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Andreason v. Royal Pest Control

Supreme Court of Delaware

August 14, 2013

GARY ANDREASON, Employee Below, Appellant,
v.
ROYAL PEST CONTROL, Employer Below, Appellee.

Submitted: July 24, 2013

Court Below – Superior Court of the State of Delaware, in and for New Castle County C.A. No. N12A-04-004

Walt F. Schmittinger, Esquire and Kristi Vitola, Esquire, Schmittinger and Rodriguez, Dover, Delaware, for appellant.

John W. Morgan, Esquire and Gregory P. Skolnik, Esquire, Heckler & Frabizzio, Wilmington, Delaware, for appellee.

Before STEELE, Chief Justice, HOLLAND and JACOBS, Justices.

HOLLAND, Justice:

The employee-appellant, Gary Andreason ("Andreason"), appeals from a Superior Court judgment affirming two Industrial Accident Board (the "Board") decisions. The first Board decision awarded compensation to Andreason for his work-related knee and right shoulder injuries, but denied compensation for a separate and unrelated lower back injury. The second Board decision denied Andreason's reargument motion challenging the Board's denial of compensation for his lower back injury.

Andreason has raised several issues in this appeal. First, he argues that the Board erred as a matter of law when it determined that there was no implied agreement to compensate him for his lower back injury. In Starun v. All American Engineering Co., [1] this Court held that an insurance carrier and a claimant may have an implied agreement obligating the insurance carrier to make payments on behalf of the claimant, if the insurance carrier made previous payments on the claimant's behalf out of a 'feeling of compulsion.'[2] Andreason argues that the feeling of compulsion doctrine was eliminated by a 1995 amendment to title 19, section 2321 of the Delaware Code. Alternatively, he argues that doctrine was abrogated by the enactment of title 19, section 2322(h). Finally, Andreason contends that title 19, section 2322(h) does not apply when compensation is paid as the result of a unilateral mistake.

We have concluded that all of Andreason's arguments are without merit. Therefore, the judgment of the Superior Court must be affirmed.

Andreason's Injuries

Andreason worked for the employer-appellee Royal Pest Control ("Employer") as a technician for approximately six years. As a result of his work activities, Andreason suffered a right knee injury. It is undisputed by the Employer that the right knee injury is a compensable work injury, and Andreason's workers' compensation claim was accepted by the Employer. Andreason underwent two surgeries between 2008 and 2009 to alleviate the pain. Despite this, he had continued problems with the right knee.

In November, 2009, Andreason claims his knee "gave out" while he was walking down the stairs in his home, causing him to stumble and twist his body. As a result, Andreason alleged that he suffered injuries to his right shoulder and lower back. Andreason argued that the fall was facilitated by the weakened right knee, and thus all of the injuries were work related.

On November 16, 2009, approximately two weeks after his fall, Andreason visited his orthopaedic surgeon, Dr. Stephen Manifold ("Dr. Manifold"), for treatment related to the fall. At that time, Andreason did not complain of any lower back pain; he did, however, complain of right shoulder pain related to the fall. A later MRI revealed a partial tearing of Andreason's rotator cuff. Andreason returned to Dr. Manifold on November 23, 2009, for further shoulder treatment. Again, no mention of a lower back injury was made. Andreason never returned to Dr. Manifold's office after early December.

In December, 2009, Andreason was "scouting" for deer in the woods when he slipped on leaves. He felt a twinge in his back and his buttocks while attempting to prevent himself from falling. Andreason's primary care physician, Dr. Pollner, prescribed hydrocodone and bed rest.

A few weeks later, Andreason suffered severe pain and sought treatment from a VA hospital where the doctor indicated that Andreason had "blew his back out." On December 24, 2009, Andreason went to the ER at Christiana Hospital seeking further care. Andreason complained of back pain that had begun approximately three weeks prior to arriving at Christiana Hospital, and claimed that he had no other significant history of back problems. Dr. Michael Sugarman recommended immediate surgery, which was performed on December 29, 2009. A second lumbar surgery was subsequently performed on July 22, 2010, to fuse the L4-5 and L5-S1 discs.

Procedural Background

Andreason's right knee injury occurred on April 6, 2008. The parties executed agreements acknowledging this injury. On August 31, 2010, Andreason filed a Petition to Determine Additional Compensation Due, alleging that additional injuries to his right shoulder and low back were causally related to the right knee injury because the weakened right knee facilitated an injurious fall. Andreason alleged the fall to have happened in November, 2009. The Employer denied that a fall had ever occurred.

On December 20, 2010, the Industrial Accident Board held a hearing on Andreason's Petition. On January 21, 2011, the Board issued a decision finding that the shoulder injury was causally related to the right knee injury, but that the lower back injury was non-work related, and thus non-compensable. The Board heard conflicting testimony from Drs. Manifold and Sugarman (for Andreason) and Dr. Jerry Case (for the Employer) regarding the cause of Andreason's lower back injury. The Board accepted Dr. Case's testimony that the low back injury was related to the hunting incident.

On February 8, 2011, Andreason filed a Motion for Reargument based on newly-discovered evidence that the Employer's insurance carrier, Chartis Insurance Company ("Chartis"), had been making payments on Andreason's lower back medical bills. On October 11, 2011, the Board held an evidentiary hearing to determine whether Chartis' payment of medical expenses related to the lower back treatment created an implied agreement for compensability of the low back injury.

The hearing established that after Andreason's two surgeries, Chartis paid $18, 667.30 to Christiana Care Hospital for his first operation. A claims adjuster for Chartis testified that she approved that payment out of a mistaken belief that the surgery was related to Andreason's earlier, compensable knee injury. Only later did she discover, during a routine audit of Andreason's case, that his lower back injury was unrelated to his compensable knee injury. The adjuster identified forty other bills totaling $33, 050 that she (on ...


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