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Doherty v. Valitas

Superior Court of Delaware, New Castle

July 31, 2013

ELIZABETH DOHERTY, Claimant Below/ Appellant,
v.
VALITAS, Employer Below/ Appellee.

Submitted: April 25, 2013

Upon Consideration of Appellant's Appeal of Decision of the Industrial Accident Board

Lawrance Spiller Kimmel, Esq., Kimmel, Carter, Roman & Peltz, P.A., Attorney for the Claimant/Appellant.

Linda Wilson, Esq., Marshall Dennehey Warner Coleman & Goggin, Attorney for Employer/Appellee.

OPINION

Vivian L. Rapposelli, Judge

INTRODUCTION

Employee-Appellant Elizabeth Doherty ("Employee") appeals from a decision of the Industrial Accident Board ("Board") denying her Petition to Determine Additional Compensation Due. Employee sought workers' compensation benefits to include the payment of medical treatment for a 2011 wound to her left foot and a corresponding period of temporary total disability on the basis that the 2011 wound was causally related to an acknowledged 2008 work injury. Her employer, Valitas, ("Employer"), argued that the 2011 wound was unrelated to the 2008 work injury. The Board denied Employee's petition, and she appeals to this Court.

In her appeal, Employee asserts that the Board's decision was not based on substantial evidence and argues that the Board's decision warrants reversal. Specifically, Employee contends that the Board failed to fully consider the Employee's medical expert testimony and disregarded both experts' opinions in reaching their decision. The Court finds that the Board's decision was supported by substantial evidence and the Board committed no error of law to warrant reversal. Therefore, the decision of the Board is AFFIRMED.

FACTUAL AND PROCEDURAL BACKGROUND [1]

Employee has a history of diabetes with numerous medical issues affecting both lower extremities secondary to her disease. Her ongoing medical history includes evidence of severe diabetic peripheral neuropathy or nerve damage to the peripheral nervous system. In addition, Employee suffered from periodic cellulitis, osteomyelitis, wounds and ulcers to both feet as well as Charcot foot (collapsed bones in her left foot) resulting in "hammer toes" for which she requires a walking boot.

Employee received medical treatment to address issues related to her feet including a 2009 amputation of the fifth digit of her right foot, unrelated to her 2008 work injury. Medical treatment also addressed multiple ulcers and wounds to both the tops and bottoms of her feet, including work-related and non-work-related treatment to the dorsal (mid-top) aspect of her left foot. Prior to her acknowledged work injury, Employee fell in 2006 and sustained a major wound around the toes and upper portion of her left foot. In 2007, Employee developed a wound on the bottom of her left foot which healed and was followed by an ulcer that opened on the top of the left foot near the toes. In 2008, Employee developed cellulitis in the right calf, unrelated to the work injury.

On June 9, 2008, while working at Baylor Women's Correctional Institute for Employer, Employee slipped on a wet floor and injured her right knee. Several days later, she noticed a wound to the top of her left foot near her toes. This wound eventually expanded to cover the entire top of her left foot which required a skin graft and resulted in hospitalization to address a subsequent staph infection. Dr. Paul Kupcha rendered most of the medical treatment for the wounds to the tops and bottom of her feet, including the medical treatment for the 2008 work injury. In addition, the work injury was treated with a skin graft by Dr. Lawrence Chang on August 19, 2008, which covered the entire dorsal part of Employee's foot. Employer acknowledged the 2008 work injuries to include a wound to the top of Employee's left foot and an injury to the right knee for which Employee received workers' compensation benefits.[2]

In July 2011, Employee developed an ulcer on the dorsal aspect of her left foot and began treatment through Dr. Sean Walpole. The wound, approximately the size of a dime, would eventually require a full skin graft after multiple failed attempts at synthetic grafts. Employer denied Dr. Walpole's 2011 medical treatment and the corresponding total disability on the basis that both were unrelated to the 2008 work injury.

In March and April of 2012, Employee filed Petitions to Determine Additional Compensation Due asking the Board to find a causal relationship between the acknowledged 2008 work injury and Employee's 2011 wound. Employee specifically requested payment of medical treatment to the dorsal aspect of her left foot and temporary total disability benefits ...


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