Kathy M. Melvin, Claimant Below,
Playtex Apparel, Inc., Employer Below.
Submitted: March 14, 2013
Upon Appeal of the Decisions of the Industrial Accident Board
Walt F. Schmittinger, Esq. and Kristi N. Vitola, Esq., Schmittinger & Rodriguez, Dover, Delaware for Claimant.
J. R. Julian, Esq., Wilmington, Delaware for Employer.
Robert B. Young Judge.
Kathy M. Melvin ("Claimant") was employed by Playtex Apparel, Inc., ("Playtex") when she sustained a work related injury to her back on September 9, 1983. Melvin's back injury was treated with pain medication and injections. However, she continued to experience pain which eventually led to fusion surgery in the late 1980's. For the next eighteen years, Claimant remained out of the workforce, receiving total disability benefits. In 2001, Playtex filed a Petition seeking to terminate Claimant's total disability benefits, based on the fact that Claimant's doctor believed she could return to the workforce. The Industrial Accident Board (the "Board") agreed, terminating her total disability benefits, finding her able to return to work and strongly suggesting that she do so. The Board, though, ordered that Claimant receive partial disability benefits, which she received until they ran out sometime in late 2006 or early 2007. Claimant never returned to the workforce. In 2008, Claimant underwent an additional back surgery, after which she filed a claim with the Board for medical expenses. That filing also included a request for total disability benefits for the period after the surgery. Following a hearing, the Board found that the 2008 surgery was causally related to the 1983 work injury. It awarded Claimant medical expenses. The Board found Claimant ineligible to receive total disability benefits, as she had voluntarily removed herself from the workforce for reasons unrelated to the work injury. Claimant has appealed the portion of the Board's decision regarding eligibility for total disability benefits. Playtex has appealed the portion of the Board's decision which found the 2008 surgery causally related to Claimant's 1983 injury. After review, the Court finds both aspects of the Board's decision to be based on substantial evidence and free from legal error. The decision of the Industrial Accident Board is, therefore, AFFIRMED.
Claimant was employed by Playtex. She injured her back on September 9, 1983. She received chemical injections to the painful disk and later had fusion surgery. Claimant received total disability benefits at a rate of $228.53 per week. After Claimant had been receiving total disability benefits for approximately eighteen years, Playtex filed a Petition for Review seeking to terminate Claimant's total disability benef its. Th e Peti tion was bas ed on the fa ct tha t Clai mant's own doctor, and Playtex' physician, both expressed the opinion that she was capable of engaging in gainful employment at a minimum of a sedentary level and up to a light duty level. In fact, Claimant had been held capable of sedentary duty as far back as September 1997. As a result, Playtex argued that Claimant was no longer eligible for total disability benefits. Claimant argued that she not only remained physically disabled, but also had developed psychological/psychiatric problems related to her work injury that prevented her from returning to the workforce. She also claimed to be a "displaced worker."
The Board held that Claimant was not totally disabled, nor was she a "displaced worker." The Board found her capable of engaging in sedentary or light duty employment. It also held that the alleged psychological complaints were unrelated to t he 1 983 work inju ry. Fi nal ly, the Board held that Claimant had sustained a diminished earning capacity, entitling her to partial disability benefits. Her partial disability benefits have since expired. Despite the Board's decision in 2001, Claimant never returned to the workforce, nor did she complete the computer training, which she had assured the Board she would. Claimant has been seen and treated by numerous doctors and specialists since then.
In 2004 or 2005, Claimant was involved in a motor vehicle accident. In that accident, she hurt her head, neck, and knee. She has testified that her whole body was sore after that accident, but nothing specifically relating to her low back region. As a result of the accident, she was admitted to the hospital trauma unit. Multiple x-rays were taken of her body, including her low back. She was diagnosed with a concussion. The records indicate that she also sustained a lumbar strain due to the accident. However, she disputes ever being told of that diagnosis.
In 2007, Claimant was involved in two incidents characterized as "falls." On February 15, 2007, during an appointment with Dr. Galesh Balu, Claimant reported that she had fallen on the floor, back first, about three weeks prior. She stated that she had had substantial pain on the left side of her back since then, and had spent most of her time on a heating pad. She reported that, while her right side still hurt, the left side now hurt more. The next incident was reported in Dr. Balu's office notes of October 4, 2007. Claimant reported that she had been involved in an altercation with a neighbor who pushed her down. She stated that she fell on her lower back and butt area. After that, she claimed to have increased pain in her lower back and neck area, as well as an inability to use her cane to get around.
Dr. Balu referred her to Dr. Bikash Bose in 2008. Dr. Bose proposed an additional surgery, a L 3-4 decompression and fusion, which was performed on October 21, 2008. Claimant did not recover well after surgery. Nevertheless, she is getting therapy and reports feeling a little bit better. On November 19, 2008 and May 6, 2009, Claimant filed Petitions to Determine Additional Compensation Due. Her petitions seek a finding that the October 2008 surgery and related medical treatment were causally related to her 1983 work accident. Thus, she claims an award of the requested medical expenses. Claimant also demands compensation for a recurrence of total disability from the date of surgery. Playtex disputed the alleged causal connection between the 2008 surgery and the work accident. It also asserted that Claimant had voluntarily removed herself from the work force prior to the October 2008, and therefore was not entitled to total disability benefits. A hearing was held on December 15, 2009. The Hearing Officer's decision held that the 2008 surgery was causally related to the 1983 work injury, awarding related medical expenses. The Board, however, found that Claimant had removed herself from the work force, and was not entitled to an award of total disability benefits for the time following the surgery.
Claimant appealed the decision to this Court. Around the same time as the appeal was filed, Playtex filed a Motion for Reargument with the Board on the medical issue and filed a cross-appeal with this Court. The Board denied the Motion for Reargument. Claimant then reappealed to this Court on the issue of the Board's determination that she was not entitled to total disability benefits following her ...