IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
WILKINSON ROOFING & SIDING,
C.A. No. 08A-08-003 MMJ
Submitted: November 2, 2009
Decided: February 4, 2010
On Cross-Appeals from a Decision of the Industrial Accident Board
Matthew R. Fogg, Esquire, Wilmington, Delaware, Attorney for Appellant
Cheryl A. Ward, Esquire, Wilmington, Delaware, Attorney for Appellee
Wilkinson Roofing & Siding
Michael P. Kugler (“Claimant”) and Wilkinson Roofing & Siding
(“Employer”) have cross-appealed the July 22, 2008 decision of the
Industrial Accident Board (“Board”).
The Board granted Claimant’s
Petition to Determine Additional Compensation Due and awarded Claimant
compensation for outstanding medical expenses, four months’ compensation
for total disability beginning November 29, 2007, medical witness fees, and
On appeal, Claimant argues that the Board erred, in part, by awarding
a four-month period of temporary total disability benefits post-operatively in
lieu of an open-ended period. Employer, on cross-appeal, argues that the
Board’s decision – finding that Claimant’s surgery was reasonable,
necessary, and causally related to his work accident – was not supported by
FACTUAL AND PROCEDURAL CONTEXT
On January 29, 2002, Michael P. Kugler, while in the course and
scope of his employment, injured his lower back and left lower extremity as
a result of the cumulative detrimental effects of his employment. Employer
acknowledged that these injuries were compensable.
compensation for a 37.65% impairment to his lower back and a 47.5%
impairment to his left lower extremity. He also received the maximum
applicable total disability compensation until July 2, 2007.
Claimant underwent two surgeries in 2005 to repair his injuries, the
first on January 12, 2005 and the second on March 2, 2005. Despite the
surgeries, Claimant continued to experience increasing back and leg pain.
Claimant complained to Dr. Uday Uthaman, his pain management doctor, of
this increased pain.
Following a September 5, 2007 neurological
consultation, Dr. Kennedy Yalamanchili noted that Claimant suffered from
weakness in his left leg, sensory loss in his left leg, diminished reflexes in
both legs, and difficulty with ambulation due to his left leg symptoms.
Dr. Yalamanchili opined that Claimant was chronically disabled due
to his lower back and had chronic nerve problems involving his left leg.
Because of Claimant’s persistent disabling conditions, an increase in
narcotic dosage with marginal results, and a lack of improvement from
conservative treatment, Dr. Yalamanchili recommended Claimant undergo a
third surgical procedure.
Claimant underwent the third surgery on
November 29, 2007.
On October 4, 2007, Claimant filed a Petition to Determine Additional
Compensation Due seeking medical expenses for the third surgical
procedure and additional total disability benefits beginning on the date of the
surgery. Employer opposed the petition and argued that the third surgery,
following the previous two failed surgeries, was unreasonable and
unnecessary. The Board held a hearing on June 3, 2008.
During a May 7, 2008 deposition, Dr. Yalamanchili testified that
Claimant’s last surgery “generally takes about six to eight weeks [before
patients] show any signs of progress.” He also testified that the anticipated
recovery time was about three to four months, but it could take up to a year
to see all the surgical improvements.
From a second physical examination on March 17, 2008, Dr.
Yalamanchili noted an improvement in Claimant’s leg strength and reflexes,
and an overall improvement in Claimant’s symptoms. Dr. Yalamanchili
opined that Claimant remained significantly disabled and unable to work due
to both his narcotic dependence and the risk of re-injury if Claimant
performed any non-sedentary activities.
On cross-examination, Dr. Yalamanchili admitted that smoking could
inhibit the ability of bone to heal. Dr. Yalamanchili testified that he warned
Claimant of the negative effects of his continued smoking, and that Claimant
had smoked two packs of cigarettes per day for at least twenty years. Dr.
Yalamanchili also stated that Claimant’s weight also could adversely affect
his lumbar function.
At the hearing, Claimant testified that the two surgeries in 2005 did
not alleviate the pain, tingling and numbness in his leg or back. He testified
that although the third surgery resolved the symptoms in his legs and a
poking sensation he experienced in his back, he continued to have a burning
pain in his back, which was alleviated slightly with medication. Claimant
testified that he recently had reduced the number of cigarettes he smoked per
day and had begun to lose weight.
Claimant also testified that Dr.
Yalamanchili’s physician’s assistant conducted the physical examination
following the third surgery, and not Dr. Yalamanchili himself.
On behalf of the employer, Dr. Steven Grossinger examined
Claimant’s medical records and conducted physical examinations of
Claimant in April of 2007, October of 2007, and April of 2008. During a
May 16, 2008 deposition, Dr. Grossinger testified that Claimant’s subjective
complaints of pain did not correlate to the objective findings following
Claimant’s April 2007 and October 2007 examinations. Dr. Grossinger
opined that Claimant may have embellished or magnified his symptoms.
Before Claimant’s third surgery, Dr. Grossinger noted that the number
of procedures Dr. Yalamanchili intended to perform during the surgery,
along with Claimant’s smoking history, weight, diabetes, and his two
previously failed surgeries, lessened the chance of a third surgery’s success.
Dr. Grossinger opined that the third surgery was unreasonable and
During the October 2007 examination, Dr. Grossinger found that
Claimant’s condition remained objectively unchanged since his second and
third surgeries. He also noted that Claimant took a higher dose of narcotics
following the third surgery than preceding it.
From his April 2008
examination of Claimant, Dr. Grossinger again found no objective
improvement in Claimant’s condition stemming from the third surgery.
On cross-examination, Dr. Grossinger admitted that he does not
perform back surgery and that he made his conclusions without having
reviewed Dr. Yalamanchili’s November 2007 operative report.
Grossinger acknowledged that his reports do not state specifically that
Claimant was magnifying his symptoms. Dr. Grossinger also agreed that the
medical notes from Dr. Uthaman from May through July 2007 show that he
noted Claimant displayed an increase in symptoms leading up to Claimant’s
surgical procedure. Dr. Grossinger conceded that some objective data taken
after the third surgery indicated an improvement in Claimant’s condition.
He also conceded that Claimant reported to him some subjective
improvement in his leg symptoms following the third surgery.
In an opinion dated July 22, 2008, the Board found that Claimant
demonstrated, by a preponderance of the evidence, that the third surgery was
reasonable, necessary, and causally related to his work injury, that Claimant
required four months’ total disability benefits to recover, and that Claimant’s
counsel was entitled to reasonable attorney’s fees.
Claimant appealed the Board’s ruling on August 7, 2008, challenging
the Board’s finding that Claimant was limited to four months’ total disability
benefits. Employer cross-appealed, arguing that the Board’s decision, on the
causal relationship and the compensability of the surgical intervention, was
not supported by substantial evidence.
STANDARD OF REVIEW
On appeal from the Industrial Accident Board, the Superior Court
must determine if the Board’s factual findings are supported by substantial
evidence in the record. 1 “Substantial evidence” is less than a preponderance
of the evidence but is more than a “mere scintilla.” 2 It is “such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” 3 The Court must review the record to determine if the evidence
is legally adequate to support the Board’s factual findings. 4 The Court does
Histed v. E.I. DuPont deNemours & Co., 621 A.2d 340, 342 (Del. 1993).
Richardson v. Perales, 402 U.S. 389, 401 (1971).
Histed, 621 A.2d at 342 (citing Olney v. Cooch, 425 A.2d 610, 614 (1981)).
Johnston v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
not “weigh evidence, determine questions of credibility or make its own
factual findings.” 5 If the record lacks satisfactory proof in support of the
Board’s finding or decision, the Court may overturn the Board’s decision.6
On appeal, the Superior Court reviews legal issues de novo. 7
Claimant’s Third Surgery Was Reasonable and Necessary
Employer asserts that the Board’s findings are not supported by
Following the hearing, the Board found that Claimant had
demonstrated, by a preponderance of the evidence, that the third surgery was
reasonable, necessary, and causally related to his work injury. The Board
first found that Claimant’s condition had deteriorated in the time between his
second and third surgeries, resulting in a necessary neurological
Although Dr. Grossinger opined that Claimant did not demonstrate a
change in condition following his second surgery, the Board found that this
conclusion contradicted Dr. Grossinger’s own admission that Claimant’s
right leg symptoms in May of 2007 were “new.” The Board recognized Drs.
Yalamanchili and Uthaman’s corroborating evidence in the form of
Olney, 425 A.2d at 614.
Johnson, 213 A.2d at 66-67.
Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del 2009).
Claimant’s subjective complaints, a May 2007 MRI, and physical
In light of the corroborating evidence, the Board found
Claimant to be “very credible” regarding the deterioration in his condition
beginning around May 2007.
The Board next found that Dr. Yalamanchili’s decision to recommend
additional surgery was reasonable. The Board recognized that Claimant’s
condition did not improve with conservative treatment and increased
medication only yielded marginal improvement.
The Board did not agree with Dr. Grossinger’s opinion that the
surgery was unreasonable due to the fifty-fifty chance of significant success.
The Board found that Dr. Yalamanchili was clear that “Claimant’s chance
for significant improvement would be fifty-fifty,” considering Claimant’s
risk factors. Nevertheless, Dr. Yalamanchili’s opinion did not preclude all
The Board found that the determination of a patient’s
candidacy for surgery, in light of the relevant risk factors, is best left to the
The Board next disagreed with Dr. Grossinger’s assertion that
repeated surgery in light of the previously unsuccessful surgeries was
unreasonable and unnecessary. Although Dr. Yalamanchili agreed with Dr.
Grossinger’s general assertion that repeated surgeries on the same area of the
spine yield very low success rates, he countered that the third surgery was on
a section of Claimant’s spine separate from those previously targeted. For
that reason, the Board found Dr. Grossinger’s rationale inapplicable to their
Finally, in response to Dr. Grossinger’s opinion that the November
2007 surgery was not justified because Claimant did not show any
subsequent improvement, the Board noted that the outcome of any surgical
procedure, whether successful or otherwise, is not absolutely determinative
of the reasonableness and necessity of the procedure.
The Board also
disagreed with Dr. Grossinger’s assertion that Claimant had not shown any
improvement from the third surgery. Both Dr. Yalamanchili and Claimant
testified that, although Claimant still experienced some back pain, the pain
in his legs had significantly diminished and Claimant’s leg strength and
reflexes were improved. Dr. Grossinger himself testified that Claimant had
a “normal gait” and no longer relied on the assistive devices he previously
used. Dr. Grossinger also admitted that he had not reviewed any of Dr.
Yalamanchili’s post-operative reports, relying instead only on his own
Employer does not claim that the Board committed any legal errors,
only that the Board’s conclusions are not supported by substantial evidence.
In coming to its decision, the Board reviewed the medical evidence
submitted and the testimony of Claimant, Dr. Yalamanchili and Dr.
When both conflicting expert opinions are supported by
substantial evidence, the Board is free to accept one opinion over the other
opinion. 8 The Court should defer to the Board’s “experience and specialized
competence” in its findings of fact. 9
After reviewing the totality of the evidence, the Board accepted the
opinion of Dr. Yalamanchili over that of Dr. Grossinger. That decision was
within the Board’s purview. Employer has failed to demonstrate that the
Board’s findings were not supported by substantial evidence in the record.
Claimant was Totally Disabled For a Period of 4 Months
The Delaware Code provides, in part: “For injuries resulting in total
disability occurring after July 1, 1975, the compensation to be paid during
the continuance of total disability shall be 66 2/3% of the wages of the
injured employee.” 10 The term “total disability” as used within the statute is
not to be interpreted as “utter helplessness.” 11 “Total disability” means “a
disability which prevents an employee from obtaining employment
Standard Distrib. v. Hall, 897 A.2d 155, 158 (Del. 2006).
29 Del. C. § 10142(d) (2009) (“The Court, when factual determinations are at issue, shall take due
account of the experience and specialized competence of the agency and of the purposes of the basic law
under which the agency has acted. The Court's review, in the absence of actual fraud, shall be limited to a
determination of whether the agency's decision was supported by substantial evidence on the record before
19 Del.C. § 2324.
M.A. Hartnett, Inc. v. Coleman, 226 A.2d 910, 913 (Del. 1967).
commensurate with his qualifications and training” and may be found “if the
claimant's physical condition is such as to disqualify him from regular
employment in any well-known branch of the labor market.” 12
Dr. Yalamanchili testified over four months after the surgery that
Claimant remained “significantly disabled” and was “unable to work under
Although Dr. Yalamanchili testified that Claimant
remained totally disabled, the Board found that Claimant required total
disability benefits for a closed period of four months to recover from the
The Board found that Dr. Yalamanchili’s conclusions were
speculative and contradicted by Claimant’s testimony.
Dr. Yalamanchili testified that the typical recovery period following
the third surgery was three to four months. Although he stated that full
recovery could take up to a year, the Board found the latter assertion
speculative, especially in light of the evidence that Claimant’s weight and
continued smoking might hinder recovery. The Board noted that although
Dr. Yalamanchili testified about Claimant’s risk of re-injury, he stated that
the risk arose if Claimant performed activities above a sedentary level. The
surgery would not preclude him from sedentary work after four months.
Further, the Board did not credit Dr. Yalamanchili’s assertion that
Claimant’s narcotic intake would prevent him from returning to work. The
Board noted that Claimant did not testify about any functional difficulties
due to his medication and that Claimant had driven himself to the hearing.
Claimant did not testify about any negative side effects from the medication.
He testified that the medication reduced his back and leg pain but that his
back pain was still the same as it was before his surgery. He stated that
medication and physical therapy made the pain tolerable.
Employer did not challenge Claimant’s entitlement to temporary
disability benefits from the date of the November 29, 2007 surgery.
When seeking to terminate total disability benefits, the employer has
the initial burden to demonstrate that the employee was not completely
incapacitated for work.13 “[U]ncontradicted evidence need not necessarily
be accepted as true, where there is evidence or circumstances from which
contrary inferences may be drawn.” 14
In this case, Claimant’s evidence of total disability, beyond the fourmonth period following surgery, was disputed and inconsistent. The Court
Chrysler Corporation v. Duff, 314 A.2d 915, 918 n. 1 (Del. 1973).
Chrysler Motors Corp. v. Howe, 1996 WL 111142, at *2 (Del. Super. 1996) (quoting Miller Land
Constr. v. I.A.B., Del. Super., C.A. No. 89A-MR1, Lee, J. (May 1, 1990)); see also Sears, Roebuck & Co.
v. Farley, 290 A.2d 639, 641 (Del. 1972) (relying on DeBernard v. Reed, 277 A.2d 684 (Del. 1971)).
finds that the Board’s award of four months of total disability benefits was
supported by substantial evidence in the record.
The Court, having found that the Board’s July 22, 2008 Decision
granting Claimant outstanding medical expenses for the November 29, 2007
surgery and other related medical treatment, a four-month period of total
disability beginning November 29, 2007, and attorney’s fees, was supported
by substantial evidence in the record, hereby AFFIRMS the decision in its
IT IS SO ORDERED.
/s/ Mary M. Johnston
The Honorable Mary M. Johnston