Opinion
C.A. No. 00A-03-013 WCC
Submitted: December 4, 2000
Decided: March 30, 2001
Workers' Compensation Fund's Appeal from Industrial Accident Board Decision.
Affirmed.
James J. Hanley, Deputy Attorney General, Attorney for Appellant.
Anthony M. Frabizzio, Esquire, Attorney for Appellees.
ORDER
This 30th day of March, 2001, after consideration of the Workers' Compensation Fund's ("the Fund") appeal from the decision of the Industrial Accident Board (the "Board"), it appears that:
1. On February 9, 1994, Robert G. Lewis (the "Claimant") sustained a compensable injury to the lumbar spine while working for Double S Associates (the "Employer") when he slipped and fell on the ice, herniating a disc in his back. As a result of the injury, fusion surgery was performed, and he received total disability benefits. Arguing that he suffered a prior permanent back injury in 1973, the Employer applied for reimbursement of benefits from the Fund pursuant to 19 Del. C. § 2327(a). While the Fund conceded that the Claimant was totally disabled and suffered a permanent injury in 1994, it disputed. the sufficiency of the medical testimony relating to the 1973 injury.
The Claimant has been totally disabled since the surgery.
2. At the hearing held on March 14, 2000, the Claimant testified by deposition that he was injured in 1973 while working for a furniture plant. He explained that when he went to pick up wood, he slipped a disc, and two surgeries were performed as a result. While he worked in light duty jobs starting in 1976, he did not go back to full-time carpenter work until 1978. He further stated that he was denied workers' compensation for the 1973 injury.
The first surgery occurred in 1973, and the second surgery, a fusion, was performed in 1974.
Dr. Mark Moody, an orthopedic surgeon who started treating the Claimant in December 1994, testified by deposition for the Employer. He opined that the Claimant has been totally disabled as a result of work since he started treating him and is indefinitely unemployable in any job. In addition to his treatment, Dr. Moody had the benefit of medical notes from Dr. Kalamchi, who performed decompression fusion instrumentation from L-4 to 5-1 in 1994. The notes included a MIRI, which "showed possible fracture or not healing of a previous fusion performed at L5-S 1, plus a herniated disc at L4-5 with spinal stenosis." In regards to the 1973 injury, Dr. Moody opined that based on discussions with the Claimant and after reviewing Dr. Kalamchi's medical records, the Claimant suffered an injury in 1973, which resulted in a discectomy in 1973, followed by a lumbar fusion at the L5-S1 level in 1974 when the first surgery failed to resolve his complaints. However, in reaching this opinion, Dr. Moody did not recall the Claimant describing the exact nature of the accident nor did he have the operation notes from 1973-74. In spite of this, Dr. Moody was confident that the Claimant suffered a permanent injury in 1973 and that the prior surgeries in 1973-74 weakened his back and made him more prone to develop future problems in his back. Lastly, he opined that the Claimant's total disability was due to a combination of permanent impairment from the 1973 injury and the permanent impairment from the 1994 injury. He explained that:
(Moody Dep. at 5.)
Well, I think having had a fusion done in '74 could increase stress at the disc level above in which he herniated, and I think that the fact that he had had an injury and fusion attributed to the fact that herniated in 1994 after the fall and became more symptomatic.
(Moody Dep. at 15.)
3. After the hearing was held, the Board issued a decision finding that the Employer was entitled to reimbursement from the Fund. The Board found that the Claimant was credible and that despite a lack of contemporaneous medical records, he was involved in a traumatic work accident in 1973 and sustained an injury to his lumbar spine. Furthermore, the Board accepted the unrebutted testimony of Dr. Moody and agreed with his conclusions concerning the Claimant's prior injury in 1973, which were based on the medical records provided by Dr. Kalamchi and the Claimant's discussions. The Fund appeals this decision.
The Claimant is not taking an active role in this appeal.
4. This Court's standard of review for an appeal from a Board decision is to determine whether there was substantial evidence to support the Board's findings and conclusions. The Court does not sit as trier of fact with authority to weigh evidence, determine questions of credibility, nor make its own factual findings and conclusions. Weighing the evidence and determining questions of credibility, which are implicit in factual findings, are functions reserved exclusively for the Board.
DiSabatino Bros. Inc. v. Wortman, Del. Supr, 453 A.2d 102 (1982).
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64 (1965).
5. Reimbursement under the Fund is governed by 19 Del. C. § 2327(a), which provides:
Whenever 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 § 23 24 of this title, during the continuance of total disability, such compensation to be paid out of a special fund known as "Workers' Compensation Fund."
As such, in order to receive reimbursement, the employer must prove (1) a previous permanent injury and (2) a subsequent permanent injury which (3) results in total disability. "Injury" is defined in 19 Del. C. § 2301(12), in part, as "violence to the physical structure of the body".
Spence v. University of Del., Del. Supr., 311 A.2d 867, 869 (1973).
The only issue in this case is whether the record supports a finding of a previous permanent injury. The Fund argues that the record does not contain competent substantial medical evidence to support a finding that the alleged work accident in 1973 caused an injury.
6. It is obvious to the Court that the Employer could have provided a more precise and thorough presentation for the basis of Dr. Moody's opinion relating to the 1973 incident. Even though this issue was critical to support the Employer's claim, only three pages of Dr. Moody's testimony related to this subject. While the Employer was hampered by the length of time between the two injuries, the questioning of Dr. Moody reflects a failure to appreciate or focus upon the significance of thoroughly presenting the basis of the doctor's opinion regarding this 1973 event. However, in spite of this deficiency, the Court finds that the record is sufficient to support the Board's decision.
7. In a somewhat patchwork fashion, it appears that Dr. Moody obtained information regarding the 1973 incident. The following colloquy from Dr. Moody's deposition is significant:
Q: I'd like to take a minute if I may, Dr. Moody, to review with you a prior 1973 injury. Did you have an opportunity to discuss with Mr. Moody [sic] and review medical records of Dr. Kalamchi with regard to a prior injury? A. Yes. Q. Is it fair to say that Mr. Lewis did have a prior injury in 1973 for which he underwent surgery? A: Yes. He underwent a discectomy in 1973. Q: And then that failed to resolve his complaints and he underwent further surgery in 1974; is that correct? A: Yes. Q: What kind of surgery did he have then? A: He underwent an in situ fusion in which bone graft was placed along the posterior lateral aspects of the spinal column in an attempt to heal L5 to S-1 or weld L-5 to S-1. Q: And from the history as best you could glean from either Mr. Lewis or the records that surgery did help him in the sense that it did get him back to work in some capacity; is that correct? A: Yes. And it says in a note dated March 17, 1994 that he had a history of previous back surgery done in North Carolina about 20 years. The initial surgery was lumbar laminectomy. A year later he had a lumbar fusion. He felt that the surgery helped him though he continued to have some weakness related to his left leg. He had been working as a carpenter with on and off low back pain. Q: Dr. Moody, from your review of the history including the 1973 and 1974 surgeries there is no doubt in your opinion that Mr. Lewis has a permanent injury related to that 1973 — I'm sorry if I said '93 — 1973 injury? A: Yes.
(Moody Dep.at 10-11.)
This evidence suggests that Dr. Moody obtained some information about the 1973 incident from the Claimant and additionally reviewed notes of the referring physician that contained information relative to that incident. So, even in the light most favorable to the Fund, the doctor's testimony would support a conclusion that the Claimant was injured in some fashion in 1973 and that the injury was significant enough to cause him to undergo a lumbar laminectomy and a lumbar fusion shortly thereafter. Dr. Moody's review of the prior treating physician's notes, as well as the observation of the lumbar area as a result of the new injury in 1994, were sufficient to support Dr. Moody's opinion that there was a permanent injury associated with the 1973 incident. The Board found Dr. Moody's testimony credible, and the Court will not disturb that decision. As such, the Court finds that the Board's determinations were not manifestly against the weight of the evidence and that there was substantial evidence in the record to support the Board's findings.
8. For the reasons set forth above, the Court AFFIRMS the Board's decision. IT IS SO ORDERED.