December 24, 2012
CHRISTOPHER PARSON Appellant
CITY OF WILMINGTON Appellee
Submitted: September 14, 2012
Upon Appeal from the Industrial Accident Board
Christopher A. Amalfitano, Esquire, of Ramunno & Ramunno, P.A., Wilmington, Delaware, Attorney for Appellant.
John Gilbert, Esquire, and John J. Ellis, Esquire, of Heckler & Frabizzio, Wilmington, Delaware, Attorneys for Appellee.
Appellant, Christopher Parson ("Parson") filed a petition to determine additional compensation due seeking 10% permanent impairment to the low back arising from a compensable work injury that occurred on May 14, 2009. Several months later, Parson filed a petition to determine compensation due alleging a new work injury on January 14, 2011 aggravated the preexisting condition. The Industrial Accident Board (the "Board") concluded that Parson failed to prove his injuries were caused by the January 14, 2011 incident and denied the claim in its entirety. Parson filed this appeal alleging multiple Board errors. The Court finds the Board committed legal error and its decision is not supported by substantial evidence. Thus, the decision of the Industrial Accident Board is REVERSED and REMANDED.
Factual Background and Procedural History
A. Employment History
Parson worked for the City of Wilmington in the sanitation department for approximately 15 years. On the dates of both incidents, May 14, 2009, and January 14, 2011, his job was "sanitation chucker." The job description of "sanitation chucker" consisted of two different designations. The first was curbside duty which consisted of collecting trashcans and trash bags in residential neighborhoods, and placing them into the garbage truck. The other duty was where the hook of the dumpster latched onto the front of the trash truck and the trash was emptied into the truck.
On May 14, 2009, Parson suffered a compensable work injury to his back when he was hit by a vehicle. He did not return to work until around January 1, 2010. When back to work, he returned to curbside duty, but after a month and a half, was placed on a curbside restriction because of pain. In mid-2010, Parson was released to working full-duty without any restrictions. In August 2010, Jason Leary, the assistant sanitation supervisor, asked Parson to fill in for curbside duty. Parson objected because he did not believe curbside duty was warranted based on his seniority. Parson was suspended for three days for insubordination. Prior to the incident in January 2011, he was reassigned from dumpster duty to curbside duty. Parson expressed his concern based on his prior injury in May, 2009, but was instructed that he would be again written up for insubordination if he did not work the assigned duty. In June or July of 2011, Parson was terminated from the City of Wilmington.
B. Parson Injury and Treatment
Since the time of the prior work injury in May, 2009, Parson had low back pain and left S1 radiculopathy. An EMG conducted in December 2009 showed acute left radiculopathy involving the L5-S1 nerve root. A lumbar MRI performed on January 24, 2011, revealed a mild broad-based central/left-paracentral disk protrusion at L5-S1 touching the left S1 nerve root.
In Parson's petition for compensation due and testimony before the Board, he alleged that the event that caused a subsequent back injury occurred while he was on curbside duty. Before starting on Friday, January 14, 2011, he expressed reluctance to work curbside duty and was instructed again that he would be written up for insubordination if he did comply with his supervisor's request. Parson showed up for the curbside duty route, which was a 6 a.m.-11 a.m. shift. The trash truck arrived at the street where the alleged injury occurred at 11:00 a.m. While picking up a trash bag from the curb to put into the truck, Parson felt a sharp pain in his back and lower hip, which radiated to his leg. Parson reported the back pain to his driver, Gonzalez, who called to inform Leary. Leary received the call at approximately 11:45 a.m. For the rest of the route, Parson laid down in the back of the cab.
Upon returning back to the yard, Parson reported to the City Dispensary to see a nurse and wrote an incident report. The nurse instructed Parson to go home, take anti-inflammatory medication and further, made an appointment for him to see Dr. Oluseyi Senu-Oke on the following business day. The week following the injury, Parson went to the City Dispensary and saw Dr. Senu-Oke, as instructed. He sought additional treatment from his primary care physician, Dr. Bernard King. Dr. King recommended that Parson visit Dr. Bruce Rudin. It was Dr. Rudin's opinion that surgical intervention was necessary and reasonable. Dr. Rudin conveyed the recommendation to Parson, who stated at the hearing, "[a]t this time, I need an operation."
Parson has not worked since surgery was recommended. On June 1, 2011, Parson received documentation from Dr. Rudin that he was not totally disabled and that he could do sedentary work. The City offered a job as a crossing guard, but he did not accept because he felt as though the job description was outside his working restrictions.
Dr. Peter Bandera testified on behalf of Parson. He evaluated him on February 23, 2011, concerning a work-related injury that occurred on May 14, 2009. He opined the alleged injury on January 14, 2011 was an intervening event which caused an aggravation of his low back injury that originally occurred in May 2009. Dr. Bandera did not note specifically which findings were related to the May 14, 2009 injury as opposed to the alleged January 14, 2011 injury. Dr. Bandera agreed with Dr. Rudin's recommendation that spinal surgery is necessary and reasonable.
Dr. Bandera prepared a permanency impairment report on February 23, 2011. The report indicated the diagnosis of a lumbar syndrome with strain and sprain with radiculopathy features as well as a traumatic lumbar facet syndrome. Based on this diagnosis, he assessed Parson as having a 10% partial permanent impairment relative to the lumbar spine under DRE category II. He further testified that the prior injury did not affect his ability to rate Parson's permanent impairment. It is Dr. Bandera's opinion that it is not premature to assess Parson for permanency, under the circumstances, because two years had passed since the initial injury and tests revealed there was an ongoing disc derangement issue.
Dr. Senu-Oke testified by deposition on behalf of the City. Dr. Senu-Oke first evaluated Parson at the City of Wilmington Medical Dispensary on January 19, 2011. Parson indicated that he did not want to do curbside pick-up because of his back and was going to tell the nurse that he injured himself. Parson did not inform Dr. Senu-Oke of a specific injury that caused the back pain. Dr. Senu-Oke performed a physical examination which revealed the following: (1) a good range of motion of his lumbar spine; (2) good sensation; (3) no sensory loss; and (4) no spasm after palpation of his vertebral muscles. He concluded that there was no objective evidence of the occurrence of any injury.
Dr. Senu-Oke next evaluated Parson on June 29, 2011, in response to Dr. Bandera's permanency opinion. Based on the June 29, 2011 evaluation and taking the past history into consideration, at that time Dr. Senu-Oke could not provide a permanent impairment rating. He disagreed with Dr. Bandera's permanency impairment rating. Dr. Senu-Oke's reasoning was because Parson was still symptomatic, receiving treatment from his treating physicians and contemplating surgical intervention. Further, under the AMA guidelines,  it was not appropriate to render a permanent impairment rating at that time. Also, he believed surgery was not yet necessary.
Leary testified on behalf of the City. He has been employed by the City, as an assistant sanitation supervisor since April 2007. As an assistant sanitation supervisor, he oversees the daily operations of all sanitation collection. According to City records, in August 2010, Parson was released to full-duty work with no restrictions. In August 2010, Parson was asked to fill-in for curbside disposal; however, he refused, claiming that, based on a modified duty restriction, he was unable to complete the route and, given his seniority, someone else should have been placed in that position. As a result of Parson's refusal to complete the required task, he was suspended for three days. After the suspension, he continued to work the regular duty capacity on his main assignment of dumpster duty. During that period, the City's medical dispensary did not confirm any modified duty work assignment.
On January 13, 2011, Leary requested that Parson fill-in as a sanitation chucker on curbside duty. Parson indicated he should not have to go on curbside because he would re-injure his back. Despite his reluctance, he worked curbside duty on January 13, 2011. The alleged injury occurred the next day. At approximately 11:45 a.m. on January 14, 2011, the driver of the truck called Leary informing him that Parson was complaining of back pain. Leary completed an incident report where the injury was related to the medical dispensary. Parson was not moved as a method of punishment; Leary said the switch solely had to do with a high amount of workers that called out on that day, and to keep the operation moving along.
Dr. Gerry L. Case, an orthopaedic surgeon, testified on behalf of the City. The Board summarized Dr. Case's testimony as follows:
Dr. Jerry L. Case, an orthopedic surgeon, testified by deposition on behalf of the City. He examined Claimant on July 20, 2011, and reviewed pertinent medical records. Dr. Case was aware that Claimant had been involved in a compensable work accident on May 14, 2009, injuring his low back. Claimant continued to have back pain following that date, including having acute radiculopathy involving the L5-S1 nerve root on the left side, as reflected on a December 2009 EMG. Claimant had been on modified duty but had been released to  regular duty in December 2010 or early January 2011.
Dr. Case confirmed that Claimant reported having increased low back and left hip pain after lifting a bag of trash on January 14, 2011. A January 24 MRI showed a mild broad-based central/left paracentral disk protrusion at L5-S1 touching the left S1 nerve root. These findings correlate with the results of the December 2009 EMG. Dr. Case was aware that, on February 16, 2011, Dr. Rudin gave a diagnosis of degenerative disk displacement with bulging. This is the sort of condition that may vary in intensity, depending on activity. Assuming Claimant's history of a January 14 lifting event was accurate, that event merely aggravated the existing low back condition.
D. Board Decision
The Board found that Parson did not meet his burden of proving the existence of a "new" injury on January 14, 2011. Specifically, after hearing the testimony and evaluating the evidence presented, the Board concluded that the changes in his back were consistent with the work injury from the 2009 work accident. Additionally, the Board found there was not substantial evidence in the record suggesting a new injury and the pain was simply a continuation of the prior injury. In relying on Standard Distributing Co. v. Nally,  the Board held Parson's symptoms did not equate to an "aggravation" but instead, a "recurrence" of the 2009 injury.
Secondly, the Board found Parson's request for permanent impairment premature based on the contemplation of low back surgery. The Board reasoned that depending on the success on the low back surgery, the impairment rating may be lower or higher than the 10% suggested by Dr. Bandera. Thus, it was the Board's conclusion that, to make a conclusion as to Parson's actual loss of use of his back would be speculation at this point in time.
Third, as to the medical expenses, the Board held the medical bills, including the surgical proposal, were not related to a January 2011 injury, but "the evidence is strong that those bills are related to the 2009 date of injury." But since Parson had presented the medical bills as part of his petition relating to his claimed 2011 injury and not the 2009 injury, the Board held it could not award those bills for the 2009 injury. The Board held it could not convert Parson's petition for compensation due on the 2011 injury to a petition for additional compensation due for the 2009 injury. The City had not submitted the medical bills to the utilization review, as it contested compensability as to the January 2011 injury. The Board, however, found that the City was now permitted to submit the medical bills to utilization review, as the condition was found to be a "recurrence of the acknowledged compensable 2009 work injury." Specifically, the City was given 30 days from the date of the Board decision to pay the bills or submit the bills to the Utilization Review.
Lastly, the Board made no mention in its decision Parson's request for attorneys' fees or medical witness fees, presumably because both petitions were denied.
Parson first contends the Board abused its discretion in failing to award an expert witness fee and attorney's fee even though the Board found the treatment rendered was reasonable, necessary and a work-related injury. He also asserts in his first argument that the Board abused its discretion in permitting the City an opportunity for a utilization review. If the Court finds the Board did not abuse its discretion about fees, permitting a utilization review was not authorized by statute and because the City did not acknowledge his 2011 injury. Only acknowledged injuries permit the employer or insurer to get utilization review. Second, Parson argues the Board committed legal error by relying on the case of Standard Distributing Co. v. Nally in holding compensation for the alleged 2011 injury was not recoverable, as the injury equated to a "recurrence" and not an "aggravation" of the prior injury in 2009. Lastly, Parson submits the Board erred by denying a permanent impairment award.
In opposition, the City first contends the Board correctly denied an award of attorney's fees or medical expert fees in denying Parson's petitions. Specifically, it asserts that, to receive expert witness fees and attorney's fees, the Board must first render an award. It also argues that in the petition to determine compensation due filed before the Board, the medical expenses related to the 2011 injury and were not related to the original 2009 work injury. The City additionally notes that any language regarding reasonable medical expenses was dicta and cannot be considered.
In its answering brief, the City claims Parson's argument about the permanency petition should be denied as moot, as the parties have subsequently settled the permanency claim in full, though details have not been provided. If this Court does consider the argument on the merits, the City contends the Board correctly denied Parson's permanency petition as premature.
The City highlights Dr. Bandera's opinion stating he could provide a permanency rating against that of Dr. Case and Dr. Senu-Oke's testimony that a permanency rating was not appropriate at that time. Thus, it is the City's argument that the Board made a credibility determination and found the medical opinions of Dr. Case and Dr. Senu-Oke to be more credible than Dr. Bandera.
Lastly, the City argues the Board's reference to Nally by analogy was proper. Instead of applying Nally or mistakenly believing the case involved a successive carrier liability at issue, the Board simply referred to the case by reference. Nally, however, was simply instructive in reaching a determination as to whether the claim in January 2011 was a recurrence or aggravation of the 2009 work injury.
In Parson's reply brief, he also indicates the parties have come to an agreement regarding the permanency petition. Ordinarily, this Court does not consider issues or factual matters not presented to the Board as part of the record the Court reviews. But because both parties mention it and because of its integral relationship to the other issues raised, the Court is compelled to consider it. Thus, he requests a remand for the Board to consider attorney's fees and medical witness fees.
Standard of Review
The scope of review on an appeal from the Industrial Accident Board is limited to determining whether the Board's decision is supported by substantial evidence and is free from legal error. Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. This Court must review the entire record, and determine whether the Board could fairly and reasonably reach the decision that it did. In doing so, this Court reviews the record in the light most favorable to the party prevailing below. Deference is given to the experience and specialized competence of the Board, and the credibility of witnesses, weight, and reasonable reference to be drawn therefrom are for the Board to determine.
I. The Board's Decision Denying Parson's Permanent Impairment Benefits as Premature.
Parson contends the Board erred in denying his permanency impairment claim as premature. The City now informs the Court that the parties have resolved this issue and it is moot. In the alternative, it argues if this Court considers the argument on the merits, the Board did not commit legal error. Parson now acknowledges resolution of the permanency issue, but neither party has supplied details.
If the parties have resolved the permanent impairment issue as the City says, then this issue is moot. If however, the parties have not resolved this issue, the Court will review the Board's decision as to the permanent impairment claim.
In any event, the Board did not err in concluding that Parson did not meet his burden of proof in his request for permanent impairment benefits. Title 19, Section 2326 provides for compensation for the loss or loss of use of any member or part of the body. For a claim to succeed, the injury must have developed into a permanent or "fixed" state. When an impairment becomes "fixed" refers to the date "when the medical condition would have stabilized, leaving little probability either or improvement or deterioration of function." The determination of whether an injury becomes "fixed" is a medical question to be decided by expert testimony. The burden of proof was on Parson to establish permanent impairment.
Additionally, the Board's decision that he failed in his burden is supported by substantial evidence in the record. At the Board hearing, two medical experts, Dr. Bandera and Dr. Senu-Oke testified about the 10% permanency impairment rating based on Parson's medical records and examination. Dr. Bandera was of the opinion that even though surgery had not yet been performed, it was appropriate to set a permanency impairment rating at that time.
Dr. Senu-Oke disagreed with Dr. Bandera. He testified that a rating of permanent impairment at this time was premature, as treatment was ongoing and Parson was contemplating a surgical procedure to address the L5-S1 disc pathology. In reaching his conclusion, Dr. Senu-Oke relied on Parson's June 29, 2011 evaluation, the January 2011 evaluation, Parson's medical history, and his diagnostic test results. In addition, Dr. Senu-Oke used the American Medical Association Guides to the Evaluation of Permanent Impairment ("AMA Guides"). Dr. Senu-Oke explained that under the AMA Guides, it is appropriate to provide a permanency evaluation when clinically, "somebody has basically reached maximum medical improvement or when they're had a permanent condition, and in this case, it's an ongoing condition, not a permanent condition."Further, Dr. Senu-Oke testified that Parson and Dr. Rudin's contemplation of surgery was inconsistent with a permanent condition.
The Board found that, depending on the success of the proposed surgery, the impairment rating may be lower or considerably higher than the permanent impairment recommended by Dr. Bandera. When there are conflicting medical expert opinions in a case, the Board is permitted to accept one opinion and reject the other. Therefore, the Board was within its authority to accept Dr. Senu-Oke's opinion and reject Dr. Bandera's as unreliable.
II. The Board's Application of Standard Distributing Co. v. Nally by Analogy.
Parson next contends the Board committed legal error in applying the terms "recurrence" and "aggravation" as defined in Nally. The City contends the Board did not err in applying these definitions as set forth in Nally.
In Nally, the Delaware Supreme Court addressed the issue of successive carrier responsibility for alleged recurrence of a pervious injury resulting in a workers' compensation claim. The employee suffered a low back, work-related injury while employed as a delivery driver for Standard Distributing Company. At the time of the first injury, Northbrook Property and Casualty Company was the insurance carrier for Standard. The following year, employee again injured his back while making a delivery for Standard. At the time of the second injury, Pennsylvania Manufacturer's Association Insurance Company was the workers' compensation insurance carrier for Standard.
The Court ultimately held that the determination of successive carrier responsibility requires a finding of "whether the new episode is the producing cause of an industrial accident resulting in changed physical condition before the second carrier may be held liable." In reaching this conclusion, the Court distinguished between a "recurrence" and an "aggravation". Further, the Court reasoned that the "usual exertion" test set forth in Duvall v. Charles Connell Roofing,  should be limited to claims where the issue of compensability is at stake. The Court distinguished successive carrier disputes where compensability is conceded and the issue becomes one of liability between carriers.
The City argues that under Wohlsen Construction v. Hodel,  the Board did not err in applying Nally by analogy. In Hodel, this Court found the Board did not err in its application of Nally, as the situation was similar to a successive carrier case. The employee in Hodel suffered a compensable injury to his lower back while working for Wohlsen Construction Company. He subsequently left his position with Wohlsen.After leaving this position, he had a second period of disability while self-employed and was not insured for workers' compensation. The only claim made was against Wohlsen. This Court applied Nally, as the situation was similar to a successive carrier based on the employee's insurance status at the time of the second injury.
The City's argument is misapplied because this case is factually distinguishable from Hodel. In this case, Parson was employed for City of Wilmington when the subsequent injury occurred. Additionally, unlike in Hodel, here, there is no evidence in the record indicating that, at the time of the second incident, the City had a different workers' compensation insurance carrier. This is unlike successive carrier cases where the employee is subsequently injured while working for a different employer or the situation in Hodel where the alleged subsequent injury occurred when the same employer had a different insurance carrier. The Board erred in applying Nally to the current situation. Nally should only be applied in successive carrier cases or cases such as Hodel which are similar to successive carrier cases.
The proper test that must be applied is the "usual exertion" rule set forth in Duvall. In Duvall, employee experienced pain in his back while unloading a bundle of roof shingles. He filed a petition to determine compensation due and the Board found that his pre-existing back injury was not the result of "unusual exertion" as required by General Motors Corp. v. Veasey, 371 A.2d 1074 (Del. 1977). The employee appealed and this Court affirmed the Board's decision. The Supreme Court of Delaware abandoned the "unusual exertion" rule which presumed "that only an unusual exertion can produce an accidental result." The Court reasoned that the test was incorrect, in part because, "[w]hen there is an unusual exertion followed by an injury, the cause of the harm is no more unexpected than if the injury was produced by some form of usual exertion." In its place, the Court adopted the "usual exertion rule", where "irrespective of a previous condition, an injury is compensable if the ordinary stress and strain of employment is a substantial cause of the injury." Thus, this matter is remanded to the Board to apply the correct legal standard set forth in Duvall, in determining whether Parson is entitled to compensation.
III. Attorney's fees, medical expert fees, and medical bills
Under 19 Del. C. § 2322(e),  if the employee receives an award, the fees for medical experts testifying before the Board are assessed against the employer. Additionally, according to 19 Del. C. § 2320(10)(a),  employer must also pay the employee's reasonable attorney's fees if the employee is awarded compensation. After a determination of compensability under the "usual exertion" rule, the Board is instructed to consider whether the payment of attorney's fees and medical witness fees are warranted under the above statutes.
There still remains the issue of medical bills associated with the January 2011 incident, which the Board held related to the 2009 injury. In Poole v. State of Del., this Court held that the Board is not permitted to allow the employer to avail itself to the utilization review process when the issue of compensability was contested. Here, the City did not acknowledge the relationship of the bills to the alleged 2011 injury and thus, forfeited its right to utilization review.
Presuming the parties' agreement as to the permanency impairment rating did not address medical expenses, the Board is instructed to decide the issue of payment of medical bills in accordance with the Delaware Practice Guidelines and not refer them to utilization review. The Board is further instructed to separate the fees associated with the permanency rating, from those attributable to medical expenses related to the 2009 injury. Parson need not re-file any re-labeled petition in order for the Board to properly decide this issue.
For the reasons stated herein, the decision of the Industrial Accident Board is REVERSED and REMANDED for action in conformity with this opinion. IT IS SO ORDERED.