favor."
Johnson v. Chrysler Corp., 213 A.2d 64, 66-67 (Del. 1965).
H H Poultry v. Whaley, 408 A.2d 289, 291 (Del. 1979).
General Motors Corp. v. Guy, 1991 WL 190491 (Del.Super.) *3, C.A. No. 90A-JL-5, Gebelein, J. (Aug. 16, 1991).
When considering fact questions, deference is given to the Board due to its experience and competence. It is the Board's exclusive function to evaluate witness credibility. Appellate review "[r]equires the reviewing court to search the entire record to determine whether, on the basis of all the testimony and exhibits before the agency, it could fairly and reasonably reach the conclusion that it did."
DEL. CODE ANN. tit 29, § 10142(d) (2003); Histed v. E.I. duPont de Nemours Co., 621 A.2d 340, 342 (Del. 1993).
Romine, Jr. v. Connectiv Communications, Inc., Del. Super., C.A. No. 02A-10-005PLA, Ableman, J. (Apr. 22, 2003) (ORDER).
National Cash Register v. Riner, 424 A.2d 669, 674-75 (Del.Super.Ct. 1980).
Finally, if the issue involves a purely legal question, the court's appellate review is plenary. Thus, when reviewing the Board's decision, if the Board's fact-finding is based on substantial evidence, the court must apply the facts, as the Board found the facts to be, to the law, as the court finds the law to be, and in that way decide the appeal.
Brooks v. Johnson, 560 A.2d 1001, 1002-03 (Del. 1989)
III.
As mentioned at the outset, this is a "successive carrier liability case." Under Standard Distributing Company v. Nally, when deciding successive carrier liability the Board must determine "whether the new episode is the producing cause of an industrial accident resulting in changed physical condition before the second carrier may be liable." Successive liability cases present what sometimes is a difficult task of distinguishing between a "recurrence" and an "aggravation."
630 A.2d 640 (Del. 1993).
Id. at 641.
Id. at 645.
If an injury is a recurrence, the original carrier must respond. If the injury is new or an aggravation, the second carrier responds. A recurrence is an impairment's return without a new or independent cause. An aggravation comes from a new cause, and is characterized as a condition "made worse, more serious, or more severe." The focus is not whether the employee's pain or other symptoms have returned, but whether there has been a new injury or worsening of a previous injury attributable to an untoward event. An untoward event is an event beyond the normal duties of employment.
Id. at 644.
DiSabatino Sons, Inc. v. Facciolo, 306 A.2d 716, 719 (Del. 1973).
Id.
Id.
Id. at 646.
A preexisting disease or infirmity, whether overt or latent, does not disqualify a claim for worker's compensation if the employment aggravated, accelerated, or in combination with the infirmity produced the disability. Delaware has long recognized that an employer takes employees as it finds them, the "eggshell skull" rule. Thus, Kunkel's prior work injury in Pennsylvania does not dictate the outcome here. In successive carrier liability disputes, the burden of proving the second event's cause is upon the initial carrier seeking to shift responsibility for the original injury's consequences. Here, the original carrier did not appear; instead, Kunkel assumed the burden of proof on causation.
General Motors Corp. v. McNemar, 202 A.2d 803, 806-7 (Del. 1964).
Libscomb v. Diamiani, 226 A.2d 914, 918 (Del.Super.Ct. 1967).
Id.
Kunkel v. VCA Kirkwood Animal Hospital, IAB Hearing No. 1191441, at 9, n. 4.
IV.
Kunkel started working for Kirkwood in October 1999 as a dog groomer. She worked a forty hour week, sometimes working one or two hours overtime during the summer of 2000. She previously had groomed dogs at a Pennsylvania kennel for several months in 1996. While handling a dog in Pennsylvania, Kunkel developed back and leg pain. She received worker's compensation benefits in Pennsylvania.In November 2000, after Kunkel began working for Kirkwood. Bruce Rudin, M.D., began treating her for constant low back, leg, and buttock pain. He performed lumbar surgery in January 2001 and her condition improved. Dr. Rudin released Kunkel to light duty work in February 2001, but she still experienced discomfort in her legs. She returned to work at Kirkwood in March 2001. She visited Rudin in April 2001, reporting to him that her back and right leg pain had completely disappeared. She still experienced residual discomfort in her left leg, however, roughly a third of the time. Following the April 2001 visit to Rudin, Kunkel resumed cross-country jogging four to five miles a day and mountain biking for an hour at a time. Thus, the Board had reason to believe that Kunkel's problem in 2000, probably a recurrence, had all but resolved by April 2001. Kunkel likely had a weak back, but she was jogging, biking and working normally in April 2001.
On May 8, 2001, Kunkel was grooming a dog for Kirkwood. As she was lifting the animal, which weighed approximately twenty-five pounds, the dog leaped and Kunkel lunged to grab him. This caused a quick pop in Kunkel's back, followed by immediate back and leg pain. She reported the incident and went home. The following day, she visited both the Glasgow Emergency Center and Rudin. She returned to work on June 12, 2001, but eventually she left in August 2001 due to continuing back pain.
Kunkel underwent a second low back surgery in November 2002, which failed to achieve the same results as her January 2001 surgery. She last saw Rudin for treatment in May 2003. He has not yet released her to work. Kunkel has tried physical therapy, such as riding a stationary bike and lifting weights. She performed childcare services at a local church, on an as needed basis, in the spring and summer of 2002. The childcare work did not require her to bend or lift children.
V. A. Untoward Event: Aggravation vs. Recurrence
The Board determined that Kunkel "sustained a new injury in May of 2001, or an aggravation resulting from an untoward event, rather than a recurrence of the 1996 work injury." Kirkwood specifically challenges the Board's finding that Kunkel's current disability was caused by an untoward event. As explained above, that finding is fundamental in a successive carrier liability case such as this. Kirkwood argues that Kunkel was performing normal job duties when she was hurt on May 8, and further that there is no credible evidence to support her claim. The Board's finding, however, was supported by substantial evidence.
Kunkel at 10.
See supra Part III.
Lunging for the dog was not within the normal scope of Kunkel's duties simply because she was a dog groomer. The lunge was a sudden, unexpected, discrete and identifiable movement that precipitated her recent back problems. Perhaps Kunkel has struggled with unruly "clients" from time to time, but ultimately she is a dog groomer — not an animal wrestler. By the same token, Kirkwood understates the facts by implying that Kunkel was injured as she merely attempted to put a dog back into its cage, a typical duty for a dog groomer. Kunkel was returning a dog to its cage, but as she did that something happened, an untoward event. The dog suddenly leapt out of Kunkel's arms and Kunkel reacted to the dog's unanticipated move. Kunkel popped her back as she struggled to regain control of the animal. Although the Board did not mention the analogy, the court views Kunkel much the same as a police officer injured while struggling with a suspect.
See Bailey v. Milford Memorial Hospital, Del. Super., C.A. No. 94A-03-001, Graves, J. (Nov. 30, 1995) (Mem. Op.) (requiring Board to decide if a hospital housekeeper's lifting an unusually heavy trash bag was an untoward event).
See e.g. Jones v. State Board of Pension Trustees, 1993 WL 542568 (Del.Super. Nov. 23, 1993).
Kirkwood's reliance on Giant Foods v. Fowler is also misplaced. While Giant Foods' facts have a similar ring to this case's facts, the medical testimony in Giant Foods stands in contrast to the medical testimony here. That makes a difference. In Giant Foods, the injured worker's medical expert "could not specifically attribute the [compensable injury] to one or the other work injuries" and he opined that the original injury had "quieted down . . . but was still somewhat inflamed . . . [and] more prone to injury." "Based on medical expert testimony, [the worker's] testimony and a safety supervisor's testimony . . .," the Board concluded that the worker suffered a recurrence. Commenting that the Board's finding in Giant Foods was "debatable," but seeing evidence supporting the Board's holding, the court affirmed.
B. New Injury: Battle of the Experts
Kirkwood also challenges the Board's finding of a new injury or aggravation of a preexisting injury, claiming that the finding was not based on substantial evidence. The Board relied on Dr. Rudin's expert opinion. Dr. Rudin testified for Kunkel. He opined that the 2001 incident at Kirkwood caused an annular tear at the L5-S1 level. The tear ultimately required spinal fusion surgery. Rudin believed that surgery was necessary due to the Kirkwood incident, as opposed to normal deterioration resulting from Kunkel's 1996 disc hernia. Rudin acknowledged that at the time of the May 2001 injury, Kunkel had a preexisting degenerative condition in her back, "but did not require any real intervention." He suggested to the Board that "[i]t significantly worsened after the new injury leading to the need for a spinal fusion."
Kunkel at 7.
Id.
Rudin based his opinion, in large part, on Kunkel's dramatic improvement following her first surgery. Rudin also explained that Kirkwood's medical expert, David Stephens, M.D., is "blaming the instability on the diskectomy. I don't believe that's what happens. I believe that the degenerative process happens and the spine becomes weak. But it's not going to be good in April and bad in May." In essence, Rudin concluded that but for Kunkel's lunging for the dog in 2001 and the consequences of that untoward event, on May 8 Kunkel would not have experienced the problems she did.
Deposition of Dr. Bruce Rudin, Tr. 41:18-22 (Jul. 22, 2003).
As mentioned, Dr. Stephens, also an orthopedic surgeon, testified for Kirkwood. Stephens attributed Kunkel's back problems to ongoing degenerative disc disease. He surmised that a structural defect in the L5-S1 disc caused Kunkel's discomfort, largely due to degenerative changes and her first surgery. He suggested that her symptoms were exacerbated by the 2001 accident, but not caused by it.
To support his opinion, Stephens relied on Kunkel's medical records and Rudin's office notes. Most notably, Kunkel reported persistent lower leg pain. Rudin had recommended a follow-up MRI to determine whether this discomfort was caused by scar tissue or disc herniation. Stephens suggested that the recurrent symptoms indicated that the 2001 incident did not cause Kunkel's back problems. On cross-examination, however, Stephens conceded that Kunkel recovered exceptionally well following the first surgery, and that her symptoms had improved by 90%. Similar to Dr. Rudin's opinion, Dr. Stephens' opinion was based on evidence and logical. Thus, the Board faced, as it often does, a battle of the experts.
Kunkel at 8.
In a battle of the experts, the Board is free to choose between the opinions and the court's role is limited to determining whether the evidence was legally adequate to support the Board's findings. A medical expert's opinion, such as the opinion of a worker's treating physician, "constitutes substantial evidence to support the Board's finding." The opinion must be based on substantial evidence and logical. But if the opinion is supported and logical, the Board's decision to rely on it is unquestionable. This is true even if the Board rejects another opinion that seems as good, or even better, to the reviewing court.
Reese v. Home Budget Center, 619 A.2d 907, 910 (Del. 1992).
Lohr v. Acme Markets, Del. Super., C.A. No. 98A-05-020, Cooch, J. (Feb. 24, 1999) (ORDER), at *2 ( citing DiSabatino v. Wortman, 453 A.2d 102, 106 (Del.Super.Ct. 1982)), aff'd, 734 A.2d 641 (Del. 1999).
But Cf. Hinckle v. Shorts Enterprises, Inc., Del. Super., C.A. No. 03A-07-010, Babiarz, J. (July 28, 2004) (overturning Board's decision favoring employee-appellee because medical expert relied on by Board failed to account for "relevant, reliable medical evidence" in employer-appellant's favor).
The court recognizes but cannot accept Kirkwood's attempt to dismiss Kunkel's condition as a subjective complaint and a mere "change in symptomatology." Even if Rudin and the Board relied entirely on Kunkel's subjective complaints, they may do that. Moreover, although he was subjected to vigorous cross-examination at his deposition, Rudin was steadfast in his opinion that "it would be very unlikely that she would have had the problem she had without an intervening event of some sort." Furthermore, despite Kirkwood's claim that Kunkel's "disc was impaired by surgery, not job duties," Rudin was emphatic "that surgery that was related to 1996 did not cause her problem in 2001." And he "was treating a different problem for Amanda after May 2001." According to Rudin, Kunkel's pain in May 2001 resulted from annular tears in her L5-S1 disc caused by the May 8 incident. Rudin explained the basis for his opinions at length. Stephens said otherwise, but the Board was entitled to rely on Rudin, as it did.
In its words, the Board found "the opinion of Dr. Rudin, the treating surgeon, more persuasive than that of Dr. Stephens." The court cannot hold that the Board erred when it relied on the treating physician's testimony. Kunkel's specific problems in 2001 did not appear on their own or worsen over time. Her back did not fail as she moved about normally. Kunkel's back gave out when she had to suddenly lunge for a moving, 25 pound animal. Rudin's opinion that the lunge caused either a new injury or aggravated the old one cannot be gainsaid here. If Kunkel's back had given out for no apparent reason, Stephen's opinion about Kunkel's degenerative condition might have convinced the Board. On the other hand, even if Kunkel's first back surgery were attributable to the 1996 problem and degenerative changes, the Board reasonably attributed the 2001 problems and the second surgery to the untoward event that happened while Kunkel was on duty, working for Kirkwood on May 8. As was the case in Giant Foods, the Board's conclusions may be subject to reasonable debate, but the court still must defer.
Kunkel at 10.
Playtex Products v. Harris, Del. Super., C.A. No. 02A-02-002, Ridgely, P.J. (Sept. 30, 2002) (ORDER), aff'd 818 A.2d 970 (Del. 2003).
VI.
For the foregoing reasons, the Industrial Accident Board's August 18, 2003 decision awarding total disability benefits is AFFIRMED.