Opinion
C.A. No. N15A-02-008 DCS
01-22-2016
LUCKY GILLETTE, Claimant-Below/Appellant, v. AMAZON.COM, Employer-Below/Appellee.
Walter F. Schmittinger, Esquire and Kyle F. Dunkle, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware, Attorneys for Claimant-Below/Appellant Lucky Gillette. John J. Ellis, Esquire, Heckler & Frabizzio, Wilmington, Delaware, Attorney for Employer-Below/Appellee Amazon.com.
On Appeal from a Decision of the Industrial Accident Board of the State of Delaware - AFFIRMED.
OPINION
Walter F. Schmittinger, Esquire and Kyle F. Dunkle, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware, Attorneys for Claimant-Below/Appellant Lucky Gillette. John J. Ellis, Esquire, Heckler & Frabizzio, Wilmington, Delaware, Attorney for Employer-Below/Appellee Amazon.com. STREETT, J.
Introduction
Appellant Lucky Gillette ("Appellant") has appealed the January 30, 2015 decision of the Industrial Accident Board (the "Board"), The Board denied Appellant's Petition to Determine Compensation Due wherein Appellant alleged that she injured her mid-back while working for Amazon.com (the "Employer") on August 4, 2014. The Board discredited Appellant's testimony, credited the testimony of the Employer's witnesses, and found that there was insufficient evidence to support Appellant's allegation that she sustained a mid-back injury in a specific work incident on August 4, 2014.
In her August 22, 2014 Petition to Determine Compensation Due, Appellant alleged injuries to her low back and right hip. See Record at Tab 1, Petition to Determine Compensation Due to Injured Employee (hereinafter the "Petition"), Prior to the January 15, 2015 hearing before the Board, Appellant and the Employer stipulated that Appellant alleged that "she sustained a work-related injury to her mid-back." See Record at Tab 3, Trial Stipulation at ¶ 2 (hereinafter the "Stipulation").
On appeal, Appellant contends that the Board abused its discretion by deciding the matter based on the "self-serving" testimony of the Employer's witnesses rather than medical evidence. In addition, Appellant contends that the Board erred in its application of the standard that is set forth in Reese v. Home Budget Center . Specifically, Appellant alleges that the Board should have addressed whether her mid-back injury was an aggravation of a preexisting condition that would not have occurred but for the alleged work incident.
Appellant's Opening Br. at 19, 26 (July 13, 2015).
Reese v. Home Budget Center, 619 A.2d 907 (Del. 1992).
The Employer contends that the Board's decision was supported by substantial evidence and that the Board was not required to address whether a "non-existent work accident injured or aggravated [Appellant's] back condition."
Appellee's Answering Br. at 26 (Aug. 5, 2015).
For the reasons set forth below, the Board's decision is affirmed.
Factual Background
In August 2013, the Employer hired Appellant as a Warehouse Associate at its Middletown distribution facility. According to Appellant, she experienced pain and spasms in her mid-back while she was packing items at work on August 4, 2014.
Procedural History
On August 22, 2014, Appellant filed a Petition to Determine Compensation Due with the Board. She sought compensation for low back and right hip injuries as a result of "lifting/twisting/bending at work, felt onset of back pain" on August 4, 2014. Appellant reported that she had been out of work since August 5, 2014.
Although, Appellant testified that she returned to work in a limited capacity on August 17, 2014 for two days. See R. at Tab 2, Transcript of Board Hearing at 33 (Jan. 15, 2015) (hereinafter "Tr. of Bd. Hr'g at ___").
Prior to the hearing before the Board on January 15, 2015, the parties stipulated to certain facts, including that Appellant "allege[d] that she sustained a work-related injury to her mid-back on 8/4/2014."
Stipulation at ¶ 2.
At the hearing, Appellant, who was 38 years old, testified that the Employer hired her as a "packer" in August 2013. She described her duties as requiring her to "pack several items in boxes," including CDs, books, tools, cases of water, and soda, and "put them on the conveyor belt." Appellant testified that she had not had any prior mid-back problems.
Tr. of Bd. Hr'g at 10, 11.
Id. at 11, 48
Id. at 19.
Appellant testified that she did not have any symptoms in her back when she started her shift in AFE at 7:30 a.m. on August 4, 2014. At approximately 9:15 a.m. or 9:20 a.m., she "was packing like normal and [she] started feeling this sharp stabbing pain in [her] back," Appellant testified that the pain came on "gradually" and was on her right side, "along [her] mid-back," near her bra line. Appellant could not "say [what exactly she] was doing" (i.e., lifting, twisting, etc.) when she experienced this feeling and was unable to recall the specific item that she was packing when the pain began. She continued to work for five to ten minutes, however the pain "just continued to get worse."
Id. at 14.
"AFE" is "Amazon Fulfillment Engine." See id. at 106.
Id. at 13.
Id. at 13 - 14, 54.
Id. at 13, 46, 49.
Id. at 13, 55.
According to Appellant, she reported to her line manager (Evan) that she was "having spasms in [her] back," her line manager went with her to Amcare, and he told Amcare personnel that Appellant was having "back spasms." Amcare is the Employer's onsite medical facility.
Id. at 13 - 15.
R. at Tab 11, Decision on Petition to Determine Compensation Due at 3(hereinafter "Bd. Decision at ___").
Appellant testified that she sat down, a woman (whose name Appellant was unable to recall) handed Appellant an ice pack, Appellant applied the ice pack to her back, and Appellant also took ibuprofen. Appellant testified that when "one of the safety ladies" (Kim) walked in to Amcare and asked Appellant what had happened, Appellant "sarcastically" said, "Apparently I'm getting old."
Tr. of Bd. Hr'g at 15, 16, 19.
Id. at 39.
Appellant maintained that she "told them [at Amcare] that [she] was packing when [her] back began to hurt." Appellant further testified that she reported to Amcare that she had "never had back problems," however "sometimes [her] back gets stiff, but no pain." She denied that she told anyone that she had back spasms the previous night. Appellant was unable to recall whether she told Amcare personnel that she had injured herself at work.
Id. at 49.
Id. at 38.
Id. at 39.
Id. at 49.
Appellant further testified that when she "got off the table," her pain "was worse." Appellant also said that the woman at Amcare told her to go to "HR" to make sure she had leave time, Appellant went to "HR," and "HR" confirmed that Appellant had leave time and could leave work after she told her manager. Appellant stated that she "walked back to AFE," tried to locate her line manager (Evan), spoke to another line manager (Marybeth), and left.
Id. at 15.
Id. at 20 - 21.
Id. at 21.
Appellant additionally testified that she drove herself to the Kent General Hospital Emergency Room and she "told them it would be a Worker's Comp claim." Appellant confirmed that she reported "an acute onset [of] right-sided thoracic pain, described as spasm, while working at Amazon lifting boxes [that] morning." Appellant also so that ER personnel took an x-ray, conducted a urine test, gave her "some pain medicine," and referred her to Dr. Kartik Swaminathan's office.
Id. at 22.
Id. at 46, 55.
Id. at 22 - 23.
Appellant testified that when she saw Dr. Swaminathan on August 5, 2014, she "explained" to him that she "worked at Amazon in the pack department" and that she "was at work when the pain started."
Id.
On cross examination, Appellant was questioned about Dr. Swaminathan's intake form. Appellant did not dispute that the intake form indicated that she reported that she was "at work packing and twisted and wrenched back." However, Appellant denied writing the form and said that was not her handwriting, she did not use "wrenched back" to describe what happened, and she did not tell Dr. Swaminathan that she wrenched her back.
Id. at 47.
The intake form was not offered into evidence in the record below.
Id.
Id. at 47 - 48.
Appellant testified that, after she saw Dr. Swaminathan on August 5, 2014, she returned to Amcare that same day "to bring them the paperwork showing that [she] went to the ER" and that she had paperwork to show that she was told "to stay out of work . . . a week or two weeks."
Id. at 25, 32, 45.
Appellant testified that she returned to work in a limited duty capacity on August 17, 2014 for two days, then "called the doctor" because she "was in a lot of pain," and Dr. Swaminathan took her out of work again. Appellant further testified that she was terminated by the Employer on November 9, 2014 and hired as a teller at a credit union on December 4, 2014.
Id. at 32.
Id. at 33.
Appellant did not dispute that she alleged that she injured her low back and right hip in her Petition to Determine Compensation Due and that the petition was inconsistent with her testimony before the Board that she injured her mid-back.
Id. at 37.
In addition, Appellant testified about the "Non-Occupational Complaint Report" that she "fill[ed] out" signed, and dated while she was at Amcare on August 4, 2014. On the form. Appellant indicated this was a new complaint, wrote that she was "packing" in "AFE" when she first "noticed the complaint," and circled "No" in response to the question, "Have you suffered previous injury to this same body part." Appellant testified that she wrote "Spasms in back, right side" as her reason for visiting Amcare, "spasm" as the specific cause of her complaint, and "not constant/severe when spasm" in describing her pain level on the form. Appellant further testified that she indicated her right back was the body part affected and marked the diagram of the human body accordingly.
Id. at 16, 19. See also R. at Tab 4, Non-Occupational Complaint Report.
Tr. of Bd. Hr'g at 17, 19,
Id. at 17 - 18.
Id. at 18.
Appellant did not dispute that the "Non-Occupational Complaint" form indicated that her muscle spasms were non work-related. She also did not dispute that "Non-Occupational Complaint" was written in large font and that the following language appeared in bold above her signature on the form:
Id. at 50.
The information given is true and correct. By signing below I am stating that the above-mentioned injury/illness is not work related. I received and I understand the instructions explained to me, and I have no further questions at this time.
Id. at 40, 50.
Appellant testified that the woman at Amcare "handed [Appellant] the [Non-Occupational Complaint Report] form" and that she did not see "Non-Occupational Complaint" written on the form. Appellant explained that she filled out the form because she was "in a lot of pain" and "was not paying attention." Appellant added that she was "not given an option" of filling out a "First Report of Injury" form.
Id. at 20, 40 - 41.
Id. at 20.
Id. at 41.
Appellant further testified that she completed and signed an "Associate First Report of Injury" form on August 5, 2014 (one day after she filled out the "Non-Occupational Complaint Report"). On the form, Appellant noted that she reported the incident on August 4, 2014, which was also the "Actual Incident Date." Under "Describe the Incident," Appellant wrote "Packing in AFE like normal, when back started hurting. Don't know exactly what I was packing when pain started" and she checked the box next to "Yes" in response to the question, "In your opinion is your injury or illness related to something you did at work." Appellant marked the same area on the diagram of the human body to designate the location of her pain that she did on the August 4, 2014 "Non-Occupational Complaint Report" form. She rated her pain on August 4, 2014 as a 5 out of 10.
Id. at 25, 27. See also R. at Tab 5, Associate First Report of Injury.
Tr. of Bd. Hr'g 26.
Id. at 26 - 27.
Id. at 27.
Id. at 41.
Appellant also presented the deposition testimony of Dr. Swaminathan, Appellant's treating physician who is board-certified in physical medicine and rehabilitation medicine. Dr. Swaminathan testified that he treated Appellant six times between August 5, 2014 and November 4, 2014. Dr. Swaminathan opined that the treatment that he provided to Appellant was related to Appellant's work.
R. at Tab 6, Deposition of Kartik Swaminathan, M.D. at 22, 46 (hereinafter "Dr. Swaminathan's Dep. at ___").
According to Dr. Swaminathan, he saw Appellant for the first time on August 5, 2014. Dr. Swaminathan testified that he initially diagnosed Appellant with "a thoracic strain and sprain." Appellant provided a history to Dr. Swaminathan and reported that she "was at work yesterday at Amazon where she normally does lift, bend, and twist. During work her back started having bad spasms." Contrary to Appellant's testimony, Dr. Swaminathan also testified that Appellant wrote "at work packing and twisting and wrenched back" on his intake form.
Id. at 5.
Id. at 9 - 10.
Id. at 6, 26.
Id. at 27.
In addition, Dr. Swaminathan testified that Appellant told him that she had "a sharp, breathtaking pain in the midback region posteriorly over the lower ribs and near the scapula" that was "spasmodic" and worsened with "any twisting movement." Appellant rated her pain as a 10 out of 10 and "denied any kidney problems or any previous history of midback pain."
Id. at 7.
Id.
When Dr. Swaminathan examined Appellant on August 5, 2014, he found Appellant had "exquisite tenderness with muscle spasm, painful taut bands and ropiness in the midthoracic paraspinal muscles and intercostals muscles at joining rib number 7, 8, 9, and 10 and the adjoining lattissimus dorsi muscle," "any range of motion was associated with pain," and "she had an antalgic gait." Dr. Swaminathan also found that Appellant's range of motion for the lumbar and cervical spine was normal and that Appellant was neurologically "intact." He did not find any tenderness, swelling, or low back injury. Dr. Swaminathan ordered a CT scan of Appellant's thoracic spine, "performed a trigger point injection," prescribed Lidoderm patches, referred Appellant for chiropractic and rehabilitation therapy in his office, and indicated that Appellant was to stay off of work through August 11, 2014.
Id. at 8.
Id.
Id. at 28.
Id. at 9, 30.
That same day (August 5, 2014), Appellant had the CT scan, which was negative for pneumonia or fractures and showed that Appellant had a "minimal disc bulge at T6-T7 level" without any stenosis. Dr. Swaminathan testified that stenosis "is when the disc bulge is severe enough to narrow the canal and cause pressure on the spinal cord or the nerves causing [the] patient to have pain along the nerve distribution" and that it did not apply in this case.
Id. at 10, 33.
Id. at 34.
Dr. Swaminathan did not dispute that his notes from August 5, 2014 do not specify any acute injury or that Appellant's back pain was related to a specific event. Dr. Swaminathan testified that he "must have filled out an initial [workers' compensation] form" on August 5, 2014, but he was unable to locate the form in his records. Dr. Swaminathan also testified that Appellant's August 5, 2014 disability note was prepared on an in-house form, not the standard workers' compensation form. He further testified that he has treated Appellant's injury as a workers' compensation case from the outset, but he did not bill or "use[] the Workers' Compensation guidelines generated paperwork" until August 11, 2014.
Id. at 27.
Id. at 30 - 31.
Id. at 30.
Id. at 12.
In addition, Dr. Swaminathan testified that although a spasm is an objective finding, he has seen patients who experience back spasms without acute injury, and back spasms can come from acute or non-acute problems that are work-related or non work-related.
Id. at 27, 41.
Appellant saw Dr. Swaminathan for a follow-up visit on August 11, 2014. Dr. Swaminathan he found that Appellant had "severe, painful muscle spasms in those regions [he] mentioned before, but subjectively [Appellant] was feeling a lot better." Dr. Swaminathan released Appellant to return to work on August 12, 2014 with restrictions (i.e., he "suggested that she avoid the potential flexion below the hip level and [he] also filled out a light duty of 20 pounds").
Id. at 10.
Id. at 12 - 13.
Id. at 13.
Dr. Swaminathan testified that Appellant called Dr. Swaminathan's office when she returned to work and said that "she tried to go back to work but it was very severe back spasms," so he prescribed Vicodin and kept her out of work on August 15, 2014.
Id. at 14.
Dr. Swaminathan further testified that he saw Appellant again on August 22, 2014. Upon examination of Appellant, Dr. Swaminathan found that Appellant had muscle spasms, taut bands, tenderness over the right rib, and "pain was reproduced with flexion to the left." Dr. Swaminathan "administered a trigger point injection," referred Appellant for aquatic therapy, ordered an MRI of the thoracic spine, and kept Appellant out of work. He testified that he ordered the MRI to look "for anything ominous which requires [him] to do something other than what [he's] already doing," not to "prove causation."
Id.
Id. at 15.
Id.
Id. at 34.
Dr. Swaminathan testified that Appellant's MRI was performed on September 2, 2014 and the radiologist reported it was "normal." Dr. Swaminathan testified that the MRI also showed "the same disc bulges" as the CT scan. On cross examination, Dr. Swaminathan testified that the disc bulges were "not significant enough to cause any nerve root impingement or anything to explain that . . . there is a spinal cord getting pinched or there's a major disc herniation." Dr. Swaminathan also testified that the MRI was "consistent with patient's history" and "was not significant enough to get any surgery."
Id. at 16.
Id. at 36 - 37.
Id. at 37.
Id. at 18.
Following a September 2, 2014 MRI of Appellant's thoracic spine, which was normal, Dr. Swaminathan opined that "it appeared more like a soft tissue injury with some myofascial muscle spasm pain." On cross examination, Dr. Swaminathan testified that his "diagnosis has been thoracic spine pain and rib pain." Dr. Swaminathan acknowledged that he relied on what Appellant told him to formulate his opinions and that his causation opinion was based, in part, on the history that Appellant reported to him (i.e., that she did not have a previous history of mid-back pain).
Id. at 18.
Id. at 29.
Id. at 24, 29.
Thereafter, Dr. Swaminathan treated Appellant three more times. When Dr. Swaminathan saw Appellant on September 5, 2014, he examined Appellant, observed similar findings, noted that Appellant's pain had decreased, and released her to return to work on a part-time, sedentary basis. Dr. Swaminathan testified that when he saw Appellant again on September 24, 2014, he found that Appellant "still had muscle spasms, but clinically she was much better." Dr. Swaminathan testified that he has not seen Appellant since November 4, 2014 and that Appellant's last visit with the chiropractor (Dr. Maday) was the following day (November 5, 2014).
Id. at 17 - 18.
Id. at 19.
Id. at 22, 33.
On behalf of the Employer, Deontrice McCaskill (the Employer's on-site medical representative who treated Appellant on August 4, 2014), Bharab Varshney (Appellant's area manager), and Jamie Lee Johall (the Employer's on- site medical representative who spoke with Appellant on August 5, 2014) testified.
The Board's written decision summarizes the testimony of a "Jamie Lee Johall." However, according to the transcript of the Board hearing, the witness identified himself as "Jamie Leejo Hall." The Court will refer to the witness as "Mr. Johall" as it was used in the Board's decision,
Ms. McCaskill testified that she has been an on-site medical representative at the Employer's Amcare facility in Middletown for one year and that she regularly treated injured employees. Prior to working for the Employer, Ms. McCaskill was a medic in the Army for eleven years. She described herself as an "EMT intermediate" which allows her "to administer first round cardiac drugs, as opposed to just basic treatment."
Tr. of Bd. Hr'g at 71 - 72.
Id. at 88.
Ms. McCaskill testified about the procedure Amcare employees follow when an injured employee goes to Amcare. She stated that "in general," an Amcare employee asks the injured employee "what happened, what's going on" and if the injury is "anything related to something that they did here." According to Ms. McCaskill, employees are treated first and then given the option of completing a "Non-Occupational Complaint Report" form (for non work-related injuries/illnesses) or a "First Report of Injury" form (for work-related injuries/illnesses). Ms. McCaskill testified that Amcare employees "aren't allowed to diagnose," so employees are required to identify what they believe is the cause of their pain. Ms. McCaskill stated that "[g]enerally [employees complete] the work related form" if they are unsure of which form to complete. She further stated that the employee "fills out the form, and if they have any questions they ask us and we explain the question to them."
Id. at 73.
Id. at 74.
Id. at 79.
Id. at 74.
Id. at 74 - 75.
Ms. McCaskill testified that she followed the procedure when she treated Appellant on August 4, 2014. Ms. McCaskill stated that Appellant reported "some pain in her back" and said "it kind of started the night before, she was stiff at home" and when she asked Appellant if "anything happen[ed] here," Appellant said "No."
Id. at 75.
Id. at 75.
Ms. McCaskill further testified that Appellant "sat on the middle table, where [Ms. McCaskill had] to adjust the back for her," Ms. McCaskill got an ice pack and placed it on Appellant's "back," Appellant "told [her] lower," and Ms. McCaskill applied the ice to Appellant's "[l]ower back, more toward the right side." Ms. McCaskill asked Appellant if she had "kidney stones" or if she ever "had any urinary tract infections," and Appellant responded that she had not. Ms. McCaskill testified that she did not believe Appellant was in severe pain because they joked "about getting old."
Id. at 75 - 76.
Id. at 76.
Id. at 77.
Ms. McCaskill testified that Appellant was performing her normal job duties that day and that there was no indication that Appellant had sustained an acute injury or worsening pain due to her work duties. Ms. McCaskill maintained that Appellant did not tell her that repetitive lifting or twisting caused her pain. Ms. McCaskill testified that she was familiar with Appellant's job duties and that she did not believe that repetitive twisting would be possible "because you have to physically turn your whole body to walk to the shelf to grab the product."
Id. at 79, 84.
Id. at 75.
Id. at 85.
In addition, Ms. McCaskill testified that Appellant completed and signed the "Non-Occupational Complaint Report" form. Ms. McCaskill testified that Appellant did not exhibit confusion about the form. Ms. McCaskill further testified that Appellant told Ms. McCaskill that her pain the night before was not constant and that Appellant "even wrote that, that it wasn't constant" on the form. Ms. McCaskill also testified that Appellant asked her about the question "Is this a new complaint," and "she was told what it was, which is why she circled yes." Ms. McCaskill said that "it is a new complaint to [Amcare]. It's a new-complaint to Amazon that she's making."
Id. at 77.
Id. at 78.
Id. at 78.
Id. at 97.
Id.
Ms. McCaskill further testified that Appellant "related the back pain to muscle spasms, which is why [Ms. McCaskill] gave her the [Non-Occupational Complaint Report] form, because she said it stated [sic] previously the night before."
Id. at 75.
Ms. McCaskill also testified about the "Associate Care Assessment Report for Injury or Illness," which she completed on August 4, 2014. Under "Chief Complaint," Ms. McCaskill wrote "Non-Work Related Acute Illness/Injury" as Appellant's "Chief Complaint," "muscle spasms" as Appellant's "Reason for visit/Description of current complaint," and "Unknown, muscle spasms" as the "specific cause for this complaint." Under "Additional Notes/Observations," Ms. McCaskill wrote that "AA [Amazon Associate] usually has back trouble and stiffness, but the spasms were hurting so bad she came to take meds out of the mini medic, and get some ice." Ms. McCaskill acknowledged that she did not document that Appellant told her she was having pain or spasms the previous night. Ms. McCaskill testified that Appellant said that "it didn't happen at work."
Id. at 83. See also R. at Tab 8, Associate Care Assessment Report for Injury or Illness.
Tr. of Bd. Hr'g at 83 - 84.
Id. at 84.
Id. at 93, 95.
Id. at 95.
Mr. Varshney testified that he became employed by the Employer in May 2014, Appellant came to AFE in June 2014, and he supervised Appellant as her area manager in AFE.
Id. at 105 - 06, 313.
Mr. Varshney testified that he is familiar with Appellant's job duties as a packer in AFE, which does "not [require] much" significant lifting. He explained that the items weigh no more than six to seven pounds. Mr. Varshney also testified that repetitive twisting is not required as part of Appellant's job "because there is enough space between the stations and the wall, so the associates can easily move around, instead of just twisting."
Id. at 111.
Id. at 108, 111.
Id. at 112.
Mr. Varshney testified that Appellant reported "spasms" to his "PA" (Evan), who is an assistant manager, Mr. Varshney asked Appellant "how the pain happened," and Appellant "was like it's not work related." Mr. Varshney confirmed that Appellant was performing her normal job duties in AFE and he maintained that Appellant did not tell him that she was doing a specific job duty when her spasms occurred. Mr. Varshney further testified that Appellant "mentioned that [spasms] happened a day, like a night before." Mr. Varshney testified that he walked side-by-side with Appellant to Amcare, he was present in Amcare while she completed the form, and Appellant "was comfortable."
Id. at 106 - 07.
Id. at 107 - 08.
Id. at 107.
Id.
On cross examination, Mr. Varshney testified that he completed an "Incident Investigation Form" on August 4, 2014. Mr. Varshney testified that his report states that "the associate explained that the associate had this problem before also, and today the pain is getting higher than normal. The associate also mentioned that the pain was not work related, and there was nothing that hurt or caused the incident while at work." When Mr. Varshney was asked if he indicated whether "the associate" had back pain the night before, Mr. Varshney responded that he "believed the associate told [him], like direct told [him], that it happened the night before."
Id. at 120. See also R. at Tab 7, Incident Investigation Form.
Tr. of Bd. Hr'g at 121.
Id.
Mr. Johall testified that that he was an Amcare medical representative for two years and that he was previously an EMT for the City of Wilmington for eleven years.
Id. at 126.
Mr. Johall testified that he saw Appellant at Amcare on August 5, 2014. According to Mr. Johall, Appellant told him that she had been in Amcare "the day before," she "made it non-work" at that time, she went to the ER, and "now she was going to get work, because while she was at the ER they needed to get CT scans done, other tests, and she didn't have the money to pay for that, because they didn't have insurance for it." He further testified that Appellant "told [him] she changed her story over to saying that she never had pain before," which was inconsistent with Amcare's August 4, 2014 records, but he "didn't want to really dig in." Mr. Johall explained that Appellant "looked to be in some pain" and that she "was there for a reason. She already talked to Work Comp. She wanted her documentation so she could get her tests done." On cross examination, Mr. Johall acknowledged that he did not know as a matter of fact whether Appellant had insurance.
Id. at 126 - 27, 135, 146.
Id. at 127 - 28.
Id. at 131, 132.
Id. at 132.
Id. at 149.
Mr. Johall testified that Appellant completed and signed an "Associate First Report of Injury" form while she was at Amcare on August 5, 2014. On the form, Appellant indicated that the incident was unwitnessed, did not indicate a mechanism of injury, and did not identify a specific work activity that caused her injury.
Id. at 128.
Id. at 128 - 29.
Mr. Johall testified that he completed an "Associate Care Assessment Report for Injury or Illness" that is dated August 5, 2014. On the report, he wrote "left lower back pain" as the reason for Appellant's visit to Amcare, which he testified was a typo. Mr. Johall also wrote "right lower back and flank area" as the "Body Part(s)/Side(s)" that were injured. He testified that Appellant told him that the location of her pain "was not exactly where it was the day before, it had actually gone down a little bit."
Id. at 129. See also R. at Tab 9, Associate Care Assessment Report for Injury or Illness.
Id. at 130.
Id.
Tr. of Bd. Hr'g at 137.
In addition, Mr. Johall indicated on the report that Appellant's pain level was a 5 out of 10 on August 4, 2014 and a 10 out of 10 on August 5, 2014. Mr. Johall testified that Appellant had not worked since she reported to Amcare on August 4, 2014, He testified that Appellant did not exhibit confusion when she completed the "Associate First Report of Injury" form and indicated the same (i.e., her pain level was a 5 on August 4, 2014 and a 10 on August 5, 2014).
Id. at 131.
Id.
Id. at 151.
Mr. Johall testified that he included "red flags" in his report, he only includes "red flags" for "things that aren't matching up for some reason," and he wrote that:
[t]he AA stated yesterday that this was a non-work, that she had a history of back spasms. However, today she did not state this, and then stated that she had never had any pain in her back. AA stated that the reason that she needed to get Work Comp paperwork done is because she did not have insurance, and cannot pay for the $5,000 for the CT scan.
Tr. of Bd. Hr'g at 136.
In addition, Mr. Johall testified that he wrote that "'AA never had a MOI [mechanism of injury],' which is she never had an actual point of injury." Mr. Johall testified that "a mechanism of injury can be more than just an accident." He explained that per the Employer's policy, Amcare employees "won't actually put in our reports that it was an actual true [mechanism of injury], unless an associate actually states 'It was from me repetitively doing something, it was from me doing this, it was from me doing that.'"
Id.
Id. at 145.
Id.
Mr. Johall further testified that it would not make sense if Appellant suddenly injured her back by repetitive twisting. Mr. Johall testified that he completed an ergonomics assessment for packing in AFE to identify any "barriers" that could cause injuries. Mr. Johall stated that employees must physically turn around rather than twist because employees are on rubber mats and the distance between the products and the employees' workstation is "exactly" four feet. Mr. Johall disputed Appellant's contention that she lifted heavy items and testified that employees are required to remove three to four items, weighing one to two pounds each, from cubby holes, pack the items in a box at their workstation, and slide the box.
Id. at 142.
Id. at 138 - 39.
Id. at 141, 142, 144.
Id. at 141 - 42.
The Employer also presented the deposition testimony of David C. Stephens, M.D. (a board-certified orthopedic surgeon). Dr. Stephens confirmed that he issued a report following his evaluation of Appellant on October 23, 2014 and a supplemental report on November 12, 2014.
R. at Tab 10, Deposition of David C. Stephens, M.D. at 5 (hereinafter "Dr. Stephens' Dep. at ___").
Dr. Stephens testified that he examined Appellant on October 23, 2014, Appellant reported to him that "she was turning and twisting repeatedly in the act of transferring goods from a shelf to packing area when she sustained the sharp onset of mid to low thoracic pain which became persistent and did not improve with temporary icing," and Appellant "denied any prior problems or injuries involving her thoracic spine."
Id. at 6, 7.
Dr. Stephens further testified that he reviewed the reports of the August 15, 2014 CT scan and September MRI of Appellant's thoracic spine and he opined that the CT scan, which showed a minimal disc bulge at T6-7, was "an incidental imaging finding."
Id. at 21, 29.
Dr. Stephens testified that, in his initial report, he diagnosed Appellant as having sustained a thoracic right paravertebral myofacial strain related to her work on August 4, 2014. Dr. Stephens testified that his opinion was based on Appellant's statement that she had not had prior back pain and he "hadn't reviewed any record that she had back pain before."
Id. at 10.
Id.
Dr. Stephens testified that Dr. Swaminathan's August 5, 2014 records show that Appellant described a sharp onset of an acute injury to Dr. Swaminathan (i.e., she wrenched her back). He agreed with Dr. Swaminathan that back spasms "don't necessarily occur with an acute injury, [but] they certainly could." Dr. Stephens found that Appellant "had no preexisting conditions or comorbitities contributing to her current condition."
Id. at 22.
Id. at 25.
Id. at 11.
Dr. Stephens testified that he issued a supplemental report on November 12, 2014. In the November 12, 2014 report, Dr. Stephens opined that Appellant's "diagnosis of the right paravertebral myofacial strain wasn't causally related to work activities." Dr. Stephens explained that he "never saw any medical records which involved treatment for the back symptoms before" and that there were no medical records or records from Amcare that documented a history of prior back symptoms. According to Dr. Stephens, "the subsequent records that [he] reviewed reported that she noted to other caregivers that she had symptoms like this before in her back," which contradicted what Appellant told him (i.e., that she had not had prior symptoms).
Id. at 19.
Id.
Id. at 20, 37.
Id. at 20.
On cross examination, Dr. Stephens acknowledged that, at the time of his initial report, he was aware that Appellant had reported a history of prior symptoms to Amcare. He testified that his causation opinion changed because Appellant "had signed a form saying it wasn't related to her work and that she had previous symptoms before."
Id. at 32.
Id. at 33.
When Dr. Stephens was asked whether he could state within a reasonable medical probability that Appellant's condition was work related, he testified he did not "think that she had a specific injury at the time of her work" and that he "suspect[ed] that her symptoms are probably related to some of that turning, twisting and packing activity that she was doing, but there is also the fact that she signed a form saying it's not work related." He further testified that he thought it is "an administrative judgment" because "it's not really clear."
Id. at 26.
Id.
Appellant was called as a rebuttal witness. Appellant testified that she did not tell Amcare that she needed to make a Workers' Compensation claim because she did not have health insurance and could not afford the CT scan on August 5, 2014, that she has Coventry Insurance, and that Coventry Insurance has denied claims because of her Workers' Compensation claim.
Tr. of Bd. Hr'g at 165.
On January 30, 2015, the Board issued a written decision and denied Appellant's petition. The Board found that Appellant "maintainfed] that she sustained a right mid-back strain injury in a specific work incident on August 4, 2014, however there were "no eyewitnesses to the alleged incident" and there was conflicting testimony as to the "genesis, and even the location, of [Appellant's] back pain." The Board concluded that "based on [Appellant's] lack of credibility and the lack of evidence supporting her allegation that she injured herself while packing on August 4, 2014," Appellant failed to prove "a compensable work-related incident occurred on August 4, 2014 causing injury."
Bd. Decision at 28.
Id. at 28, 33.
On February 24, 2015, Appellant appealed the Board's decision.
Parties' Contentions
Appellant contends that the Board abused its discretion by discrediting her testimony and medical evidence "solely on the basis of self-serving testimony from interested witnesses under the control of [the Employer]."
Opening Br. at 19.
Specifically, Appellant asserts that there is no documentary evidence in the record to support the Employer's witnesses' testimony that Appellant told them she had work-related back spasms the night before the work accident and that the Board "ignore[d] the overtly adversarial context within which the ["Non-Occupational Complaint Report"] form was presented to [her]." Appellant asserts that "[t]he Board seems to believe that this is a case of [Appellant] devising a plan to transform her complaints into work-related ailments after confronted with the expense of her medical treatment," however 19 Del. C. § 2322F(k)(5) - (6) provides that "a claimant's regular health insurance claim requirements are suspended until a final decision is rendered on the workers' compensation claim." Appellant also asserts that the Board should have looked to the expert medical testimony "[i]f the Board wanted to know the precise anatomical location of [Appellant's] pain." She maintains that both medical experts "concurred in their medical diagnoses" and "identified objective components of mid-thoracic muscular injury." Appellant further asserts that she "described with specificity the packing activity that brought about her back injury" and that "it is not unreasonable that she could not remember exactly what she was packing when the back injury occurred."
Id. at 20.
Id. at 26.
Id. at 24.
Id. at 23.
Id. at 25.
In addition. Appellant contends that the Board "conducted a legally erroneous causation analysis under Reese by ending its inquiry upon determining [Appellant] had a preexisting back condition and not deciding whether her injury was a work-related aggravation of that condition." Appellant argues (hypothetically) that "the evidence clearly establishes that [Appellant's] work accident aggravated her (assumed) preexisting back condition."
Id. at 28.
Id. at 30.
The Employer contends that the Board's decision is supported by substantial evidence and should be affirmed. The Employer argues that Appellant had the burden of establishing the time, place, and circumstances of her alleged acute work injury, Appellant "provided inconsistent and evolving stories on the most basic questions of 'what', 'where', 'when' and 'how,'" the Board had "many reasons . . . to disbelieve [Appellant's] version of events," and Appellant "is simply attempting to re-litigate the case on appeal."
Answering Br. at 18, 22.
The Employer also contends that the "threshold issue in any initial case is whether a claimant can establish both that a work incident and work injury occurred" and that "there was no reason for the Board to discuss whether a non-existent work accident injured or aggravated [Appellant's] back condition."
Id. at 25, 26.
Standard of Review
On appeal from a Board decision, the Court's role is limited to determining whether the Board's findings and conclusions are supported by substantial evidence and whether its decision is free from legal error. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The Court does not weigh evidence, determine questions of credibility, or make findings of fact. The "Board's experience and specialized competence and the purposes of Delaware's worker's compensation statute" are taken into account when factual determinations are at issue. The record is reviewed "in the light most favorable to the prevailing party below." The Court "may only overturn a factual finding of the Board when there is no satisfactory proof in favor of such a determination."
Tibbits v. United Parcel Serv., 2013 WL 1400864, at *2 (Del. Super. Mar. 28, 2013), aff'd, in part, and remanded, 2014 WL 2711302 (Del. June 12, 2014).
Spellman v. Christiana Care Health Servs., 74 A.3d 619, 622 - 23 (Del. 2013).
Arrants v. Home Depot, 65 A.3d 601, 605 (Del. 2013). See also Lauria v. M.A.C., 2006 WL 1688118, at *1 (Del. Super. June 20, 2006).
Spellman v. Christiana Care Health Servs., 74 A.3d at 623.
Wyatt v. Rescare Home Care, 81 A.3d 1253, 1258-59 (Del. 2013). See also Rash v. State of Del. (DHHCI), 2007 WL 2823331, at *2 (Del. Super. Sept. 28, 2007).
Wyatt v. Rescare Home Care, 81 A.3d at 1258 - 59.
Questions of law are reviewed de novo. "Absent an error of law, the standard of review is abuse of discretion." An abuse of discretion will be found when the Board's decision has "exceeded the bounds of reason in view of the circumstances." The Board's decision will stand if satisfactory evidence supports the Board's factual findings and if it is free from legal error.
Sommers v. New Castle Cty., 2013 WL 3488154, at *2 (Del. July 9, 2013).
Id.
Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009) (internal quotation marks) (quoting Stanley v. Kraft Foods, Inc., 2008 WL 2410212, at *2 (Del. Super. Mar. 24, 2008).
Noel-Liszkiewicz v. La-Z-Boy, 68 A.3d 188, 191 (Del. 2013) ("Only when there is no satisfactory proof to support a factual finding of the Board may the Superior Court . . . overturn that finding").
Discussion
I. The Board did not abuse its discretion by discrediting Appellant's testimony, crediting the Employer's lay witnesses' testimony, and finding Appellant's medical expert's testimony unpersuasive.
To be eligible for benefits under the Delaware Workers' Compensation Act, a claimant must prove that she sustained a personal injury "by accident arising out of and in the course of employment." The claimant has the burden of proving her claim by a preponderance of the evidence. "The determination of whether an injury arises out of and in the course of employment is highly factual, and is resolved under a totality of the circumstances analysis."
19 Del. C. § 2304, See also Spellman v. Christiana Care Health Servs., 74 A.3d at 623.
29 Del. C. § 10125(c) ("The burden of proof shall always be upon the applicant or proponent").
Spellman v. Christiana Care Health Servs., 74 A.3d at 623.
In Delaware, "in the course of employment" and "arising out of are two distinct elements, and "both must be shown to exist and conjoin in a given case." "'In the course of employment' refers to the time, place and circumstances of the [claimant's] injury, whereas 'arising out of the employment' refers to the origin and cause of the injury."
Tibbits v. United Parcel Serv., 2013 WL 1400864 at *2 (internal quotation marks omitted) (quoting Del. Transit Corp. v. Hamilton, 2001 WL 1448239, at *2 (Del. Super. Oct. 31, 2001)).
Spellman v. Christiana Care Health Servs., 74 A.3d at 623.
The first element (i.e., "in the course of employment") encompasses "those things that [a claimant] may reasonably do or be expected do to [sic] within a time during which [the claimant] is employed, and at a place where [the claimant] may reasonably be during that time." Thus, the injury "must have been caused in a time and place where it would be reasonable for the [claimant] to be under the circumstances."
Dravo Corp. v. Strosnider, 45 A.2d 542, 543-44 (Del. Super. 1945).
Rose v. Cadillac Fairview Shopping Ctr. Props. (Del.) Inc., 668 A.2d 782, 786 (Del. Super. 1995). See also Tibbits v. United Parcel Serv., 2013 WL 1400864 at *3 (noting that the parties did not dispute that a delivery driver experienced an onset of lower back pain while on his assigned delivery route); Lauria v. M.A.C., 2006 WL 1688118 at *2 (holding a cosmetics store employee's injuries from a physical confrontation in a mall food court while she was on break resulted from her "personal motivations," not her employment for the cosmetics store).
The second element (i.e., "arising out of" employment) encompasses "the origin of the accident and its cause." Specifically, "[t]here clearly must be shown a causal relation between the injury and the employment, and that the injury arose out of the nature, conditions, obligations or incidents of the employment, or that a connection exists between the employment and the injury, by which the employment was a substantially contributing, but not necessarily the sole or proximate, cause of the injury."
Stevens v. State, 802 A.2d 939, 945 (Del. Super. 2002) (citing Storm v. Karl-Mil, Inc., 460 A.2d 519, 521 (Del. 1983)).
Dravo Corp. v. Strosnider, 45 A.2d at 544. See also Lewicki v. New Castle Cty., 2006 WL 3307436, at *2 (Del. Nov. 15, 2006) (holding that although a choking incident occurred during the course of a claimant's employment, the incident did not arise out of the claimant's employment because a congenita! medical condition caused his injuries and he was not performing "any specific job requirements . . . that caused him to eat other than normally"); Brogan v. Value City Furniture, 2002 WL 499721, at (Del. Super. Mar. 27, 2002) (affirming a Board decision that a claimant's injuries were the result of a personally motivated attack that was unrelated to her employment); Lomascoh v. RAF Indus., 1994 WL 380989, at *2 (Del. Super. June 29, 1994) (finding a claimant was not injured "in the course of the employment" when he injured his knee while wrestling a co-worker because he acted in contravention of his employer's safety rules that prohibited horseplay).
In the instant case, the Board concluded that Appellant did not satisfy her burden of proving that "she sustained a right mid-back strain injury in a specific work incident on August 4, 2014." The Board's conclusion was based on Appellant's lack of credibility, documentary evidence contemporaneous to the date of the alleged work incident, and Appellant's medical expert's opinion, which depended on the veracity of Appellant's history and account of the alleged work incident.
Bd. Decision at 28.
A. The Board acted within its purview in finding that Appellant lacked credibility as to when, where, and how her back pain originated.
As to Appellant's (lack of) credibility, the Board found inconsistencies in Appellant's testimony concerning when her back pain originated, where her back pain was located, and how she was allegedly injured at work.
The Board found that Appellant's testimony concerning when her back pain originated was "ambiguous" and "ever-changing." Although Appellant testified before the Board that her back pain started at work on August 4, 2014 (the date of the alleged work incident), the Board credited Ms. McCaskill's testimony that Appellant reported that she had back pain and stiffness that started the previous night when she was at home, Mr. Varshney's testimony that Appellant reported that she had back spasms that happened the night before, and Ms. McCaskill's and Mr. Varshney's testimony that Appellant told them that her symptoms were not work-related.
Id. at 29.
The Board also credited Mr. Jonall's testimony that Appellant "changed her story" concerning whether she had prior back pain one day after the alleged work incident. According to Mr. Jonall's testimony and August 5, 2014 note in his "Associate Care Assessment Report for Injury or Illness," Appellant claimed that her back pain was work-related while she was at Amcare on August 5, 2014 and that she needed to complete the paperwork for a workers' compensation claim because she did not have health insurance to pay for a $5,000 CT scan.
The Board considered and rejected Appellant's testimony in which she denied telling Mr. Johall that she needed to make a workers' compensation claim because she did not have health insurance, that she has personal health insurance, and that her personal health insurance carrier has denied claims as a result of her workers' compensation claim. While it is true that 19 Del. C. § 2322F provides that an employee is "not entitled to seek compensation from any other health insurance carrier" for treatment for an injury or condition that is being paid under the Workers' Compensation Act, the issue in this case is whether Appellant sustained a mid-back injury in a specific work incident on August 4, 2014. It was within the Board's purview to find that Mr. Johall's testimony was credible and that his testimony explained the inconsistencies in Appellant's testimony.
Del. C. § 2322F(k)(3).
Additionally, the Board identified two "factors" that "point to a date of origin for her back pain prior to August 4, 2014": (1) Appellant's description of pain on the "Non-Occupational Complaint Report" form as "not constant" (which is "supportive of Employer's claim that [Appellant] had indicated the pain started the night before") and (2) Ms. McCaskill's "contemporaneous note" that Appellant "reported to Ms. McCaskill that she usually has back trouble and stiffness."
Id. at 30.
As to the "Non-Occupational Complaint Report" form that Appellant "filled out" on the date of the alleged work incident. Appellant did not dispute that the form indicated that her muscle spasms were not work-related, that "Non-Occupational Complaint" was written in large font, that she signed the form, and that the statement "[b]y signing below [she was] stating that the above-mentioned injury/illness is not work related" appeared in bold just above her signature on the form. Indeed, the Board noted that "not" was emphasized in all capital letters on the original form. The Board rejected Appellant's explanation that she was in a lot of pain when she completed the form and credited Ms. McCaskill's and Mr. Varshney's testimony that Appellant did not appear to be in significant pain at that time. The Board also noted that Appellant could have asked Ms. McCaskill for a different form to complete (i.e, the "Associate First Report of Injury" form) and that Appellant admitted that she does not recall specifically telling anyone that she injured herself at work while she was at Amcare.
Id.
As to Ms. McCaskill's "contemporaneous note" that Appellant reported that she usually has back trouble and stiffness, the note is documented in Ms. McCaskill's "Associate Care Assessment Report" and dated the same day as the alleged work incident. Moreover, Appellant testified that she told the Amcare representative (Ms. McCaskill) that she had experienced back stiffness before that date.
In addition, the Board found that Appellant was "confused" about the location of her back pain. According to Appellant's Petition to Determine Compensation Due, Appellant initially sought compensation for injuries to her low back and right hip. However, prior to the Board hearing, the parties stipulated that Appellant alleged that she had injured her mid-back. At the hearing, Appellant testified that her back pain was along her mid-back, and she did not dispute that she initially alleged low back and right hip injuries in her petition. Moreover, the Board credited Ms. McCaskill's testimony that Appellant instructed her to place an ice pack on Appellant's low back on August 4, 2014 and Mr. Johall's testimony that Appellant complained of right low back and flank area pain on August 5, 2014.
Id. at 31.
Furthermore, the Board found that Appellant gave "varied descriptions of how the work accident allegedly occurred." The Board determined that Appellant's testimony that her back pain "occurred while she was packing at work" was inconsistent with her medical records, which show that she reported to emergency room personnel that she was lifting boxes at work and that she indicated on Dr. Swaminathan's intake form that she "wrenched her back while packing and twisting."
Id. at 30.
Id. at 29, 30 - 31.
The Board considered Appellant's testimony that she did not complete Dr. Swaminathan's intake form and that she did not use the term "wrenched" to describe the work incident, however the Board credited Dr. Swaminathan's testimony that Appellant supplied that description of the work incident when she completed the form. Indeed, the Board noted that Appellant "could not remember exactly what she was doing" (i.e., lifting or twisting) at the time of the work incident when she testified before the Board, however alt of the Employer's witnesses testified that her job did not require repetitive twisting.
Id. at 29.
Moreover, during the Board hearing, a Board member questioned Appellant about whether there was a "specific incident" that caused Appellant's back spasms and she testified that there was not:
BOARD MEMBER: You are telling us that you don't know what happened to you, you started to have spasms?
APPELLANT: Yes.
BOARD MEMBER: When you were doing your usual activities at Amazon, there was not a specific incident, is that what it is?
APPELLANT: Yes, yes, sir.
Because the alleged work incident was unwitnessed, the Board noted that Appellant's credibility was implicated. As the trier of fact, the Board determines the credibility of witnesses, the appropriate weight to accord to a witness' testimony, and the reasonable inferences to be drawn therefrom. The Board's "findings of fact 'must be affirmed if supported by any evidence, even if the reviewing court thinks the evidence points the other way.'" Here, the Board specified several reasons for discrediting Appellant's version of events that are supported by the record. Credibility determinations "will not be disturbed absent a showing of unreasonable or capricious circumstances." Appellant has not shown that the Board acted unreasonably or capriciously in crediting the Employer's witnesses over her own.
Saunders v. DaimlerChryster, Corp., 2006 WL 390098, at *4 (Del. Feb, 17, 2006).
Wyatt v. Rescare Home Care, 81 A.3d at 1259 (quoting Steppi v. Conti Elec., Inc., 2010 WL 718012, at *3 (Del. Mar. 2, 2010)).
Reid v. ILC Holdings, Inc., 2010 WL 8250810, at *4 (Del. Super. Apr. 15, 2010) (quoting Hart v. Columbia Vending Serv., 1998 WL 281241, at *4 (Del. Super. May 1, 1998)).
B. The Board was free to reject Appellant's medical expert's opinion, which was dependent upon the veracity of Appellant's history and account of the alleged work incident.
Additionally, the Board rejected Dr. Swaminathan's opinion that the treatment he provided to Appellant for thoracic spine and rib pain was related to Appellant's work, The Board found that Dr. Swaminathan admitted that "he is relying on [Appellant's] representation to form his causation opinion," Appellant's "testimony [was] not credible," and, as such, "Dr. Swaminathan's opinion is not persuasive."
Bd. Decision at 33.
Under Delaware law, a treating physician's opinion "should be given substantial weight" based on the physician's "great familiarity with a patient's condition." However, the Board is free to accept or reject an expert's testimony in whole or in part. Accordingly, the Board may reject a medical expert's conclusion where it is largely based on the claimant's subjective complaints and the Board does not find the claimant to be credible. Moreover, "[although the Board is guided by medical evidence and testimony, 'it is the function of the Board, and not that of a physician, to determine a claimant's disability — subject to the requirement that the Board's findings be based on substantial competent evidence.'"
Jepsen v. Univ. of Del., 2003 WL 22139774, at *2 (Del. Super. Aug. 28, 2003).
Person-Gaines v. Pepco Holdings, Inc., 981 A.2d at 1161.
Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988). See also Regis v. DaimlerChrysler Corp., 2005 WL 535008, at *2 (Del. Feb. 14, 2005); Knowles v. A Greener Solution, LLC, 2011 WL 5554906, at *2 (Del. Super. Oct. 20, 2011) (finding that even though the Board "acknowledged that the doctors testified that the Appellant's acute back injury related to his work accident in March, 2010, both of these analyses depended upon the veracity of the Appellant's medical history and his account of the alleged accident" and the Board "simply did not believe the Appellant); Rash v. State of Del. (DHHCI), 2007 WL 2823331 at *3; Diaz v. Beneficial Nat'l Bank, 1997 WL 717768, at *4 (Del. Super. Nov. 6, 1997) ("The Board is permitted to rely on an appellant's lack of credibility when discounting the testimony of an appellant's physician because the physician's diagnosis and medical opinion are based upon the veracity of appellant's complaints").
Bromwell v. Chrysler LLC, 2010 WL 4513086, at *3 (Del. Super. Oct. 28, 2010) (quoting Poor Richard Inn v. Lister, 420 A.2d 178, 180 (Del. 1980)).
Here, the record shows that Appellant was referred to Dr. Swaminathan by ER personnel on August 4, 2014 and Dr. Swaminathan acknowledged that he saw Appellant for the first time ever on August 5, 2014. Dr. Swaminathan also testified that he relied on what Appellant told him to formulate his opinion and that his opinion was based, in part, on the medical history that Appellant reported to him.
According to Dr. Swaminathan, Appellant reported that she did not have any prior mid-back problems. However, the Board discredited Appellant's testimony that she did not have any prior mid-back problems and found that Appellant's mid-back pain originated prior to the date of the alleged work incident. Moreover, the Board found that "[s]imply because there are no medical records [to show that Appellant had any treatment for a mid-back problem] does not mean that [Appellant] did not have a prior history of back pain." As the Board noted, although Appellant testified that she "never had back problems," she also testified that her "back gets stiff and that her history of a stiff back was documented in Ms. McCaskill's contemporaneous report. Moreover, Appellant reported a sharp onset of pain to both medical experts, yet testified before the Board that the pain came on gradually. Thus, having determined that Appellant lacked credibility, the Board was free to reject Dr. Swaminathan's opinion, which was based on the information that Appellant reported to him.
Bd. Decision at 32.
Furthermore, the medical experts' opinions "pertain to causation, not to the occurrence of a compensable event." Neither Dr. Swaminathan nor Dr. Stephens testified that a work accident or injury occurred. The experts concurred that the objective medical tests (i.e., the CT scan, one day after the alleged work incident, and the MRI of Appellant's thoracic spine approximately one month after) did not establish that Appellant suffered a work-related injury on August 4, 2014. Although Dr. Swaminathan testified that spasms are an objective finding, he also testified that he has seen patients who experience back spasms without acute injury and that back spasms can come from acute or non-acute problems that are work-related or non work-related. The Board noted that the Employer's medical expert (Dr. Stephens) testified that he agreed with Dr. Swaminathan that back spasms "don't necessarily occur with an acute injury." The Board also noted the Employer's medical expert testified that there was no independent evidence that Appellant sustained a work-related injury or condition. The law is clear that "[i]t is within the Board's sole province[] to weigh all evidence, make decisions concerning the credibility of lay and medical witnesses and apportion the appropriate weight that should be accorded to each." II. Because the Board found that Appellant did not meet her burden of proving that she sustained a mid-back injury in a specific work incident on August 4, 2014, the Board was not required to address whether her alleged injury was an aggravation of a preexisting condition that would not have occurred but for the alleged incident.
Proffitt v. State, 1998 WL 960760, at *4 (Del. Super. Sept. 21, 1998).
Bd. Decision at 26. See also Dr. Stephens' Dep. at 25.
Adams v. Nabisco, 1995 WL 653435, at *4 (Del. Super. Sept. 29, 1995).
Under Delaware law, there are two standards of causation that apply to workers' compensation cases. The "but for" standard applies to injuries that result from "specific and identifiable industrial accidents." The "substantial factor" standard, which is also known as the "usual exertion rule," applies to injuries "arising out of the ordinary stress and strain of employment." In some decisions, the Board has cited both standards of causation. However, the "threshold question, which the Board addressed, is whether a workplace injury or accident occurred." A claimant must show a causal relationship between the claimant's work and his or her injury.
Reese v. Home Budget Ctr., 619 A.2d 907, 911 (Del. 1992).
Id. See also State v. Steen, 719 A.2d 930, 935 (Del. 1998) ("The substantial factor standard of proximate cause permits the employee to recover in the absence of an identifiable accident, notwithstanding a pre-existing condition").
See, e.g., Sommers v. New Castle Cty., 2013 WL 3488154 at *2 (holding that "even if the [Board] erred by not choosing which test - the 'but for' or the 'substantial factor' test - was applicable, the error was harmless, because under either test the [Board] found that [the claimant] had not established causation for his cardiac injuries") (emphasis in original); Winterthur Museum, Inc. v. Mowbray, 2006 WL 1454813, at *2 (Del. Super. May 12, 2006) (noting that the Board found that a claimant who alleged that he developed a sudden onset of arm and hand pain while lifting a box at work was required to demonstrate either that he would not have sustained the injury but for his work activities or that the cumulative detrimental effect of his work activities caused his injury).
Proffitt v. State, 1998 WL 960760 at *4.
Hoffecker v. Lexus of Wilm., 2012 WL 341714 at * 2 (finding that although the Board cited the incorrect standard of causation, "any error is harmless because . . . the Board found that [the claimant] did not meet his burden in showing any causal relationship between his work and his back injury").
Under the "but for" standard, if a claimant "had a preexisting disposition to a certain physical or emotional injury which had not manifested itself prior to the time of the accident, an injury attributable to the accident is compensable if the injury would not have occurred but for the accident." The law is clear that a "preexisting disease or infirmity, whether overt or latent, does not disqualify a claim for workers' compensation if the employment aggravated, accelerated, or in combination with the infirmity produced the disability."
Reese v. Home Budget Ctr., 619 A.2d at 910.
Id.
Under the "substantial factor" standard, irrespective of whether a claimant has a preexisting condition, "an injury is compensable if the ordinary stress and strain of employment is a substantial cause of the injury." This is so because "[t]here is a causal connection between the unexpected injury and the work effort which produced it" and the causal connection "is as much a form of accident as any other to be encountered in the workplace, and should not be a basis for denial of compensation." The "substantial factor" standard is applied "to determine whether the usual conditions of employment provided the causative nexus for compensability only in the absence of an industrial accident 'because of the difficulty of identifying a specific link between regular job-related duties and the aggravation of preexisting ailments.'"
Duvall v. Charles Cornell Roofing, 564 A.2d 1132, 1136 (Del. 1989),
State v. Steen, 719 A.2d 930 at 933 (quoting Reese v. Home Budget Ctr., 619 A.2d at 911) (holding that although the claimant had been diagnosed with a pre-existing condition prior to spraining his back while performing his routine duties, the pre-existing condition was asymptomatic until triggered by stress and, thus, claimant was improperly denied benefits).
Duvall v. Charles Connell Roofing, 564 A.2d at 1135.
The Delaware Supreme Court has held that where a claimant has a preexisting condition, "Reese provides a more permissive standard" than the "substantial factor" standard because it provides that "causation may be satisfied '[i]f the accident provides the 'setting' or 'trigger'" and does not "require that the work-related incident be the 'sole cause' or 'substantial cause' of injury."
Hoffecker v. Lexus of Wilm., 2012 WL 341714, at * 2 (Del. Feb, 1, 2012) (quoting Reese v. Home Budget Ctr., 619 A.3d at 910).
In the instant case. Appellant does not dispute that the Board "correctly cited the 'but-for' standard of causation articulated in Reese." However, Appellant contends that the Board should have addressed whether her injury "was an aggravation of her preexisting back condition that would not have occurred when it did but for the work accident" and that "the evidence clearly establishes that [Appellant's] work accident aggravated her (assumed) preexisting back condition." Furthermore, Appellant does not claim that the Board erred by not citing the "substantial factor" standard or that any ordinary stress and strain of her work for the Employer is a substantial cause of her injury.
Opening Br. at 28.
Id. at 29.
Hoffecker v. Lexus of Wilm., 2012 WL 341714 at * 2 (noting that the claimant "claimed that the continued strain of his work as a Lexus mechanic was a substantial factor in causing his low back injury" and that he "did not identify any particular incident that caused his back injury or exacerbated an existing injury").
Here, the Board denied Appellant's Petition because it found that Appellant had not shown a causal relationship between her work and her injury. The Board concluded that Appellant did not meet her burden of proving that she sustained a mid-back injury from a specific and identifiable work incident on August 4, 2014. Unlike in Reese, where the parties acknowledged that an industrial accident had occurred, the parties in this case disputed whether Appellant was injured from an incident related to her work. The Board did not find Appellant's testimony that her back symptoms started at work on August 4, 2014 persuasive and cited Appellant's initial report wherein she explained that her symptoms were unrelated to her work (and began at home the night before). Additionally, although Appellant told ER personnel (on the date of the alleged work incident) and Dr. Swaminathan (one day after the alleged work incident) that she believed her symptoms were work-related. Dr. Swaminathan did not note that Appellant sustained a work-related injury when he first saw Appellant on August 5, 2014, he did not bill or "use[] the Workers' Compensation guidelines generated paperwork" until nearly one week after he started treating Appellant, and he prepared Appellant's August 5, 2014 disability note on an in-house form, not the standard workers' compensation form. As noted above, Dr. Swaminathan did not testify that a work accident or incident actually occurred.
Reese v. Home Budget Ctr., 619 A.2d at 910.
See Hoffecker v. Lexus of Wilm., 2012 WL 341714 at * 1 (noting the claimant's treating physician did not perform the initial evaluation under the workers' compensation guidelines and completed a short-term disability form indicating that the injury was not work-related).
Moreover, the Board noted that Appellant "maintains that even if she did have a pre-existing condition this does not prevent recovery here" and that Appellant "is correct insofar as the principle, just not its application to this case." Appellant does not claim that she has a preexisting back condition. Indeed, Appellant denied any spasms the night before (although she did initially say that the pain started the night before). Appellant's assertion that the Board erroneously applied the but for standard is predicated upon a hypothetical preexisting condition that was already addressed by the Board.
Bd. Decision at 32.
Here, Appellant is unable to point to a specific work-related event and Appellant does not assert that her work was a substantial factor in bringing about her back symptoms. Thus, because there was "no compensable event, the issue of cause is moot." Absent a work-related accident or incident, the Board was not required to address whether the Appellant's mid-back pain would not have occurred but for an alleged accident or incident.
Proffitt v. State, 1998 WL 960760 at *4. --------
Conclusion
Appellant had the burden of establishing by a preponderance of the evidence that she was entitled to compensation for a work injury that occurred on August 4, 2014. The Board concluded that Appellant did not meet her burden of proving that she sustained a mid-back injury in a specific work accident on August 4, 2014. In reaching its conclusion, the Board did not abuse its discretion by crediting the Employer's witnesses' testimony and discrediting Appellant's testimony as to when, where, and how her back pain originated. Moreover, the Board was free to reject Appellant's medical expert's opinion because his opinion depended on the veracity of Appellant's history and her account of the alleged work incident.
Once the Board determined that Appellant had not met her burden of proving that she sustained a mid-back injury from a specific and identifiable work accident, as she alleged, the Board was not required to address whether her alleged injury was an aggravation of a preexisting condition and whether that alleged injury would not have occurred but for the alleged work accident under Reese.
The Board's decision to deny Appellant's Petition to Determine Compensation Due is supported by substantial evidence in the record and is free from legal error. ACCORDINGLY, the Board's decision is hereby AFFIRMED.
IT IS SO ORDERED.
/s/_________
Diane Clarke Streett
Judge Original to Prothonotary cc: Walter F. Schmittinger, Esquire
Kyle F. Dunkle, Esquire
John J. Ellis, Esquire
See Tr. of Bd. Hr'g at 53 - 54.