Submitted: December 13, 2016
Employer's Motion to Strike DENIED
Appeal from the Industrial Accident Board AFFIRMED
F. Dunkle, Esq., Schmittinger & Rodriguez, P.A., Dover,
Delaware, Attorney for Claimant-Appellant.
Andrews, Esq., Hoffman Andrews Law Group, Dover, Delaware,
Attorney for Employer-Appellee.
HONORABLE ANDREA L. ROCANELLI JUDGE.
FACTUAL AND PROCEDURAL BACKGROUND
an appeal from the Industrial Accident Board
("Board"). Claimant-Appellant David Hamilton
("Claimant") appeals from the January 21, 2016
Board Decision denying Claimant's Petition to Determine
Additional Compensation and the May 13, 2016 Board Decision
denying Claimant's Motion for Reargument.
Claimant's Work Accident; the 2003 Board
November 7, 2002, Claimant sustained a back injury while
working as a laborer for Independent Disposal Service
("Employer"), a trash collection service. Claimant
sustained the injury while attempting to empty a trashcan
into a dump truck. Prior to the injury, Claimant did not
suffer from back problems. By agreement dated November 21,
2002, effective November 8, 2002, Employer accepted
Claimant's injury as work-related and compensable.
Claimant was placed on total disability and began receiving
workers' compensation benefits.
February 5, 2003, Employer filed a Petition to Terminate
Claimant's disability benefits. On June 9, 2003, the
Board conducted a hearing on the merits of Employer's
Petition to Terminate. By Order dated June 18, 2003, the
Board granted Employer's Petition to Terminate in part
("2003 Board Decision"). The Board determined that
Claimant's work injury no longer entitled Claimant to
total disability benefits. Although the Board found that Claimant
remained eligible for partial disability, the Board found
that Claimant was able to return to work in a sedentary or
after the 2003 Board Decision, Claimant and Employer entered
into a modified agreement for partial disability benefits,
effective July 12, 2003 ("Compensation Agreement").
Claimant received partial disability pursuant to the
Compensation Agreement until April 2, 2009.
Claimant's Surgery; the October 2015
December 5, 2014, more than twelve years after Claimant
initially sustained his work injury, Claimant underwent an
anterior lumbar fusion surgery to repair an annular tear to
the L5-S1 disc of Claimant's spine ("Claimant's
Surgery"). On March 3, 2015, Claimant filed a Petition
to Determine Additional Compensation with the Board, seeking
medical expenses and an additional period of total disability
for Claimant's Surgery. Employer accepted Claimant's
Surgery as a reasonable and necessary medical procedure, but
opposed Claimant's Petition for Additional Compensation
on the grounds that Claimant's Surgery was unrelated to
Claimant's work injury.
October 30, 2015, the Board conducted a hearing on the merits
of Claimant's Petition for Additional Compensation
("October 2015 Hearing"). Claimant asserted two
theories of recovery during the October 2015 Hearing.
Claimant argued that (1) the L5-S1 annular tear that gave
rise to Claimant's Surgery was related to Claimant's
work accident; and (2) Employer's previous disability
payments for the targeted treatment of Claimant's L5-S1
area constituted an implied agreement that Claimant's
Surgery was compensable.
the October 2015 Hearing, the Board considered the testimony
of (1) Claimant; (2) Employer's expert Dr. Lawrence
Piccioni, an orthopedic surgeon who reviewed Claimant's
medical records and examined Claimant on behalf of Employer
prior to the October 2015 Hearing; (3) Claimant's expert
Dr. Ganesh Balu, a certified pain management and
rehabilitation physician who began treating Claimant in 2003;
(4) Claimant's expert Dr. James Zaslavsky, the orthopedic
surgeon who performed Claimant's Surgery.
testified that Claimant refrained from having back surgery
until 2014 because Claimant is diabetic and has a history of
high blood pressure. Claimant's health concerns prompted
Claimant to undergo more conservative treatment methods, such
as injections and physical therapy, until Claimant's back
pain became too intense to tolerate. On December 5, 2014, Dr.
James Zaslavsky performed fusion surgery to repair an annular
tear at the L5-S1 level of Claimant's spine.
Claimant described a motor vehicle accident that occurred in
December 2002, about one month after Claimant's work
injury. Claimant testified that a small pickup truck struck
Claimant while Claimant stood in his family's driveway.
Claimant testified that Claimant fell onto the hood of the
truck and punched his hand through the truck's
windshield. Claimant eventually fell off the truck after
Claimant became caught on a clothes line. Claimant testified
that the motor vehicle accident did not aggravate
Claimant's work injury.
Dr. Piccioni's Testimony
conducting a physical examination of Claimant and reviewing
Claimant's medical records, Employer's expert Dr.
Piccioni opined that the L5-S1 tear that gave rise to
Claimant's Surgery could not be related to Claimant's
work accident to a reasonable degree of medical probability.
Dr. Piccioni opined that Claimant's L5-S1 tear did not
visualize until 2012. Dr. Piccioni noted numerous significant
incidents in Claimant's medical records that occurred
between Claimant's initial work injury in 2002 and the
manifestation of Claimant's L5-S1 tear in 2012.
Specifically, Dr. Piccioni discussed (1) a slip and fall
incident in December 2002; (2) a motor vehicle accident in
December 2002; (3) a slip and fall incident in February 2003;
(4) an incident where Claimant aggravated his back while
carrying a microwave in August 2004; (5) an incident where
Claimant aggravated his back while carrying a casket in May
2009; and (6) an incident where Claimant aggravated his back
while bending over to pick up his grandson in September
Piccioni testified that the diagnostic results immediately
after Claimant's work accident indicated that
Claimant's L5-S1 disc was normal. In Dr. Piccioni's
opinion, the L5-S1 area of Claimant's spine showed no
significant irregularities until 2012, when a discogram
revealed the annular tear. Dr. Piccioni noted the multiple
intervening accidents between Claimant's work injury and
the visualization of the L5-S1 tear. Although Dr. Piccioni
testified that he could not pinpoint the exact etiology of
Claimant's L5-S1 tear, Dr. Piccioni opined that
Claimant's Surgery could be attributable to
Claimant's intervening accidents or, more likely, simple
wear and tear of the lumbar spine. Accordingly, Dr. Piccioni
stated that the L5-S1 tear that gave rise to Claimant's
Surgery could not be related to Claimant's work accident
to a reasonable degree of medical probability.
Dr. Balu's Testimony
expert Dr. Balu opined that the L5-S1 tear that gave rise to
Claimant's Surgery was related to Claimant's work
accident. On October 27, 2003, Dr. Balu conducted a
diagnostic discogram and CT scan on the L3-4, L4-5, and L5-S1
areas of Claimant's spine. Dr. Balu testified that
Claimant's initial diagnostic results revealed an annular
tear at Claimant's L3-4 level, but that Claimant's
L5-S1 disc appeared normal.
2006, Dr. Balu began administering epidural injections to
Claimant's spine in an effort to alleviate Claimant's
back pain. From 2006 to 2012, Dr. Balu administered twelve
injections specifically targeted to Claimant's L5-S1
area. Dr. Balu testified that Claimant's disability
carrier applied payments for all but one of the L5-S1
injections. On September 6, 2012, Dr. Balu conducted an
additional discogram and CT scan on Claimant. The results
revealed an annular tear to Claimant's L5-S1 disc. Dr.
Balu referred Claimant to Dr. James Zaslavsky to discuss
Claimant's need for surgery.
Dr. Balu's testimony, Claimant attempted to introduce
several exhibits pertaining to Claimant's disability
payments and Dr. Balu's billing procedures for
workers' compensation cases. Employer objected to the
admission of Claimant's exhibits on the grounds that
Employer did not receive proper notice that Claimant intended
to argue that Employer's previous disability payments
created an implied agreement of compensability. Employer
moved to exclude Claimant's theory and all related
exhibits from the Board's consideration. The Board
reserved decision on Employer's objection.
Dr. Zaslavsky's Testimony
reviewing Claimant's medical records and conducting
Claimant's Surgery, Claimant's expert Dr. Zaslavsky
opined that the L5-S1 tear that gave rise to Claimant's
Surgery was related to Claimant's work accident. Dr.
Zaslavsky began treating Claimant in June 2014. Dr. Zaslavsky
testified that initial testing indicated that Claimant
suffered an annular tear, and that Claimant's pain
derived from the L5-S1 or L5 nerve root. In Dr.
Zaslavsky's opinion, Claimant's L5-S1 disc slowly
began to deteriorate following Claimant's initial work
injury in 2002. Dr. Zaslavsky compared Claimant's L5-S1
disc to a tire with a pinhole leak that became progressively
worse until the disc collapsed. Dr. Zaslavsky explained that
a disc may take as long as twelve years or more to
deteriorate in certain circumstances.
Zaslavsky acknowledged that Claimant's L5-S1 disc did not
show herniation or stenosis on MRI in 2002 or 2006. However,
Dr. Zaslavsky explained that a collapsed disc often does not
visualize immediately after an injury occurs. Additionally,
Dr. Zaslavsky testified that Claimant failed to inform Dr.
Zaslavsky that Claimant experienced intervening medical
incidents between 2003 and 2014. However, Dr. Zaslavsky
opined that Claimant's intervening incidents were more
likely to have aggravated Claimant's work injury rather
than have caused an additional injury to the L5-S1
The January 21, 2016 Board Decision
Order dated January 21, 2016, the Board denied Claimant's
Petition for Additional Compensation. The Board concluded
that Claimant failed to establish that Claimant was entitled
to compensation for Claimant's Surgery.
Claimant's first theory of recovery, the Board concluded
that Claimant failed to establish that the L5-S1 tear that
gave rise to Claimant's Surgery was related to
Claimant's work accident to a reasonable degree of
medical probability.The Board found that Employer's expert
Dr. Piccioni provided the most credible and comprehensive
testimony regarding the cause of Claimant's Surgery,
and that Claimant's experts Dr. Zaslavsky and Dr. Balu
were less persuasive.Moreover, the Board adopted Dr.
Piccioni's conclusion that Claimant's L5-S1 injury
did not visualize until 2012. The Board noted that, by 2012,
Claimant was involved in multiple intervening
accidents and had experienced additional years of
ordinary wear and tear of the lumbar spine. Ultimately,
the Board elected to credit Dr. Piccioni's opinion that
Claimant's L5-S1 tear could not be associated to
Claimant's work accident to the necessary degree of
reasonable medical probability.
Claimant's second theory of recovery, the Board found
that Claimant failed to establish that Employer's
previous disability payments for targeted treatment to
Claimant's L5-S1 area created an implied agreement that
Claimant's Surgery was compensable. As an initial
matter, the Board concluded that Claimant failed to provide
adequate notice of this theory of recovery to Employer prior
to the October 2015 Hearing. The Board found that
Employer's lack of notice deprived Employer of a
meaningful opportunity to mount an adequate defense, tender
witnesses with knowledge of billing procedures, and prepare
an effective cross-examination. Nevertheless, the Board
proceeded to address Claimant's argument on the merits.
Board concluded that Claimant failed to establish the
existence of an implied agreement for compensation of
Claimant's Surgery. The Board noted that Claimant's
exhibits "included a vast amount of unbundled charges
without specifying which level of the lumbar spine is being
injected." Furthermore, the Board noted that Dr.
Balu could not provide definitive testimony that
Claimant's medical records were forwarded to
Claimant's insurance carrier with Claimant's medical
bills attached. The Board found that "the documents
produced do not necessarily show that Dr. Balu's
occasional L5-S1 injections, twelve over a six year period
which started for years after the work accident, were
identified clearly to Employer." Ultimately,
the Board rejected Claimant's theory of an implied
agreement for compensability because Claimant failed to
establish that Employer had knowledge that Employer's
disability payments were specifically applied to the targeted
treatment of Claimant's L5-S1 area.
The May 13, 2016 Board Decision
February 15, 2016, Claimant filed a timely Motion for
Reargument from the Board's January 26, 2016 Decision.
Claimant asserted that the Board erred in finding that
Employer had insufficient notice of Claimant's argument
prior to the October 2015 Hearing. Additionally, Claimant
contended that Employer had complete access to the payment
history for Claimant's disability benefits. Accordingly,
Claimant asserted that Employer should have anticipated that
Claimant intended to argue that Employer's previous
disability payments for targeted treatment of Claimant's
L5-S1 area created an implied agreement of compensability for
Claimant's Surgery. Claimant attached various exhibits in
support of Claimant's Motion for Reargument.
Order dated May 13, 2016, the Board denied Claimant's
Motion for Reargument. The Board concluded that
Claimant's additional exhibits did not constitute newly
discovered evidence that would warrant a second hearing on
the merits of Claimant's Petition for Additional
Compensation. Rather, the Board found that "[a]ll
documents presented were in Claimant's possession and
were subject to discovery prior to the hearing and in fact,
most had been requested by Employer, but not
produced." Moreover, the Board concluded that
"several exhibits attached to Claimant's motion do
not actually support his assertions."Rather, the
Board found that Claimant's exhibits "actually
contradict Claimant's assertion that Employer knew or
should have known" that Employer made previous
disability payments for targeted treatment of Claimant's
L5-S1 area during Claimant's disability
period. The Board concluded that Claimant made
"sweeping statements in his Motion that are not
supported by the evidence, " and that most of
Claimant's "tardily proceeded evidence does not
support his claim regarding [Employer's] prior
Claimant's Appeal to this Court; Employer's
Motion to Strike
10, 2016, Claimant filed an appeal from the January 21, 2016,
and May 1, 2016 Board Decisions to the Superior Court.
Claimant asserts that the Board committed legal error and
abused its discretion by denying Claimant's Petition for
Additional Compensation and Claimant's Motion for
Reargument. Employer opposes Claimant's appeal.
November 2, 2016, Employer filed a Motion to Strike various
exhibits attached to Claimant's opening appellate brief.
Employer asserts that the challenged exhibits were not
admitted into evidence during Board proceedings. Therefore,
Employer asserts that the exhibits are not properly
considered by this Court as part of the appellate record.
Claimant opposes Employer's Motion to Strike.
December 13, 2016, the Prothonotary reassigned Claimant's
appeal to this judicial officer for decision.
appeal from the 2016 Board Decisions, Claimant argues that
(1) the Board erred by failing to adhere to the res
judicata and collateral estoppel effects of the 2003
Board Decision; (2) the Board erred in refusing to find an
implied agreement of compensability for Claimant's
Surgery under a theory of payment by compulsion; and (3) the
Board abused its discretion by finding that Employer's
lack of notice amounted to a violation of Employer's
right to due process, requiring the Board to refrain from
considering certain evidence.
Standard of Review
appeal from a Board decision, this Court's role is
limited to determining whether the Board's conclusions
are supported by substantial evidence and free from legal
error. Substantial evidence is "such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." This Court
reviews the Board's legal determinations de
novo. "Absent errors of law, however, the
standard of appellate review of the IAB's decision is
abuse of discretion."
Employer's Motion to Strike
requests this Court to consider certain exhibits in support
of Claimant's theory of an implied agreement through
payment by compulsion. Employer opposes the Court's
consideration of these exhibits on the grounds that the
exhibits are not part of the appellate record. In support of
Employer's contention, Employer notes that the exhibits
in questions were not admitted into evidence during Board
proceedings because the Board concluded that Employer had
insufficient notice of Claimant's argument. Employer
asserts that statutory law prohibits the Superior Court from
considering issues of fact that are outside the record on
appeal. Employer argues that Claimant's
exhibits are not part of the appellate record, and that this
Court must exclude any facts and arguments derived from the
exhibits from its consideration.
Court recognizes the "basic tenet of appellate practice
that an appellate court reviews only matters considered in
the first instance by a trial court." It is
well-established that "[o]nly questions fairly presented
to the trial court may be presented for review . . .
." The appellate record may include
transcripts from related hearings, as well as materials that
are not offered into evidence if the materials were
considered by the trial court and are necessary to the
case's disposition on appeal. Delaware courts adhere to
a strong policy in favor of deciding cases on the merit as
opposed to technical grounds.
Court disagrees with Employer's contentions regarding the
narrowness of the appellate record in this case. Although
Employer correctly notes that the Board found that
Claimant's approach to the implied agreement argument
amounted to a violation of Employer's due process,
the Board proceeded to consider Claimant's exhibits and
address Claimant's argument on the merits.Because
Claimant presented this argument and supporting evidence to
the Board for consideration during the October 2015 Hearing
and in post-trial proceedings in connection with
Claimant's Motion for Reargument, the exhibits are
properly before this Court on appeal. ...