Opinion
C.A. No. 06A-11-002 PLA.
Submitted: June 13, 2007.
Decided: September 21, 2007.
ON APPEAL FROM THE INDUSTRIAL ACCIDENT BOARD, AFFIRMED.
Joseph W. Weik, Esquire, WEIK, NITSCHE, DOUGHERTY COMPONOVO, Attorney for Kirsten Opalach.
Scott A. Simpson, Esquire, ELZUFON, AUSTIN, REARDON, TARLOV MONDELL, P.A., Attorney for Diagnostic Imaging.
I. Introduction
Kirsten M. Opalach ("Opalach") sustained a compensable work injury on March 29, 2000 while working at Diagnostic Imaging, P.A. ("Diagnostic"). On February 13, 2006, Opalach filed a Petition to Determine Additional Compensation Due seeking payment of outstanding medical expenses in the amount of $8,365.00, costs she incurred as a result of treatment with Dr. Jeffrey West, D.C., from 2004 through 2006. The Board denied Opalach's petition in its October 30, 2006 decision. Opalach filed a timely appeal seeking to have this court reverse the Board's decision.
The Court concludes that the Board's decision finding Opalach's treatment with Dr. West was not causally related to her 2000 compensable work injury is supported by substantial evidence. Accordingly, the Board's decision is AFFIRMED.
II. Statement of Facts A. Opalach's Treatment with Dr. West
Kirsten Opalach began working for Diagnostic Imaging as a "sonographer" or ultrasound technician in 1998. Opalach's duties included performing ultrasounds for patients in which she had to manipulate a transducer over the patient's body in a constant fashion. Opalach typically performed six to ten scans per day, and each scan lasted approximately twenty minutes to an hour.
Docket 3 (Board Decision), p. 2; Docket 5, p. 2; Docket 7, p. 3.
In November 1999, Opalach began experiencing pain in her fingertips that spread to her shoulder. Within a few weeks, the pain spread from her fingertips to her neck. Her arms cramped and caused her pain, making it difficult for her to sleep. As a result, Opalach underwent physical therapy from November 1999 through February 2000. Opalach eventually ceased working for Diagnostic Imaging in March 2000.
After visiting her family doctor, Opalach met with Dr. Jeffrey West, a chiropractor, who diagnosed her condition as thoracic outlet syndrome. Opalach underwent two more years of treatment. Because the treatment was unsuccessful, Opalach underwent surgery in October 2001 to remove her first rib and the muscles connected to it.
At the hearing, Dr. West explained that "the thoracic outlet starts where the nerve bundle exits the cervical spine, goes through the scalene musculature, meets with the vascular nerve bundle, goes over the first rib and under the pectoralis minor tendon, and then goes down the arm. The thoracic outlet can be affected by a combination of or all of these areas." Docket 3, p. 5-6 n. 1.
Docket 3, p. 3-4; Docket 5, p. 3; Docket 7, p. 4.
Following her neck surgery, Opalach was disabled for twelve weeks. Upon recovery, Opalach worked part time at Christiana Care in May 2001 as a sonographer. After returning to work, Opalach began experiencing pain in her neck and into her head. Opalach left work at Christiana Care in February 2002 due to the pain.
Opalach underwent more physical therapy, receiving about six months' treatment over two years, none of which alleviated her neck and back pain. Opalach then met with Dr. Sommers, a neurologist, who treated her with Neurontin and occipital nerve blocks in March or April 2002.
Docket 3, p. 3; Docket 5, p. 4.
Because these treatments failed to alleviate her pain completely, Opalach met with Dr. West again on January 8, 2004. Opalach complained of neck pain and spasms in her shoulder and in the side of her neck at the surgical site that would spread to the back of her head. Dr. West examined Opalach and found cervical tightness in her cervical lumbar musculature and weakness in her cervical spine. The exam also revealed that Opalach had carpal tunnel syndrome irritation in the right wrist. Thoracic outlet testing, however, was negative.
Docket 3, p. 5-6; Docket 7, p. 5-6.
After his examination, Dr. West performed manipulations on Opalach's right shoulder, arm and neck, which provided Opalach's first relief since her surgery. Dr. West also treated Opalach for her low back injury. Opalach saw Dr. West regularly in 2005 and 2006 for these manipulations but now visits on an as-needed basis about two to three times a month if she gets a spasm in the neck area.
Docket 3, p. 3-4; Docket 5, p. 4.
B. Opalach's Medical History
In addition to her work incident, Opalach has an extensive medical history. In 1995, Opalach was diagnosed with fibromyalgia which caused her pain in the joints in her knees, ankles, elbows, and wrists, and occasionally her lower back. Dr. Rocca treated her with muscle relaxers and anti-inflammatories, which resolved her pain within a year. In 1996, Opalach was diagnosed with "frozen shoulder" by Dr. Cohen, but after treatment, her pain disappeared. In 1998, Opalach fell on ice and herniated a disc in her lower back, though Opalach denies having any neck or cervical complaints as a result of that fall. Before November 1999, Opalach had no right arm problems other than bursitis in her elbow.C. Dr. Varipapa's Examinations of Opalach
Dr. Robert J. Varipapa, a neurologist, examined Opalach on behalf of Diagnostic on at least four occasions from 2002 through 2006. Throughout his examinations, Dr. Varipapa found normal range of motion, no spasms, normal motor function, and normal sensory and reflex function. He diagnosed her with "right upper extremity difficulty status post scalenectomy and rib resection; and transient left-sided facial numbness, upper extremity paresthesias that resolved."Dr. Varipapa also believed that her right upper extremity difficulties were related to her work, but he felt that Opalach had reached maximum medical improvement and that no further medical treatment was needed. In support of this conclusion, Dr. Varipapa noted that a 2001 MRI of her cervical spine and an MRI of her brain were normal. A March 2000 EMG also indicated no evidence of neurogenic thoracic outlet syndrome. His tests indicated that Opalach had good cervical and shoulder range of motion, no muscle spasm or pain on maneuvers, and a normal neurologic examination.
Id., p. 10-11.
Id., p. 8-9.
Moreover, because of Opalach's extensive medical history, he could not say whether the March 2000 incident caused a defined injury. Dr. Varipapa concluded that her complaints were more consistent with fibromyalgia than with thoracic outlet syndrome. Specifically, Dr. Varipapa noted that Opalach had lumbar disc problems related to a slip and fall in 1998. Opalach also complained of neck and right arm pain in 1996 and again in early 1999. A March 15, 1999 MRI of Opalach's thoracic and cervical spine was normal. Though the MRI of the cervical spine showed some degenerative disease, there was no evidence of disc herniation, nerve impingement, or spinal cord involvement from a bone spur or other derangement. Dr. Varipapa also noted that Opalach's post-surgery evaluation was objectively normal despite her symptoms.
Id
Id., p. 9.
D. Procedural Posture
On or about March 6, 2002, Opalach filed a Petition to Determine Compensation Due against Diagnostic, alleging that she sustained a compensable work injury on or about March 29, 2000. Specifically, Opalach alleged that she sustained thoracic outlet syndrome in her right arm as a result of the cumulative effect of holding an ultrasound device above patients for an extended period of time.Opalach and Diagnostic entered into Agreements as to Compensation for limited periods of total disability from March 29, 2000 through April 27, 2000, and from October 24, 2001 through January 11, 2002. They also entered into an Agreement as to Compensation for ongoing partial disability beginning February 28, 2002. Again, the only injury listed was thoracic outlet syndrome. In January 2003, Opalach filed a petition seeking compensation for a thirty percent impairment to her right upper extremity. Diagnostic agreed to the petition in September 2003.
Docket 7, Ex. A.
Id., Ex. B.
Id., Ex. C.
In September 2004, the parties agreed that Diagnostic would pay Opalach a lump sum of $30,000.00 in exchange for a commutation of Opalach's remaining benefits to which she was entitled under 19 Del. C. § 2325. The Board approved the commutation settlement for partial disability on September 14, 2004.
Section 2325 states, in pertinent part:
For injuries resulting in partial disability for work, . . . the compensation to be paid shall be 66 2/3 percent of the difference between the wages received by the injured employee before the injury and the earning power of the employee thereafter. . . . This compensation shall be paid during the period of such partial disability for work, not, however, beyond 300 weeks.
19 Del. C. § 2325.
Docket 7, Ex. D.
On or about February 13, 2006, Opalach filed a Petition to Determine Additional Compensation Due, seeking payment of her medical expenses owed to Dr. West in the amount of $8,365.00. The Board held a hearing on October 4, 2006 to address Opalach's petition.
E. The Board's Decision
On October 30, 2006, the Board issued its decision. Despite finding that this was a "close case," the Board found that the doubts raised by Dr. Varipapa outweighed Opalach's evidence that her treatment with Dr. West from 2004 through 2006 was causally related to her 2000 work-related injury of thoracic outlet syndrome. The Board ultimately accepted Dr. Varipapa's opinion that Opalach's neck complaints were not related to her thoracic outlet problem because "thoracic outlet affects the nerves after they come out of the cervical region and into the shoulder, thus affecting the muscles lateral to the neck and in the shoulder region." Because Opalach reported relief for her arm after her 2001 surgery, the Board also accepted Dr. Varipapa's opinion that her work-related injury reached maximum medical improvement and thus did not require further treatment. As a result, he did not believe that Dr. West's treatment was reasonable, necessary or related to her work incident.
Docket 3, p. 15.
Id., p. 11.
Dr. Varipapa did note that it was reasonable for Opalach to continue seeing Dr. West because she stated that his treatment helped her symptoms. He questioned, however, whether it was medically necessary, comparing it to "getting a massage." He also stated that Dr. West's care addressed Opalach's symptoms but did not improve her condition. Id., p. 12-13.
In rejecting Dr. West's testimony, the Board found that Dr. West's treatment addressed many different problems, other than just thoracic outlet syndrome of the right upper extremity. Moreover, the Board noted that Opalach's extensive medical history involved many of the same complaints, including neck, right arm, and low back pain. Dr. West could also offer no explanation as to how Opalach developed cervical problems from her work as a sonographer, whereas Dr. Varipapa thought it unlikely her work would cause her injuries. The Board also noted that during the entire two years of intense evaluation and treatment, Opalach was never diagnosed with a cervical spine problem before her surgery, thus raising doubt as to whether her current problems are work-related. Finally, the Board found Dr. West's billing statement and testimony unclear as to what, if any, specific treatment he performed to Opalach's right upper extremity.
III. Parties' Contentions
Opalach has now appealed the Board's decision. Opalach argues that the Board's decision lacked substantial evidence supporting a finding that her neck complaints were not causally related to her compensable work injury. She submits that Dr. West's treatment was in the exact area where she had her surgical operation, thus indicating a causal connection. Opalach further submits that the Board erred when it accepted Dr. Varipapa's opinion because he was unaware of what type of treatment Dr. West offered Opalach, and there was no documentation of treatment from February 1996 through February 2000 for her injuries.In response, Diagnostic argues that the Board's decision is supported by substantial evidence. Diagnostic submits that Dr. Varipapa's review of Opalach's medical records support his finding that Opalach's complaints after her work incident were similar to her previous complaints before the surgery. Diagnostic also points out that Dr. Varipapa's objective medical findings show that her test results were normal, including her MRIs and EMGs. Finally, Diagnostic argues that Dr. Varipapa found that Opalach had reached maximum medical improvement and no further treatment was needed after her surgery.
IV. Standard of Review
Appellate review of an IAB decision is limited. The Court's function "is confined to ensuring that the Board made no errors of law and determining whether there is `substantial evidence' to support the Board's factual findings." Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The Court "does not weigh the evidence, determine questions of credibility, or make its own factual findings." The "substantial evidence" standard means "more than a scintilla but less than a preponderance of the evidence." The Court must also give "a significant degree of deference to the Board's factual conclusions and its application of those conclusions to the appropriate legal standards." In reviewing the evidence, the Court must consider the record "in the light most favorable to the prevailing party below." The Court reviews questions of law de novo to determine "whether the Board erred in formulating or applying legal precepts."V. Analysis
When an employee sustains an injury on the job, the employer is required to pay her reasonable medical expenses. "If a physician directs a patient to undergo treatment which turns out not to be reasonable or necessary to treat a compensable injury, or if the injury being appropriately treated is not causally related to the industrial accident," the employer is not required to pay these expenses.To recover medical expenses related to a compensable work accident, the claimant must offer evidence that "(a) he has incurred medical expenses, (b) such expenses are attributable to a work-related injury and (c) the employer has not paid such expenses as required by 19 Del. C. § 2322." "Whether medical services are necessary and reasonable or whether the expenses are incurred to treat a condition causally related to an industrial accident are purely factual issue [sic] within the purview of the Board." The claimant has the burden of establishing a causal connection between her work-related injury and the physician's treatment. Moreover, where the medical testimony is in conflict, the Board, as the trier of fact, may accept one expert opinion and reject the other so long as there is substantial evidence supporting both conclusions.
Guy J. Johnson Transp. Co. v. Dunkle, 541 A.2d 551, 553 (Del. 1988) (citing 19 Del. C. § 2322).
Bullock, 1995 WL 339025 at *5.
West v. Wal-Mart, Inc., 2006 WL 1148759, at *5 (Del.Super.Ct. Mar. 31, 2006).
DiSabatino Bros. v. Wortman, 453 A.2d 102, 106 (Del. 1982); see also Adams v. F. Schumacher and Co., Inc., 886 A.2d 1277, at *2 (Del. 2005) (Table) ("When there are conflicting expert testimonies, the Board is free to choose to accept one and reject the other."); Reese v. Home Budget Ctr., 619 A.2d 907, 910 (Del. 1992) ("The Board, of course, was free to choose between the conflicting diagnoses of [two medical experts] and either opinion would constitute substantial evidence for purposes of appeal.").
In this case, the only issue in dispute is whether Dr. West's treatment from January 2004 through May 2006 was causally related to Opalach's March 2000 work injury and thus compensable. After reviewing the record, the Court finds that the Board did not err by accepting Dr. Varipapa's opinion that Dr. West's treatment was not causally related to the claimant's compensable work injury, as that conclusion is supported by substantial evidence. To be sure, Dr. West's opinion that his treatment was causally related to Opalach's March 2000 work incident is in fact supported by substantial evidence since the treatment did provide Opalach with some relief. Dr. Varipapa's opinion that Dr. West's treatment was not causally related to her work incident is likewise supported by substantial evidence because he testified that Opalach had normal tests, her MRIs showed no signs of thoracic outlet syndrome, she had reached maximum medical improvement, and her complaints, combined with her medical history, suggested that her pain was related to fibromyalgia. Because the medical testimony was conflicting and since both opinions were supported by substantial evidence, the Board was free to accept Dr. Varipapa's opinions and reject Dr. West's opinions if it found his opinions more persuasive. Here, the Board found Dr. Varipapa's opinions more persuasive.
DiSabatino Bros., 453 A.2d at 106.
See Clements v. Diamond State Port Co., 831 A.2d 870, 877 (Del. 2003) (affirming the Board's decision to accept one doctor's opinion over another's because the Board "set forth the factual basis for its conclusion" with factual findings "supported by the record").
Moreover, the Court finds that there is substantial evidence in the record to support the Board's decision that Dr. West's treatment was not causally related to Opalach's work incident. Dr. Varipapa, a neurologist, who examined Opalach on at least four occasions from 2002 through 2006, found that Opalach had normal range of motion, no spasms, normal motor function, and normal sensory and reflex function. Her 2001 MRIs and 2000 EMG indicated no evidence of thoracic outlet syndrome. Dr. Varipapa determined, based on his objective findings, that Opalach had reached maximum medical improvement, and no further medical treatment was needed. He believed that her complaints were consistent with a fibromyalgia-type condition, especially since her medical history indicated that she had complained of pain in her neck and right shoulder. He also stated that Opalach's complaints were similar to those she had before her work incident, and that, in his opinion, her work did not aggravate any of her preexisting conditions. Thus, the Board had substantial evidence with which to accept Dr. Varipapa's opinion.
Docket 3, p. 12. Dr. Varipapa admitted on cross-examination that it was possible to have a normal EMG and still have thoracic outlet syndrome. He opined, however, that there was no relationship between her injury and her pain because it was "possible but unlikely for repetitive use of the ultrasound machine to cause a cervical sprain/strain injury." Id., p. 12.
Id., p. 13.
Furthermore, the Board's decision to reject Dr. West's opinion is supported by the record. When he performed thoracic testing in 2004, the results were negative, suggesting that his treatment did not address thoracic outlet syndrome. In his bills, Dr. West listed treatments for cervical disc degeneration, cervical radiculopathy, cervical brachial syndrome, and cervical myofascitis on his bill rather than treatments for the right upper extremity. Though Dr. West stated that these treatments were related to Opalach's thoracic outlet syndrome, Dr. Varipapa did not agree, opining instead that treatment to the cervical spine could not be related to this condition. Dr. West also did not examine Opalach between 2000 and 2004, whereas Dr. Varipapa had and recorded his objective findings.
The record reflects that the Board properly considered all of the record evidence before determining that Dr. West's treatment was not causally related to her compensable injury. The Board noted that this was a "close case" but found Dr. Varipapa's findings more persuasive based on his objective findings, his examinations of Opalach, his interpretation of her medical history, and the vagueness of Dr. West's testimony. Because there were conflicts in the medical testimony, the Board was free to accept the testimony of Dr. Varipapa and reject the testimony of Dr. West. As a result, the Court finds that the Board's decision is supported by substantial evidence.
VI. Conclusion
Based on the foregoing, the Court finds that the Board's decision that Dr. West's treatment from 2004 through 2006 was not causally related to her March 2000 work incident is supported by substantial evidence. Accordingly, the Board's decision is AFFIRMED.
IT IS SO ORDERED.
Original to Prothonotary