IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

Transcription

1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY JOBS FOR DELAWARE ) GRADUATES, ) ) Employer-Appellant, ) ) C.A. No. 02A WCC ) v. ) ) LORAINE JORDAN, ) ) Employee-Appellee. ) Submitted: January 8, 2003 Decided: April 29, 2003 O R D E R On Employer s Appeal from Industrial Accident Board - DENIED Dennis J. Menton, Esq., Tybout, Redfearn & Pell, 300 Delaware Avenue, Suite 1100, P.O. Box 2092, Wilmington, DE Attorney for Employer-Appellant. Joseph W. Weik, Esq., Weik, Nitsche & Dougherty, One Commerce Center, 3 rd Floor, 12 th and Orange Streets, P.O. Box 2324, Wilmington, DE Attorney for Employee-Appellee. CARPENTER, J.

2 This 29th day of April, 2003, after consideration of Jobs For Delaware Graduates ( Employer ) appeal from the decision of the Industrial Accident Board ( Board ) it appears that: 1. On November 3, 2000, Loraine Jordan ( Claimant ) was employed by Jobs for Delaware Grads, when she sustained a compensable injury to her knee. At the time of her accident, Claimant was 52 years of age and was employed to teach job skills to high school students. Upon returning to her classroom at William Penn High School, a fight broke out in which she attempted to intervene. At this time, she fell and had immediate pain in her left knee. This pain she described as being different from any prior pain she had before in this knee. On November 16, 2001, Claimant filed a Petition to Determine Additional Compensation Due. A hearing was held before the Board on May 23, The issue before the Board was pre-authorization for a total knee replacement that was recommended by Claimant s treating surgeon. Claimant alleged a causal relationship to her November 3, 2000 accident, which was disputed by Employer. The Board found in favor of Claimant, for which Employer now appeals. 2. Claimant has a history of knee injuries or aggravations dating back to 1965, when at the age of seventeen, she injured her left knee while playing high 2

3 school volleyball. Surgery was performed to remove bone chips and Claimant subsequently recovered fully and went on to college and a career as a physical education teacher. Later, in 1981, Claimant fell after catching her heel on a step and injured her knee, dislocating her left kneecap. As a result of this, surgery was performed to realign the patella. In 1997 she saw Dr. DiStefano 1 in Philadelphia to have the achiness in her knee checked. Dr. DiStefano prescribed a knee brace which Claimant never wore. On October 31, 1998, Claimant was treated at the Newark Emergency Room for a twisted knee following an accident where she slipped and fell down some stairs. On August 4, 1999, Claimant saw Dr. Alex Bodenstab for tendinitis in her right elbow and achiness in her left knee. She explained that this achiness occurred periodically since her first knee injury in Prior to the November 3, 2000 accident, Claimant stated that she had no symptoms in her knee since the August 4, 1999 examination, and was participating in normal activities including biking every day and playing golf every three weeks. As a result of the accident she can no longer do either. Specifically, following the November 3, 2000 injury, she could not walk and her leg was swollen and bruised the next day around the kneecap. Claimant, however, was able to return to work but was 1 The doctor s name has been spelled both DeStefano and DiStefano throughout the briefing and in the record. DiStefano will be used for purposes of this Order. 3

4 required to sit in a chair. Upon examination by her family doctor, Valerie Elener, she was referred to Dr. Leo Raisis, an orthopedic surgeon. Dr. Raisis prescribed physical therapy, home exercises, crutch walking and ice. Claimant additionally attended physical therapy for approximately two months. Despite this, Claimant s knee problems persisted. 3. Claimant s medical expert, Dr. Raisis, testified by deposition. His opinion was that Claimant s work accident was a substantial contributing factor and was the triggering event for her need for total knee replacement. Dr. Raisis examined Claimant on November 7, 2000, where he found significant ecchymosis 2 around her left knee, however, the pain she was experiencing and her size limited the examination. In performing this examination, Dr. Raisis possessed Dr. Bodenstab s 1999 examination notes relating to Claimant s history. 3 These notes reported Claimant s 1965 and 1981 knee problems and provided that in 1999, Claimant was presented complaining of right elbow and left knee pain, and she reported a fall on 2 Ecchymosis is the escape of blood into the tissues from ruptured blood vessels marked by a livid black-and-blue or purple spot or area. See WEBSTER S MEDICAL DESK DICTIONARY 198 (1986). 3 This included a description of her initial knee injury while in high school, where she had surgery to correct a dislocated patella. She also described some patella subluxation symptoms following her first surgery, and that Dr. Bodenstab noted that she had been doing well until Dr. Raisis also testified that Dr. Bodenstab s history showed that Claimant was having increasing difficulty involving her left knee, specifically that it was bothering her while going up and down stairs or while sitting for long periods of time. See Deposition of Leo Raisis, M.D., May 2, 2002 at 23 (hereinafter Raisis Dep. at ). 4

5 October 31, 1998 in which she injured her left knee. Dr. Raisis subsequently diagnosed recurrent patellofemoral subluxation after her November 3, 2000 injury. Dr. Raisis diagnosis on November 7, 2000 differed from that of Dr. Bodenstab s in that Dr. Bodenstab s diagnosis referred to some arthritis of the patella femoral joint, while Dr. Raisis was referring to a subluxation of the joint or partial dislocation following a recent acute injury. 4 Dr. Raisis testified that Claimant continued to have pain and instability with her knee so he ordered an MRI to be performed. This showed a complete tear of her anterior cruciate ligament (ACL), a tear of the medial retinaculum with lateral displacement of the patella, and osteoarthritic changes. Dr. Raisis found these tears to be consistent with a recent acute twisting injury. Subsequently he told Claimant after the MRI that her best option was a total knee replacement. Dr. Raisis testified that he thought this to be reasonable, necessary and related to Claimant s November 3, 2000 work injury because the ACL tear resulted in instability of her knee, and that even with arthroscopic repair of the ACL and meniscectomy, that she would still have significant problems, especially with her patellofemoral joint. Dr. Raisis testified that the November 3, 2000 injury precipitated the need for knee replacement and opined that the pre-existing osteoarthritic changes in the knee would not have necessitated 4 See Raisis Dep. at 6. 5

6 a total knee replacement prior to the November 3, 2000 accident. 5 In his opinion, this event acted as a trigger for the need for the total knee replacement Dr. Donald Saltzman testified by deposition as the medical expert for Employer. Dr. Saltzman had examined Claimant on July 19, 2001 and again on March 14, In doing so, he reviewed Claimant s medical records, including those of her family doctor, Dr. Elener, Dr. DiStefano 7, Dr. Bodenstab 8 and Dr. Raisis. Claimant told Dr. Saltzman about the November 3, 2000, accident and that she saw her family doctor and then Dr. Raisis. She told him that she had problems with her knee about twenty years before, when she had surgery to realign her patella, but that she did not have any problems since then, other than a 1999 examination by Dr. Bodenstab after she had banged her knee. Dr. Saltzman testified that at the time of his first evaluation of Claimant, that she informed him that she was able to work and that she was doing so without any assistance. Dr. Saltzman testified that Claimant 5 Dr. Raisis explained that Claimant s pre-existing knee problem involved the joint space known as the articular cartilage which is the vertical space between the kneecap and the femur. See Raisis Dep. at 40. The surgery that was being proposed by Dr. Raisis was not to correct the lack of joint space between the kneecap and the femur, rather he was proposing total knee replacement due to multiple problems with the left knee, including the torn ACL, which Dr. Raisis believed was due to the trauma of the November 3, 2000 work accident. See Raisis Dep. at See Raisis Dep. at Dr. DiStefano is an orthopedic physician practicing in Philadelphia, PA. 8 Dr. Bodenstab is an associate of Dr. Raisis. 6

7 never told him about her consult with Dr. DiStefano in July of Furthermore, he stated that Dr. DiStefano s records made references to knee replacement surgery, but concluded that Claimant was too young to have that done in Dr. Saltzman testified that he does not believe that the November 3, 2000 accident aggravated, precipitated, exacerbated or accelerated Claimant s need for a total knee replacement, as recommended by Dr. Raisis. Rather, he believed that Claimant would require a total knee replacement regardless of the intervention of the November 3, 2000 work accident. This was based on the fact that two physicians had already recommended joint replacement in 1997 and 1999, and that Claimant s history of injury to her totally worn out joint dates back to the 1960's. He opined that nothing anatomical happened to Claimant on November 3, 2000, although she may have banged or twisted her knee. Rather, he found her to have an ongoing degenerative process and that nothing happened on November 3, 2000 to change that. Furthermore, he stated that the patellar problems that Claimant had in the 1960's and 1970's would not necessarily have eventually required total knee replacement. However, he thought that patellar femoral arthritis probably would have eventually necessitated replacement. 5. On appeal from the Industrial Accident Board, the function of the Superior Court is to determine whether the Board s decision is supported by 7

8 substantial evidence and free from legal error. 9 Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 10 The Court is not the trier of fact nor has the authority to weigh evidence, determine questions of credibility, or make its own factual findings and conclusions. 11 Rather, this Court merely determines if the evidence is legally adequate to support the Board s factual findings. 12 Weighing the evidence and determining questions of credibility, which are implicit in factual findings, are functions reserved exclusively for the Board. 13 In reviewing the record for substantial evidence, the Court will consider the record in the light most favorable to the party prevailing below, resolving all doubts in its favor For a surgical recommendation to be considered compensable, it must 9 Devine v. Advanced Power Control, Inc., 663 A.2d 1205, 1209 (Del. Super. Ct. 1995) (citing General Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del. 1960); Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965); General Motors Corp. v. Jarrell, 493 A.2d 978, 980 (Del. Super. Ct. 1985)). 10 Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994). 11 Johnson v. Chrysler Corp., 213 A.2d 64 (Del. 1965). 12 DEL. CODE ANN tit. 29, 10142(d) (1997). 13 Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1106 (Del. 1988); Conner v. Wells Fargo, 1994 WL (Del. Super. Ct.). 14 General Motors Corp. v. Guy, 1991 WL (Del. Super. Ct.) (citation omitted). 8

9 be found to be reasonable, necessary and causally related to the work accident. 15 At the time of the hearing, there was no dispute as to whether the surgery should be considered reasonable and necessary, rather the sole issue before the Board was causal relationship. The standard for finding causal relationship where a known work accident occurs is the but for test. As the Delaware Supreme Court stated in Steen, when there is an identifiable industrial accident, the compensability of any resultant injury must be determined exclusively by an application of the but for standard of proximate cause Presented before the Board were two experts, Dr. Raisis for Claimant and Dr. Saltzman for Employer. When there is competing medical testimony, it is the Board s responsibility to determine which expert is more credible. 17 This is precisely 15 Turnbull v. Perdue Farms, 1998 WL at 2 (Del. Super. Ct.), aff d, 723 A.2d 398 (Del. 1998) (TABLE). 16 State v. Steen, 719 A.2d 930, 932 (Del. 1998) (reaffirming its holding in Reese v. Home Budget Center, 619 A.2d 907 (Del. 1992). In Reese, the Court explained: If the worker has 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 accident need not be the sole cause or even a substantial cause of the injury. If the accident provides the setting or trigger, causation is satisfied for purposes of compensability. Reese, 619 A.2d at Downes v. State, 623 A.2d 1142 (Del. 1993) (quoting Butler v. Speakman Co., 615 A.2d 530 (TABLE) (Del. 1992)). 9

10 what the Board did in reaching its decision. Essentially, the experts opinions differed in that Dr. Raisis believed that despite the Claimant s medical history, the work accident was the triggering event that necessitated the need for total knee replacement. Employer s expert, however, opined that based on Claimant s medical history and the possibility of knee replacement having been mentioned to her prior to the accident, that it was already necessary due to continual degenerative problems, and the work accident did nothing to change this. As such, the contrasting medical testimony was presented in an organized and appropriate fashion and the issue clearly identified for the Board. The Court finds there is substantial evidence in the record to support the Board s decision that the accident acted as a triggering event, satisfying causation. Evidence was presented that indicated that despite Claimant s medical history and weight, that she was still able to participate in activities and lead a moderately active lifestyle. However, following the accident, she could no longer do so, and was severely restricted with regard to her mobilization. Furthermore, Dr. Raisis found that the MRI showed that the work accident resulted in several new injuries which were unrelated to Claimant s prior patellar injury, which in his opinion necessitated the need for knee replacement See Raisis Dep. at 8-9. Dr. Raisis testified that the tear of the medial reticulatum, complete tear of the anterior cruciate ligament and tear of the anterior and posterior horns of the lateral meniscus were new findings and were consistent with the acute trauma of the November 10

11 8. The Board found Dr. Raisis more credible, and stated as much by finding Dr. Saltzman unpersuasive. While the Board s decision may not be a lengthy one, it sufficiently set forth the basis for its finding. The Board explained its basis for finding the November 3, 2000 accident to be the triggering event, thereby establishing causation. As discussed supra, it is the Board s role to resolve conflicting medical testimony and to accept the testimony of one expert over another so long as it is supported by substantial evidence. Here, the Board weighed the evidence and determined which witness it found to be more credible. Although a more complete review of the witnesses testimony could have been made, the Court finds the Board s decision to be sufficiently articulated for purposes of this appeal. 9. Where the evidence is adequate to support the Board s conclusion, the Board s decision cannot be disturbed absent an error of law. Contrary to Employer s assertion, the record fails to indicate that an error of law occurred. The Board applied the correct standard, utilizing the but for test, and there is no indication that the Board disregarded the expert medical testimony in lieu of their own. 10. The Court finds that the Board s decision is supported by substantial evidence and is free from legal error, and for the reasons set forth above, its decision is AFFIRMED. 3, 2000 work accident. 11

12 IT IS SO ORDERED. Judge William C. Carpenter, Jr. 12