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Hamilton v. Independent Disposal Service

Superior Court of Delaware

February 15, 2017

DAVID HAMILTON, Claimant-Appellant,
v.
INDEPENDENT DISPOSAL SERVICE, Employer-Appellee.

          Submitted: December 13, 2016

         Upon Employer's Motion to Strike DENIED

         On Appeal from the Industrial Accident Board AFFIRMED

          Kyle F. Dunkle, Esq., Schmittinger & Rodriguez, P.A., Dover, Delaware, Attorney for Claimant-Appellant.

          Joseph Andrews, Esq., Hoffman Andrews Law Group, Dover, Delaware, Attorney for Employer-Appellee.

          MEMORANDUM OPINION

          THE HONORABLE ANDREA L. ROCANELLI JUDGE.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This is 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.

         A. Claimant's Work Accident; the 2003 Board Decision

         On 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.

         On 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").[1] The Board determined that Claimant's work injury no longer entitled Claimant to total disability benefits.[2] 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 light-duty capacity.[3]

         Shortly 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.[4]

         B. Claimant's Surgery; the October 2015 Hearing

         On 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.

         On 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.

         During 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.

         i. Claimant's Testimony

         Claimant 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.

         Additionally, 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.

         ii. Dr. Piccioni's Testimony

         Upon 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 2010.[5]

         Dr. Piccioni testified that the diagnostic results immediately after Claimant's work accident indicated that Claimant's L5-S1 disc was normal.[6] 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.

         iii. Dr. Balu's Testimony

         Claimant's 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.

         In June 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.

         During 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.

         iv. Dr. Zaslavsky's Testimony

         Upon 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.

         Dr. 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 area.[7]

         C. The January 21, 2016 Board Decision

         By 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.[8]

         As to 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.[9]The Board found that Employer's expert Dr. Piccioni provided the most credible and comprehensive testimony regarding the cause of Claimant's Surgery, [10] and that Claimant's experts Dr. Zaslavsky and Dr. Balu were less persuasive.[11]Moreover, the Board adopted Dr. Piccioni's conclusion that Claimant's L5-S1 injury did not visualize until 2012.[12] The Board noted that, by 2012, Claimant was involved in multiple intervening accidents[13] and had experienced additional years of ordinary wear and tear of the lumbar spine.[14] 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.[15]

         As to 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.[16] 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.[17] 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.[18] Nevertheless, the Board proceeded to address Claimant's argument on the merits.

         The Board concluded that Claimant failed to establish the existence of an implied agreement for compensation of Claimant's Surgery.[19] 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."[20] 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.[21] 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."[22] 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.[23]

         D. The May 13, 2016 Board Decision

         On 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.

         By 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.[24] 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."[25] Moreover, the Board concluded that "several exhibits attached to Claimant's motion do not actually support his assertions."[26]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.[27] The Board concluded that Claimant made "sweeping statements in his Motion that are not supported by the evidence, "[28] and that most of Claimant's "tardily proceeded evidence does not support his claim regarding [Employer's] prior knowledge."[29]

         E. Claimant's Appeal to this Court; Employer's Motion to Strike

         On June 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.

         On 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.

         On December 13, 2016, the Prothonotary reassigned Claimant's appeal to this judicial officer for decision.

         II. DISCUSSION

         On 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.

         A. Standard of Review

         On 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.[30] Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."[31] This Court reviews the Board's legal determinations de novo.[32] "Absent errors of law, however, the standard of appellate review of the IAB's decision is abuse of discretion."[33]

         B. Employer's Motion to Strike

         Claimant 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.[34] 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.

         This Court recognizes the "basic tenet of appellate practice that an appellate court reviews only matters considered in the first instance by a trial court."[35] It is well-established that "[o]nly questions fairly presented to the trial court may be presented for review . . . ."[36] 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.[37] Delaware courts adhere to a strong policy in favor of deciding cases on the merit as opposed to technical grounds.[38]

         This 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, [39] the Board proceeded to consider Claimant's exhibits and address Claimant's argument on the merits.[40]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.[41] ...


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