Opinion
C.A. No. 07A-09-001 WLW.
Submitted: February 20, 2008.
Decided: May 30, 2008.
Upon Appeal of a Decision of the Industrial Accident Board.
Affirmed.
John J. Schmittinger, Esquire and Kristi N. Vitola, Esquire of Schmittinger Rodriguez, P.A., Dover, Delaware, attorneys for the Appellant.
William R. Baker, Jr., Esquire of Tybout, Redfearn Pell, Wilmington, Delaware; attorneys for the Appellee.
ORDER
Before the Court is the appeal of the Industrial Accident Board's ("IAB" or "Board") August 10, 2007 decision in the case of Kathy Reinhart-Meredith v. State of Delaware, IAB Hearing No. 709219, which denied her Petition to Determine Additional Compensation Due. Having reviewed the entire record, the Court finds that there is substantial evidence to support the Board's finding, and therefore its decision is affirmed.
Decision of the IAB
Kathy Reinhart-Meredith (Appellant) was injured in an industrial accident on November 23, 1980 while working for the State of Delaware (the State). As a result, she had a fusion performed on two of the five levels (L4-S1) in her lumbar spine in 1981 and had them re-fused in another surgery on October 31, 2002. The State paid for the surgeries and for permanent impairment benefits at 32% impairment to the spine. Prior to the second surgery, Appellant had an MRI (the 2002 MRI) that indicated a new issue between two non-adjacent lumbar levels (L2-3). By October 2003, Appellant reported that she was at least eighty-percent better and was carrying on normal activities.
In September 2005, Appellant was in a car accident. She was wearing a seatbelt when a Sports Utility Vehicle rear-ended her car with enough force to push her trunk into the back seat. She experienced neck pain and a headache. She claims that she had no injury to her lower back. She saw the doctor for low back pain one month later, and had the surgery at issue the following August, in which she had the L2-3 fused together. She has $103,124.51 in unpaid medical bills. On March 16, 2007, Appellant filed a Petition to Determine Additional Compensation Due seeking payment of medical expenses and for a recurrence of total disability benefits.
Ali Kalamchi, D.O., a board-certified orthopedic surgeon testified on behalf of Appellant at the IAB hearing. He has been practicing as an orthopedic spine surgeon for more than 25 years. He conducted the 2002 surgery and considered including L2-3 but did not since Appellant `s pain was mainly at L4-S1. The surgery was successful although Appellant continued to experience nonspecific back pain.
When Appellant visited Dr. Kalamchi one-month after her car accident in October 2005, she complained of severe low back and leg pain. Dr. Kalamchi does not recall being told about a car accident. Rehabilitation and therapy did not help. An MRI on May 12, 2006 showed a stable fusion at L4-S1 but that there was a herniation and other significant problems at L2-3. Dr. Kalamchi performed the surgery at issue on Appellant at L2-3 on August 16, 2006.
Dr. Kalamchi believes that the L2-3 is causally related to the 1980 industrial injury. According to Dr. Kalamchi, there are five mobile levels in the lumbar spine. He testified that upon fusing two of them, it is typical for the remaining levels to take on stress caused by motion. Generally, adjacent levels take on the maximum burden, but it is not unusual for another level to also take on stress. L2-3 is not adjacent to L4-S1, however, given that L2-3 was problematic at the time of the 2002 surgery, it is not surprising that L2-3 would require surgery now. Dr. Kalamchi did not provide any literature to support his theory.
Although Dr. Kalamchi did not recall any interim accidents between the 2002 surgery and the 2006 surgery, he testified that even if there had been an accident, this would not change his opinion as to causation. Dr. Kalamchi explained that because Appellant's condition was chronic (predating the car accident), taking years to develop, it could not have been the result of a 2005 accident. Dr. Kalamchi also noted that even though Appellant first complained of pain one month after her accident, the pain did not become severe until February 2006.
On behalf of the State, Dr. Ronald Sabbagh, M.D., Board Certified Orthopedic Surgeon with ten years of experience, testified that the January 2002 MRI revealed a minimal narrowing of the spinal canal at L2-3 secondary to a disc bulge. The MRI from March 2006 indicated a progression to a more significant herniation. He stated that he did not think the L2-3 level surgery was a direct result of her work injury or the L4-S1 fusion. He testified that there are many possible causes for the herniation, such as normal aging, significant trauma, or insignificant trauma. Dr. Sabbagh believes that the 2002 MRI indicated chronic degenerative changes that were then exacerbated by a motor vehicle accident. His conclusions are based upon the fact that Appellant went back to work two months after the 2002 surgery (a relatively short amount of time), that there was no significant pathology at L2-3 and that Appellant had some back pain one month after being rear ended. Additionally, Appellant never saw a doctor about her back between the 2002 surgery and the visit after the 2005 accident.
Dr. Sabbagh's position on Dr. Kalamchi's theory (that a fusion at one level makes a patient more susceptible to experiencing symptoms at other levels) is a grey area in spine surgery. Although there is evidence to suggest there may be adjacent level problems, there is also evidence to the contrary. He is unaware of literature that supports non-adjacent problems. Further, there is no suggestion of an adjacent problem. Finally, if the problems between the 1981 fusion at L4-S1 and the 2006 fusion at L2-3 were related, he would have expected the 2002 MRI to reveal more progressive problems. Dr. Sabbagh has not performed a fusion in a similar fashion and he has no way of knowing whether or not it is due to a fusion or normal aging.
The Board found that Appellant did not bear her burden of proving that her medical treatment and total disability period were reasonable, necessary and causally related to the 1980 industrial injury. They believe the 2006 surgery fusing L2-3 is a result of the September 2005 automobile accident and is unrelated to the 1980 industrial accident or the 1981 fusion at L4-S1. The Board found that Dr. Sabbagh's opinion more persuasive than the opinion of Dr. Kalamchi.
Standard of Review
The Supreme Court and this Court repeatedly emphasize the limited appellate review of the factual findings of an administrative agency. The function of the reviewing Court is to determine whether substantial evidence supports the agency's decision. 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.
Johnson v. Chrysler Corporation, 213 A.2d 64, 66-7 (Del. 1965); General Motors v. Freeman, 164 A.2d 686, 688 (Del. 1960).
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battista v. Chrysler Corp., 517 A.2d 295, 297 (Del.Super.1986), app. dism., 515 A.2d 397 (Del. 1986).
Johnson v. Chrysler Corporation, 213 A.2d at 66.
Discussion
Appellant argues that the Board's decision is contrary to the law and that their reliance on Dr. Sabbagh is not supported by substantial evidence. Title 19, section 2347 of the Delaware Code provides a claimant the right to compensation from the Employer if their workplace injury increases in a compensable incapacity. "A subsequent injury is compensable only if it follows as a direct and natural result of the primary compensable injury." If an impairment has returned or increased "without the intervention of a new or independent accident," an employee may seek compensation. A two-step test is applied to determine the distinction. First, the Board determines whether the second injury was a result of an "an intervening or untoward event." Second, the Board determines whether there was a change in Claimant's condition as a result of the event. In this case, the Board found that the 2005 car accident caused an injury unrelated to the 1980 industrial injury and therefore correctly treated it as a new and unrelated injury. Appellant's argument that the Board applied the wrong rule is therefore without merit.The Board's decision is supported by substantial evidence. The Board may accept one expert's opinion as to causation over another so long as it is supported by substantial evidence. The Board accepted Dr. Sabbagh's opinion that Appellant's disc bulge in 2002 was a normal degenerative finding for someone of her age and would have been worse if they were actually related to the 1981 fusion. This normal degeneration was then exacerbated by a motor vehicle accident. The fact that the herniation was two levels above the old injury and that the Appellant felt a difference in the character of the pain in this new area after the accident, supports the conclusion that it was caused by the automobile accident and was not associated with any prior surgeries or the industrial accident. In contrast, Dr. Kalamchi assumed the injuries were all related without presenting any basis and did not even recall an accident.
Standard Distributing Co. Through Pennsylvania Mfrs. Ass'n Ins. Co. v. Nally, 630 A.2d 640, 646 (Del. 1993) (citing DiSabatino v. Wortman, 453 A.2d 102, 105 (Del. 1982)).
The State argues that the Court must follow the holding in Delhaize America, Inc., a/k/a Food Lion v. King, where the Court found that the claimant's post-industrial accident injury was compensable. In that case, the claimant initially injured her back while working at Food Lion. She went back to work but continued to experience pain. Four years later she required a spinal fusion after an automobile accident. The Board correctly concluded that the necessary surgery was a direct and natural consequence of the original work in jury. King is distinguishable since in that case, the injury was in the same place and both the claimant's expert and the employer's expert agreed that the claimant had discogenic low back pain with a herniated disc that worsened after the automobile accident.
2005 WL 1654367 (Del.Super.Ct., April 29, 2005).
Delhaize America, Inc. v. King at *2.
Here, the injury is in a different location and the experts disagree as to causation. Dr. Kalamchi's opinion is that the 1981 and 2002 fusions would increase the stress on unfused levels, but typically the adjacent level. Dr. Sabbagh's opinion is that the literature is grey in this area, but that he is not aware that there is any literature that supports stress to non-adjacent levels. Additionally, Dr. Kalamchi did not recall the September 2005 automobile accident, whereas Dr. Sabbagh believes that the 2002 MRI indicated normal degeneration at L2-3, and that the later herniation is a result of a car accident. Dr. Sabbagh opined that if the herniation occurred because of the 1981 fusion, the 2002 MRI would have looked differently. Finally, Appellant made a rapid eighty-percent recovery from the 2002 surgery, and did not seek medical attention about her back after the 2002 surgery until one month after her car accident.
The State suggests that this is because no literature on non-adjacent levels exists.
Conclusion
Wherefore, Dr. Sabbagh's opinion is based on substantial evidence, the Board was free to choose his over Dr. Kalamchi's, and therefore this Court will not disturb the Board's decision. Affirmed.
IT IS SO ORDERED.