Rescare Home Care v. Wyatt.
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SUPERIOR COURT
OF THE
STATE OF DELAWARE
E. SCOTT BRADLEY
1 The Circle, Suite 2
GEORG ETOW N, DE 19947
JUDGE
March 6, 2013
Linda Wilson, Esquire
Marshall, Dennehey, Warner
Coleman & Coggin
1220 N. Market Street, 5th Floor
P.O. Box 8888
Wilmington, DE 19899-8888
Kenneth F. Carmine, Esquire
Potter, Carmine & Associates
840 N. Union Street
P.O. Box 30409
Wilmington, DE 19805
RE: Rescare Home Care v. Amanda Wyatt
C.A. No. S12A-06-004-ESB
Date Submitted: December 17, 2012
Dear Counsel:
This is my decision on the cross-appeals filed by Amanda Wyatt and Rescare
Home Care in this workers’ compensation case. Wyatt was employed as a certified
nursing assistant with Rescare. Wyatt’s job was to care for a five-year-old boy, Isaac.
Isaac, who weighed approximately 50 pounds, was completely dependant on Wyatt
for his care. She would care for him at his home and school. In caring for Isaac,
Wyatt often had to lift him from his wheelchair to the floor or to another chair and
back. On December 15, 2010, Wyatt was lifting Isaac from his wheelchair to his
lunch chair when she lost feeling in her left leg. Wyatt described the feeling as
“everything was numb.” Four days later, Wyatt had surgery to correct a herniated
disc in her back. Wyatt filed a Petition to Determine Compensation Due with the
Industrial Accident Board on June 10, 2011. The main issue before the Board was
whether Wyatt suffered a compensable work-related accident in the course and scope
of her employment with Rescare.
The Board held a hearing on January 18, 2012. Six people testified at the
hearing. Wyatt, LeAnne Waltz, Mary Leight and Dr. Balapur Venkataramana
testified in favor of Wyatt. Dr. Kevin Hanley and Betty Alfree testified in favor of
Rescare. Wyatt testified about the nature of her job, and how she injured her back
and the medical treatment she sought for it. Leanna Waltz is Wyatt’s mother. She
testified about her daughter’s complaints of back pain. Mary Leight is a physical
therapy assistant at Isaac’s school. She testified about seeing Wyatt limping on
December 15, 2010. Betty Alfree is a manager for Rescare. She testified about
Wyatt’s complaints of back pain after December 15, 2010.
Dr. Balapur
Venkataramana is a board certified neurosurgeon. He testified about the surgical
procedure he performed on Wyatt. He also testified that the nature of her work
caused her back problem. Dr. Kevin Hadley is a board certified orthopedic surgeon.
He examined Wyatt for Rescare. He testified that her back problem was not caused
by her work. The Board issued its decision on February 3, 2012. The Board found
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in favor of Wyatt and awarded her total disability benefits from December 15, 2010
though February 1, 2011 at a rate of $364.33 per week, an award of attorney’s fees
of $8,000.00, reimbursement of medical witness fees, and the payment of her medical
bills. On February 15, 2012, Rescare filed a Motion for Reargument. The Board
issued its decision on Rescare’s Motion for Reargument on May 30, 2012. In that
decision the Board found that Rescare was not obligated to pay for Dr.
Venkataramana’s medical bills, other than the initial consultation, because he is an
in-state physician who is not certified and did not obtain preauthorization for Wyatt’s
treatment. The Board did find Wyatt’s other medical bills to be compensable. On
June 19, 2012, Rescare filed an appeal of the Board’s finding on causation. On June
27, 2012, Wyatt filed a cross-appeal on the Board’s finding on Dr. Venkataramana’s
bills.
STATEMENT OF FACTS
Wyatt’s job was to provide individualized care to a five-year-old boy named
Isaac. Isaac weighed approximately 50 pounds.
Isaac was completely dependant
on Wyatt for his care. Among other things, Wyatt would feed, bathe, transfer, and
walk him. Wyatt would also have to frequently lift Isaac from his wheelchair to the
floor or to another chair by herself. A normal work day for Wyatt involved meeting
Isaac at school, caring for him throughout the school day, and making sure he got
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back on the bus to go home at the end of the day. Two or three evenings a week,
Wyatt would go over to Isaac’s house to help care for him.
On the morning of October 21, 2010, prior to going into work, Wyatt
experienced back pain while bending over to pick something up off of the floor.
Wyatt attempted to get through the workday, but was unable to do so due to the pain
in her back. Wyatt went to the emergency room for treatment. She was prescribed
pain medication and told she had a lumbar back strain. Wyatt took three days off
from work to recover.
On Friday, December 10, 2010, Wyatt experienced back soreness while at
Isaac’s school. Wyatt believed her back was sore from working. She did not seek
medical treatment for her back. Wyatt instead used the weekend to rest her back. She
also took Monday, December 13th off to give her back another day to heal. On the
evening of Tuesday, December 14th, Wyatt went over to Isaac’s house to help his
mom with his care.
On Wednesday, December 15, 2010, Wyatt was taking care of Isaac at school.
As she was lifting Isaac from his wheelchair to his lunch chair, Wyatt felt all of the
pain in her back disappear and everything go numb. The numbness went into Wyatt’s
legs and caused her to walk with a limp because she was forced to drag her left foot
due to a lack of feeling in it. She also had an urgency to urinate. Over the course of
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the evening Wyatt’s symptoms worsened.
Wyatt went to see Dr. Venkataramana on December 17, 2010. While in the
waiting room, Wyatt and her mother were discussing her injury. The receptionist
overheard the discussion and asked Wyatt if her injury was a workers’ compensation
case. Dr. Venkataramana does not handle workers’ compensation cases. Wyatt told
the receptionist that it was not a workers’ compensation case because she feared she
would not be able to see the doctor if she admitted she was hurt at work. Wyatt told
Dr. Venkataramana about her October 21st and December 10th back incidents. Still
scared that Dr. Venkataramana would not treat her if she told him the truth about the
cause of her injury, Wyatt told Dr. Venkataramana that she woke up the morning of
December 15th with numbness. She did not tell him that the numbness started after
she lifted Isaac from his wheelchair to his lunch chair. Dr. Venkataramana sent Wyatt
for x-rays, an MRI, and bloodwork. The MRI showed a large disc herniation at
L5/S1 lateralized to the left, significant spinal stenosis at L4/5, and early degeneration
of L5/S1.
Wyatt met Dr. Venkataramana to go over the results of her tests on December
18, 2010. He informed her that she needed surgery on an urgent basis, and scheduled
the surgery for the following day. Dr. Venkataramana performed spinal surgery on
Wyatt on December 19, 2010. In addition to decompressing the spinal canal, he
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performed a discectomy, laminectomy, and fusion. Wyatt continued to treat with Dr.
Venkataramana after the surgery. It was after surgery that Wyatt disclosed the true
nature of her injury to Dr. Venkataramana.
Dr. Venkataramana’s Testimony
Dr. Venkataramana is a board certified neurosurgeon. He first examined Wyatt
on December 17, 2010. Dr. Venkataramana testified that Wyatt reported to him with
numbness in both buttocks, the back of both thighs, and on the left side the numbness
was all along the left leg to the heel and toes. Wyatt also informed him about her
incontinence issues since the injury. Dr. Venkataramana testified that he was aware
Wyatt had been working as a caregiver to a dependant child. Dr. Venkataramana
reviewed Wyatt’s medical files. Dr. Venkataramana testified, after reviewing the
results of the x-rays and MRI, that he believed Wyatt needed surgery on an urgent
basis. He reasoned that it was necessary to relieve the compression on the nerves
before any permanent damage occurred. Dr. Venkataramana concluded that the type
of work that Wyatt did caused the herniated disc which resulted in the need for
surgery. Dr. Venkataramana acknowledged that Wyatt presented to Dr. Hanley with
a different history of her December 15, 2010 injury. However, the symptoms she
presented with were the same. Dr. Venkataramana did not find out until after the
surgery that Wyatt injured herself while lifting Isaac on December 15, 2010.
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Dr. Hanley’s Testimony
Dr. Kevin Hanley testified on behalf of Rescare. Dr. Hanley is a board certified
orthopaedic surgeon. He examined Wyatt on March 7, 2011, and again on October
18, 2011. He was aware of her job duties as a CNA. Unlike Dr. Venkataramana,
Wyatt told Dr. Hanley that the numbness in her legs began when she attempted to lift
Isaac out of his wheelchair on December 15, 2010 . On March 7, 2011, Dr. Hanley
diagnosed Wyatt with a herniated nucleus pulposus with urinary tract
symptomatology. Dr. Hanley believed that Wyatt tore an annulus and it had been
leaking onto the nerve root prior to December 15, 2010. Dr. Hanley testified that he
could not relate Wyatt’s back problems to her work largely because she gave
conflicting statements about what happened on December 15, 2010, making it
difficult for him to rely on her statements for a diagnosis.
STANDARD OF REVIEW
The Supreme Court and this Court repeatedly have emphasized the limited
appellate review of the factual findings of an administrative agency. The function of
the Superior Court on appeal from a decision of the Industrial Accident Board is to
determine whether the agency’s decision is supported by substantial evidence and
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whether the agency made any errors of law.1 Substantial evidence means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.2 The appellate court does not weigh the evidence, determine questions
of credibility, or make its own factual findings.3 It merely determines if the evidence
is legally adequate to support the agency's factual findings.4 Absent an error of law,
the Board's decision will not be disturbed where there is substantial evidence to
support its conclusions.5
DISCUSSION
I. Causation
Rescare argues that the Board’s finding on causation is not supported by
substantial evidence in the record because Dr. Venkataramana was not aware of what
really happened to Wyatt on December 15, 2010. Substantial evidence is evidence
that a reasonable mind might accept as adequate to support a conclusion.6 In order
1
General Motors v. McNemar, 202 A.2d 803, 805 (Del. 1964); General Motors v.
Freeman, 164 A.2d 686 (Del. 1960).
2
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battista v.
Chrysler Corp., 517 A.2d 295, 297 (Del. Super. 1986), app. dism., 515 A.2d 397 (Del.
1986)(TABLE).
3
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
4
29 Del.C. § 10142(d).
5
Dallachiesa v. General Motors Corp., 140 A.2d 137 (Del. Super. 1958).
6
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
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for Wyatt to prove the necessary causal link between her injury and her employment,
she must introduce medical testimony that establishes causation “within a reasonable
degree of medical probability.”7 If there is an industrial injury that serves to produce
a further injurious result by precipitating or accelerating a previous injury, a causal
connection can be said to have been established.8 Where there is an identifiable
accident, the “but for” standard applies.9
In support of its argument, Rescare points out that the Board accepted Wyatt’s
statement that she injured herself when she was transferring Issac from his wheelchair
to his lunch chair on December 15, 2010. However, that is not what she told Dr.
Venkataramana. She told him that she woke up that morning with numbness in her
legs instead of it coming on after she lifted Isaac at work. Based upon this
contradiction, Rescare argues that Dr. Venkataramana’s testimony is insufficient to
establish the necessary causal link between Wyatt’s injury and her employment,
reasoning that a Board finding that is based on a medical opinion that is based on a
different factual scenario than what actually existed is fatally flawed. I agree with
Rescare’s reasoning.
7
Diamond Fuel Oil v. O’Neal, 734 A.2d 1060, 1066 (Del. 1999).
8
Reese v. Home Budget Center, 619 A.2d 907, 910 (Del. 1992).
9
Id.
9
In her Petition to Determine Compensation Due, Wyatt stated that she had an
accident at work on December 15, 2010. She stated further in her petition that the
accident occurred when she lifted a 45 pound client at work. Thus, the critical event
occurred on December 15, 2010.
The Board did find that Wyatt injured her back at work while lifting Isaac on
December 15, 2010. The Board based its decision on the testimony of Wyatt and Dr.
Venkataramana. The trouble with the Board’s finding is that Wyatt did not tell Dr.
Venkataramana what really happened to her on that day.
Wyatt told Dr.
Venkataramana that on December 15, 2010, she woke up with no pain, but instead
had numbness, had no feeling in her left foot and was limping and that she later
became incontinent. Wyatt told the Board that all of this occurred after she
transferred Issac out of his wheelchair to his lunch chair on December 15, 2010.
Thus, Dr. Venkataramana was not aware of this critical event when he offered his
opinion on causation.
Dr. Venkataramana’s opinion was that “the type of work she does caused the
herniated disc, which brought her to me and that needed surgery.” The Board then
relied on Dr. Venkataramana’s opinion to conclude that Wyatt injured her back while
lifting Isaac on December 15, 2010 even though Dr. Venkataramana was never aware
of that and his opinion did not state that. The Board’s decision is simply not
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rationally related to or based on Dr. Venkataramana’s opinion. The incident on
December 15, 2010 is obviously a significant event. Before that, Wyatt was suffering
from low back pain. Dr. Venkataramana testified that she did not have a herniated
disc after the incident on October 21, 2010. Wyatt’s back pain then largely went away
until it reappeared on December 10, 2010. This persisted for a few days until
December 15, 2010. Wyatt then lifted Isaac and suddenly her back pain went away
and then an onslaught of numbness and other problems appeared. Dr. Venkataramana
did not consider this information when he offered his opinion because he was not
aware of it. The problem is that the Board’s finding is based on a medical opinion
that is in turn based on facts different from what the Board found to exist. A
reasonable mind would not accept such a conflicting evidence as adequate support
of the Board’s conclusion.
CONCLUSION
The Board’s decision on causation is REVERSED. Since I have reversed the
Board’s decision on causation, there is no need to consider the other issues on appeal.
IT IS SO ORDERED.
Very truly yours,
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/s/ E. Scott Bradley
E. Scott Bradley
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