Opinion
C.A. No. 05A-11-005 (JTV).
Submitted: April 3, 2006.
Decided: July 20, 2006.
Upon Consideration of Appeal from Decision of the Industrial Accident Board AFFIRMED.
John J. Klusman, Esq., and Susan A. List, Esq., Tybout, Redfearn Pell, Wilmington, Delaware. Attorneys for Appellant.
Raymond J. Otlowski, Esq., Newark, Delaware. Attorney for Appellee.
ORDER
Upon consideration of the parties' briefs and the record of the case, it appears that:
1. Dover Post, appellant, ("employer") is appealing a decision of a hearing officer of the Industrial Accident Board ("Board") that awarded Robert L. Cook ("claimant") total disability compensation, medical expenses, attorney fees and medical witness costs. The injury upon which the claimant based his claim occurred in 2002. The employer claims that the Board erred as a matter of law in determining that the claimant was in the course of his employment at the time of his injury. The employer also contends that the Board erred in refusing to decide whether the 2002 incident was a new injury or a recurrence of an old injury. The question of new injury versus recurrence of old injury is relevant, the employer contends, to a successive carrier analysis. While both injury events occurred while the claimant worked at this same employer, between the two the employer changed workers' compensation insurance companies.
2. The claimant, a head pressman for Dover Post, injured his right knee on November 30, 2002, when he ran to the backdoor of the employer's shop to look at a co-worker's new Winnebago. The claimant ran to a metal door located approximately 100 feet from his work area. When he stopped at the door, he felt a sharp jolt in his right knee. He began to limp but did not fall or collapse. He went outside and looked at the Winnebago briefly and then returned to work until the end of the shift. Another co-worker, Richard Kendrick, testified at the hearing that the claimant came to the door to tell him to get back to work because the press machine was in operation. The Board noted that the testimony of both the claimant and Mr. Kendrick could be accurate. It decided the case on the claimant's testimony. The next morning the claimant's knee was swollen.
3. The claimant sought treatment from Dr. Eric Schwartz, an orthopedic surgeon, who arranged for an MRI. Surgery was proposed, but there was a delay in getting the surgery. The claimant was out of work from December 2002 until September 29, 2003.
4. This was not the claimant's first work-related injury. In 1993, also while working for Dover Post, the claimant tore his anterior cruciate ligament ("ACL") while running across a catwalk. Subsequent to this injury, the claimant missed time from work and underwent two knee surgeries. The claimant stated at the hearing that he has continued to have knee problems. In 1994, he was told to wear a knee sleeve and ice after activities. In 1995, the claimant reported a burning sensation in the knee. In 1996, he stated that taking a first step with his right leg brought sharp pain to the knee, so he began wearing a brace. The claimant suffered another knee injury in 2000 while at work when he stepped off a walkway. Dr. Schwartz proposed surgery after an MRI showed medial and lateral tears. However, by the time the claimant was examined by Dover Post's doctor, the clamant had received physical therapy and was feeling better. Consequently, the company doctor told the claimant there was no need for surgery.
5. Dr. Schwartz testified on behalf of the claimant. He stated that he had examined the claimant after the November 30, 2002, incident and noted that the claimant had marked medial joint tenderness to palpitation and discomfort over the lateral joint line. He was placed on light-duty restrictions. The December 2002 MRI showed a thinning of the ACL, degenerative changes and evidence of an earlier meniscectomy.
6. On June 23, 2003, Dr. Schwartz performed surgery on the right knee. Despite the MRI showing severe arthritis, on observation during the surgery there was very little arthritis in the joint. Thus, according to Dr. Schwartz, the MRI was inaccurate. Additionally, Dr. Schwartz observed that the prior ACL reconstruction was not functioning well and the ACL was torn. He further testified that, in his opinion, the treatment and surgery were related to the November 2002 event. If the claimant had not been running, he would not have hurt his knee.
7. Dr. Andrew J. Gelman, an orthopedic surgeon, testified on behalf of Dover Post. He examined the claimant in March 2003 and January 2005. He also reviewed pertinent medical records. In his opinion, the ACL and meniscal tears found in 2003 were not related to the November 2002 event. The doctor was not able to comment conclusively on the integrity of the ACL based on the MRI. Dr. Gelman testified that he believed that the surgery that was performed in June 2003 was similar to what had been proposed in 2000. The surgical findings noted a medial meniscal tear and irregularity with the ACL reconstruction consistent with graft tearing. In his opinion, the tear predated the 2002 event. An MRI showed such an abnormality in 2000 and the mechanism of injury described by the claimant is not typical for causing such a tear. He believed that the claimant's use of a brace in 1996 suggested that there was instability with the ACL repair as far back as then. In the doctor's opinion, the running event in 2002 did not tear the ACL or the medial meniscus. He believed that it may have aggravated the degenerative disease shown on the MRIs.
8. The Board found that the 2002 injury was a compensable injury occurring within the scope of the claimant's employment. Although the claimant was not at the time of the injury working on a specific work related task, the Board was satisfied that the break to look at the Winnebago fell within the "personal comfort" doctrine, discussed hereinafter.
9. As to causation, the Board reasoned that it was not required to decide whether the claimant's injury was a recurrence of the old injury or a new injury because the claimant was working for the same employer at both times and the 2002 event was clearly one or the other. Specifically, however, the Board did find that the November 2002 running event caused the 2002 injury in that the 2002 injury would not have occurred but for the 2002 running event.
10. This court's function on appeal is to determine whether the Board's decision is supported by substantial evidence and free from legal error. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The appellate court does not weigh the evidence, determine questions of credibility or make its own factual findings. It merely determines if the evidence is legally adequate to support the agency's factual findings.
General Motors v. Freeman, 164 A.2d 686, 688 (Del.Super. 1960); Johnson v. Chrysler Corporation, 213 A.2d 64, 66-67 (Del. 1965).
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1999); Battista v. Chrysler Corp., 517 A.2d 295, 297 (Del.Super. 1986), appeal dism., 515 A.2d 397 (Del. 1986).
Johnson, 213 A.2d at 66.
11. The employer first contends that the claimant was not working in the course of his employment when the 2002 knee injury occurred, because the injury occurred when he went to the back door to look at the co-worker's new Winnebago. The claimant's response to the co-worker's invitation to look at the Winnebago was, the employer contends, a personal deviation from employment which was not within the course of the claimant's employment.
12. The pertinent statute provides that a personal injury arises out of and is in the course of employment "if the employee is engaged in, on or about the premises where the employee's services are being performed . . ." Case law has construed "in the course of employment" as relating to the "time, place and circumstances" of the injury. Case law recognizes, however, that while a causal relationship between the employment and the injury is necessary, the employee does not have to be injured during a job-related activity to be eligible for workers' compensation benefits. Delaware has also recognized that incidental acts of personal convenience or comfort, such as eating, drinking, smoking, seeking toilet facilities, and seeking fresh air, coolness or warmth, occur in the course of employment. This is the so-called "personal comfort" doctrine.
Tickles v. PNC Bank, 703 A.2d 633, 637 (Del. 1997); Storm v. Karl-Mil, Inc. By Home Ins. Co., 460 A.2d 519, 521 (1983).
Tickles v. PNC Bank, 703 A.2d 633, 637 (Del. 1997).
Id.
13. In this case the Board believed that when the claimant ran from the press to the door to look at the co-worker's new Winnebago, he was within the "personal comfort" doctrine. I agree with the Board that the injury, although not caused by a job-related activity, is compensable. The accident occurred on the work premises while the claimant was at work. The evidence supports an inference that it was a minor deviation from his job tasks. There is no evidence that he violated any work place rule or that the deviation would have caused him to neglect his assigned work. Common knowledge tells us that minor distractions at work do occur. It is not realistic to expect that workers will avoid distractions while at work as one might expect from someone at military attention. What occurred here was a minor interruption from work which might reasonably be expected in the course of a day's activities. For these reasons, I conclude that the injury which occurred here was caused by an accident arising out of and in the course of the claimant's employment.
14. The employer cites the case of Tabannor v. Advanced Security as support for its contention that personal deviations from employment are not considered within the course and scope of employment. Tabannor, however, is distinguishable on its facts.
2003 WL 751278, Toliver, J.
15. The employer next contends that the Board committed legal error by not engaging in a successive carrier analysis to decide whether the 2002 injury was simply a recurrence of the 1993 injury or a new injury or aggravation of the 1993 injury. Such an analysis was necessary, the employer contends, because it had different insurance carriers in 1993 and 2002, and a successive carrier analysis was necessary to decide which of the two insurance companies was responsible for the 2002 event.
16. On this issue, the Board stated, in pertinent part, as follows:
Therefore, let me be clear that, based on the testimony of Dr. Schwartz, the treating surgeon who opined that Claimant would not have hurt his knee in 2002 if he had not been running, I find that but for the November 2002 running event Claimant would not have developed the knee problems that he had in 2002.
From Claimant's perspective, therefore, he had established that he was injured in a compensable work event on November 30, 2002, while he was working for Post. While it is true that Claimant had a preexisting knee condition, the 2002 work event was the "trigger" for the 2002 complaints and, therefore, compensable. See Reese v. Home Budget Center, 619 A.2d 907, 910 (Del. 1992). Contrary to Post/Hartford's position in its motion for reargument, Claimant did not have to assert an alternative theory of liability because he has established liability under the date of accident that he asserted in his petition.
Post/Hartford's argument is essentially that the preexisting condition can also be said to be a cause of the 2002 knee problems. This may well be true. It is, however, not relevant at this particular juncture. As mentioned in the September Decision, the Reese "but for" standard is not a standard of sole causation. September Decision, at 11 n. 5. In other words, just because one could say that the preexisting condition was a cause of the 2002 knee condition does not mean that the 2002 work event was not also a cause. Claimant's burden at this hearing was to demonstrate by a preponderance of the evidence that the 2002 event was "a" cause of his knee problems in 2002. Under Reese, all that is needed is for the work event to be a "trigger" of an underlying preexisting condition in order for causation to be satisfied for purposes of compensability. Reese, 619 A.2 at 910. Claimant has met this burden. Under Reese and Steen, he needed only to establish that there was an event in 2002 that triggered his condition, not that that event caused a "new" injury or was "untoward" as those terms are used in Nally. Thus, Post/Hartford's argument that Claimant had the responsibility for bringing in the earlier carrier is unavailing. Claimant would only have had that responsibility if he was trying to establish that the 1993 injury was "a" cause of his knee problem. He was not.
However, if Post/Hartford could establish that the preexisting condition form the 1993 work accident was also a cause of the 2002 problems, then the possibility exists that Post/Hartford could shift responsibility for payment of benefits onto the earlier carrier. This is the situation (a dispute between successive carriers) that implicates the recurrence/aggravation distinction set forth in Nally. As mentioned the September Decision, though, that dispute is solely between the carriers and does not change the fact that Claimant has established compensability against Post for the 2002 event. See Nally, 630 A.2d at 645 (noting that causation standards determining compensability involve different policy concerns than are implicated in disputes between carriers as to which is liable for payment of benefits). Post/Hartford can bring a cause of action against the earlier carrier for contribution. If it does, then the issue would have to be decided whether the 2002 event constituted a "new injury" or "untoward event." It is this question that I make no ruling on because the prior carrier is not party to the present litigation.Steen and Nally, mentioned but not fully cited in the foregoing language, are cited below.
I find no error in the Board's analysis.
17. In two of the successive carrier liability cases cited by the employer, Nally and DiSabatino Sons, Inc. v. Facciolo, both insurance companies were parties to the proceeding. The burden of proof in successive carrier cases is upon the initial carrier, not the claimant. The employer argues that the first carrier does not need to be a party to the proceeding, citing Kirkwood Animal Hospital VCA v. Foster. In that case, the court states, or suggests, that the claimant assumed the initial carrier's burden of proof on causation. In that case, unlike here, the claimant's first injury occurred while she was employed by a different employer. The claimant was at risk there that if the Board concluded that the new injury was simply a recurrence of the old injury with no new compensable injury from the second accident, she would be denied recovery in that proceeding altogether. Kirkwood is distinguishable from this case. I am not persuaded that the case is authority for the need for any successive carrier liability analysis in this case.
306 A.2d 716 (Del. 1973).
Nally at 646.
2004 Del. Super. LEXIS 321.
18. I conclude that the Board's decision is supported by substantial evidence and free from legal error. Therefore, it is affirmed.