IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
DAVID HAMILTON, )
)
Claimant-Appellant, )
)
v. ) C.A. No. N16A-06-006 ALR
)
INDEPENDENT DISPOSAL )
SERVICE, )
)
Employer-Appellee. )
MEMORANDUM OPINION
Upon Employer’s Motion to Strike
DENIED
On Appeal from the Industrial Accident Board
AFFIRMED
Submitted: December 13, 2016
Decided: February 15, 2017
Kyle F. Dunkle, Esq., Schmittinger & Rodriguez, P.A., Dover, Delaware, Attorney
for Claimant-Appellant.
Joseph Andrews, Esq., Hoffman Andrews Law Group, Dover, Delaware, Attorney
for Employer-Appellee.
ROCANELLI, J.
I. FACTUAL AND PROCEDURAL BACKGROUND
This is an appeal from the Industrial Accident Board (“Board”). Claimant-
Appellant David Hamilton (“Claimant”) appeals from the January 21, 2016 Board
Decision denying Claimant’s Petition to Determine Additional Compensation and
the May 13, 2016 Board Decision denying Claimant’s Motion for Reargument.
A. Claimant’s Work Accident; the 2003 Board Decision
On November 7, 2002, Claimant sustained a back injury while working as a
laborer for Independent Disposal Service (“Employer”), a trash collection service.
Claimant sustained the injury while attempting to empty a trashcan into a dump
truck. Prior to the injury, Claimant did not suffer from back problems. By
agreement dated November 21, 2002, effective November 8, 2002, Employer
accepted Claimant’s injury as work-related and compensable. Claimant was
placed on total disability and began receiving workers’ compensation benefits.
On February 5, 2003, Employer filed a Petition to Terminate Claimant’s
disability benefits. On June 9, 2003, the Board conducted a hearing on the merits
of Employer’s Petition to Terminate. By Order dated June 18, 2003, the Board
granted Employer’s Petition to Terminate in part (“2003 Board Decision”).1 The
Board determined that Claimant’s work injury no longer entitled Claimant to total
1
Hamilton v. Indep. Disposal Serv., No. 1222906 (Del. I.A.B. June 18, 2003).
1
disability benefits.2 Although the Board found that Claimant remained eligible for
partial disability, the Board found that Claimant was able to return to work in a
sedentary or light-duty capacity.3
Shortly after the 2003 Board Decision, Claimant and Employer entered into
a modified agreement for partial disability benefits, effective July 12, 2003
(“Compensation Agreement”). Claimant received partial disability pursuant to the
Compensation Agreement until April 2, 2009.4
B. Claimant’s Surgery; the October 2015 Hearing
On December 5, 2014, more than twelve years after Claimant initially
sustained his work injury, Claimant underwent an anterior lumbar fusion surgery to
repair an annular tear to the L5-S1 disc of Claimant’s spine (“Claimant’s
Surgery”). On March 3, 2015, Claimant filed a Petition to Determine Additional
Compensation with the Board, seeking medical expenses and an additional period
of total disability for Claimant’s Surgery. Employer accepted Claimant’s Surgery
as a reasonable and necessary medical procedure, but opposed Claimant’s Petition
for Additional Compensation on the grounds that Claimant’s Surgery was
unrelated to Claimant’s work injury.
2
Id. at 8.
3
Id. at 8–9.
4
Claimant received disability payments pursuant to the Compensation Agreement
for 300 weeks, the maximum amount permitted by statute. 19 Del. C. § 2325.
2
On October 30, 2015, the Board conducted a hearing on the merits of
Claimant’s Petition for Additional Compensation (“October 2015 Hearing”).
Claimant asserted two theories of recovery during the October 2015 Hearing.
Claimant argued that (1) the L5-S1 annular tear that gave rise to Claimant’s
Surgery was related to Claimant’s work accident; and (2) Employer’s previous
disability payments for the targeted treatment of Claimant’s L5-S1 area constituted
an implied agreement that Claimant’s Surgery was compensable.
During the October 2015 Hearing, the Board considered the testimony of (1)
Claimant; (2) Employer’s expert Dr. Lawrence Piccioni, an orthopedic surgeon
who reviewed Claimant’s medical records and examined Claimant on behalf of
Employer prior to the October 2015 Hearing; (3) Claimant’s expert Dr. Ganesh
Balu, a certified pain management and rehabilitation physician who began treating
Claimant in 2003; (4) Claimant’s expert Dr. James Zaslavsky, the orthopedic
surgeon who performed Claimant’s Surgery.
i. Claimant’s Testimony
Claimant testified that Claimant refrained from having back surgery until
2014 because Claimant is diabetic and has a history of high blood pressure.
Claimant’s health concerns prompted Claimant to undergo more conservative
treatment methods, such as injections and physical therapy, until Claimant’s back
pain became too intense to tolerate. On December 5, 2014, Dr. James Zaslavsky
3
performed fusion surgery to repair an annular tear at the L5-S1 level of Claimant’s
spine.
Additionally, Claimant described a motor vehicle accident that occurred in
December 2002, about one month after Claimant’s work injury. Claimant testified
that a small pickup truck struck Claimant while Claimant stood in his family’s
driveway. Claimant testified that Claimant fell onto the hood of the truck and
punched his hand through the truck’s windshield. Claimant eventually fell off the
truck after Claimant became caught on a clothes line. Claimant testified that the
motor vehicle accident did not aggravate Claimant’s work injury.
ii. Dr. Piccioni’s Testimony
Upon conducting a physical examination of Claimant and reviewing
Claimant’s medical records, Employer’s expert Dr. Piccioni opined that the L5-S1
tear that gave rise to Claimant’s Surgery could not be related to Claimant’s work
accident to a reasonable degree of medical probability. Dr. Piccioni opined that
Claimant’s L5-S1 tear did not visualize until 2012. Dr. Piccioni noted numerous
significant incidents in Claimant’s medical records that occurred between
Claimant’s initial work injury in 2002 and the manifestation of Claimant’s L5-S1
tear in 2012. Specifically, Dr. Piccioni discussed (1) a slip and fall incident in
December 2002; (2) a motor vehicle accident in December 2002; (3) a slip and fall
incident in February 2003; (4) an incident where Claimant aggravated his back
4
while carrying a microwave in August 2004; (5) an incident where Claimant
aggravated his back while carrying a casket in May 2009; and (6) an incident
where Claimant aggravated his back while bending over to pick up his grandson in
September 2010.5
Dr. Piccioni testified that the diagnostic results immediately after Claimant’s
work accident indicated that Claimant’s L5-S1 disc was normal.6 In Dr. Piccioni’s
opinion, the L5-S1 area of Claimant’s spine showed no significant irregularities
until 2012, when a discogram revealed the annular tear. Dr. Piccioni noted the
multiple intervening accidents between Claimant’s work injury and the
visualization of the L5-S1 tear. Although Dr. Piccioni testified that he could not
pinpoint the exact etiology of Claimant’s L5-S1 tear, Dr. Piccioni opined that
Claimant’s Surgery could be attributable to Claimant’s intervening accidents or,
more likely, simple wear and tear of the lumbar spine. Accordingly, Dr. Piccioni
stated that the L5-S1 tear that gave rise to Claimant’s Surgery could not be related
to Claimant’s work accident to a reasonable degree of medical probability.
5
Piccioni Dep. at 12:11–20:7.
6
Specifically, Dr. Piccioni discussed (1) a December 2002 lumbar spine MRI that
showed Claimant’s L5-S1 disc as normal; (2) a January 23, 2003 bone scan that
showed Claimant’s L5-S1 disc as normal; (3) a March 26, 2003 EMG that showed
a generalized bulge in Claimant’s L5 area, but showed Claimant’s L5-S1 disc as
normal; (4) and an October 27, 2003 discogram and CT scan that showed
Claimant’s L5-S1 disc as normal. Piccioni Dep. at 21:2–32:10.
5
iii. Dr. Balu’s Testimony
Claimant’s expert Dr. Balu opined that the L5-S1 tear that gave rise to
Claimant’s Surgery was related to Claimant’s work accident. On October 27,
2003, Dr. Balu conducted a diagnostic discogram and CT scan on the L3-4, L4-5,
and L5-S1 areas of Claimant’s spine. Dr. Balu testified that Claimant’s initial
diagnostic results revealed an annular tear at Claimant’s L3-4 level, but that
Claimant’s L5-S1 disc appeared normal.
In June 2006, Dr. Balu began administering epidural injections to Claimant’s
spine in an effort to alleviate Claimant’s back pain. From 2006 to 2012, Dr. Balu
administered twelve injections specifically targeted to Claimant’s L5-S1 area. Dr.
Balu testified that Claimant’s disability carrier applied payments for all but one of
the L5-S1 injections. On September 6, 2012, Dr. Balu conducted an additional
discogram and CT scan on Claimant. The results revealed an annular tear to
Claimant’s L5-S1 disc. Dr. Balu referred Claimant to Dr. James Zaslavsky to
discuss Claimant’s need for surgery.
During Dr. Balu’s testimony, Claimant attempted to introduce several
exhibits pertaining to Claimant’s disability payments and Dr. Balu’s billing
procedures for workers’ compensation cases. Employer objected to the admission
of Claimant’s exhibits on the grounds that Employer did not receive proper notice
that Claimant intended to argue that Employer’s previous disability payments
6
created an implied agreement of compensability. Employer moved to exclude
Claimant’s theory and all related exhibits from the Board’s consideration. The
Board reserved decision on Employer’s objection.
iv. Dr. Zaslavsky’s Testimony
Upon reviewing Claimant’s medical records and conducting Claimant’s
Surgery, Claimant’s expert Dr. Zaslavsky opined that the L5-S1 tear that gave rise
to Claimant’s Surgery was related to Claimant’s work accident. Dr. Zaslavsky
began treating Claimant in June 2014. Dr. Zaslavsky testified that initial testing
indicated that Claimant suffered an annular tear, and that Claimant’s pain derived
from the L5-S1 or L5 nerve root. In Dr. Zaslavsky’s opinion, Claimant’s L5-S1
disc slowly began to deteriorate following Claimant’s initial work injury in 2002.
Dr. Zaslavsky compared Claimant’s L5-S1 disc to a tire with a pinhole leak that
became progressively worse until the disc collapsed. Dr. Zaslavsky explained that
a disc may take as long as twelve years or more to deteriorate in certain
circumstances.
Dr. Zaslavsky acknowledged that Claimant’s L5-S1 disc did not show
herniation or stenosis on MRI in 2002 or 2006. However, Dr. Zaslavsky explained
that a collapsed disc often does not visualize immediately after an injury occurs.
Additionally, Dr. Zaslavsky testified that Claimant failed to inform Dr. Zaslavsky
that Claimant experienced intervening medical incidents between 2003 and 2014.
7
However, Dr. Zaslavsky opined that Claimant’s intervening incidents were more
likely to have aggravated Claimant’s work injury rather than have caused an
additional injury to the L5-S1 area.7
C. The January 21, 2016 Board Decision
By Order dated January 21, 2016, the Board denied Claimant’s Petition for
Additional Compensation. The Board concluded that Claimant failed to establish
that Claimant was entitled to compensation for Claimant’s Surgery.8
As to Claimant’s first theory of recovery, the Board concluded that Claimant
failed to establish that the L5-S1 tear that gave rise to Claimant’s Surgery was
related to Claimant’s work accident to a reasonable degree of medical probability.9
The Board found that Employer’s expert Dr. Piccioni provided the most credible
and comprehensive testimony regarding the cause of Claimant’s Surgery,10 and
that Claimant’s experts Dr. Zaslavsky and Dr. Balu were less persuasive.11
Moreover, the Board adopted Dr. Piccioni’s conclusion that Claimant’s L5-S1
7
In support of his conclusion, Dr. Zaslavsky testified that Claimant’s medical
records reflected that Claimant’s symptoms always returned to the same level after
each of the alleged intervening incidents. Zaslavsky Dep. at 46:11–47:14.
Moreover, Dr. Zaslavsky noted that the source of Claimant’s pain did not change
over the course of Claimant’s treatment. Id.
8
Hamilton v. Indep. Disposal Serv., No. 1222906, at 37 (Del. I.A.B. Jan. 21,
2016).
9
Id. at 32.
10
Id. at 31.
11
Id. at 28–30.
8
injury did not visualize until 2012.12 The Board noted that, by 2012, Claimant was
involved in multiple intervening accidents13 and had experienced additional years
of ordinary wear and tear of the lumbar spine.14 Ultimately, the Board elected to
credit Dr. Piccioni’s opinion that Claimant’s L5-S1 tear could not be associated to
Claimant’s work accident to the necessary degree of reasonable medical
probability.15
As to Claimant’s second theory of recovery, the Board found that Claimant
failed to establish that Employer’s previous disability payments for targeted
treatment to Claimant’s L5-S1 area created an implied agreement that Claimant’s
Surgery was compensable.16 As an initial matter, the Board concluded that
Claimant failed to provide adequate notice of this theory of recovery to Employer
prior to the October 2015 Hearing.17 The Board found that Employer’s lack of
notice deprived Employer of a meaningful opportunity to mount an adequate
defense, tender witnesses with knowledge of billing procedures, and prepare an
effective cross-examination.18 Nevertheless, the Board proceeded to address
Claimant’s argument on the merits.
12
Id. at 30–31.
13
Id. at 31–32.
14
Id. at 32.
15
Id. at 28.
16
Id. at 35–36.
17
Id. at 34.
18
Id. at 34–35.
9
The Board concluded that Claimant failed to establish the existence of an
implied agreement for compensation of Claimant’s Surgery.19 The Board noted
that Claimant’s exhibits “included a vast amount of unbundled charges without
specifying which level of the lumbar spine is being injected.”20 Furthermore, the
Board noted that Dr. Balu could not provide definitive testimony that Claimant’s
medical records were forwarded to Claimant’s insurance carrier with Claimant’s
medical bills attached.21 The Board found that “the documents produced do not
necessarily show that Dr. Balu’s occasional L5-S1 injections, twelve over a six
year period which started for years after the work accident, were identified clearly
to Employer.”22 Ultimately, the Board rejected Claimant’s theory of an implied
agreement for compensability because Claimant failed to establish that Employer
had knowledge that Employer’s disability payments were specifically applied to
the targeted treatment of Claimant’s L5-S1 area.23
D. The May 13, 2016 Board Decision
On February 15, 2016, Claimant filed a timely Motion for Reargument from
the Board’s January 26, 2016 Decision. Claimant asserted that the Board erred in
finding that Employer had insufficient notice of Claimant’s argument prior to the
19
Id. at 36.
20
Id. at 35.
21
Id. at 35.
22
Id. at 36.
23
Id.
10
October 2015 Hearing. Additionally, Claimant contended that Employer had
complete access to the payment history for Claimant’s disability benefits.
Accordingly, Claimant asserted that Employer should have anticipated that
Claimant intended to argue that Employer’s previous disability payments for
targeted treatment of Claimant’s L5-S1 area created an implied agreement of
compensability for Claimant’s Surgery. Claimant attached various exhibits in
support of Claimant’s Motion for Reargument.
By Order dated May 13, 2016, the Board denied Claimant’s Motion for
Reargument. The Board concluded that Claimant’s additional exhibits did not
constitute newly discovered evidence that would warrant a second hearing on the
merits of Claimant’s Petition for Additional Compensation.24 Rather, the Board
found that “[a]ll documents presented were in Claimant’s possession and were
subject to discovery prior to the hearing and in fact, most had been requested by
Employer, but not produced.”25 Moreover, the Board concluded that “several
exhibits attached to Claimant’s motion do not actually support his assertions.”26
Rather, the Board found that Claimant’s exhibits “actually contradict Claimant’s
assertion that Employer knew or should have known” that Employer made
previous disability payments for targeted treatment of Claimant’s L5-S1 area
24
Hamilton v. Indep. Disposal Serv., No. 1222906, at 6 (Del. I.A.B. May 13,
2016).
25
Id.
26
Id.
11
during Claimant’s disability period.27 The Board concluded that Claimant made
“sweeping statements in his Motion that are not supported by the evidence,” 28 and
that most of Claimant’s “tardily proceeded evidence does not support his claim
regarding [Employer’s] prior knowledge.”29
E. Claimant’s Appeal to this Court; Employer’s Motion to Strike
On June 10, 2016, Claimant filed an appeal from the January 21, 2016, and
May 1, 2016 Board Decisions to the Superior Court. Claimant asserts that the
Board committed legal error and abused its discretion by denying Claimant’s
Petition for Additional Compensation and Claimant’s Motion for Reargument.
Employer opposes Claimant’s appeal.
On November 2, 2016, Employer filed a Motion to Strike various exhibits
attached to Claimant’s opening appellate brief. Employer asserts that the
challenged exhibits were not admitted into evidence during Board proceedings.
Therefore, Employer asserts that the exhibits are not properly considered by this
Court as part of the appellate record. Claimant opposes Employer’s Motion to
Strike.
On December 13, 2016, the Prothonotary reassigned Claimant’s appeal to
this judicial officer for decision.
27
Id. at 6.
28
Id. at 7.
29
Id. at 9.
12
II. DISCUSSION
On appeal from the 2016 Board Decisions, Claimant argues that (1) the
Board erred by failing to adhere to the res judicata and collateral estoppel effects
of the 2003 Board Decision; (2) the Board erred in refusing to find an implied
agreement of compensability for Claimant’s Surgery under a theory of payment by
compulsion; and (3) the Board abused its discretion by finding that Employer’s
lack of notice amounted to a violation of Employer’s right to due process,
requiring the Board to refrain from considering certain evidence.
A. Standard of Review
On appeal from a Board decision, this Court’s role is limited to determining
whether the Board’s conclusions are supported by substantial evidence and free
from legal error.30 Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”31 This Court reviews the
Board’s legal determinations de novo.32 “Absent errors of law, however, the
standard of appellate review of the IAB’s decision is abuse of discretion.”33
30
Glanden v. Land Prep, Inc., 918 A.2d 1098, 1100 (Del. 2007); Johnson v.
Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
31
Foods v. Guardado, 2016 WL 6958703, at *3 (Del. Nov. 29, 2016); Olney v.
Cooch, 42 A.2d 610, 614 (Del. 1981).
32
Guardado, 2016 WL 6958703, at *3; Munyan v. Daimler Chrysler Corp., 909
A.2d 133, 136 (Del. 2006).
33
Glanden, 918 A.2d at 1101 (citing Digiacomo v. Bd. of Pub. Educ., 507 A.2d
542, 546 (Del. 1986)).
13
B. Employer’s Motion to Strike
Claimant requests this Court to consider certain exhibits in support of
Claimant’s theory of an implied agreement through payment by compulsion.
Employer opposes the Court’s consideration of these exhibits on the grounds that
the exhibits are not part of the appellate record. In support of Employer’s
contention, Employer notes that the exhibits in questions were not admitted into
evidence during Board proceedings because the Board concluded that Employer
had insufficient notice of Claimant’s argument. Employer asserts that statutory
law prohibits the Superior Court from considering issues of fact that are outside the
record on appeal.34 Employer argues that Claimant’s exhibits are not part of the
appellate record, and that this Court must exclude any facts and arguments derived
from the exhibits from its consideration.
This Court recognizes the “basic tenet of appellate practice that an appellate
court reviews only matters considered in the first instance by a trial court.” 35 It is
well-established that “[o]nly questions fairly presented to the trial court may be
presented for review . . . .”36 The appellate record may include transcripts from
related hearings, as well as materials that are not offered into evidence if the
34
See 19 Del. C. § 2350(b) (“In case of every appeal to the Superior Court the
cause shall be determined by the Court from the record, which shall include a
typewritten copy of the evidence and the finding and award of the Board, without
the aid of a jury.”).
35
Delaware Elec. Co-op, Inc. v. Duphily, 703 A.2d 1202, 1206 (Del. 1997).
36
Id. (quoting Supr. Ct. R. 8).
14
materials were considered by the trial court and are necessary to the case’s
disposition on appeal.37 Delaware courts adhere to a strong policy in favor of
deciding cases on the merit as opposed to technical grounds.38
This Court disagrees with Employer’s contentions regarding the narrowness
of the appellate record in this case. Although Employer correctly notes that the
Board found that Claimant’s approach to the implied agreement argument
amounted to a violation of Employer’s due process,39 the Board proceeded to
consider Claimant’s exhibits and address Claimant’s argument on the merits.40
Because Claimant presented this argument and supporting evidence to the Board
for consideration during the October 2015 Hearing and in post-trial proceedings in
connection with Claimant’s Motion for Reargument, the exhibits are properly
37
Duphily, 703 A.2d at 1207.
38
Keener v. Isken, 58 A.3d 407, 409 (Del. 2013).
39
Hamilton v. Indep. Disposal Serv., No. 1222906, at 34 (Del. I.A.B. Jan. 21,
2016).
40
See, e.g., id. at 35 (“The Board also notes that even if it were to consider Dr.
Balu’s testimony and the submitted billing it does not provide sufficient evidence
to satisfy Claimant’s burden here anyway.”); id. at 36 (“This is not enough
evidence to show that the carrier knew that it was paying for treatment to L5-S1.”);
id. (“Ultimately, the documents produced do not necessarily show that Dr. Balu’s
occasional L5-S1 injections, twelve over a six year period which started for years
after the work accident, were identified clearly to Employer.”); Hamilton v. Indep.
Disposal Serv., No. 1222906, at 6 (Del. I.A.B. May 13, 2016) (“Interestingly, the
Board notes that the several exhibits attached to Claimant’s motion do not actually
support his assertions.”); id. (“So the attached exhibit actually contradicts
Claimant’s assertion that Employer knew or should have known.”); id. at 9 (“Yet
even most of this tardily produced evidence does not support his claim regarding
prior knowledge.”).
15
before this Court on appeal.41 Accordingly, Employer’s Motion to Strike is denied.
The Court will address the merits of Claimant’s argument of an implied agreement
under a theory of payment by compulsion.
C. The Board’s conclusion that Claimant failed to establish the necessary
relationship between Claimant’s L5-S1 injury and Claimant’s work
accident is supported by substantial evidence and free from legal error.
It is well-established that the Board may reconcile competing medical
testimony by crediting the opinion of one expert over another.42 Where the Board
elects to adopt one expert opinion over another, the adopted opinion constitutes
substantial evidence for the purpose of appellate review.43 This Court “does not sit
as a trier of fact with authority to weigh the evidence, determine questions of
credibility, and make its own factual findings and conclusions.”44 “[T]he sole
function of the Superior Court, as is the function of [the Delaware Supreme Court]
on appeal, is to determine whether or not there was substantial evidence to support
41
Cf. Duphily, 703 A.2d at 1207 (“Had [Plaintiff] sought to present these materials
during trial, or post-trial in connection with its motion for a new trial, and had they
been considered by the trial court, it could be argued that they are properly before
this Court. In the absence of any indication that the [arguments] were ever
considered by the trial court, there is no authority for their consideration here.”).
42
Whitney v. Bearing Const., Inc., 2014 WL 2526484, at *2 (Del. May 30, 2014);
Steppi v. Conti Elec., Inc., 2010 WL 718012, at *3 (Del. Mar. 2, 2010).
43
Munyan v. Daimler Chrysler Corp., 909 A.2d 113, 136 (Del. 2006); Bacon v.
City of Wilmington, 2014 WL 1268649, at *2 (Del. Super. Jan. 31, 2014).
44
Christiana Care Health Servs. v. Davis, 127 A.2d 391, 394 (Del. 2015);
Johnson, 213 A.2d at 66.
16
the finding of the Board, and, if it finds such in the record, to affirm the findings of
the Board.”45
In this case, the Board found that Claimant failed to establish that the L5-S1
tear underlying Claimant’s Surgery was related to Claimant’s work accident.46 The
record reflects that this conclusion is supported by substantial evidence.
Specifically, Employer’s expert Dr. Piccioni testified that the series of evaluations
following Claimant’s work injury indicated that Claimant’s L5-S1 disc was
normal, and that Claimant’s L5-S1 tear did not visualize until 2012. Dr. Piccioni
noted that Claimant was involved in multiple intervening incidents that could have
caused an additional injury to Claimant’s L5-S1 disc. Because the annular tear that
gave rise to Claimant’s Surgery could be attributable to subsequent incidents or the
regular deterioration of the lumbar spine, Dr. Piccioni opined that Claimant’s
Surgery could not be associated with Claimant’s work accident to a reasonable
degree of medical probability.
The record reflects that the Board accepted the testimony of Employer’s
expert as the most credible, comprehensive, and plausible theory of causation for
Claimant’s L5-S1 annular tear.47 By accepting Dr. Piccioni’s opinion, the Board
made a permissible credibility determination in order to reconcile competing
45
Johnson, 213 A.2d at 66.
46
Hamilton v. Indep. Disposal Serv., No. 1222906, at 32 (Del. I.A.B. Jan. 21,
2016).
47
Id. at 31.
17
medical theories of causation.48 It is not the duty of this Court to weigh the
evidence or make credibility determinations in the context of an administrative
appeal.49 Rather, “[t]he function of reconciling inconsistent testimony or
determining credibility is exclusively reserved for the Board.”50
This Court is satisfied that the Board’s conclusion that the L5-S1 injury that
gave rise to Claimant’s Surgery cannot be associated to Claimant’s work accident
to the necessary degree of medical probability is supported by substantial evidence.
Accordingly, this factual determination must be affirmed.51
D. The Board did not err by failing to adhere to res judicata or collateral
estoppel.
Claimant argues that the 2003 Board Decision constitutes a binding and
conclusive determination that Claimant’s work accident was the cause of
Claimant’s back injury. Accordingly, Claimant asserts that the doctrines of res
judicata and collateral estoppel preclude Employer from arguing that other
incidents already considered by the Board may have caused Claimant’s injury.
Claimant asserts that the cause of Claimant’s injury has been fully litigated and
adjudicated by the Board prior to the October 2015 Hearing. Accordingly,
48
See Whitney, 2014 WL 2526484, at *2; Steppi, 2010 WL 718012, at *3.
49
Davis, 127 A.2d at 394; Johnson, 213 A.2d at 66.
50
Simmons v. Delaware State Hosp., 660 A.2d 384, 388 (Del. 1995) (citing
Breeding v. Contractors—One—Inc., 549 A.2d 1102, 1106 (Del. 1988)); Martin v.
State, 2015 WL 1548877, at *3 (Del. Super. Mar. 27, 2015).
51
Davis v. Mark IV Transp., 2011 WL 6392950, at *3 (Del. Dec. 19, 2011);
Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1162 (Del. 2009).
18
Claimant argues that the Board erred in considering subsequent occurrences that
suggested Claimant’s L5-S1 tear was unrelated to Claimant’s work accident.
The application of res judicata and collateral estoppel is a question of law
that this Court reviews de novo.52 In the context of an administrative appeal, res
judicata prevents an administrative board from reconsidering previously
adjudicated conclusions of law.53 Res judicata operates to bar a claim where the
following five elements are met:
(1) the original court had jurisdiction over the subject matter and the parties;
(2) the parties to the original action were the same as those parties, or in
privity, in the case at bar;
(3) the original cause of action or the issues decided was the same as the
case at bar;
(4) the issues in the prior action must have been decided adversely to the
party in the case at bar; and
(5) the decree in the prior action was a final decree.54
Delaware follows a transactional approach to res judicata,55 requiring the
Court to “give weight to such considerations as whether the facts are related in
52
See RBC Capital Mkts., LLC v. Educ. Loan Tr. IV, 87 A.3d 632, 639 (Del.
2014); Peterson v. State, 81 A.3d 1244, 1247 (Del. 2013); Betts v. Townsends, Inc.,
765 A.2d 531, 533 (Del. 2000).
53
Betts, 765 A.2d at 534.
54
LaPoint v. AmerisourceBergen Corp., 970 A.2d 185, 192 (Del. 2009) (quoting
Dover Historical Soc’y, Inc. v. City of Dover Planning Comm’n, 902 A.2d 1084,
1092 (Del. 2000)); Gamco Asset Mgmt. Inc. v. iHeartMedia Inc., 2016 WL
6892802, at *13 (Del. Ch. Nov. 29, 2016).
19
time, space, origin, or motivation, whether they form a convenient trial unit, and
whether their treatment as a unit conforms to the parties’ expectations or business
understanding or usage.”56 Moreover, the party asserting res judicata must show
that an opposing party “neglected or failed to assert claims which in fairness
should have been asserted in the first action.”57
The related doctrine of collateral estoppel precludes parties from relitigating
a previously adjudicated fact in a different cause of action involving a party to the
first case.58 Collateral estoppel does not only extend to issues decided by the
Court, but also to issues decided by administrative agencies acting in a judicial
capacity.59 Collateral estoppel operates to bar a claim where (1) the issue
previously decided is identical to the present issue; (2) the issue was fully
adjudicated on the merits; (3) the party against whom the doctrine is invoked were
parties to the litigation or in privity with party to the prior litigation; and (4) the
55
LaPoint, 970 A.2d at 193.
56
Id.
57
Grunstein v. Silva, 2012 WL 3870529, at *1 (Del. Ch. Aug. 24, 2012) (quoting
LaPoint, 970 A.2d at 193–194).
58
Messick v. Star Enter., 655 A.2d 1209, 1212 (Del. 1995); Lewis v. Berkowitz &
Shagrin, P.A., 2014 WL 4792994, at *2 (Del. Super. Sept. 25, 2014).
59
Crossan v. Travelers Ins. Co., 2015 WL 7345752, at *2 (Del. Nov. 17, 2015)
(quoting Messick, 655 A.2d at 1211); Naylor v. Taylor, 1996 WL 658851, at *2
(Del. Super. Aug. 23, 1996).
20
party against whom the doctrine is raised had a full and fair opportunity to litigate
the issue.60
This Court finds that the Board did not commit legal error by failing to
adhere to the res judicata and collateral estoppel effects of the 2003 Board
Decision. As an initial matter, the record reflects that the Board faced considerably
different issues of law and fact in 2003 and 2016. In 2003, the Board reviewed
Claimant’s status as a disabled worker61 and considered whether Claimant’s work
injury entitled Claimant to continue receiving total disability benefits.62 In 2016,
twelve years later, the Board considered the relationship between Claimant’s L5-
S1 injury and Claimant’s work accident to determine whether Claimant’s Surgery
was compensable.63 The 2016 Board Decisions did not invalidate predetermined
issues of law or revisit the “correctness”64 of the 2003 Board Decision. To the
contrary, this Court finds that the 2016 Board Decisions resolved an entirely
separate issue from Claimant’s ability to return to work in 2003 i.e. whether the
L5-S1 tear that gave rise to Claimant’s Surgery in 2014 was related to Claimant’s
initial work accident to the necessary degree of medical probability.
60
Chemtura Corp. v. Certain Underwriters at Lloyd’s, 2016 WL 3884018, at *6
(Del. Super. Apr. 27, 2016) (citing Betts, 765 A.2d at 535).
61
Hamilton v. Indep. Disposal Serv., No. 1222906, at 6–10 (Del. I.A.B. June 18,
2003).
62
Id.
63
See generally Hamilton v. Indep. Disposal Serv., No. 1222906, (Del. I.A.B. Jan.
21, 2016).
64
Betts, 765 A.2d at 534.
21
Furthermore, res judicata does not operate to bar a claim unless the
underlying facts of the claim are known or capable of being known at the time of
the first action.65 In this case, Employer’s claim that Claimant’s Surgery is
unrelated to Claimant’s work accident is predicated on facts that were unavailable
to Employer in 2003. Specifically, Employer challenged Claimant’s theory of
causation during the October 2015 Hearing by raising subsequent intervening
medial incidents and multiple years of wear and tear on Claimant’s spine. The
relevant factual developments between the 2003 Board Decision and Claimant’s
Surgery do not indicate that Employer has “neglected or failed to assert claims
which in fairness should have been asserted in the first action.”66
The 2016 Board Decisions found that the L5-S1 tear that gave rise to
Claimant’s Surgery could not be related to Claimant’s work accident with the
necessary degree of medical probability. This conclusion is neither inconsistent
nor contradictory to the 2003 Board Decision. The 2016 Board Decisions did not
invalidate the previous conclusion that Claimant’s work accident resulted in a
compensable work-related injury. Moreover, the 2016 Board did not revisit the
65
Aveta Inc. v. Bengoa, 986 A,2d 1166, 1185 (Del. Ch. 2009) (citing LaPoint, 970
A.2d at 193–194).
66
Grunstein, 2012 WL 3870529, at *1 (quoting LaPoint, 970 A.2d at 193–194).
22
central finding of the 2003 Board Decision: that Claimant was no longer eligible
for total disability due to his capacity to return to work in 2003.67
This Court finds that the 2003 Board Decision did not preclude the 2016
Board from considering an alternative cause for the L5-S1 injury that gave rise to
Claimant’s Surgery. Rather, the factual and legal issues considered by the two
Boards are distinct. Accordingly, Claimant fails to establish that the Board
committed legal error by failing to adhere to res judicata or collateral estoppel.
E. The Board’s conclusion that Claimant failed to establish an implied
agreement through payment by compulsion is supported by substantial
evidence and free from legal error.
Claimant argues that the Board erred in finding that Employer’s previous
disability payments for the targeted treatment of Claimant’s L5-S1 area did not
form an implied agreement that Claimant’s Surgery was related to Claimant’s work
accident. Claimant asserts that Employer made partial disability payments for
Claimant’s back treatment for over a decade after Claimant sustained the work
injury in 2002. Claimant asserts that Employer’s partial disability payments were
applied to the targeted treatment of Claimant’s L5-S1 area. Claimant argues that
Employer consistently paid Claimant’s medical bills for Claimant’s L5-S1
treatment without ever indicating that Employer’s compensation responsibilities
67
Hamilton v. Indep. Disposal Serv., No. 1222906, at 8 (Del. I.A.B. June 18,
2003).
23
were limited to certain areas of Claimant’s back. In support of this argument,
Claimant notes that the Compensation Agreement identifies Claimant’s
compensable work injury as a general “low back strain/sprain” without specifying
a particular area of Claimant’s spine.
Delaware law recognizes implied agreements between an employer and
employee for the payment of workers’ compensation benefits.68 However, mere
payment of medical expenses for a work-related injury is insufficient to establish
an implied agreement for compensation under Delaware law.69 Rather, the
Delaware Supreme Court has held that the party seeking to recover under an
implied agreement must establish that the employer made disability payments
pursuant to an underlying “feeling of compulsion.”70 The existence of an implied
agreement under a theory of payment by compulsion is a fact-specific inquiry that
is conducted on a case-by-case basis.71 “Thus, in an ordinary case where there is a
dispute as to whether the carrier believed itself compelled to pay, the issue is
68
See Starun v. All Am. Eng’g Co., 350 A.2d 765, 767 (Del. 1975).
69
Tenaglia-Evans v. St. Francis Hosp., 2006 WL 3590385, at *3 (Del. Dec. 11,
2006) (citing Starun., 350 A.2d 765 at 767).
70
Andreason v. Royal Pest Control, 72 A.3d 115, 119 (Del. 2013); Tenaglia-
Evans, 2006 WL 3590385, at *3.
71
See Andreason, 72 A.3d at 120 (“In that Starun makes it clear that each case is
bottomed on its own facts, the narrow issue before us is whether the facts of the
instant case show that payment was made under a feeling of compulsion.”); New
Castle Cty. v. Goodman, 461 A.2d 1012, 1013 (Del. 1983); Tyrell v. E.I. DuPont
de Nemours & Co., 1996 WL 453341, at *2 (Del. Super. June 17, 1996).
24
resolved by the Board on the facts of the case, taking into account, obviously, all of
the record evidence proffered and testimony adduced.”72
In this case, the Board rejected Claimant’s theory of an implied agreement
because Claimant failed to establish that Employer knew that disability payments
were applied to the targeted treatment of Claimant’s L5-S1 disc.73 This Court finds
that the Board’s conclusion on this issue is supported by substantial evidence and
free from legal error.
As an initial matter, the record reflects that Employer could not have known
that Claimant sustained an L5-S1 injury at the time Employer stipulated to the
compensability of Claimant’s work accident. Specifically, initial diagnostic testing
immediately following Claimant’s work accident revealed injuries to Claimant’s
L3-4 level, but showed that Claimant’s L5-S1 disc was normal. The Board
resolved competing medical testimony by accepting Dr. Piccioni’s opinion that
Claimant’s L5-S1 injury did not visualize until 2012. The significant passage of
time between Claimant’s work accident and the visualization of Claimant’s L5-S1
injury supports the Board’s conclusion that Employer could not have agreed (or
felt compelled) to provide compensation to Claimant for an injury to Claimant’s
L5-S1 area that did not appear until many years after Claimant’s initial work
72
Andreason, 72 A.3d at 122.
73
Hamilton v. Indep. Disposal Serv., No. 1222906, at 35–36 (Del. I.A.B. Jan. 21,
2016).
25
accident. Rather, this Court agrees with Employer’s contention that “[t]he most
that can ever be said . . . is that Employer felt compelled to accept liability for L3-
L4, as [this area] was found to be injured in 2003 within weeks from when
Employer entered in the [Compensation Agreement].”74 As the Board noted,
“[t]hat L5-S1 disc degeneration, annular tear and foraminal stenosis is seen on an
MRI twelve years later does not mean that it is related to the work accident and the
Board does not find that it is.”75
Furthermore, as the proponent of Claimant’s Petition to Determine
Additional Compensation, Claimant has the burden of proof to establish to the
Board that Employer impliedly accepted Claimant’s L5-S1 injury as work-related
by making payments under a sense of compulsion.76 This Court is satisfied that the
record supports the Board’s conclusion that Claimant failed to meet his burden.
Aside from the mere payment for occasional injections to Claimant’s L5-S1 area,
Claimant failed to produce testimony or evidence demonstrating that Employer
made disability payments with intent to accept Claimant’s L5-S1 injury as work-
related and compensable. Moreover, Dr. Piccioni’s competing testimony, which
the Board credited as persuasive, “casts serious doubt on whether [the L5-S1]
74
Employer’s App. Br. at 26.
75
Hamilton v. Indep. Disposal Serv., No. 1222906, at 29 (Del. I.A.B. Jan. 21,
2016).
76
29 Del. C. § 10125(c).
26
injections were targeted.”77 Additionally, the Board noted, and this Court agrees,
that Dr. Balu’s billing statements were comprised of “a vast amount of unbundled
charges without specifying which level of the lumbar spine is being injected.”78
Finally, the Board found that Dr. Balu could not provide a definitive conclusion
that Claimant’s medical records were forwarded to the carrier with Claimant’s
applicable billing statements attached.79
Upon consideration of Claimant’s argument and supporting exhibits, this
Court finds sufficient record evidence for the Board to have concluded that
Claimant failed to establish that Employer knowingly made disability payments for
the targeted treatment of Claimant’s L5-S1 area under a sense of compulsion.
Moreover, the record contains sufficient evidence to conclude that “the documents
produced [by Claimant] do not necessarily show that Dr. Balu’s occasional L5-S1
77
Hamilton v. Indep. Disposal Serv., No. 1222906, at 36 (Del. I.A.B. Jan. 21,
2016). Specifically, Dr. Piccioni testified that Dr. Balu’s billing ledgers indicated
that many of Claimant’s L5-S1 injections were “caudal blocks” that “go up and
down the epidural space.” Piccioni Dep. at 65:7–8. Dr. Piccioni continued to
explain that “when you do a caudal block, you’re basically going in the space, and
the reason you’re doing that is you’re low enough, you can into their – if he was
going one level above and trying to do the same thing, he would go above the level
and drip the medicine down, or below the level and drip it up, depending on the
gravity.” Id. at 67:16–24. Accordingly, Dr. Piccioni explained that administering a
caudal block “doesn’t mean you’re doing it for L5-S1. You’re doing it for any
level that’s hurting. So while you list it as L5-S1 as the space you went in to, that
doesn’t mean that’s the space that’s injured and that you’re targeting, unless you
read the body of the report.” Id. at 69:5–11.
78
Hamilton v. Indep. Disposal Serv., No. 1222906, at 35 (Del. I.A.B. Jan. 21,
2016).
79
Id.
27
injections, twelve over a six year period which started four years after the work
accident, were identified clearly to Employer.”80 Accordingly, this Court finds that
the Board’s conclusion is supported by substantial evidence and must be affirmed.
F. The Court need not address whether the Board properly held that
Claimant’s failure to provide adequate notice deprived Employer of due
process and a fair hearing.
Claimant asserts that the Board committed an abuse of discretion by finding
that (1) Claimant failed to provide proper notice of Claimant’s theory of an implied
agreement to Employer prior to the October 2015 Hearing; and (2) Claimant’s
failure to provide proper notice amounted to a violation of Employer’s right to due
process that required the Board to refrain from considering certain theories and
exhibits.
Because Claimant’s argument of an implied agreement has been fully
considered and resolved by this Court on the merits, it is not necessary to consider
whether the Board properly excluded certain evidence from its consideration in the
proceedings below.81
80
Id.
81
See Smith v. State, 913 A.2d 1197, 1226 (Del. 2006) (“We decline to address
whether the Clayton rule applies to defense counsel during opening statements and
cross-examination because it is not necessary to our holding.”); Sierra Club v.
Delaware Dep’t of Nat. Res. & Env’t Control, 2015 WL 1548851, at *6 (Del.
Super. Mar. 31, 2015) (“Because the Court concludes that the Coastal Zone Board
does not have subject matter jurisdiction over the appeal, any legal conclusions
regarding the issue of standing need not be considered by the Court”); In re Career
Educ. Corp. Derivative Litig., 2007 WL 2875203, at *11 (Del. Ch. Sept. 28, 2007)
28
NOW, THEREFORE, this 15th day of February, 2017, Employer’s
Motion to Strike is hereby DENIED, and the January 21, 2016 Board Decision
denying Claimant’s Petition to Determine Additional Compensation and the
May 13, 2016 Board Decision denying Claimant’s Motion for Reargument are
hereby AFFIRMED.
IT IS SO ORDERED.
Andrea L. Rocanelli
________________________________
The Honorable Andrea L. Rocanelli
(“Resolution of the question of issue preclusion may render it unnecessary to
address the merits of Plaintiffs’ demand futility arguments. Accordingly, I begin
by analyzing whether any of those arguments remains viable in the wake of the
McSparran decision.”); id. at *14 n. 85 (“Based on this conclusion, the Court need
not address the merits of Plaintiffs’ various demand futility arguments in this
case.”); Beatty v. New Castle Cty. Bd. of Adjustment, 1996 WL 111152, at *2 n.7
(Del. Super. Jan 31, 1996) (“The Court finds it unnecessary to address such
argument further because substantial evidence exists to support the Board’s
decision . . . .”).
29