Parson v. City of Wilmington.
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IN THE SUPERIOR COURT OF THE STATE OF
DELAWARE IN AND FOR NEW CASTLE COUNTY
CHRISTOPHER PARSON
Appellant
v.
CITY OF WILMINGTON
Appellee
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CIVIL ACTION NUM BER
12A-03-019-JOH
Submitted: January 14, 2013
Decided: January 24, 2013
MEMORANDUM OPINION
Upon Appellee’s Motion for Reargument GRANTED in part and DENIED in part
Appearances:
Christopher A. Amalfitano, Esquire, of Ramunno & Ramunno, P.A., Wilmington, Delaware,
Attorney for Appellant.
John Gilbert, Esquire, and John J. Ellis, Esquire, of Heckler & Frabizzio, Wilmington,
Delaware, Attorneys for Appellee.
HERLIHY, Judge
Appellee, City of Wilmington, has moved to reargue this Court’s December 24,
2012 ruling reversing a decision of the Industrial Accident Board. The Board denied
Christopher Parson’s petition for compensation for an injury allegedly suffered on January
14, 2011. The Board held he suffered a recurrence of his compensable May 14, 2009
injury, but held it could not award him anything for that prior injury, as he had not sought
additional compensation.
In reversing the Board, the Court held the Board erred in applying the wrong
standard in determining Parson’s work related injury was a recurrence and not an
aggravation. The City argues that this Court erred in so holding, and contends it erred in
other portions of its holding.
Upon re-examination, the Court concurs that it erred, and refines its earlier opinion
accordingly. Accordingly, the motion to reargue is GRANTED in part, and DENIED
in part.
Discussion
A brief factual background is necessary to place this matter into context. Parson
had been sanitation worker for eighteen years with the City. His job was a “chucker.”
That entailed either picking up trash cans, trash bags and the like, and dumping them into
a trash truck, or attaching a dumpster hook to the truck. There is no personal lifting in this
second duty.
Parson suffered an acknowledged compensable back injury in 2009 when the trash
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truck in which he was riding was hit. In 2011, he was picking up a trash bag as part of
regular duties when he felt a sharp pain down his leg. There was no new injury to his
back. Based on the medical testimony, as recited in this Court’s earlier decision, the
Board held a recurrence, not an aggravation had transpired.
In reaching this conclusion, the Board employed the standard enunciated in Standard
Distributing Co. v. Nally.1 The standard in Nally involved what is known as successive
carrier liability and how to determine whether a subsequent injury is an aggravation or a
recurrence of an earlier compensable injury. While the City did not change carriers
between the two incidents in this case, the Board analogized this case to Nally as a means
to determine if what happened to Parson in 2011 was a recurrence or an aggravation. In
refining prior decisional law on the standard to determine recurrence or aggravation, the
Court in Nally said:
The use of the word “aggravation” by this Court in Facciolo indicates that
the injury must be worsened by the second event before the second carrier
will be liable. In a literal sense “aggravation” means that a condition is
“made worse, more serious, or more severe.” Webster’s Ninth New
Collegiate Dictionary, 64 (1990). The employee’s physical condition after
the second event may appear worse, or more serious, because of the
appearance, or reappearance, of symptoms which, from a medical
standpoint, suggests an aggravation. In order to fix carrier responsibility,
however, the analysis must proceed to the causation stage to determine if the
changed condition is attributable to a new industrial accident. In short, the
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
1
630 A.2d 640 (Del. 1993).
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injury attributable to an untoward event.2
*****
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 untoward 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 aggravation of his physical condition, the second carrier must
respond to the claim for additional compensation.3
The Supreme Court, in enunciating these rules, acknowledged there “is an element
of arbitrariness” in them.4 That’s an understatement. As the Supreme Court inferred,
there is a disconnect between the law and medicine in recurrence/aggravation cases5 and
this case is one such manifestation. The application of these rules can border on the
ridiculous. For instance, suppose a worker suffers a herniated disk in a work-related
incident, but then suffers a second incident and the herniation is now more extreme? And
clearly, there was an event but just how “untoward” must it be? These rules also strongly
suggest that to be an aggravation, the second incident must cause a new injury. Why is
that a new injury and not an “aggravation?” What is an “untoward event?”
Nally’s application is in successive carrier insurance cases and by the Supreme
2
Id. at 645.
3
Id. at 646 (citation omitted).
4
Id.
5
Id. at 645.
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Court’s admission, is an arbitrary rule to determine which carrier pays. It was built on
two prior other successive carrier opinions: DiSabatino & Sons, Inc. v. Facciolo6 and Mr.
Pizza, Inc. v. Schwartz.7
The Court notes that the concurring opinion in Schwartz
recommended abolishing the unusual exertion rule for those injured in the course of their
employment. Specifically, the Court stated, “[w]hile not problem free, it is a fairer
standard of recovery for those injured in the course of their employment.”8
The Court earlier ruled the Board erred in using the Nally standard. Instead, this
Court held, the Board should have used the standard the Supreme Court set forth in Duvall
v. Charles Connell Roofing.9 Though factually different from this case, the Court believes
(and still believes) the Duvall test to be more fair, more rational, and easier to utilize in
analyzing a recurrance/aggravation issue. Without any precedent in a situation of a single
carrier, the choice of Duvall, for those reasons, seemed more appropriate. What makes
the law in this area murky, however, is that Duvall was decided between Facciolo and
Schwartz, and Nally.
As noted, Duvall did not involve successive carrier, as is the case here. The City
did not change carriers between Parson’s 2009 injury and his 2011 injury. In Duvall,
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306 A.2d 716 (Del. 1973).
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489 A.2d 427 (Del. 1985).
8
Schwartz, 489 A.2d at 433.
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564 A.2d 1132 (Del. 1989).
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recovery is possible where, “irrespective of previous condition, an injury is compensable
if the ordinary stress and strain of employment is a substantial cause of the injury.”10
Duvall had a prior back condition, which, not caused by a prior work-related injury,
became symptomatic when he lifted an eighty pound bundle of roof shingles in the course
of his employment. There was no cumulative work stress involved; he was undertaking
normal duties and there was a definitive incident. In short, the difference between the two
cases is that Duvall’s injury was not a prior work-related injury, which of course, is
significant. But yet the test is better, and so is the fact that this case does not involve two
insurers. Parenthetically in Nally, he incurred pain when planting his foot in moving a beer
keg.
The Supreme Court in Nally touched on Duvall’s abandonment of the usual exertion
rule. But it also said Duvall did not overrule Facciolo and Schwartz in utilizing the
unusual exertion rule in recurrence/aggravation cases.11 Although, when one examines the
cause and injury in Schwartz’s twisting motion while lifting a five gallon carton of milk,
which the Supreme Court found to be unusual exertion, one has to have questions about
the application of “unusual.”12
The trouble here is several-fold. First, there is no decision of this Court or the
10
Id. at 1136.
11
Nally, 630 A.2d at 644.
12
Schwartz, 489 A.2d at 432.
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Supreme Court dealing with recurrence/aggravation cases where the carrier has not
changed from the first incident to the next, as here.13 While there might be some support
for establishing an arbitrary rule which bypasses medicine to hold one of two carriers
liable, that policy does not exist here. Second, Parson’s back pain which came on as he
lifted the trash bag was clearly a worsening - aggravation as the doctors testified - of his
pre-existing work- related injury. He did not have the pain the day before or the hour
before.
Nally and Duvall are factually distinct from this case, as noted, and the Supreme
Court has left such cases, as this, in cyberspace between them. Only because of the
Supreme Court’s statement that Duvall did not overrule Facciolo and Schwartz in
recurrence/aggravation cases is this Court, upon reflection, compelled to reverse its prior
ruling and hold that the Board’s application of Nally, by analogy, to this single carrier
case, was correct. Only the Supreme Court can rectify this decisional law quagmire.
In its motion for reargument, the City also objects to two other portions of this
Court’s earlier decision. One objection is that the Court erred in directing the Board on
remand to consider Parson’s bills in relation to the 2009 injury. The City is correct that,
as the Board recognized, it had before it a petition to determine compensation due which
13
In Wohlsen Constr. v. Hodel, 1994 WL 762657 (Del. Super. Dec. 15, 1994), this Court
held the Board did not err in its application of Nally, as the employee’s situation was similar to
a successive carrier case. The employee in Hodel suffered a compensable injury to his lower back
while working for the employer. He subsequently left working for the employer and had a second
injury while self-employed and not insured for workers’ compensation.
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related only to the 2011 injury. There was no petition for additional compensation due
relating to the 2009 injury. The Board could not properly make an award for additional
compensation due under that procedural circumstance.
The City, however, misapprehends the earlier remand. Since the Court found the
Board used the incorrect test, a decision reversed in this opinion, the remand was not as
constricted as the City desires.
Parson was free to add a petition for additional
compensation due.
The City further argues that, “there was no controversy before the Board as to
whether any medical bills were reasonable and related to the 2009 [sic].”14 It is unclear
whether in making ths argument the City is reading the same January 20, 2012 Board
decision this Court is:
An awkward issue is raised at this point. Both of Claimaint’s petitions have
been denied. However, there are medical bills out there (including a
surgical proposal). While the Board does not agree that these medical bills
are related to a January 2011 work injury, the evidence is strong that those
bills are related to the 2009 date of injury. However, technically, the only
petition filed with respect to the 2009 injury was for permanent impairment.
Thus, the Board cannot make an award or even a finding of medical
expenses related to the 2009 injury in this decision.15
Of course, the Board said it was unclear if there were a dispute about the
reasonableness and necessity of the bills in relation to 2009. But the language above
14
City’s Mot. for Rearg., at 3.
15
Parson v. City of Wilmington, Nos. 1336626 & 1364716, at 14 (Del. I.A.B. Jan. 20,
2012) (footnote omitted).
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should have rung bells. Further, the City now knows what the bills are and may want to
act promptly to avoid penalties for delayed payment. In any event, that portion of the
Court’s decision stands, remanding the matter to the Board, which would enable Parson
to pursue his medical bills as they related to the 2009 injury.
Another portion of the Court’s earlier decision to which the City objects is that it
is not entitled to utilization review of the medical bills. It is not. It chose to contest the
relationship of those bills to the 2011 injury as it was entitled to do. Accordingly, it
forfeited its right to utilization review of those bills. In other words, since under 19 Del.
C. § 2322F(j), it did not acknowledge the bills were related to the injury, it forfeited its
right to utilization review at any stage.
This Court ruled in Poole v. State16 that when a carrier or employer does not
acknowledge that a compensable work injury has occurred, there is no utilization review.
Absent the City’s acknowledgment, forfeiture results. The City seeks to differentiate
Poole from this case by contending there were two separate cases and that it was not
contesting the 2009 injury.
The City misses the point, and the mark. By contesting the relationship of the bills,
it forfeited utilization review. Poole applies to whenever an employer/insurer contests
whether the injury is work related, if the bills are reasonable and necessary, or are related
to recurrence or an aggravation, etc. Poole held that the Board cannot delegate its function
16
Poole v. State, C.A. No. 11A-04-012 (Del. Super. Dec. 4, 2012).
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to the utilization review process the determination of whether medical expenses are
reasonable and necessary. The injury has to be acknowledged as compensable and the only
issue is the amount of the expense in light of Delaware Practice Guidelines (DPGs).
The Board, even though it strongly urged the City to ante up, also said the
reasonableness and necessity of the bills as they related to the 2009 injury was possibly in
dispute. Therefore, upon remand, if the City still disputes the reasonableness and
necessity of the medical expenses as to the 2009 injury, the Board makes all necessary
decisions and there is no utilization review. If, however, the City now takes the position
before the Board that the bills are reasonable and necessary, but wants utilization review
just to the amount within DPGs, it is entitled to utilization review.
The City needs to reread and understand Poole.
Conclusion
For the reasons stated herein, the Motion for Reargument of the City of Wilmington
is GRANTED in part (as to the test to be applied), and DENIED in part (as to the scope
of remand and the application of Poole v. State).
IT IS SO ORDERED.
/s/ Jerome O. Herlihy
J.
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