Opinion
C.A. No. 99A-05-003 SCD.
Submitted: November 19, 1999.
Decided: January 28, 2000.
Upon Appeal From Decision of the industrial Accident Board
Matthew M. Bartkowski, Esquire, Kimmel, Carter, Roman Peltz, P.A., Wilmington, Delaware, Attorney for Claimant Below-Appellant.
Anthony M. Frabizzio, Esquire, Wilmington, Delaware, Attorney for Employer Below-Appellee.
MEMORANDUM OPINION
This is an appeal from the Industrial Accident Board ("Board"), following the Board's decision of April 21, 1999, awarding claimant Julio Verdijo ("Verdijo") a 20% permanent impairment to the thoracolumbar spine in spite of injuries at two sites on his spine. A permanent impairment pursuant to 19 Del. C. § 2326 is rated as an impairment to a discreet "part of the body" or anatomical region. Where there is more than one impairment to a single region, separate ratings must be established, then properly combined for a single award. Where there are impairments to separate regions, there must be separate awards. The Board erred in granting a single award where the distinct areas of injury were not separately rated.
Factual Background
On December 18, 1996, while employed for Skyline Painting ("Employer"), Verdijo suffered a compensable injury when he fell fifty feet down a shute and hit a dumpster. Verdijo received fractures to his lumbar spine at L4 and his thoracic spine at T10, requiring two surgeries. Verdijo underwent a thoracic fusion in March of 1997 which fused T10 and T11, and a lumbar fusion in June of 1997, which fused L2 through L5. The lumbar fusion involved the insertion of instrumentation. The surgeries left two scars, eight inches and nine inches long, respectively.
One year after the accident Verdijo began treating with Dr. Atkins, who specializes in physical medicine and rehabilitation, pain management, and sports medicine. Dr. Atkins made the following findings after a physical examination: Verdijo had an antalgic gait pattern, was walking with a limp, and was in musculoskeletal discomfort. In addition, he found Verdijo had a moderate restriction in range of motion of the lumbosacral spine, with tenderness and spasm over the paralumbar musculature diffusely, which was more pronounced on the left than on the right and tenderness in the L2 through S1 region. Dr. Atkins also performed a neurological exam which showed hypoactive deep tendon reflexes over the left lower extremity, including the knee and ankle, which he found consistent with a nerve root injury at L5 and S1. At Dr. Atkins' suggestion, Verdijo began therapy two to three times a week to relieve his pain.
Dr. Atkins testified before the Board by deposition. See Atkins Dep. at 5-6.
To determine whether Verdijo's leg complaints were related to his diabetes or the work accident, Dr. Atkins performed electrodiagnostic testing ("EMG") in March of 1998. He found L5 and S1 radiculopathies. According to Dr. Atkins, these findings were not consistent with diabetes, because they were not bilateral. Dr. Atkins concluded that the pain in Verdijo's left lower extremity was a result of the spinal surgery resulting from the work accident. Although Verdijo could not return to work and was still experiencing pain, he was discharged from treatment because he had reached maximum improvement.
Verdijo has been an insulin dependent diabetic for approximately ten years.
Dr. Atkins rated Verdijo's permanency in September of 1998, using the DRE method recognized by the fourth edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment ("the Guides"). He determined that Verdijo had a 28% impairment to the thoracic spine, a 30% impairment to the lumbar spine, and a 15% impairment to the left lower extremity, all of which were related to the work accident. When determining permanency for the spinal injuries, Dr. Atkins noted that he had some difficulty with the Guides because some of the charts combine the thoracolumbar area, however, Verdijo had two specific injuries and surgeries, one to the thoracic spine and one to the lumbar spine. In making the permanency determination for the thoracic spine, Dr. Atkins felt that Verdijo's injuries put him close to Category IV or Category V. Category IV would have given him a rating of 20% for the thoracic spine, but Dr. Atkins increased his permanency to 28% because his injury was more significant since it required surgery. In making the permanency determination for the lumbar spine, Dr. Atkins again felt Verdijo's injuries were more serious than a Category IV. When determining a permanency rating of 30% for the lumbar spine, Dr. Atkins factored in lumbar radiculopathy.
Subsequent to the work accident and Dr. Atkins' permanency rating, Verdijo was involved in two car accidents. His back pain worsened after the second accident, but Dr. Atkins did not change his permanency rating.
Dr. Grossinger, Board certified in Neurology and Needle EMG testing, performed an Independent Medical Examination of Verdijo on February 16, 1999. After reviewing medical records and examining Verdijo, Dr. Grossinger made the following findings: Verdijo had low back pain, pain shooting into the thigh, and bilateral foot and ankle complaints. He had some lack of mobility in the low back but no abnormality, spasm, or tenderness in the mid-back. Dr. Grossinger opined that Verdijo did not have a nerve root or single nerve distribution, but instead had a peripheral neuropathic distribution. He found no signs of radiculopathy.
This examination took place after Verdijo's work accident and one of his car accidents.
Dr. Grossinger initially rated Verdijo's spinal impairment as a 20% whole person impairment, which he later converted to a 20% impairment to the thoracolumbar spine. Dr. Grossinger did not believe Verdijo was entitled to two separate impairment ratings solely because he had two separate surgeries. He relied on charts in the Guides which combine the thoracolumbar area. Dr. Grossinger rated Verdijo as a Category IV because he had significant loss of motion segment integrity.
Dr. Grossinger did not give any permanency rating to Verdijo's left lower extremity based on radiculopathy, attributing the leg pain to Verdijo's diabetes. Dr. Grossinger based this opinion on the fact that Verdijo had been an insulin dependent diabetic for many years. He noted that Verdijo had symmetrical leg complaints consistent with diabetes. Dr. Grossinger disagreed with Dr. Atkins' EMG findings because he considered them flawed.
Dr. Grossinger's specific reasons for disagreeing with the findings are as follows; Dr. Atkins was not EMG board certified; he left blank spaces on the EMG report; he did not test for diabetic peripheral neuropathy; and he did not use the customary terminology.
A hearing was held by the Board on April 13, 1999 to determine additional compensation due according to 19 Del. C. § 2326(g), which provides in pertinent part:
The Board shall award proper and equitable compensation for the loss of any member or part of the body or loss of use of any member or part of the body up to 300 weeks which shall be paid at the rate of 66 2/3 percent of wages, but no compensation shall be awarded when such loss was caused by the loss of or the loss of use of a member of the body for which compensation payments are already provided by the terms of this section.
Standard of Review
On appeal from a decision of the Industrial Accident Board, this Court's limited function is to determine whether or not there is substantial evidence on the record to support the Board's findings. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. If this Court finds substantial evidence and the Board has not committed an error of law, the Board's decision must be affirmed. It is the Board's duty to determine the percentage of claimant's disability based on the evidence presented. As the trier of fact, it is also the Board's duty to make credibility determinations. The Board is free to accept the testimony of one medical expert over another.The Board's Decision
Thoracic and Lumbosacral SpineVerdijo seeks compensation for a 28% impairment of the thoracic spine, a 30% impairment of the lumbar spine, and a 15% impairment of the left lower extremity, based on the testimony of Dr. Atkins. After considering the testimony, the Board granted the petition but, in reliance on Dr. Grossinger's testimony, awarded only a 20% permanent impairment to the thoracolumbar area and nothing to the left lower extremity.
The Board based its decision on three things: the ratings of Dr. Grossinger; the testimony by Dr. Atkins that surgery at T10 does not normally cause decreased range of motion in the mid-back; and the fact that Verdijo's complaints of pain were primarily related to his lower back. The Board found "that Claimant had two distinct fractures of the spine at T10 and L4, which resulted in two distinct surgeries." In spite of this finding, the Board did not find that Verdijo was entitled to two permanency ratings for his spine.
Verdijo v. Skyline Painting, IAB Hrg. No. 1096585, Op. at 5, Apr. 21, 1999.
Left Lower Extremity
The Board accepted Dr. Grossinger's opinion that there is no causal connection between Verdijo's complaints of his left lower extremity pain and his work accident. Specifically, the Board concluded that Verdijo's complaints were a result of his diabetes.
Discussion
Two methods are recognized by the Guide to evaluate a spinal impairment. The injury model, which is also called the "Diagnosis-Related Estimates Model" or DRE, is pertinent to patients who have sustained traumatic injuries. The other model is the "Range of Motion Model" which was used in previous editions of the Guide. The DRE method divides the main spine region into three parts, the cervicothoracic, thoracolumbar, and lumbosacral regions. The cervicothoracic spine is considered to comprise 35% of total body function, the thoracolumbar spine 20%, and the lumbosacral spine 75%. That differs from the Range of Motion model where the main regions are called cervical, thoracic, lumbar and sacral. With that model, the cervical spine is considered to be involved with 80% of the individual's functioning, the thoracic spine is involved with 40%, and the lumbosacral spine is involved with 90%. With both models, the normal percent of function of the spine or the whole person cannot exceed 100%. There are charts in the Guide which convert two injuries in the same region of the body to a modified percentage which does not reflect a mere addition of one rating with another.
American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed, 1993) ch. 3, § 3.3 at 94.
Id.
American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed., 1993) ch. 3, § 3.3b at 95.
Id.
American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed., 1993) at 322.
The difficulty in this case arises because Dr. Atkins purports to be expressing an opinion based on the DRE model, but his opinions are percentages of the thoracic and lumbar spine, anatomical concepts based on the Range of Motion model. He has mixed the terminology, and it is unclear whether or not he has mixed the concepts.
Similarly, Dr. Grossinger's testimony talks in terms of the DRE model in that he gives a percentage of the thoracolumbar spine but he fails to explain how injuries which span such a large anatomical area, T10 at the top and L5 at the bottom, can be considered as within a single region for evaluation purposes. Nor does he assign a percentage of impairment to each injury or describe how the two percentages can be combined for a single rating if all the injury is within a single anatomical area.
Clearly, the Guide is merely that, and the injuries sustained by Verdijo do not fit neatly into the evaluation process. But that is all the more reason why the experts need to explain their assessments in a way that can be examined against the Guide's tables, eg. The Combined Value Chart which relates to the handling of two disabilities within the same anatomical region, and the Regional Spine Impairment calculations which relate to conversions from "whole person" to a regional estimate, the type of conversion required to meet the standards of Delaware's Workers Compensation Statute.
Id.
Id. at ch. 3 § 3.3k at 131.
See Pritchett v. Independent Newspapers, Inc., Del. Super., C.A. No. 98A-11-002, Ridgely, J. (May 13, 1999) (ORDER) (converting a whole person impairment to an impairment of the cervical spine); Pierson v. Deaven, Del. Super., C.A. No. 98A-02-002, Goldstein, J. (Aug. 14, 1998) (ORDER) (converting a whole person impairment to an impairment of the lumbosacral spine); Hibble v. Timko Brothers, Inc., Del. Super., C.A. No. 96A-05-002, Carpenter, J (Nov. 27, 1996) (converting a whole person impairment to an impairment of the lower right extremity).
Regardless of the method of calculating each permanent impairment, each must be separately evaluated. Dr. Grossinger's testimony which was accepted by the Board and forms the basis for its award of permanent impairment, is legally insufficient under the facts of this case. Whatever the amount of permanent impairment attributable to each injury, there must be some impairment in the context of this case where each fracture site has resulted in surgery and a fusion of vertebrae. While the total impairment may or may not be a different number than that arrived at by the Board, the foundation for the decision must be clear and logical. The decision as to the permanent impairment of the spine is REMANDED.
As to the issue of the left leg, there was a dispute between the physicians as to whether or not the radiating pain complained of by the claimant was a result of his injuries. There is evidence to support the Board's decision. However, since evaluation of the spine injury contemplates an assessment of radicular pain, and because the REMAND of the spine injury issue may permit the parties to clear-up the ambiguity regarding the EMG report, I will REMAND that decision as well.
For the foregoing reasons, the decision of the Board is hereby REVERSED and the case is REMANDED with direction to the Board for such further proceedings as are consistent with this opinion.
IT IS SO ORDERED.
ORDER
For the reasons set forth in this Court's Memorandum Opinion of January 28, 2000, the decision of the Industrial Accident Board is hereby REVERSED and the case is REMANDED with direction to the Board for such further proceedings as are consistent with this Court's Opinion.
IT IS SO ORDERED this 28th day January of 2000.