Opinion
C.A. 03A-04-013-PLA, IAB No. 1199754 1218972.
Submitted: January 23, 2004.
Decided: May 11, 2004.
UPON APPEAL FROM A DECISION OF THE INDUSTRIAL ACCIDENT BOARD AFFIRMED.
Robert H. Richter, Esquire, Elzufon Austin Reardon Tarlov Mondell, P.A., Wilmington, Delaware, Attorney for Turulski Custom Woodworking, Employer-Below/Appellant.
Jessica L. Julian, Esquire, Marshall, Dennehey, Warner, Coleman Goggin, Wilmington, Delaware, Attorney for Sun Dog Cabinetry, Employer-Below/Appellee.
Kenneth F. Carmine, Esquire, Potter, Carmine, Leonard Aaronson, P.A., Wilmington, Delaware, Attorney for Employee-Below/Appellee.
ORDER
Employer, Turulski Custom Woodworking ("Employer/Appellant" or "Turulski"), has appealed from the March 26, 2003 decision of the Industrial Accident Board of the State of Delaware ("IAB" or "Board") awarding disability compensation benefits, medical witness fees, and attorney's fees to claimant, John Bleacher ("Employee/Appellee" or "Claimant"). The only portion of the Board's decision which is being appealed, is that portion of the decision which found that Turulski was liable for the compensation benefits awarded to the Claimant, rather than finding liability on the part of Claimant's previous employer, Sun Dog Cabinetry ("Employer/Appellee" or "Sun Dog"). Neither employer disputed that Claimant was entitled to the awarded benefits as a result of an injury he sustained on July 30, 2002 while working for Turulski. Hence, the sole question presented on appeal is whether Turulski, Claimant's employer at the time of his work injury, or Sun Dog, Claimant's previous employer, is liable for payment of the awarded compensation benefits predicated upon whether Claimant's injury was a "recurrence" or an "aggravation" under Delaware law. Because the Board found that Claimant suffered a compensable "aggravation" of a previously asymptomatic lower back condition, directly caused by an "untoward" or "intervening" event while working for Turulski, the Board held Turulski liable for compensating the Claimant. For the reasons set forth hereafter, this Court affirms the Board's decision.
Facts
In the fall of 2001, Claimant commenced his employment with Turulski as a cabinetmaker and countertop fabricator. His duties entailed cutting wood, manufacturing countertops, and fabricating cabinets. Claimant testified that his job consisted of approximately seventy percent fabrication and thirty percent installation. On July 30, 2002, Claimant and two co-workers were moving a large custom wall unit into a home for installation. After moving the wall unit into the home, Claimant and his coworkers experienced difficulty in manipulating the wall unit to fit properly in the designated opening of the homeowner's wall. While in the process of struggling with the installation and positioning of the wall unit, Claimant injured himself. He testified that he felt a sharp pain in his lower back, and that within one half hour, the pain radiated to his lower buttocks. Claimant also testified that the pain he experienced was similar to the pain he experienced on two earlier occasions in work-related injuries, in December 2000 and in July 2001, both times while employed with Sun Dog.
Board Hearing Transcript, dated March 12, 2003, at 25 (hereinafter "Bd. Hr'g Tr. at ___.").
Bd. Hr'g Tr. at 15.
Bd. Hr'g Tr. at 16.
Claimant has a history of lower back injuries and commensurate surgeries. In 1996, while working for Alura Cabinetry, Claimant sustained an injury to his lower back at the level of left L5-S1 lumbar disk. Dr. Argiers operated on the Claimant on December 10, 1996 to relieve the injured disk, and he returned to work shortly thereafter. In 2000, Claimant injured his lower back area again, this time while in the employ of Sun Dog. On January 25, 2001, Dr. Argiers performed surgery to correct the damage sustained by the injury on Claimant's right L4-L5 lumbar disk. Claimant returned to work for Sun Dog in the beginning of April 2001. On July 11, 2001, while still employed with Sun Dog, he was again involved in a work-related injury. In this instance, the injury was located at the right L4-L5 lumbar disk region, involving the same disk that had been operated on in January 2001. The two surgeries performed by Dr. Argiers in 2001 were a right laminectomy and a diskectomy. Claimant underwent his third corrective lower back surgery on August 18, 2001. After a recuperative period, Claimant returned to work for Sun Dog on or about September 17, 2001 without any restrictions. At some time in November 2001, Claimant began working for Turulski.
Bd. Hr'g Tr. at 39-40.
Bd. Hr'g Tr. at 9-14.
Approximately six days after Claimant sustained his latest injury on July 30, 2002, Claimant testified that he experienced pain in his lower back that radiated down to his knee, and numbness in his foot. At first, uncertain of the extent of his injury, Claimant realized after a few days that his condition could be linked to another herniated disk. He sought treatment from his family physician, Dr. Fiero, who recommended that he undergo an MRI. After reviewing the test results from Claimant's August 2002 MRI, indicating a disk herniation, Dr. Fiero sent Claimant for further treatment with a neurosurgeon, Dr. Otto Medinilla.
Bd. Hr'g Tr. at 16.
Claimant first visited Dr. Medinilla's office on August 30, 2002. Based on Claimant's MRI results, Dr. Medinilla found that Claimant had a right disk herniation at L4-L5, and that scar tissue, coupled with a bulge, were present at L5-S1. Dr. Medinilla also noted the prior surgeries to the L4-L5 region, in which only part of the disk was removed. Upon examination of the Claimant, it was Dr. Medinilla's opinion that the two previous surgeries performed by Dr. Argiers on the Claimant in 2001 at the L4-L5 level involved a right laminectomy and a diskectomy, in which Dr. Argiers removed part of the disk. On September 16, 2002, Dr. Medinilla performed a lumbar laminectomy, a diskectomy, and a lysis of adhesions on the Claimant to remove the offending disk and relieve Claimant's pain. It was Dr. Medinilla's further opinion that the adhesions, which were the result of previous surgeries in the area, were a normal finding given the nature of the previous surgeries, and would not have been expected to cause additional symptoms before Claimant's July 30, 2002 work accident. The operation was successful as it relieved nerve impingement symptoms. Claimant's full range of motion and reflex function returned after surgery. On October 21, 2002, after a month's recovery, Claimant was permitted to return to work with restrictions prohibiting him from lifting more than thirty pounds for the first month. On December 5, 2002, Dr. Medinilla released the Claimant to return to work without any restrictions.
Bd. Hr'g Tr. at 38-43.
Bd. Hr'g Tr. at 45.
On October 13, 2002, with respect to the work injury sustained on July 11, 2001, Claimant filed a Petition to Determine Additional Compensation Due to Injured Employee against Sun Dog, as employer (IAB #1199754), wherein he sought compensation based on "recurrence of total disability benefits pursuant to 19 Del. C. § 2324" (compensation for total disability) for the period(s) commencing "August 12, 2002 to August 20, 2002," and "August 24, 2002 and ongoing." In the same petition, Claimant sought reimbursement for medical expenses and bills, expert witness fees, and attorney fees, alleging a causal relationship between the July 11, 2001 injury and the August 6, 2002 work accident.
In his original petition, Claimant erroneously reported August 6, 2002 as the date of his work injury, but the petition was later amended to reflect the correct date of July 30, 2002.
On this same date, with respect to the work injury sustained on July 30, 2002, Claimant filed a Petition to Determine Additional Compensation Due to Injured Employee against Turulski, as employer (IAB #1218972), representing that Claimant and Turulski had failed to reach an agreement regarding compensation due and requested a hearing before the Board for determination of Claimant's claim. Also accompanying the petition, Claimant filed a Statement of Facts Upon Failure to Reach an Agreement, wherein he alleged, among other things, that he had not recovered from his injuries suffered on July 30, 2002, that he had not resumed work, and that it was undetermined how long he might be incapacitated and unable to return to his occupation. Upon submission of both petitions, counsel for Claimant requested that the Board consider both work-related incidents, alleging the July 30, 2002 onset.
Bd. Hr'g Tr. at 3.
Procedural History
At the March 12, 2003 hearing before the Board, both Sun Dog and Turulski stipulated to the closed period of total disability of nine weeks and four days from August 12, 2002 until August 20, 2002, and from August 24, 2002 through October 20, 2002. Both parties also acknowledged that all the medical treatment and expenses associated with Claimant's latest injury were reasonable, necessary and related. The only matter upon which the parties could not agree was who should be held liable for paying Claimant's compensation benefits. As the Board stated in its decision, "[t]he crux of this dispute is between Sun Dog and Turulski. They each allege the other should foot the bill for Claimant's injury." At the hearing, Turulski argued that the Claimant sustained a "reaggravation" of the injury he suffered while employed previously with Sun Dog. In contrast, Sun Dog alleged that the Claimant sustained either a "new injury" or experienced an "untoward event," which precipitated his current medical condition.At the Board hearing, Dr. Medinilla was asked to consider the nature and circumstances surrounding the Claimant's July 30, 2002 injury, his medical observations at the time of the September 16, 2002 surgery that he performed on the Claimant, his review of Claimant's MRI results, and his evaluation of Dr. Argier's reports regarding Claimant's prior lower back injuries and surgeries. Dr. Medinilla opined that, within a reasonable degree of medical probability, the cause of Claimant's July 30, 2002 work-related injury, which necessitated the corrective surgery to relieve Claimant's pain, was the result of an "aggravation of the abnormal disk that he had." In Dr. Medinilla's opinion, it was a possibility that the Claimant could have gone all his life with no further disk problems, but the lifting of the heavy cabinet on July 30, 2002 aggravated the disk, which had been previously operated on. Specifically, Dr. Medinilla stated, "[a] disk that had been previously operated on [,] it's a possibility that the patient could have gone all his life with no problems [,] but that incident [July 30, 2002 work accident] aggravated the disk." Dr. Medinilla further testified that, prior to the July 30, 2002 accident, the Claimant was asymptomatic from 1996 until 2001 (prior to his two surgeries in 2001), and from September 2001 until his recent injury in July 2002, having been released to full work duty by Dr. Argiers on September 14, 2001 after the prior lower back injury.
Bd. Hr'g Tr. at 47-48.
Id.
Bd. Hr'g Tr. at 48.
Dr. John Townsend, a neurologist, testified on behalf of Sun Dog. After Claimant's surgery by Dr. Medinilla, Dr. Townsend performed a physical examination on the Claimant and found a less then remarkable decrease in range of motion, which was to be expected post surgery. He noted that Claimant expressed feelings of some tenderness in the lower back, but no spasm. The neurological examination indicated that Claimant demonstrated normal strength, and Claimant's sensory exam proved normal as well. Dr. Townsend reviewed Claimant's August 13, 2002 MRI results, noting the radiologist's report that there was a moderate to large right external defect, and concurring that it was a disk herniation of the right L4-L5. When asked to opine if he was able to formulate an impression as to the Claimant's diagnosis after his own examination and review of the medical records, Dr. Townsend testified that it was his opinion that the Claimant had "[s]ustained a disk herniation at L4-L5 with radiculophy [radiculopathy] and then he underwent surgery and did well." Dr. Townsend concurred with Dr. Medinilla's opinion that "[t]he new disk herniation occurred as the result of the new injury in August of 2002." Dr. Townsend opined that, "[t]he patient had been symptom free before that, developed back pain and radiculophy [radiculopathy] and that Dr. Medinilla commented on in his records, weakness in the right leg and eventually was found to have a large disk herniation and had surgery." Finally, when asked if he felt that the July 30, 2002 work injury worsened Claimant's condition, Dr. Townsend responded, "[y]es."
Bd. Hr'g Tr. at 61-62.
Bd. Hr'g Tr. at 66.
Bd. Hr'g Tr. at 67.
Bd. Hr'g Tr. at 68.
Id.
Dr. Charles Mauriello testified on behalf of Turulski. At the request of Turulski, Dr. Mauriello examined the Claimant on January 20, 2003 and reviewed Claimant's records from Dr. Medinilla, Dr. Argiers, Christiana Care, and Omega Medical Center. It was Dr. Mauriello's testimony that he had reviewed the records relating to the Claimant's 1996 work injury, his subsequent back surgery involving the L5-S1 disk, the records pertaining to his work accidents dating from December 2000 and July 2001, and the related surgeries involving the L4-L5 disk herniation. Dr. Mauriello also reviewed the August 2002 MRI report and noted that it revealed the L4 herniation unchanged in size, compared to the previous study of August 2001. Dr. Mauriello found this to be noteworthy in that, it is customary for a herniation, if it is found to be comparable in size, to be new. Dr. Mauriello disagreed with Dr. Medinilla's opinion that the scar tissue discovered during the September 16, 2002 surgery was not a causal factor of Claimant's pain. He believed that this scar tissue was a definite source of pain for the Claimant.
It was Dr. Mauriello's testimony that the July 30, 2002 work accident was not a "new accident," but a "recurrence" of the Claimant's prior back problems located in the L4 region. After reviewing Claimant's January 25, 2001 operative report, Dr. Mauriello believed the report specifically indicated that prior to the disk annulus being incised, there was documentation of a subannular acute disk herniation, noted before the disk space was injured. Dr. Mauriello also stated that the report revealed that the intervertebral foramin had a portion of the disk relative to/before the annulus was opened, which was evidence of the original L4 disk surgery. According to Dr. Mauriello, Claimant's prior two L4 disk surgeries subjected him to the risk of another abnormal disk issue that might cause sciatica to develop. Dr. Mauriello testified that the August 16, 2001 and September 16, 2002 operative reports did not make specific note of the annulus being torn with the disk material protruding. It was Dr. Mauriello's contention that these same reports, which disclosed Claimant's medical conditions as addressed on August 16, 2001 and on September 16, 2002, did not specify as severe a condition as manifested in the January 2001 operative report. Dr. Mauriello believed that the absence of any change between the 2001 and 2002 MRI exams indicated that Claimant's condition was a "recurrence" of a prior injury, not a reaggravation. Dr. Mauriello concluded his testimony by disagreeing with Dr. Townsend's opinion that, but for Claimant's July 30, 2002 injury, the Claimant would not have experienced his recurrent disk herniation, and surgery would not have been required. Dr. Mauriello conceded that, prior to Claimant's work-related injury, the Claimant did not possess a normal L4 disk. Therefore, it was merely a matter of time before the scar tissue began to accumulate, or in the alternative, the disk material that was not removed at the time of the January 2001 and August 2001 surgeries, would inevitably shift around or migrate improperly.
Upon consideration of all the evidence presented at the hearing, on March 26, 2003, the Board rendered its decision finding Turulski responsible for compensating the Claimant. The Board held that the Claimant had suffered a compensable "aggravation" of his L4 disk problem resulting from an "untoward event," which occurred on July 30, 2002, when the Claimant sustained an injury in the process of lifting and installing a custom wall unit.
Turulski filed a timely notice of appeal of the Board's decision to this Court on April 25, 2003. As grounds for the appeal, Turulski contends that the Board erred as a matter of fact and law, and that the decision of the Board is not supported by, and against the weight of, the evidence presented at the hearing. Further, Turulski asserts that the decision was not supported by substantial evidence, nor was it the product of a logical, deductive, reasoning process. As referenced earlier, Turulski is not appealing that portion of the Board's decision awarding compensation benefits to the Claimant. Turulski is only appealing that portion of the decision finding that it, and not Sun Dog, is liable for the benefits due Claimant.
Parties' Contentions
In the briefs submitted by the parties, Turulski contends that the Board committed legal error by finding that the Claimant was involved in an "untoward event" on July 30, 2002 when he lifted the custom wall unit while in the course of his employment, thus assigning liability for compensation benefits payments to Turulski. The definition of an "untoward" or "intervening" event is derived from the seminal case of Standard Distributing Company v. Nally, in which the Delaware Supreme Court set forth the standard for determining the appropriate liability between successive carriers pertaining to workers' compensation claims in cases of recurrence/aggravation disputes. Pursuant to Nally, an "untoward" or "intervening" event is characterized as an accident or event beyond the normal duties of employment, which acts as the proximate cause of the employee's new condition, shifting liability to the second carrier. Hence, Turulski argues that the Board's decision, finding that the Claimant's activities on July 30, 2002 constituted an "untoward event," is not supported by substantial evidence, is arbitrary, and an error of law. Turulski submits that the evidence presented at the hearing demonstrates that Claimant was performing his normal job activities on that day when he was injured and felt the onset of pain. Turulski highlights the fact that Claimant admitted in testimony that he had on other occasions experienced difficulty fitting a cabinet during installation. According to Turulski, Claimant's job performance of "actual lifting" of the wall unit on the day he was injured was connected to his normal work activity, and, therefore, cannot be labeled an "untoward" or "intervening" event. Claimant's injury, he purports, was a "recurrence" of symptoms of an earlier injury.
Standard Distrib. Co. v. Nally, 630 A.2d 640 (Del. 1993).
Id. at 646.
In contrast, Sun Dog submits that the Board did nor err as a matter of law since the injury-producing event was also a "genuine intervening event" within the meaning of Nally. Sun Dog alleges that the Board correctly found that the lifting event, which caused Claimant's injury, was an "untoward" or "non-trivial" event, outside the scope of Claimant's normal employment activities. The happening of this "untoward" event created an "actual change in condition," necessary to produce an aggravation of Claimant's condition, i.e., a new herniation, consequently shifting liability to the current employer under Nally. Sun Dog submits that the Board correctly interpreted the rule, consistent with Nally and its progeny, in determining if Claimant's injury was an "aggravation" or a "recurrence." Sun Dog argues that it presented sufficient evidence to establish a causal connection between a "non-trivial" event that occurred when Claimant lifted the wall unit, and a change, or worsening of the physical condition of Claimant's back. Pursuant to Sun Dog's line of reasoning, the Board's decision should be affirmed because the July 30, 2002 work accident "aggravated" Claimant's back condition within the meaning of Nally, i.e., made it "worse, more serious, more severe," resulting in a fresh herniation.
Id. at 645.
Id.
Further, in support of its position, Sun Dog argues that the rule imposing liability on a successive employer/carrier as stated in Nally does not, as asserted by Turulski, turn on a finding of an "untoward" event and require a demonstration that the claimant was involved in a workplace activity that was outside the normal duties of employment. Nally, as Sun Dog emphasizes, only requires that the claim of a new injury, or worsened condition, be causally connected to an "intervening"or "untoward" event.
Standard of Review
The Delaware Supreme Court and this Court repeatedly have emphasized the limited appellate review of factual findings of an administrative agency. The function of the reviewing Court is limited to determining whether substantial evidence supports the Board's decision regarding findings of fact and conclusions of law and is free from legal error. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Moreover, substantial evidence is that evidence from which an agency fairly and reasonably could reach the conclusion it did. It is more than a scintilla but less than a preponderance. When reviewing a decision on appeal from an agency, the Superior Court does not weigh the evidence, determine questions of credibility, or make its own factual findings. It is well established that it is the role of the Board, not this Court, to resolve conflicts in testimony and issues of credibility. Whenever the factual issues are fairly debatable, it is the duty of the Board to formulate decisions about the weight and credibility of various evidence or testimony presented to the Board. The Court's responsibility is merely to determine if the evidence is legally adequate to support the agency's factual findings. If the agency or Board's decision is supported by substantial evidence, the Court must sustain the decision of the Board, even though it would have decided otherwise had it come before it in the first instance.
Industrial Rentals, Inc. v. New Castle County Bd. of Adjustment, 2000 WL 710087, at *3 (Del.Super.Ct.), rev'd on other grounds, 776 A.2d 528 (Del. 2001); Pub. Water Supply Co. v. DiPasquale, 735 A.2d 378, 382 (Del. 1999).
DEL. CODE ANN. tit. 29 Del. C. § 10142(d) (1997 Supp. 2002); see also Soltz Management Co. v. Consumer Affairs Bd., 616 A.2d 1205, 1208 (Del. 1992); Mellow v. Bd. of Adjustment of New Castle County, 565 A.2d 947, 954 (Del.Super.Ct. 1988), aff'd, 567 A.2d 422 (Del. 1989); Janaman v. New Castle County Bd. of Adjustment, 364 A.2d 1241 (Del.Super.Ct. 1976), aff'd, 379 A.2d 1118 (Del. 1977); M.A. Harnett, Inc. v. Coleman, 226 A.2d 910 (Del. 1967); Johnson v. Chrysler Corp., 213 A.2d 64, 66-67 (Del. 1965); General Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del. 1960).
Streett v. State, 669 A.2d 9, 11 (Del. 1995); accord Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994); Battista v. Chrysler Corp., 517 A.2d 295, 297 (Del.Super.Ct. 1986), app. dism., 515 A.2d 397 (Del. 1986); Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
Mellow, 565 A.2d at 954 (citing Nat'l Cash Register v. Riner, 424 A.2d 669, 674-75 (Del.Super.Ct. 1980)).
Id. at 954 (citing Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981)); Downes v. State, 1993 WL 102547, at *2 (Del.) (quoting Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988)).
Johnson, 213 A.2d at 66.
See Mooney v. Benson Mgmt. Co., 451 A.2d 839, 841 (Del.Super.Ct. 1982), rev'd on other grounds, 466 A.2d 1209 (Del. 1983).
Mettler v. New Castle County Bd. of Adjustment, 1991 WL 190488, at *2 (Del.Super.Ct.).
DEL. CODE ANN. tit. 29 Del. C. § 10142(d) (1997 Supp. 2002).
Mellow, 565 A.2d at 954 (citing Kreshtool v. Delmarva Power Light Co., 310 A.2d 649, 653 (Del.Super.Ct. 1973)); Searles v. Darling, 83 A.2d 96, 99 (Del. 1951) (emphasis added to original).
In essence, the Court does not sit as trier of fact, nor should the Court replace its judgment for that of the Board. Specifically, when considering questions of fact, due deference shall be given to the experience and specialized competence of the Board. It is the exclusive function of the IAB to evaluate the credibility of witnesses before it, as evidenced by the weight and reasonable inferences to be drawn therefrom. The Court determines if the evidence is legally adequate to support the agency's factual findings. Application of this standard "[r]equires the reviewing court to search the entire record to determine whether, on the basis of all the testimony and exhibits before the agency, it could fairly and reasonably reach the conclusion that it did." In this process, "[t]he Court will consider the record in the light most favorable to the prevailing party below." Only where there is no satisfactory proof in support of the factual findings of the Board, may the Superior Court or the Supreme Court overturn it.
Johnson, 213 A.2d at 66.
DEL. CODE ANN. tit. 29 Del. C. § 10142(d) (1997 Supp. 2002); Histed v. E.I. duPont de Nemours Co., 621 A.2d 340, 342 (Del. 1993).
See, e.g., Vasquez v. Abex Corp., 1992 WL 397454, at *2 (Del.).
Downes v. State, 1993 WL 102547, at *2 (Del); Coleman v. Dep't of Labor, 288 A.2d 285, 287 (Del.Super.Ct. 1972).
Downes, 1993 WL 102547, at *2.
Nat'l Cash Register v. Riner, 424 A.2d at 674-75.
General Motors Corp. v. Guy, 1991 WL 190491, at *3 (Del.Super.Ct.).
Johnson, 213 A.2d at 64.
Discussion
The single disputed issue presented to the Board for its determination concerned reconciling, pursuant to Delaware's workers' compensation laws, which of Claimant's two employers were liable for paying his compensation benefits. As the Board noted in its decision, since both employers conceded that Claimant's injury is compensable, the critical question becomes which employer is responsible for the injury. In order to answer this question, the Board focused its analysis on determining whether Claimant suffered a "recurrence" or an "aggravation" of his prior work injury, and consulted Nally for guidance in applying the appropriate standard.In Nally, the Delaware Supreme Court reaffirmed the well-settled principle that liability for a "recurrence" rests with the insurer who was liable for the original benefits. At the same time, the Court noted that, "[o]n the other hand, if [the worker's] condition is not a true recurrence, but is brought about or aggravated by a new work-connected accident, the liability falls upon that insurer whose policy is in effect at the date of the new accident." As this Court summarized in Kentucky Fried Chicken v. Iman, "[t]he Nally Court rejected the notion that the second carrier can be held liable based upon a mere showing that the second event was a substantial cause of the claimant's condition." Instead, the Nally Court held that there is a `[n]eed to establish a second accident or event, beyond the normal duties of employment . . . in order to shift liability from the first carrier who bears responsibility for the effect of the original injury.'
Nally, 630 A.2d at 644 (citing DiSabatino Sons, Inc. v. Facciolo, 306 A.2d 716, 719 (Del. 1973)).
Id. (quoting DiSabatino, 306 A.2d at 719).
Kentucky Fried Chicken v. Iman, 1995 WL 653497, at *4 (Del.Super.Ct.).
Id. (quoting Nally, 630 A.2d at 646).
In Nally, the Court sought to distinguish between "recurrence" and "aggravation" in the legal sense, in cases of successive accidental injury. In doing so, the Court made note that, "[i]n fixing liability, however, the Board, and a reviewing court, must focus equally on the causation factor since compensability for the new condition depends on its relationship to `a new work-connected accident.'" In view of this consideration, the Nally Court defined the use of the word "aggravation" to designate that the injury must be worsened by the second event, before the second carrier will be liable. The Court reasoned that, even if an employee's physical condition may symptomatically appear worse after the second incident, as evidenced by the appearance, or reappearance, of symptoms suggesting "aggravation," the analysis must go one step further to the causation stage, and determine if the change in condition is attributable to a new work-related accident. "In short," the Court concluded, "[t]he question is not whether the employee's pain or other symptoms have returned[,] but whether there has been a new injury or worsening of a previous injury attributable to an untoward event."
Nally, 630 A.2d at 645 (citing DiSabatino, 306 A.2d at 719).
Id. at 645.
Id.
Id. at 646.
Accordingly, the rule established in Nally is as follows:
The rule we endorse for determining successive carrier responsibility in recurrence/aggravation disputes places responsibility on the carrier on the risk at the time of the initial injury when the claimant, with continuing symptoms and disability, sustains a further injury unaccompanied by any intervening or untold event[,] which could be deemed the proximate cause of the new condition. On the other hand, where an employee with a previous compensable injury has sustained a subsequent industrial accident resulting in an aggravation of his physical condition, the second carrier must respond to the claim for additional compensation. [Citation omitted]. The burden of proving the causative effect of the second event is upon the initial carrier seeking to shift responsibility for the consequences of the original injury.
Id.
In consideration of this bright-line rule, this Court's responsibility in reviewing the issue on appeal is to determine whether the Board correctly applied the Nally rule to the case at bar. According to its decision, the Board focused its examination exclusively on the "aggravation" and the "untoward event" test as articulated in Nally. The Board found the testimony of Dr. Medinilla especially persuasive in this regard by his use of the word "reaggravation" throughout his deposition to describe that the Claimant had aggravated a prior L4 disk problem during the July 30, 2002 "lifting event." Further, the Board espoused that it could not discern any evidence from the hearing to indicate that Dr. Medinilla considered the Claimant's L4 disk injury to be a mere recurrence of any pre-existing injury. Rather, the Board took "careful note of caution" in distinguishing the medical and legal definitions of "recurrence" versus "aggravation," and concluded that Dr. Medinilla was employing the legal distinction in finding that Claimant had sustained an aggravation of his L4 injury. In doing so, the Board rejected the testimony of Dr. Mauriello, finding him unpersuasive, because he was not the Claimant's attending physician, and had not performed as thorough an examination and inquiry into the Claimant's injury as had Dr. Medinilla, Claimant's treating neurosurgeon.
Bd. Dec. at 7.
Bd. Dec. at 7-8.
Bd. Dec. at 7.
Bd. Dec. at 6-8.
Applying the standard of limited appellate review as defined above, the Court finds the deposition testimony of Dr. Medinilla, based upon his examination of the Claimant, his review of Claimant's medical records and medical test results, and the ongoing treatment that he provided to the Claimant, as constituting substantial, competent evidence to support the Board's findings. Review of the Board hearing transcript and the Board's decision indicates that the Board gave full consideration to the testimony of Dr. Medinilla, Dr. Mauriello, and Dr. Townsend, in addition to Claimant's testimony. In the Board's estimation, Dr. Medinilla's medical opinion constituted a more persuasive and cogent determination of Claimant's injury and the related issue of causation. The Board accepted Dr. Medinilla's medical expertise concerning the underlying medical factors necessitating Claimant's September 16, 2002 corrective surgery.
It is within the Board's discretion to accept the testimony of one expert over another when their testimonies are conflicting and supported by substantial evidence. Additionally, it is within the purview of the Board, and not this Court, to weigh the credibility of the witnesses, and to accept or reject a claimant's subjective complaints. In this instance, the Board found Claimant's testimony of the nature and mechanism of his injury to be credible. However, despite the imprimatur of credibility, the Board considered Claimant's testimony that he was routinely expected to perform heavy lifting on the job, and that he was operating within his usual employment activities at the time of the injury, insufficient to negate its evaluation that Claimant's injury was an "untoward event."
Downes, 1993 WL 102547, at *2.
Vasquez, 1992 WL 397454, at *2.
Simply stated, the Board weighed the credibility of all the offered medical testimony, and as is often required, accepted the testimony of one medical expert over that of another. The Board found that Dr. Medinilla's testimony substantiated Claimant's recounting of the events which occurred at the time of his industrial accident. While the Board disagreed with Dr. Townsend's opinion that the Claimant had suffered an entirely new injury on July 30, 2002, it concurred with Dr. Medinilla's opinion that the Claimant had sustained an "aggravation" of his L4 disk problem, finding it more credible and persuasive than Dr. Mauriello's testimony for the reasons stated above. Finally, bearing in mind the principles and holding laid down in Nally, and the Board's finding of insufficient credibility in Claimant's testimony regarding his daily, normal job requirements, the Board opined that Nally did not prevent the Board from finding, in Claimant's case, that an injury which transpired during the normal activities of one's daily employment, resulted from an "untoward event." Consequently, and for all the reasons above, the Board found that Claimant's injury stemmed from an "untoward" or "intervening" event, as classified by Nally, and that a new herniation occurred.
DiSabatino v. Wortman, 453 A.2d 102, 106 (Del.Super.Ct. 1982).
In assessing the evidence presented and formulating its decision, the Board considered both the medical evidence and the credibility of the medical experts. The Board, in reaching its conclusion, chose not to rely upon Turulski's expert physician's testimony. Instead, the Board found Claimant's treating physician, Dr. Medinilla, to be more credible. The Board is "free to choose between the conflicting diagnoses of examination physicians and either diagnosis constituted substantial evidence on appeal." As previously noted, substantial evidence is evidence that a reasonable mind might accept as suitable to support a conclusion. It must be more than a scintilla but less than a preponderance.
Branch v. Kraft Gen. Foods, 1994 WL 637315, at *4 (Del.Super.Ct.); see also Reese v. Home Budget Ctr., 619 A.2d 907, 910 (Del. 1992); DiSabatino Bros., Inc., 453 A.2d at 106.
Streett, 669 A.2d at 11; Olney, 425 A.2d at 614.
Downes, 1993 WL 102547, at *2 (quoting Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del.Super.Ct. 1988)).
The Board performed its exclusive function, reconciling the inconsistent testimony and determining the credibility of witnesses. Absent an abuse of discretion, a reviewing court may not disturb the Board's decision. Since the record does not reflect that the Board abused its discretion when assessing the credibility of medical experts and medical opinions, this Court will not disturb the Board's findings. In doing so, the Court finds that the Board properly considered, under the rule articulated in Nally, whether Claimant's condition at the time of the July 30, 2002 injury was proximately caused by this incident, and whether that incident represented an "untoward" or "intervening" event. The Board based its decision on a deliberation of the causal factors underlying Claimant's injury event, and not merely upon a consideration of symptomatology. As such, this Court affirms the Board's finding that an "untoward" event, constituting an accident or event beyond the normal duties of Claimant's employment, was the proximate cause of the compensable "aggravation" of his L4 disk problem, such that liability for compensating the Claimant shifted from Sun Dog to Turulski.
Simmons v. Del. State Hosp., 660 A.2d 384, 388 (Del. 1995); Breeding, 549 A.2d at 1106.
Simmons, 660 A.2d at 388; Breeding, 549 A.2d at 1106.
Accordingly, this Court concludes that the decision of the Industrial Accident Board is based upon substantial evidence and free of legal error. Since the record does not reflect that the Board abused its discretion, this Court will not disturb the Board's decision. The Court finds no error of law in that portion of the Board's decision which found that Turulski was liable for the compensation benefits awarded to the Claimant, rather than Sun Dog.
See supra note 65.
Conclusion
For the foregoing reasons, the decision of the Industrial Accident Board is hereby AFFIRMED.