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Davis v. HealthSouth

Superior Court of Delaware

June 6, 2018

SARAH DAVIS, Employee-Appellant,
HEALTHSOUTH, Employer-Appellee.

          Submitted: March 13, 2018

          On Appeal From a Decision of the Industrial Accident Board.

          Heather A. Long, Esquire, Kimmel, Carter, Roman, Peltz & O'Neill P.A., Newark, Delaware, Attorney for Appellant Sarah Davis.

          Morgan A. Sack, Esquire, Cipriani & Werner, P.C., Wilmington, Delaware, Attorney for Appellee HealthSouth.


          Richard R. Cooch, J.


         This is an appeal from the October 23, 2017 decision of the Industrial Accident Board (the "Board") to deny Sarah Davis' (the "Appellant") claim for permanent impairment. Appellant asserts that the Board erred by erroneously relying on the testimony of her employer's, HealthSouth[1] (the "Appellee"), expert over Appellant's expert. Appellee argues that the decision should be upheld because substantial evidence supports the decision.

         This Court concludes that the Board's decision was supported by substantial evidence and that the Board otherwise committed no error of law. Accordingly, this Court AFFIRMS the decision of the Board.


         On August 27, 2015, Appellant injured her back in an accident while in the course and scope of her employment with Appellee. The Appellant suffered an injury to her lumbar spine while working as a certified nursing assistant for Appellee. While transferring a paraplegic patient from a rehabilitation chair to his bed, the patient began to fall. In the midst of his fall, Appellant caught him and injured her back in the process. As a result, the Appellant went to Christiana Care Emergency Room for treatment. After being released from Christiana Care Emergency Room and subsequent medical centers, Appellee placed Appellant on work restrictions. Appellant later received a full duty release in order to return to work.

         On April 17, 2017, Appellant filed a Petition seeking benefits for sixteen percent (16%) impairment to the lumbar spine and outstanding medical expenses. After Appellant received a full duty release in order to return to work, she sought further treatment from another physician, Dr. James Zaslavsky, when she still felt pain in her legs and buttocks. In assessing Appellant's permanency, Dr. Zaslavsky rated Claimant's permanent impairment to the lumbar spine using the 5th Edition AMA Guides to the Evaluation of Permanent Impairs. Dr. Zaslavsky believed that Appellant belonged in Diagnosis Related Estimate (hereinafter "DRE") Category III because of his observation of radiculopathy. Dr. Zaslavsky further elaborated that this rating assigns the Appellant a sixteen percent (16%) whole person impairment for the regional impairment for the lumbar spine.

         At Appellee's request, Appellant was examined by Dr. Robert Smith ("Dr. Smith") for a Defense Medical Examination. Dr. Smith's evaluation of Appellant differed from that of Dr. Zaslavsky. Dr. Smith believed, relying on the lack of electro-diagnostic testing, that Appellant showed no significant signs of radiculopathy. Based on Appellant's benign exam in February 2016 and Appellant's reported score of ninety-five percent (95%) at the end of 2015, Dr. Smith opined that Appellant had zero percent (0%) permanent impairment and required no further treatment.

         The Board found Dr. Smith's opinion "more credible and reliable than Dr. Zaslavsky's opinion."[2] On October 23, 2017, the Board denied the permanent impairment claim on grounds that Appellant failed to meet her burden of proof to "prove that she sustained a permanent impairment to the lumbar spine as a result of the August 27, 2015 accident." [3] The Board found that "some of Appellant's treatment and outstanding medical expenses were reasonable, necessary, and causally related to the work injury." [4] The Board awarded Appellant medical expenses predating February 2016 in accordance with the fee schedule set forth in 19 Del. C. §2322B.[5]

         Appellant now appeals the Board's decision "as it relates to [her] Permanent Impairment claim"[6] and outstanding medical expenses "incurred after Dr. Smith's Defense Medical Examination."[7]


         A. Appellant's Contentions

         Appellant's argument is that "the Board erred when it accepted the Appellee's expert conclusion that the [Appellant] has 0% permanent impairment to the lumbar spine, when that same expert agreed that [Appellant] has a disc bulge with an annular tear, which has been accepted by the employer as related to her work injury."[8]

         Appellant argues that Dr. Zaslavsky based his opinions on his examination of Appellant, his review of Appellant's medical records before and after the accident, defense medical exam reports, and the MRI scan that presented both a bulging disc with an annular tear and a high intensity zone lesion.[9] Appellant argues that the diagnosis made by Dr. Zaslavsky is consistent with the results of the MRI.[10]

         Appellant argues that Dr. Zaslavsky rated Appellant's permanent impairment to the lumbar spine using the AMA Guides to the Evaluation of Permanent Impairments.[11] With his observation of radiculopathy, Dr. Zaslavsky placed Appellant in a different category than Dr. Smith. Additionally, Appellant argues that "Dr. Smith's evaluation lasted less than 10 minutes, and his testimony was offered based not on medical records reviewed, but rather a medical records summary that left out many important details[.]"[12] Based on these alleged "errors of law and defects in the decision[, ]"Appellant requests that this Court "revers[e] the Board's decision and a remand for an award of permanent impairment benefits and medical expenses associated with ...

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