Henson v. Ken-Crest Services.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY DENISE HENSON Appellant v. KEN-CREST SERVICES Appellee ) ) ) ) ) ) ) ) CIVIL ACTION NUMBER 04A-06-003-JOH Submitted: September 25, 2004 Decided: December 17, 2004 MEMORANDUM OPINION Appeal from a Decision o f the Industrial Accid ent Board - AFFIRMED Appearances: Christopher J. Sipe, Esquire, of Bailey & Wetzel, Wilmington, Delaware, attorney for claimant-below, appellant Christopher T. Logullo, Esquire, of Chrissinger & Baumberger, Wilmington, Delaware, attorney for employer-below, appellee HERLIHY, Judge Denise Henson appeals the latest decision of the Industrial Accident Board denying her petition for benefits. This Court reversed the Board s earlier denial on the grounds that the Board had failed to address objective evidence in the record. The Court noted also that the Boa rd had n ot clearly stated whether it found there had or had not been a workrelated incident which caused the symptoms of an injury con tained in the medical records. The Board has now d ecided there was no wo rk related injury and has addressed the issue of objective evidence. Henson, of course, challenges those findings as unsupported by substantial evidence. The Court finds that the Board s findings are supported by substantial evidence and are free from leg al error. The de cision of the Boa rd is AFFIR MED . Facts The background underlying Henson s current a ppeal was su mmarize d in this Court s prior decision reversing her appeal the Industrial Accident Board's denial of her claim for benefits and m edical expense s: Henson is a Certified Nursing Assistant and was employ ed by Ken-Crest Services as a Residential Advisor at Ken-Crest's group home for men tally retarded adults. Her duties included assisting clients with all functions that they were not able to accomplish on their own. On the evening of October 13, 2002, Henson was the only employee working during her shift due to Ken-Crest being short-staffed that night. She was, therefore, in charge of caring for four mentally retarded adults. That evening, she helped a female patient into the bathroom and onto the toilet. She left. Upo n her ree ntry into the bathroom, she says she slipped on water or urine that was on the floor and fell landing on her b uttocks. She also struck her head on the wall or a railing as she fell. There were no witnesses 1 to this inciden t. Henson acknowledged that there was no water or urine on the floor when she and the patien t initially entered the bathroom. Margaret Gardley, the Dela ware D irector of K en-Cre st, testified that the toilets in the bathroom in question had not been repaired since the accident occurred and were not leaking. Henson immediately reported the accident to her immediate supervisor, Felicia Beasley , via teleph one. Sh e com pleted an incident re port per Beasley's instruction s. Subse quent to th is incident, Beasely left Ken-Crest's employ and moved to Michigan. There was no testimony from her put before the Board. Henson worked the rest of her shift until 11:00 p.m., and Beasley transported her to Newark Emergency Center. During her stay in the emergency room, she acknowledged that she never lost consciousness in the fall and that she was in no acute distress. Henson was found to have good range of motion and she was released to return to work without restrictions. Apparently, the entire Newark Emergency Center's emergency room record was not placed before the Board. A portio n of it or a bill, was and whatever was indicated Henson was suffering from a muscle spasm in her back. On the following d ay, October 14, 2002, Henson received treatment at the Omega Medical Center. Upon examination, it was noted that she w as in no distress, that she could do full weight bearing on each side, that there was no visible asymmetry, no swelling, and no bruising in her neck and b ack. It was further noted that her range of motion was almost full with some subjective stiffness and discomfort and that she had no neurological findings. Henson was released to return to work in a light duty capacity. On October 23, 2002, Henson, however, visited Dr. Craig Sternberg for treatme nt. He w as not he r family doctor. He diagnosed Claimant w ith soft tissue strains and sprains a nd issued a no -work slip. He also found on palpation muscle tightening in her back. During the time period between October 14 and October 23, Henson went on a one-week bus trip to D etroit, Michigan. On December 9, 2002, H enson underwent carpal tunnel surgery performed by Dr. D avid Sowa. Claimant's carpal tunnel medical condition was unrelated to her October 13, 2002 work accident and the surgery she underwent did not affect Dr. Sternberg's decision to totally disable Claimant from working. 2 She saw Dr. Sternberg on December 11, 2002 and January 8, 2003 . His diagnos is remained the same du ring these visits. However, on the March 12, 2003 visit, Dr. Sternberg released Henson to light duty work. Dr. Sternberg testified by deposition, that she was to tally disabled from October 23, 2002 until March 5, 2003 as a result of the work injury. He also stated that the medical treatment has been reasonable, necessary and related to the work accident. On January 22, 2003, Dr. John Townsend examined Henson per KenCrest's request. Upon examination, Dr. Townsend noted that she had decreased range of motion and tenderness in her lower back, but noted no objective signs of injury. Dr. Townsend also testified at the hearing that Claimant sustained a cervical and lumbar strain as a result of the work accident based on her recitation of the even ts and he r comp laints. It wa s his opinion that she w ould hav e been to tally disabled for six weeks following the acciden t, again based on her com plaints. After these six weeks, she would have been capable of light duty work with restrictions on lifting. Dr. Townsend further testified that there was some evidence during his examination of Henson that she was embellishing the severity of her condition. He testified that the medical treatment she received was reasona ble, nece ssary and related to th e acciden t. Margaret Gardley testified by deposition, on behalf of Ken-Crest, that prior to the wo rk accide nt Hens on had s everal dis ciplinary problems in Augu st, Septem ber and O ctober 20 02 and th at she w as abou t to be terminated from em ploym ent. Henson was no t termina ted, how ever, du e to her going on disability following the accident. Gardley further testified that she did not have knowledge of and was not shown the incident report that Claimant completed until the day of the Board hearing. Henson denied being aware she wa s close to termination or on notice she was facing termination. Claimant's disciplinary problems included two instances of unauthorized use of a work van without permission, two instances of changing her work schedu le without notifying her supervisor, one instance of misappropriating a resident's funds, and one instance of calling out without giving proper notice.1 1 Henson v. Ken-Crest Services, C.A. No. 03A-05-008, Herlihy, J., (December 8, 2003), at 1- 5. 3 When reaching the first decision to d eny ben efits to He nson, the Board f ailed to address the Newark Emergency Room ( NER ) record showing spasm was found. Also, the Board did not address Dr. Sternberg s findings on October 23, 2002, of palpable muscle tightening. On remand, the Board heard additional testimony from Henson, Dr. Sternberg, and Dr. Townsend. In looking a t the NE R repo rt musc le spasm, the Board noted that Henson was not in acute distress and had good range of motion. In addition, the Board continued there was no notation that Henson was not to return to work. The records from her visit the next day to Omega again indicated Henson was not in acute distress. The records do not include notes as to any visible bru ising, asymm etry, or swelling. S he had alm ost full range of motion with only some stiffness and discomfort at the full range of motion. She was permitted to return to light duty work. Dr. Sternberg testified that he believed the spasm notation on the Newark records indicated the examiner found tigh tness or firm ness to the muscle that was not prese nt in other areas. Dr. Sternberg also found tightness during his October 23, 2002, examination of Henson. From Henson s history, Dr. Sternberg believed the spasms were a result of her fall at work on October 13, 2002. On cross-examination, Dr. Sternberg agreed that the m edical records from Henson s personal physician contained no mention of the fall. He also agreed that spasm could be 4 caused by several different things including an injury, such as, turning the neck the wrong way, sleeping the wrong way or overuse. The Board also heard Dr. Townsend testify at the remand hearing that he believed, based on Henson s history, she sustained a cervical and lum bar strain as a result of a work acciden t. He also indicated that he found that Henson embellished some of her symptoms during his range of m otion exam ination. Dr. T ownsend also testified that, under the A.M.A. Guides to Evaluation of Perm anent Im pairme nt Fifth Edition, tightness is not really defined or included with spasm. He could not equate tightness with spasms. H e stated that a fall was competent to produce Henson s neck and back injury. The Board found there were inconsistencies in the evidence and found that Henson did not suffer a work accident on October 13, 2002. Based on the additional testimony the Board this time clearly concluded that Henson had not suffered a work-related injury. It noted that it had not found her credible at the initial hearing and on remand saw no reasons to change that view. Its reasons were (1) lack of other eye witness testimony to the incident, (2) no reported problems of the toilet leaking, and (3) a series of disciplinary problems a few months prior to the incident and upcomin g termination (o f which H enson denied knowledg e). The Board also add ressed the NER record o f a spasm but noted the recor d also said Henson was in no acute distress and had good range of motion. The NER record did not say Henson was ex cused from work. S everal subsequent records in dicated Henson was 5 in no acute distress, with no signs of swelling, bruising, or asymmetry. She had full range of motion but some stiffness was noted. Dr. Town send also noted so me em bellishm ent. While not explicitly addressing it in its findings, the Board heard testimony from Dr. Town send tha t muscle tightness is not a m edical term and is not viewed as objective. Parties Claims Henson claims the decision of the Board is not supported by substantial evidence from which the Board could reach the conclusion that she did not suffer a work accident on October 13, 2002. Henson continues that she provided unrebutted information as to the work acciden t. She asserts she discharged her burden of showing a work accident caused her injury by presenting (1) her personal testimony as to the work a ccident, (2) a detailed description about how the wo rk accident occurred, (3) the incident report presented to her supervisor who transporte d her to Newark after her shift concluded, and (4) her medical records. Henso n conten ds that the B oard cam e to a factu ally unsu pported conclu sion because it did not focus on the objective signs of injury but on the signs and symptoms she did not exhibit. Ken-Crest counters that the B oard s decision is supported by substantive evidence whereby reasonable minds could find that Henson did not meet her burden of proof. KenCrest contend s that she did not pro ve there was an accident. 6 Standard of Review On appeal from a decision of the Board, this Court s role is limited to determining whether the Board s decision is supported by substantial evidence and is free from legal error.2 Substantial evidence means, such relevant evidence as a reasonable mind might accept as adequate to sup port a conclusion . 3 The credibility of witnesses and the factual inferences to be drawn are for the Board to determine.4 Even though the Court may have reached a different result, if the Board s decision is supported by substantial evidence, the Court does not substitute its judgment for that of the Board.5 Discussion This Court reversed and remanded the Board s first decision for it to consider the evidence of two objective signs of injury, namely, NE R s report of spasm and Dr. Sternberg s note or testimony on muscle tightness. 6 The Court also ask ed the B oard to clarify about whether it rejected Henson s claim beca use no work-related accident occurred, or one occurred, but she was not injured.7 2 Histed v. E.I. duPont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993). 3 Oceanport Industries, Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 4 Keeler v. Metal Masters Equipment Co. Inc., 712 A.2d 1004, 1006 (Del. 1998). 1994). 5 Delaware Alcoholic Beverage Control Comm. v. Alfred I. DuPont School Dist., 385 A.2d 1123, 1125 (Del. 1978). 6 Henson v. Ken-Crest Services, Del.Super., 03A-05-008, Herlihy, J. (Dec. 8, 2003), at 7 Id., at 9 - 10. 10. 7 As the moving party at a Board hearing, Henson, even on remand, still bore the burden of proving there was an injury and that the injury was work-related.8 Henson needed to establish by probative evidence that she suffered an injury that was a result of an accident which took place in the course o f her em ploym ent. 9 In addition, the accident must be established by proof with a definite referral to time, place and circumstance.10 The Board s Findings11 The Board held no additional evidence was presented to persuade it to chang e its original determination and now find Henson credible.12 The Board did not believe that Henson slipped and fell while assisting a Ken-Crest resident on the evening of October 13, 2002.13 The Board did not hear any testimony from a person able to testify who witnessed her fall. There were no reported problems with the toilet leakin g in the ba throom in question. In answer to th is Court s query, the Board found that no work-related accident occurre d and, the refore, H enson w as not inju red in a w ork-relate d accide nt. 8 Strawbridge & Clothier v. Campbell, 492 A.2d 853, 854 (Del.1985). 9 Johnson v. Chrysler Corporation, 213 A.2d 64,66 (Del. 1965). 10 Faline v. Guido & Francis DeAscanis & Sons, 192 A.2d 921, 923 - 24 (Del. 1963). 11 All information is taken from the Decision on Remand of the Industrial Accident Board, dated May 12, 2004. 12 Board decision, May 13, 2004, at 6. 13 Board decision, May 13, 2004, at 6. 8 The Court w ill now tur n its attention to the Bo ard s con sideration of the two objective signs of injury; N ER s record and Dr. Sternberg s note or testimony concerning muscle tightne ss. The Board in looking a t the NE R repo rt of mus cle spasm noted that Henson was not in acute distress and had good range of motion. In addition the Board continued there was no notation that Henson was not to return to work. The records from her visit the next day to Omeg a again indicated Henson w as not in acute distress. The records do not include notes as to any visible bruising, asymmetry, or swelling. She had almost full range of motion with only some stiffness and discomfort at the full range of motion. She was permitted to return to light duty work. Dr. Sternberg testified again at the remand hearing that he believed the spasm notation on the N ER rec ords indic ated the e xamin er found tightness o r firmne ss to the muscle that was not prese nt in other areas. D r. Sternbe rg also fou nd tightne ss during his October 23, 2002 examination of Henson. From Henson s history, Dr. Sternberg believed the spasms w ere a result of her fall at w ork on Oc tober 13, 200 2. On cross-examination, Dr. Sternberg agreed that the m edical records from Henson s personal physician containe d no m ention of th e fall. He a lso agree d that spasm could be caused by several different things including an injury, turning the neck the wrong way, sleeping the w rong way or overuse. 9 In its decision on remand, the Board stated, Dr. John Townsend testified that based on (Henson s) history, he believed she sustained a cervical and lum bar strain a s a result of the work accident. 14 In isolation, the Board s characterization of D r. Townse nd s remand testimony creates an inconsistency with its finding that there was no work-related acciden t. But Dr . Tow nsend s a ctual testim ony, tho ugh po orly and inartfully summarized by the Boa rd is not as characterized. It is, therefore , not incon sistent. Th e doctor s aid in respons e to a que stion from Henso n s coun sel: Counsel: Doctor, would you agre e that these medica l records make reference to Ms. Henson having spasms in her neck and in her back on this evening? Dr. Townsend: Coun sel: Would you agree that spasms are an objective sign that there s been a recent traumatic injury to the spasm in the body party? Dr. Townsend: Coun sel: No, I think I noted previously that it doe sn t have to be an acute injury per say but just someth ing that is different about you, the p atient s po sture, it can be an in jury, it doesn t have to be, but it generally suggests that something acute has gone on although certainly there are lots of people that will have intermitte nt spasm s even in the chronic state of their complaints. And that patien t s history h ere was that she had fallen at work about five hours ea rlier, is that righ t? Dr. Townsend: 14 It does suggest that, yes. That was the Patient s history. It would be very hard to fake spasm in the neck and the back. Board decision, May 13, 2004, p. 5. 10 Coun sel: And as far as those medical records, there s an objective reference to spasm on the night of the work accident. Is that correct? Dr. Townsend: Coun sel: There w as men tion of spa sm the n ight of the in cident. Based on a reasonable degree of medical probability the spasms that Dr. Hurwitz was appreciating in the Emergency Room on the night of th e acciden t, would you agr ee that tho se are cau sally related to th e work acciden t? Dr. Townsend: Assuming that there was a work accident, what the Patient described would have been comp etent to produce a complaint of neck and back pain and spasm.15 Dr. Townsend was questioned about the NER records showing spasm. He agreed it is an objective sym ptom. But the point remains, was whether that symptom was an objective manifestation of injury from a work-related incident. The Board said it wa s not, rejecting Henson s testimony as not credible. By doing so, it was capable of rejecting a medica l opinion b ased on patient sub jective state ment. 16 What Dr. To wnsen d said, in sum, was that if there were a work-related injury, he would agree tha t Henso n suffered a cervica l and lum bar strain as a result. The Boa rd s inartful characterization of what he said does not undercut its ultimate finding or indicate there is no substantive evidence to support that finding. 15 Henson v. Ken-Crest Services, Industrial Accident Board Hearing, No. 1221483, April 19, 2004. 16 Clements v. Diamond State Port Corp., 831 A.2d 870, 878 (Del. 2003). 11 In fulfilling its sole function on appeal, this Court finds that there was substantial evidence supporting the Board s holding that Henson did not suffer a work-related injury on October 13, 2002. When she was examined at NER almost six hours after the purported fall, the only symptom noted was spasm. There was no indication of bruising, swelling or any other symptom. There was no notation that she was un able to move with full range of motion. The next day when Henson was examined, there were no symptoms other than tightness, which may or may not have been spasms. Again, there were no bruises, no distress, no asymmetry and almost full range of motion. She walked with a steady gait. No swelling wa s found. Henson has asked this Court to weigh the evidence presented to the Board and find that the Board did not have the sufficient e vidence to suppo rt its decision . This C ourt is not empowered to d o so and will n ot do so. T he Cou rt finds ther e is more th an a scintilla of evidence to support the conclusion of the Board that Henson did not suffer a workrelated injury. The Board has also adequately addressed the medical issues identified in this Court s earlier remand decision. Conclusion For the reason here in stated, the decision o f the Indu strial Acc ident Bo ard is AFFIRMED. J. 12
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