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 ...