State News : Delaware

Claimant filed a Petition alleging a 9/10/19 injury to the right wrist, elbow, and shoulder, ongoing total disability following approximately 4 weeks of modified duty work, and seeking payment for all associated medical treatment expenses, including pre-authorization of surgeries that had been recommended for all three body parts. The Board found that claimant failed to prove that any injury was causally related to his work activities. The testimony and evidence were inconsistent, and that detracted from claimant’s credibility and the strength of his case in general.

The Board was critical of claimant’s attempts to downplay his right arm symptoms associated with an earlier workers’ compensation injury. He first testified that all his problems resolved quickly, but then changed his story and admitted that following the accident he treated for years with high dose narcotic medications. He denied previously requiring any right shoulder treatment for the earlier accident, a statement contradicted by many of his own records. The Board also commented that the claimant’s story, as told to the defense medical expert in 2020, Dr. Crain, that the earlier records must have been for treatment for another claimant with the same name, detracted from his credibility, especially since the records contained the identical name, birth date, and many other facts indicating that the treatment was clearly rendered to the same individual. Claimant also omitted facts about his pre-existing condition from his pre-employment physical. On cross examination, he claimed he could not even recall appearing before the Board for two prior merit Hearings associated with his earlier claim.

The Board also discussed an alleged “journal” of the events that claimant had submitted to the Board at Hearing. The primary purpose of the journal was to rebut allegations by the Employer of a gap in treatment for the shoulder, as the journal contained numerous entries allegedly contemporaneous to the work event stating that claimant had reported shoulder pain. The Board questioned the veracity of the journal overall as many of the events in the journal were directly contradicted by his own records from multiple different care providers, as well as the employer’s records and witnesses’ testimony.

The Board even discussed claimant’s testimony that multiple providers treated him unprofessionally, including a physician affiliated with the employer. The Board found it highly unlikely that numerous providers would treat claimant unprofessionally or cause him to report his history inaccurately.

Should you have any questions regarding this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.  

Claimant was involved in a work-related injury to her low back in 2008, and for the next five years, she received low back treatment – including injections – paid for by the State of Delaware.  She then stopped treating for her low back for a few years, until she returned for more injections and ultimately underwent a lumbar fusion surgery from L4-S1.  Drs. Eskander and Cucuzzella both testified on behalf of the claimant that the return to treatment and the surgery were part of the progression of the low back injury from 2008.  However, Drs. Rushton and Meyers testified on behalf of the State of Delaware that the 2008 accident had involved a temporary aggravation of her low back condition that then resolved.  Citing to the progression of findings on the imaging studies, including entirely new findings of spondylolisthesis for the first time in 2015, Dr. Meyers and Dr. Rushton agreed these findings could not be attributable to a single event from nearly a decade earlier.

The Industrial Accident Board found claimant did not meet her burden to prove that the medical treatment since 2017, to include the 2019 lumbar fusion surgery, was causally related to the work accident.  The Board accepted the testimony that the frequent imaging studies showed a natural progression of degenerative lumbar disease, which was wholly consistent with the claimant’s age and gender, and which the experts testified could occur without any trauma.  One critical finding was the appearance of spondylolisthesis in 2015, seven years after the work accident; because that was a primary component of Dr. Eskander’s rationale for surgery, the Board agreed that it could not link a finding so distant in time back to the work accident.

Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.www.hfddel.com 302-573-4800

Linda Callahan Terry v. State of Delaware, IAB No. 1473826, April 29, 2020.

Claimant was involved in a compensable 2003 work accident with an accepted L4-S1 fusion performed in 2005, by Dr. Eppley. Following the surgery, claimant was discharged by her surgeon and referred to pain management. Claimant remained in continuous pain management to the present, with narcotic medications, injections, and various other conservative care. In 2017, Claimant returned to Dr. Eppley, who recommended adding L2-4 to her original fusion, citing suspected adjacent segment disease. Claimant filed a Petition seeking approval of the surgery. Employer filed a Petition seeking to discontinue ongoing narcotic medications.

The Board found that the recommended surgery was not reasonable and necessary treatment, accepting the opinion of defense expert Dr. Fedder over Dr. Eppley. The Board noted that contrary to the rosy picture painted by Dr. Eppley in his deposition as to the outcome of the first surgery, the medical records showed “at best” this procedure caused 30% improvement in claimant’s subjective complaints only. The procedure did not allow claimant to return to work, or reduce her treatment, narcotic medications, and the like. To the contrary, pain management treatment increased and was uninterrupted for years following the surgery. The Board also noted that the proposed surgery would not fix claimant’s multiple unrelated comorbid conditions that significantly impacted her function, such as the need for bilateral knee replacements, rheumatoid arthritis, and morbid obesity. The Board further opined, based upon the testimony of defense expert Dr. Nathan Schwartz, that claimant’s narcotic medications should be discontinued due to lack of functional improvement.

Should you have any questions regarding this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.

Carmen Kelley v. First Student, IAB Hrg. No. 1238448 (Apr. 6, 2020).

302-573-4800 www.hfddel.com.

Claimant was involved in a rear-end motor vehicle accident with acknowledged injuries to his neck and low back.  For a brief time after the work accident, claimant was noted to have weakness in his lower extremities; however, those findings quickly resolved and did not return.  Dr. Eskander proposed a two-level lumbar surgical procedure, designed to “free up the nerves.”  Dr. Eskander maintained that the lack of neurological compromise was proof of spinal stenosis; however, Dr. Schwartz testified on behalf of the Employer that this is not the case and that this surgery should not occur on a normal neurological examination. 

The Industrial Accident Board found claimant did not meet his burden of proving the surgery was reasonable and necessary treatment for his condition.  The Board accepted Dr. Schwartz’s testimony and emphasized the importance of claimant’s lack of neurological findings across multiple examinations, particularly with respect to claimant’s normal gait and the lack of a positive EMG.  While the Board accepted there was a period of neurological compromise, it cautioned that “one does not operate because, once upon a time, one had symptoms.”  Further, without the presence of current neurological problems, the risk of a complicated two-level surgery was significant and not justified.  The Petition was denied outright, and the surgery deemed unreasonable and unnecessary.

Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.

 Raymond Thompkins v. Reynolds Transportation, IAB No. 1482461, March 13, 2020.

Claimant proceeded to Board Hearing on the issue of initial compensability of a 1/12/18 injury and seeking payment of a then recommended left knee arthroscopic surgery. The Board found his claim compensable, and awarded the surgery, but did not rule on total and/or partial disability benefits, because Claimant did not request same. Claimant proceeded with surgery on 4/10/19, and filed a Petition seeking total disability and/or partial disability benefits from the 4/1/18 date of termination from employment and ongoing.

The Board found that Claimant did not meet his burden of proof on the Petition for total and/or partial disability, because he did not conduct a good faith job search following his termination from employment on 3/31/18. He was terminated for simply stopping showing up at work. He unilaterally stopped communicating with Employer. He did not respond to calls or letters sent by Employer. He abandoned his job. Claimant was capable of working with restrictions for nearly all of the ensuing two years with the exception of 4-6 weeks associated with his surgery yet testified to the Board that he made absolutely no job search during this time without any justifiable excuse. He did not even apply to any of the 9 positions that his own vocational rehabilitation specialist identified 4 months before the Board Hearing. The Board also noted that at 62 years old, claimant was at normal retirement age. Therefore, considering the totality of the circumstances, his withdraw from the workforce was due to personal reasons, rather than the work injury.

Should you have any questions regarding this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.

Jeffrey Legg v. Shurline Construction, IAB Hrg. No. 1472667 (Mar. 2, 2020).

Claimant was involved in a compensable 2013 accident with Urgent Ambulance involving a herniated lumbar disc with radiating pain into his legs. Claimant’s symptoms improved to a point where they were tolerable but still present, and he returned to work with a new employer, Recovery Innovations. Claimant then alleged three separate incidents at Recovery Innovations, (1) a 2016 increase in low back symptoms felt days after moving furniture all day without a specific event, (2) a 2017 acute onset of back pain without radiation with lower pain levels than his initial accident, and (3) another 2017 incident where he woke up spontaneously with 10/10 low back pain without any specific connection to work. Claimant’s medical expert very confusingly testified that the first accident was responsible for the symptoms, then changed his testimony to say that each of the subsequent accidents were individually responsible for the symptoms and refused to exclude any of the four accidents as contributors to claimant’s injury.

The Board noted the successive carrier standard of Nally v. Standard Distributing was to be applied, meaning that to shift liability from the first to a subsequent accident, there would need to be an “untoward event” that resulted in a “new injury.” The Board commented that none of the subsequent allegations satisfied that standard as (1) moving furniture and feeling pain days later was not an acute incident, (2) feeling symptoms less severe than the initial accident was not a new injury, and (3) waking up spontaneously with 10/10 pain attributable to no specific work activity was also not an acute incident. The Board elaborated that the reason for theNally approach is that any chronic injury is liable to wax and wane. If a subsequent employer is going to assume liability for the entire condition whenever some work activity causes a flare up of the condition, it would be a strong disincentive for any employer to hire an employee who had been injured in a prior work accident. It would also complicate getting medical care if the insurer on the risk for a physical condition could shift with each new flare up. TheNally standard was crafted to prevent such an undesirable result.

The important takeaways from this Decision are that under Nally it can be very difficult to shift liability from one accident with one employer or carrier to a subsequent employer or carrier, but there are many different nuances ofNally that can be outcome determinative. If you have any questions concerning this Decision, or any successive employer or carrier issue, please feel free to contact Greg Skolnik, Partner, atHeckler & Frabizzio or any other attorney in our Workers’ Compensation Department.

Keita Bowels v. Urgent Ambulance, et. al., IAB Nos. 1406305, 1458022, 1471444 (Sept. 13, 2019).