Submitted: April 23, 2014.
Case Closed June 9, 2014.
This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.
Court Below: Superior Court of the State of Delaware in and for Sussex County. C.A. No. S13A-01-004.
Before BERGER, JACOBS, and RIDGELY, Justices.
Henry duPont Ridgely, Justice.
On this 30th day of May 2014, it appears to the Court that:
(1) Claimant/Appellee-Below/Appellant Joseph Whitney appeals from a Superior Court decision in favor of Employer/Appellant-Below/Appellee Bearing Construction, Inc. (" Bearing" ), reversing the decision of the Industrial Accident Board (the " Board" or " IAB" ). Whitney raises one claim on appeal. He contends that the Superior Court erred when it found that there was insufficient evidence to support the Board's determination that his 2005 injury caused his current condition. We agree. Accordingly, we reverse the decision of the Superior Court and remand with instruction to reinstate the decision of the Board.
(2) In 2005, Whitney suffered an injury to his back while working for Bearing as a pipe layer / laborer. He had surgery on his back and was out of work through February 2006. Upon his return, Whitney was able to work without any restrictions. Thereafter, Whitney left Bearing and worked in several other construction jobs laying pipe. He had some residual pain but was able to continue working.
(3) In 2010, Whitney experienced three minor injuries to his back for which he sought treatment (the " 2010 Incidents" ). In June, Whitney was riding in a dump truck on uneven ground while working for another employer. Due to the bumpy ride, Whitney had an aggravation and sought medical treatment. Whitney returned to work after a one-day leave but was restricted from driving a dump truck. In August, Whitney was in an automobile accident, for which Whitney sought treatment on his back. His doctor described the incident as an aggravation. Finally in September, Whitney went to the Emergency Room complaining of back pain after lifting a child and some camping equipment.
(4) Beginning in 2011, Whitney started working as a pipe layer for Dixie Construction. Whitney continued treatment with Dr. Uday Uthaman, a board-certified pain management physician. Whitney told Dr. Uthaman that he was experiencing increasing lower back pain and leg pain. Even though Whitney told Dr. Uthaman about the 2005 injury and the surgeries, there is nothing in the record indicating that he told Dr. Uthaman about the 2010 Incidents. Dr. Uthaman provided some treatment, but by May 2012 Whitney left Dixie Construction because he could no longer take the pain from the demanding physical labor. Thereafter, Dr. Uthaman advised Whitney to seek out a job that was less demanding physically. Whitney then obtained a temporary position at Playtex operating a forklift.
(5) In 2012, Whitney filed a Petition to Determine Additional Compensation Due with the Board, seeking disability benefits and medical expenses. Dr. Uthaman provided expert testimony in support of Whitney's petition. Bearing retained Dr. Lawrence Piccioni, a board-certified orthopedic surgeon, who took Whitney's medical records and initially concluded that Whitney's 2012 disability was the result of the 2005 injury. But after further review of Whitney's medical history, Dr. Piccioni changed his conclusion and found that the 2010 Incidents, which aggravated Whitney's back, actually caused the 2012 disability. After hearing from both experts, the Board determined that ...