Opinion
06A-12-002-JOH.
Submitted: August 10, 2007.
Decided: October 22, 2007.
Upon Appeal from a Decision of the Industrial Accident Board — AFFIRMED.
Thomas J. Gerard, Esquire, of Marshall Dennehy Warner Coleman Goggin, Wilmington, Delaware, attorney for employer-below, appellant.
W. Christopher Componovo, Esquire, of Weik Nitsche Dougherty Componovo, Wilmington, Delaware, attorney for claimant-below, appellee.
MEMORANDUM OPINION
The Industrial Accident Board determined in 2006 that David Ward had suffered a right knee injury in 1997 while working for Letica Corporation. In 1997, he suffered traumatic injuries to his left knee and shoulders as a result of a work incident for which he has since been compensated. Claiming that manifestation of the right knee symptoms came years later and are attributable to non-job related causes, Letica argues that the Board erred by finding a work relationship for the right knee.
Ward's treating physician explained why the right knee condition was, in part, work related and why significant manifestation of symptoms appeared later rather than sooner. Letica's examining physician told the Board the long delay in manifestation and extreme obesity explained Ward's right knee condition and that the condition was not job related.
Since the Board has the power to determine witness credibility and to accept the testimony of one physician over another, there is sufficient evidence to support the Board's award. The Board's decision is affirmed.
Factual Background
Ward is now 57. On March 29, 1997, he was employed by Letica as a machinist mechanic. He had worked for them for three years as of that date. On the March date, he was helping to install a conveyor, which weighed around 1,500 pounds, when it became loose. He struggled to push it back bracing it with both legs. It nevertheless fell striking his shoulders and left knee. His right knee was not hit at the time of this incident. Ward weighed 280 pounds at that time.
Ward first received treatment from a Dr. Morovati. He referred Ward to Dr. Mohammed Kamali, an orthopaedic surgeon, for follow-up treatment on the left knee. Dr. Kamali first saw Ward on May 5, 1997. He performed two left knee surgeries on Ward. One was in September 1997 and the other was in February 2001. Dr. Kamali also performed surgery on Ward's left and right shoulders.
Later in 2001, because of arthritis in Ward's left knee, Dr. Kamali started injections to relieve the pain. The relief was only temporary. On July 21, 2002, Ward complained to the doctor of pain in both knees but that the pain in the right knee was worse. This occasion was not the first that Ward had complained of bilateral knee pain. He had done so on September 4, 1997, and had then also said there was "clicking" in the right knee. Ward made another right knee complaint on September 19, 1997. The next right knee pain complaint was on February 9, 1998. On examination at that time, Dr. Kamali found the knee to be stable and Ward had a full range of motion in the knee. There are no further medical records of complaints of right knee pain until July, 2002.
Dr. Kamali testified that clicking is not normal and that it could be attributed to (1) joint roughness, (2) something being torn, or (3) the kneecap slipping out. Often it is a sign of trauma, he said. Dr. Kamali testified it is not unusual for lesser pain or clicking to manifest six months later because the focus would be on the more painful knee, here the left. Ward had had a large hematoma on the left knee requiring many drainage procedures before surgery could be undertaken.
When Ward saw Dr. Kamali in July 2002, he then weighed 380 pounds. An x-ray was taken of the knees. It showed degenerative arthritis in both knees. Besides telling Ward to lose weight, Dr. Kamali began a series of injections to relieve the right knee pain. The third injection was in September 2002, and Ward thereafter was only to return on an as needed basis. He came back in the spring of 2004 and conservative treatment was undertaken. However, it was of insufficient help and in September 2005, Dr. Kamali performed a total left knee replacement. There was some kind of problem with the knee cap and follow-up surgery was performed in December, 2005.
At various times in the intervening years between 1997 and 2006, except when totally disabled or recovering from surgery, Ward continued to work for Letica. Often it was for short periods or light duty.
When asked on direct by Ward's counsel about causation relating to the right knee, Dr. Kamali stated:
A: Granted Mr. Ward is very overweight and maybe that was a contributing factor in development of osteoarthritis. But he had the problem from 1997, shortly after his injury, and then favoring the left leg. I believe the combination of all of these factors caused or enhanced the development of degenerative arthritis in the right knee.
Q: Would he have needed to have his right knee replaced in September 2005 if this work event did not occur?
A: In all probabilities, I would say, no.
Q: Would you agree that, in all likelihood, he would have needed one eventually?
A: Yes.
Q: Is it your opinion the he needed the surgery when he had it at a sooner point in time because of the underlying work accident?
A: Yes.
Kamali deposition at pp. 11 — 12.
Dr. Kamali testified that Ward had been overweight for years, but he also said there was no history of any right knee problem prior to the March, 1997 work incident. And again he said:
Q: Again, just to repeat it. You believe the fact that he may have injured the knee in `97 per the clicking we talked about as well as the fact that he was favoring the right knee because of the injured left knee got him to surgery sooner than he would have otherwise needed?
A: Yes. That's my belief, yes.
Id. at p. 13.
On cross-examination, Dr. Kamali testified somewhat confusingly about causation as follows:
Q: Doctor, you would agree with me the claimant's arthritis and degenerative condition were not caused by the 3/29/77 work accident?
A: I don't say or I don't think it was caused. I believe it was aggravated.
Q: So Mr. Ward never sustained a traumatic event to the right knee on March 29th of 1997; correct?
A: I can't say for sure because the rate that came down, the way it came down, hit his shoulder, I believe his right shoulder first and then came down on both legs, but hitting the left knee more than the right. That's my understanding.
* * * * *
Q: Would you also agree with me that the degenerative nature of the right knee had progressed since the accident occurred?
A: Yes, sir, it has.
Dr. Case examined Ward on three occasions: April and May 2001 and on June 27, 2006 — several months prior to the Board hearing. On neither of the occasions in 2001 did Ward make a right knee pain complaint to Dr. Case. In May, 2001, Ward weighed 360 pounds.
Dr. Jerry Case testified that Ward's extreme obesity was the cause of his right knee problems. He would have expected that if Ward were favoring his right leg because of the left knee, symptoms would have shown up sooner. They did not. None of the injuries or surgeries on Ward's left knee were significant enough to have caused right knee arthritis. He said the 2005 right knee replacement was necessary even if there had been no 1997 work accident.
Board Decision
The Board recognized that Ward was overweight when injured and had put on more weight over the next few years. It noted, as it said Dr. Kamali had, that the "mechanism of injury" meant Ward had put excessive pressure on his right knee when pushing against the heavy conveyor belt (noting it hit the left knee). The Board stated that it agreed with Dr. Kamali that this act alone could have made the underlying degenerative condition more symptomatic and cause the arthritis to advance more rapidly.
But the Board also found it credible that Ward had no knee problems prior to the 1997 work accident. The Board noted that Dr. Kamali causation "theory" involved the mechanism of injury, obesity, overcompensation because of the left knee injury, and surgeries. The Board held these conditions meant the 2005 knee surgery was needed at the time for those reasons, including, of course, the relationship to the 1997 work incident.
Parties' Claims
Letica criticizes the Board's decision on several levels. First, of course, it argues the decision lacks substantial evidence to support it; in addition, it cites four other areas where the Board erred. One, it notes no doctor said, as Letica asserts the Board found, that Ward had a pre-existing condition. Two, it contends the Board mistakenly relied upon Dr. Kamali's own misunderstanding of the incident, that is the conveyor belt never hit his right knee and he never put excessive weight on his right leg. Three, Letica contends, the Boards' rejection of Dr. Case's testimony was arbitrary and unreasonable. Basically it reargues that Ward's increasing weight from 280 when originally injured to 380 when the right knee became particularly sympotmatic provides the only rational causal basis. Four, the Board erred in referring to a 2001 treatment of the right knee when it was for the left knee.
Ward argues the Board's decision is supported by substantial evidence. He notes the Board has the power to accept one doctor's testimony over another and to find the testimony it accepted to be sufficient evidence. He disputes Letica's version of the mechanism of injury and any criticism of Dr. Kamali's understanding of it. Ward contends the issues of pre-existing arthritis is misplaced based on Dr. Kamali's causative opinion.
Standard of Review
The role of this Court on appeal from the Industrial Accident Board is limited to determining if the Board's decision is supported by substantial evidence and free of legal error. "`Substantial evidence' means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The Court does not sit as the trier of fact, does not weigh the evidence, or determine credibility of witnesses.
Munyan v. Daimler Chrysler Corp., 909 A.2d 133, 136 (Del. 2006).
Oceanport Industries, Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994).
Boulevard Elec. Sales v. Webb, 428 A.2d 11, 13 (Del. 1981).
Discussion
The Board has the authority to accept one witness' testimony over another. When it does so it must state its reasons for making its credibility determinations. In this case, the Board accepted the testimony of Dr. Kamali over that of Dr. Case. When it did so, it sufficiently stated the reasons. It explained why it rejected Dr. Case's single cause explanation, namely Ward's obesity. The Board explained why it accepted Dr. Kamali's explanation of the role of overcompensation rather than Dr. Case's rejection of it having any role. There was substantial evidence to support the Board's award of compensation. The testimony of Dr. Kamali even if contradicted by Dr. Case, is sufficient to create sufficient competent evidence.That evidence showed Ward's right leg played a role in the mechanism of injury. He put weight on it even if the conveyor belt did not strike it. Letica's criticism of Dr. Kamali's alleged misunderstanding of what he was doing with that leg in the incident and the Board's alleged repetition of that misunderstanding is misplaced. To give credence to the significance of Letica's version would mean Ward was standing or kneeling on his left leg alone. Even if the mechanism process is misstated, it is not significant enough to undercut either Dr. Kamali's causation opinion or the Board's conclusion.
The evidence also showed Ward complained of clicking and pain in the right knee within a few months after the work accident. He did so twice in 1997 and again in 1998. While there was no further complaint until 2002, Ward had surgery on his left knee, the problems resulting from that, and two shoulders surgeries. He was trying to work, too. There were periods he did not see Dr. Kamali but Ward saw the doctor enough over a period of seven years for the doctor to see any potential role of overcompensation. This was one of the causes the doctor opined and the Board found prompted the right knee replacement.
With all the visits, treatments, and surgeries, Dr. Kamali was well aware of Ward's obesity. He did not he rule it out as a cause of the right knee problems necessitating the 2005 replacement. And it was neither arbitrary or unreasonable for the Board to reject Dr. Case's opinion that Ward's obesity was the sole cause of his right knee problems. He said the knee would have had to been replaced anyway but Dr. Kamali said the 1997 accident accelerated the need. The Board adequately explained its rejection of Dr. Case's opinion.
The mechanism of injury, the complaints of right knee problems in 1997 and 1998, apparent overcompensation because of the left knee injury and apparent over-compensation put on the right knee, the x-ray showing arthritis, and continued pain was all testimony before the Board to support its decision.
The Court must note, however, that the wording of the decision is not without some confusion. That confusion provides some support to Letica's argument on appeal. There was no evidence or medical testimony that Ward had any degenerative condition in his right knee when this incident occurred. Also, Dr. Kamali did not offer an opinion as to whether an asymptomatic condition became or the process was started for it to become symptomatic.
Several times in the Board's decision, on the other hand, the Board seems to say that Dr. Kamali said there had been an asymptomatic degeneration condition made symptomatic by the 1997 accident. He did not. To the extent the Board also seems to state such was a cause of Ward's right knee problem, it is incorrect. When read as a whole, however, the Board based its award of compensation not on any pre-1997 degenerative condition but on the three factors Dr. Kamali opined: (1) work injury to that knee, (2) overcompensation to that knee due to the left knee problems, and (3) his weight.
Finally, while Letica is correct that the Board's findings state Dr. Kamali began right knee treatment in 2001 when it was 2002, the error is minor. In the Board's review of Dr. Kamali's testimony, it notes (1) the doctor started injections in the left knee in 2001 and (2) started injections in to the right knee in 2002. Whether or not it is a typographical error or not, that misstatement does not appear to have played a role in the Board's ultimate findings.
Conclusions
For the reasons stated herein, the decision of the Industrial Accident Board is AFFIRMED.
IT IS SO ORDERED.