Opinion
C.A. No. 00A-08-007-JOH
Submitted: January 17, 2001
Decided: March 5, 2001
Upon Appeal from a Decision of the Industrial Accident Board — AFFIRMED
James J. Hanley, Esq., Deputy Attorney General, Department of Justice, for appellant Worker's Compensation Fund
Michael P. Freebery, Esq., of Freebery Houghton, attorney for appellee Joan Doto
John J. Klusman, Jr., Esq., and Susan A. List., Esq., of Tybout, Redfearn Pell, attorneys for appellee Beebe Medical Center
MEMORANDUM OPINION
I.
Appeal has been taken from the Industrial Accident Board's decision holding the "Second Injury Fund" liable for compensation payments rather than the affected employee's last employer.
Under law, the Fund is liable, rather than the last employer, when an employee sustains a permanent work-related injury subsequent to another permanent injury from any cause. It is not liable in the absence of an earlier traumatic injury. In this case, Joan Doto sustained a permanent, job-related injury in 1997 while employed at Beebe Hospital. This injury led to surgery on her back. She told the Board that she had hurt her back while employed in 1979 and, as a result, underwent two operations.
No medical records from 1979, however, were presented to the Board. Nor did any doctor who treated or operated on her in 1979 testify before the Board. A doctor who examined Doto on behalf of Beebe and reviewed her 1997 and 1998 medical records opined that she suffered a herniated disk in 1979 and that the 1979 surgeries were necessitated by a work-related incident. He never saw any records from 1979 nor spoke to any treating physician from that time. Despite this, his opinion was based on what Doto said happened in 1979 and the evidence of prior surgery mentioned in the 1997 surgical operative report.
The Board held Doto's testimony, the testimony of the doctor who examined Doto and the 1997-98 medical records were sufficient to show a prior qualifying injury had been suffered. The issue presented is whether this evidence was sufficient to show a prior injury, as opposed to a natural condition, rendering the Fund liable and not Beebe.
FACTUAL BACKGROUND
In 1979 Doto was working at Easton Memorial Hospital. While helping an orderly move a deceased patient from a bed to a "morgue cart," she heard a cracking sound in her lower back. Doto told the Board that around three weeks later, she underwent surgery on her lower back. Some kind of complication occurred causing her to undergo a second operation. She testified that she received six weeks of worker's compensation as a result of this incident and surgery.
Her treating doctor at the time placed lifting restrictions on her. At the time this happened, she was in her 30's. As a result of these restrictions, she worked as a "patient sitter" for a year. She worked at Beebe from 1985 until 1995 as a transcriptionist. In 1995, Doto was promoted to a supervisory position. On January 1, 1997, she needed to lift and move some transcribing equipment. Unable to find help to do so, she did it herself and felt a sensation in her back.
As a result of this incident, she underwent two additional back surgeries performed by Dr. Venkataramana. When performing the first surgery in 1997, the doctor noted in his operative report several things indicating prior surgery. He observed scar tissue. He also noted in his report that the disk at the L4-5 level was "empty," apparently missing some disk material that would normally be there. Again, due to some complications with the first surgery, she underwent a second surgery in 1998.
This doctor's name is spelled two ways: Venkataramana and Venkataramana. Also, his name and another doctor's name are mentioned in testimony and the Board decision without any first name. As a courtesy, courts customarily, when referring in an opinion to a person for the first time, give the full name. It would be helpful if counsel, testifying doctors and the Board, in its decisions, did so, too.
Dr. Venkataramana did not testify before the Board. Dr. Stephen Rodgers, board certified in occupational medicine, did, however. He reviewed the doctor's records, as well as examine and speak with Doto. He told the Board that the signs of prior surgery noted in the operative report meant that Doto had a partial diskectomy prior to the 1997 surgery. He could not say from that, however, why the surgery was done or what it was intended to correct. He did offer the opinion that it was probable she suffered a herniated disk. Because of her younger age, however, he did not believe the 1979 surgeries were needed due to natural degenerative changes or conditions. Doto gave him what she recalled as the name of a 1979 treating doctor. But, Dr. Rodgers was unable to find that doctor.
Based on the existence of the prior surgeries, Doto's description of the 1979 lifting incident and her subsequent light-duty restrictions, Dr. Rodgers opined that Doto suffered an approximate eleven percent permanent impairment to her low back. He utilized AMA Guide to the Evaluation of Permanent Impairment operative in 1979 to reach that conclusion. He opined his basis for saying that she had suffered a herniated disk was:
The patient as a CNA [nurse's assistant] has a little bit of medical sophistication to be able to explain a valid history and also the films taken early on in January of '97 showed a laminectomy defect. And Dr. Vinkataramana interoperatively found that there had been previous surgery at that level.
Board Transcript (July 24, 2000) at 35.
He also said that since the 1979 surgery was for a laminectomy and Doto being in her 30's then and not having arthritis now being in her 50's, the only reason for the surgeries was for a herniated disk and not due to natural degenerative changes.
Dr. Rodgers noted that the second surgery in 1998 was a complete laminectomy and a fusion at L4-5. Based on the prior incident, the 1979 surgeries, the 1997 work incident and two subsequent surgeries, Dr. Rodgers told the Board that Doto was now totally disabled. The 1997 incident and subsequent surgeries resulted in a 25 percent permanent impairment to Doto's back.
After hearing all this evidence, the Board found Doto to be totally disabled and that the 1997 incident has resulted in a permanent impairment. The Board also found that Doto had suffered a prior permanent injury, namely the 1979 work incident and the two follow-up surgeries. It based that conclusion on several factors. One, there was evidence of prior surgery found during the 1997 surgery. Two, because of the lack of arthritis in her 50's, it is unlikely the 1979 surgery was for a degenerative condition. Three, the Board found Doto to be credible and without motive to lie. She described what happened to her back while at work in 1979 and that the first surgery was within weeks. Based on her recitation to the Board and Dr. Rodgers of the 1979 incident, the Board found she had suffered a prior traumatic injury.
Though the Board found Doto credible, in reaching its decision, it did not cite or rely upon Doto's testimony that she received worker's compensation in 1979.
Dr. Rodgers had also said that the two prior 1979 surgeries weakened Doto's back. They predisposed her to further injury. Since she had a weakened back and the 1997-98 surgeries were at the same L4-5 level, this showed the predisposition to further injury. That being so, the Board agreed, the 1997 injury and subsequent surgeries were not themselves enough to cause her current total and permanent back injury.
In conclusion, the Board found that the 1997 permanent injury in connection with the 1979 permanent injury resulted in total disability. Since it found Doto had suffered an injury in 1979, that finding resulted in holding the Fund liable for Doto's compensation rather than Beebe.
STANDARD OF REVIEW
This Court has a limited role on appeals from the Board. Its function is to determine whether the Board's decision is supported by substantial evidence and is free from legal error. This function requires the Court to search the record to determine whether, based on all the evidence and testimony, the Board could have reached the decision it did. Substantial evidence means such relevant evidence as a reasonable mind might accept to support a conclusion. The Court does not sit as a trier of fact making its own credibility determinations or factual findings.
Histed v. E.I. DuPont de Nemours Co., Del.Supr., 621 A.2d 340, 342 (1993).
National Cash Register v. Riner, Del.Super., 424 A.2d 669, 674-75 (1980),
Buckley v. Delaware Valley Rehabilitation Services, Del.Supr., 711 A.2d 789, 791-92 (1998).
Johnson v. Chrysler Corp., Del.Supr. 213 A.2d 64, 66 (1965).
DISCUSSION
The statute which creates the framework whether the last-in-line employer pays or the Fund pays states:
When a subsequent permanent injury occurs to an employee who has previously sustained a permanent injury, from any cause, whether in line of employment or otherwise, the employer for whom such injured employee was working at the time of such subsequent injury shall be required to pay only that amount of compensation as would be due for such subsequent injury without regard to the effect of the prior injury. Whenever such subsequent permanent injury in connection with a previous permanent injury results in total disability as defined in § 2326 of this title, the employee shall be paid compensation for such total disability, as provided in § 2324 of this title, during the continuance of total disability, such compensation to be paid out of a special fund known as "Industrial Accident Board Second Injury and Contingency Fund."
The purpose of this statute is to divide responsibility for successive disabling injuries resulting in total disability between the employer last in time and a broader spectrum of the community. That last-in-time employer must prove that there was a previous permanent injury and a later permanent injury resulting in total disability. Injury, as used in § 2327, is defined as:
Spence v. University of Delaware, Del.Supr., 311 A.2d 867, 868 (1973).
Id. at 869.
"Injury" and "personal injury" mean violence to the physical structure of the body, such disease or infection as naturally results directly therefrom when reasonably treated and compensable occupational diseases and compensable ionizing radiation injuries arising out of and in the course of employment.
The Fund does not dispute that Doto is now permanently and totally disabled. It argues that there is insufficient competent evidence to support the Board's conclusion that Doto suffered a prior injury in 1979, as that word is statutorily defined. It points to (1) the lack of any medical testimony from any doctor who treated or operated on Doto in 1979 and (2) the lack of any medical records from that alleged earlier incident. Citing Streett v. State, the Fund relies upon the following to argue insufficient competent medical evidence:
Del.Supr., 669 A.2d 9 (1995).
The claimant has the burden of establishing a work-related injury and the extent of the injury. Generally, medical evidence must be presented to support the employee's claim. Where the claimant's injury is internal, for example, medical evidence is "essential in order to properly determine that an injury in fact has occurred and the extent of such injury [citations omitted]."
Id. at 11 (citing McCormick Transp. Co. v. Barone, 47 Del. 202, 89 A.2d 160, 163 (1952)).
Since the prior injury to Doto was internal, the Fund argues that Beebe failed to meet its burden by having no contemporaneous medical evidence, doctor or records, supporting a traumatic injury in 1979. But, the above language from Streett, upon which the Fund relies, is not all the Supreme Court said about evidence relating to an internal injury. It followed the above statement by saying:
However, medical evidence is not the only evidence the Board may rely upon in making its factual determinations with respect to the claimant's injury. In General Motors Corp. v. Freeman, the employer disputed the employee's claim that his eye injury was caused by an accident at work. The medical evidence on causation was "weak and uncertain, " but the Board found in the employer's favor. In evaluating whether the Board's finding was supported by substantial evidence, this Court noted the employee's testimony as to the onset of his vision problems prior to the accident at work. That lay evidence, combined with the marginal expert medical evidence, was held sufficient to sustain the Board's decision [citations omitted].
Id. at 11-12.
The Board's starting point here with Doto was similar to the employee in the Freeman case cited in Streett. The Board, who heard her, decided she was credible. This Court, as noted, does not make credibility determinations. And the Board gave the reasons for finding Doto credible, as it must. It said she had been consistent in describing the 1979 incident. Also, since the issue was not whether she was to receive compensation but who would pay it, any incentive to "fudge" is missing.
Del.Supr., 164 A.2d 686 (1960).
Keeler v. Metal Masters Equipment Co., Inc., Del.Supr., 712 A.2d 1004, 1006 (1998).
Turbitts v. Blue Hen Lines, Inc., Del.Supr., 711 A.2d 1214, 1215 (1998).
But, the Fund replies that even if credible, this alone is insufficient, competent medical evidence of a traumatic injury. In isolation, its position may be correct. But, the Board did not review Doto's recitation in isolation. There was undisputed medical evidence that during the 1997 surgery, the surgeon found scar tissue, which would only come from surgery and indications of a prior partial diskectomy.
The Fund does not dispute there was prior surgery. It questions whether the evidence before the Board was sufficient to establish that this surgery was necessitated by a traumatic injury or due to natural degenerative changes. Dr. Rodgers said that since Doto did not have arthritis in her 50's, it was not probable she had the 1979 surgery for degenerative changes when in her 30's. Further, the "empty" space found in the 1997 surgery at the L4-5 level indicated to Dr. Rodgers that Doto had suffered a herniated disk. Finally, the Board accepted Dr. Rodgers' opinion that the two prior surgeries weakened Doto's back and predisposed her to further injury in that area.
If, however, as the Fund argues, the 1979 surgeries were necessitated by a natural degenerative change and not as a result of a traumatic event or injury, the Fund would not be liable. As a condition of the Fund's liability, Doto must have suffered an injury in 1979 which satisfies the definition of injury in § 2301(12).
Nastasi-White v. Futty, Del.Supr., 509 A.2d 1102 (1986).
The facts of this case are remarkably similar to those in Air Mod Corp. v Newton. In that case, the issue was whether the employee had suffered an injury or an occasion prior to the one which triggered the Fund's potential liability:
Del.Supr., 215 A.2d 434 (1965).
In 1937, the plaintiff suffered a back injury as the result of a fall. For 12 years thereafter, his back pain was intermittent; then progressively more frequent; then continuous. In April 1959, the plaintiff underwent surgery for the condition, the diagnosis being sciatic neuralgia, ruptured interveterbral disc, and discogenic spondylosis. A lumbar laminectomy (surgical removal of the posterior arches of the vertebrae) was performed and discs were removed. The operation included opening of the dura, one of the membrane coverings of the spinal cord. Within a few weeks, the plaintiff returned to the hospital complaining of pain in the left leg and, shortly thereafter, he was hospitalized again for pain in the right hip and leg. The diagnosis on both of these occasions was sciatic neuralgia.
In September 1959, the plaintiff applied to the defendant for employment as a welder and was hired. On December 30, 1960, according to the plaintiffs testimony before the Board, he slipped and fell in the course of his employment while pushing a hand truck on an ice street pavement. He experienced no pain until he had driven part way home that evening; but thereafter he suffered severe back pains. On January 9, 1961, the plaintiff first made a report to the defendant and first consulted a physician about the pain he was experiencing. He made no mention of a fall either in the first report or to the doctor first consulted. On January 23, 1961, the plaintiff signed a statement in which he stated he "did not actually fall from the ice." The plaintiff continued to work for the defendant until the end of March 1961. His record of attendance at work was good both before and after the December 30 incident.
In April 1961, the plaintiff underwent more back surgery, the diagnosis being recurrent herniated intervertebral disc and cauda equina arachnoiditis. The following operative procedures were performed: a lumbar laminectomy involving the same vertebrae as in the 1959 surgery, with extradural removal of an extruded disc fragment; exploration of the cauda equina (aggravation of nerve fibers) for arachnoiditis (inflammation of the arachnoid, a second membrane covering of the spinal cord) and removal of scar tissue overlaying the dura; a spinal fusion was also done. During this hospitalization, the plaintiff signed an application form for non-occupational group accident and health insurance benefits, stating that his sickness and injury did not arise out of his employment.
In July 1961, the plaintiff was again hospitalized for pain. The diagnosis was arachnoiditis cauda equina; a left chordotomy (cutting of pain fibers in spinal cord) was performed. In April 1962, the plaintiff was again hospitalized, the diagnosis being arachnoiditis; this time, the operation was a right chordotomy. Since then, the plaintiff has been completely and permanently disabled, paralyzed from the chest down.
On October 25, 1962, the plaintiff filed a petition for workmen's compensation, claiming that his permanent disability resulted from the occurrence of December 30, 1960. The Board found that the plaintiff "strained his back" on that date; that such injury "aggravated the pre-existing back disability" suffered by him; that his disability constituted a compensable occupational disease under § 2329; and the Board awarded compensation accordingly. On appeal by the defendant, the Superior Court affirmed the award, but held § 2329 inapplicable because the plaintiffs disability "does not amount to an occupational disease." The defendant takes this further appeal.
Id. at 436-37.
The Supreme Court, noting it was not the arbiter of the employee's credibility, said his testimony, if believed, was enough to show an injury on December 30, 1960. The strained back is an internal injury.
Id. at 438.
Yet, the evidence is much stronger here. Surgery in 1979 followed shortly after the deceased patient incident. There was uncontradicted evidence of prior back surgery more probably than not consistent with a herniated disk.
While not as strong as a doctor's testimony or medical records from 1979, Doto's testimony and the 1997 surgical findings provide substantial evidence for the Board's decision. Nor is there any error of law in the Board's decision. It must, therefore, be affirmed.
CONCLUSION
For the reasons stated herein, the decision of the Industrial Accident Board is AFFIRMED.
IT IS SO ORDERED.