Submitted: July 2, 2018
Consideration of Appellant's Appeal from the Industrial
Accident Board AFFIRMED.
Jeffrey J Clark Judge
NOW TO WIT, this 16th day of August,
2018, upon consideration of the record and the briefing by
the parties, IT APPEARS THAT:
Before the Court is the appeal of Appellant Kari-Ann Jones
(hereinafter "Ms. Jones") from the decision of the
Industrial Accident Board (hereinafter "the Board"
or "the IAB") denying her petition to determine
additional compensation due. Ms. Jones suffered a compensable
work injury on April 6, 2014 while working for Universal
Health Services, Inc. (hereinafter "Employer"). She
was employed as a mental health technician who conducted
group sessions with adolescents and helped them with their
daily activities. On the date of the injury, Ms. Jones
attempted to stop an altercation between two young men and
suffered injuries after being pushed into a wall.
Jones reported the injury and went to the Kent General
emergency room and complained of shooting pain in the back of
her right hand and arm. Several days later, Ms. Jones saw Dr.
Eichenbaum, a hand doctor, who put her hand in a cast. Ms.
Jones alleges that she told Dr. Eichenbaum that she had pain
radiating all the way up her arm, but felt that the doctor
did not listen to her. In July of that year, Ms. Jones saw
Dr. Richard DuShuttle, who ordered an MRI of her wrist. Ms.
Jones then saw Dr. Randeep Kahlon who also concentrated
solely on her wrist, and gave her two injections for nerve
pain. Next, Ms. Jones was seen by Dr. Lee Osterman, a hand
surgeon, who performed surgery in November 2014 to address a
triangular fibrocartilage complex tear. Dr. Osterman
thereafter documented shooting arm pain on March 30, 2015,
and sent her for an MRI of her neck. Ms. Jones then saw Dr.
Irene Mavrakakis in November 2015. Dr. Mavrakakis documented
arm and neck pain and administered physical therapy focused
primarily on her neck.
April 2015 MRI of Ms. Jones's neck revealed large, acute
disc herniations and a disc bulge. Dr. Zaslavsky, an
orthopedic spine surgeon, recommended surgery. The surgery
performed on December 18, 2015 included a cervical discectomy
and a fusion. In May 2016, she complained that both her neck
and arm pain had returned, and a June 2016 MRI revealed that
a cadaver bone used in her surgery had deteriorated. Dr.
Zaslavsky performed a second neck surgery on December 27,
2016 to re-stabilize Ms. Jones's neck. She since has
received post-surgical physical therapy and massage therapy.
Jones suffered a compensable right hand and wrist injury. On
September 21, 2016, she filed a petition to determine
additional compensation due, alleging that her neck condition
was causally related to the work incident. Specifically, she
alleges that the two spinal surgeries performed in 2015 and
2016 and the follow-up care are compensable as reasonable and
necessary medical treatment causally related to the April
2014 incident. In response, the employer disputes that the
neck treatments are casually related to the work incident.
Industrial Accident Board conducted a hearing in this case on
April 19, 2017. The sole issue before the Board was whether
Ms. Jones's spinal surgeries were causally related to her
April 2014 work injuries. The Board considered, inter
alia, testimony from Ms. Jones, testimony from Dr.
Zaslavsky, who performed the spinal surgery, and testimony
from Dr. Errol Ger, an orthopedic surgeon testifying on
behalf of the Employer.
Zaslavsky testified that the medical treatment Ms. Jones
received for spinal injuries was reasonable, necessary and
causally related to her 2014 work incident. Dr. Zaslavsky
testified that some neck problems include symptoms such as
numbness and tingling in the hand, and that the symptoms
slowly advance to pain in the elbow and shoulder.
Furthermore, Dr. Zaslavsky testified that spinal cervical
injuries are difficult to diagnose because disc problems do
not always cause neck complaints.
Ger testified that he examined Ms. Jones and reviewed her
medical records. He noted no recorded complaints by Ms. Jones
referring to her cervical spine until March 2015, eleven
months after Ms. Jones's April 2014 work injuries. He
also testified that his record review revealed that another
doctor performed an examination of her neck in the interim
and also had found nothing wrong. Dr. Ger agreed that the
treatment for her neck injuries was reasonable and necessary.
He testified, however, that it was not related to the April
2014 work incident.
Board concluded that the evidence in the case clearly
established that she had no neck-related complaints in 2014.
In deciding so, the Board considered Ms. Jones's
testimony that she complained about neck pain in 2014, but
that her doctors did not listen to her or document these
complaints. Nevertheless, the Board found this testimony
unpersuasive. On the other hand, the Board found Dr.
Ger's testimony persuasive, including his testimony that
the acute disc herniation finding in the 2015 MRI suggested
that the injury occurred recently. The Board concluded that
the acute disc herniation more than likely developed in 2015
and was unrelated to the 2014 incident. Accordingly, the
Board held that Ms. Jones failed to show by a preponderance
of the evidence that her spinal condition was caused by her
April 2014 work incident and it denied her claim for
Thereafter, Ms. Jones filed a notice of appeal pro
se and a written brief. She presents no new legal
arguments in her brief, but instead restates the facts and
emphasizes that she complained about neck-related symptoms in
2014, but that her doctors did not document the complaints.
Moreover, Ms. Jones claims that the Board's decision
includes factual errors and should have considered video
evidence of the April 2014 accident. Finally, she argues that
her attorney did not properly present the neck injury portion
of her claim.
This Court's appellate review of the IAB's factual
findings is limited to determining whether the Board's
decision is supported by substantial evidence.Substantial
evidence means "such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion." On appeal, the Court views the facts in
the light most favorable to the prevailing party
below. Moreover, the Court does not weigh the
evidence, determine questions of credibility or make its own
factual findings. Absent any errors of law, which are
reviewed de novo, a decision of the IAB supported by
substantial evidence will be ...