Opinion
C.A. No: 00A-02-015 (RSG).
Submitted: May 26, 2000.
Decided: August 24, 2000.
Upon Appellee's Motion to Affirm — GRANTED.
OPINION AND ORDER
The matter before the Court concerns a dispute regarding successive carrier liability. Saundra Caldwell ("Claimant") filed a petition on November 6, 1998 for compensation due, alleging that on or about December 1, 1997, while working for Visiting Nurses Association ("VNA"), she sustained Carpal Tunnel Syndrome to her left hand.
Liberty Mutual Insurance Company ("VNA-Liberty") insured VNA for worker's compensation benefits until December 31, 1997. VNA became self-insured ("VNA-self insured") on January 1, 1998. The Claimant's petition for compensation due was filed against both VNA-Liberty and VNA-self insured due to a dispute of successive carrier liability.
The Industrial Accident Board ("Board") found in favor of the Claimant on December 29, 1999, and held VNA-Liberty responsible. VNA-Liberty filed a motion for reconsideration, rehearing, and/or rearguement on the issue of successive carrier liability which was denied by the Board on February 10, 2000. VNA-Liberty filed an appeal with this Court, and VNA-self insured flied this Motion to Affirm. Saundra Caldwell has taken no position with this appeal because it is solely a successive carrier issue.
Upon consideration of the Appellant's opening brief, the Appellee's Motion to Affirm, and the record of this case, this Court finds the Board's decision is supported by substantial evidence, and the Appellee's Motion to Affirm is granted.
FACTS
Saundra Caldwell, age 45, has been employed by VNA since 1994. In March 1996, Claimant was assigned to a receptionist position where her duties included answering the telephone, filing papers, mailing letters, putting away packages, and assisting in the medical records room. Four to five months later, her duties in the medical records room increased substantially, and most of her time was spent on various filing duties.
Claimant testified her medical records duties included alphabetizing files, puffing fifty to sixty charts, organizing the papers in the charts, consolidating charts after a patient was discharged, tearing up documents that needed to be disposed since they were confidential, and rotating the charts to make more room. These duties took five to six hours a day, Monday through Thursday. Although another worker helped Claimant, Claimant did the majority of the work. Claimant is left-handed.
Claimant testified she started to feel tightness and tiredness in her hands in fall 1997. In October 1997, Dr. Richard DuShuttle, a board certified orthopedist with a subspecialty in hand surgery, treated Claimant for pain after she struck the fifth finger on her left hand on her car. Dr. DuShuttle testified Claimant did not have any wrist problems on that date of treatment. In November 1997, the pain moved to her left wrist and increased while she was at work. She requested pain medication for her wrist from Dr. DuShuttle on November 12, 1997, and then requested a brace on November 25. Dr. DuShuttle examined Claimant on December 2, 1997, and she reported wrist pain, numbness, decreased grip strength, and some arm pain. These symptoms had been present for approximately three weeks. Dr. DuShuttle prescribed physical therapy and anti-inflammatory medication. Claimant had physical therapy five times in December and twice in January. Dr. DuShuttle rescheduled her December 22, 1997 appointment for January 6, 1998.
On January 6, 1998, Dr. DuShuttle suspected Carpal Tunnel Syndrome and performed nerve conduction studies. An EMG confirmed his diagnosis. Dr. DuShuttle attributed her condition to her work activities as a result of repetitive stress/use while working for VNA. Dr. DuShuttle recommended surgery, and on January 23, 1998, he limited her work status to four hours per day. Claimant tried to continue working, but the work was too painful. Dr. DuShuttle totally disabled her on January 28. He performed surgery on February 17, 1998, and Claimant was released to return to work on March 25, 1998.
Claimant saw Dr. Errol Ger, board certified in orthopedic surgery and hand surgery, on behalf of VNA in October 1999. He concluded Claimant's Carpal Tunnel Syndrome was not work related. He asserted that 60 percent of Carpal Tunnel Syndrome causes are unknown. Known causes include rheumatoid arthritis, lupus, severe osteoarthritis of the wrist, hormonal abnormalities, pregnancy, and repetitive trauma. She asserted that she had no hobbies involving the use of her hands, and she had no prior falls that affected her wrist. She has neither reached menopause nor have rheumatoid arthritis.
DISCUSSION
This Court's role in reviewing a decision of the Board is to determine whether that decision is supported by substantial evidence. 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.
General Motors v. Freeman, Del.Supr., 164 A.2d 686, 688 (1960).
Oceanport Ind. v. Wilmington Stevedores, DeL Supr., 636 A.2d 892, 899 (1994).
Johnson v. Chrysler Corporation, Del.Supr., 213 A.2d 64, 66 (1965).
It is clearly settled Delaware law that for injuries caused by the cumulative detrimental effect of work activities is similar to that for assessing the trigger date for statute of limitations purposes. The date the statute of limitations starts to run is when a worker, as a reasonable person, should have recognized the nature, seriousness, and probable compensable character of the injury. The date the injury becomes severe is the date which the statute of limitations is triggered and the date on which carrier liability may be assessed under the Delaware Supreme Court's mandate in Standard Distributing Co. v. Nally.
Seaford Machine Works v. Johnson, Del.Super., CA 95A08-004, Lee, J. (April 1, 1996).
Geroski v. Playtex Family Products, Del.Supr., No. 414, 1995, Walsh, J. (January 24, 1996) (ORDER).
Seaford Machine Works, CA 95A08-004 at 21, citing Standard Distributing Co. v. Nally, Del. Supr., 630 A.2d 640 (1993).
The date for assessing carrier liability at one time fell when the worker was first disabled for three days. This test was performed when 19 Del. C. § 2321 required three days of disability before the injury was compensable. Since then, the statute has been amended, and many benefits, including medical expenses are compensable without the three-day capacity rule. Evans no longer applied due to the amendments to the statute. Nally held that the burden is on the predecessor carrier to shift liability to its successor by establishing an intervening or untoward event.
Evans v. Country Pride Food, IAB No. 751000, slip op. At 4-5 (February 13, 1988)
The amendment to 19 Del. C. § 2321 was effective July 18, 1996.
Standard Distributing Co. v. Nally, Del.Supr., 630 Aid 640, 636 (1993).
The Board's decision that VNA-Liberty is the carrier responsible for the compensation is supported by substantial evidence. VNA-Liberty was the carrier in 1997. Claimant's symptoms became serious enough for her to seek treatment in November and December 1997. As a reasonable person, Claimant at this time recognized the nature, seriousness, and probable compensable character of the injury. Claimant's injury first became compensable in 1997 because she incurred medical expenses related to the work injury. The three day lost time requirement does not apply here because Claimant started her treatment in November-December 1997, which was after the statute was amended removing.g that three-day requirement.
Claimant was not officially diagnosed with Carpal Tunnel Syndrome until January 6, 1998. At that time VNA-self insured was the carrier. Claimant did have an appointment with Dr. DuShuttle on December 22, 1997, but that was rescheduled for the January appointment. Although the official diagnosis was not until 1998, the date for carrier liability is recognized as November-December 1997 when VNA-Liberty was the carrier, because Claimant at this time, should have recognized the nature, seriousness, and compensable character of the injury. The official date of diagnosis does not have an impact on carrier liability.
The Board also properly concluded VNA-Liberty was liable because the Board found no untoward event to attempt to shill the liability to VNA-self insured. VNA-Liberty was unable to establish any change in Claimant's condition in order to shift liability to VNA-self insured as required by Nally. The Claimant only worked for VNA-self insured for two days before the diagnosis on January 6, 1998. Nothing happened in those two days that would serve to shift liability. Claimant's symptoms began in late 1997 when VNA-Liberty was the responsible carrier.
The Board properly concluded that VNA-Liberty is the responsible carrier. The issue on appeal is factual and there is substantial evidence to support the findings of fact below. The Board relied on clearly controlled Delaware law. Therefore, the decision of the Board That VNA-Liberty is the responsible carrier to pay compensation is AFFIRMED.
CONCLUSION
Based on the forgoing reasons, the Motion to Affirm the decision of the Industrial Accident Board holding VNA-Liberty the responsible carrier is GRANTED and that decision is AFFIRMED.IT IS SO ORDERED.
__________________________________ The Honorable Richard S. Gebelein
Orig: Prothonotary Cc: Christopher T. Logullo, Esq. Maria Paris Newill, Esq.