Jones v. Universal Health Services, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
KARI-ANN JONES, :
:
Appellant, : K17A-08-002 JJC
: In and for Kent County
v. :
:
UNIVERSAL HEALTH SERVICES, :
INC., :
:
Appellee. :
ORDER
Submitted: July 2, 2018
Decided: August 16, 2018
Upon Consideration of Appellant's Appeal from the Industrial Accident Board
AFFIRMED
AND NOW TO WIT, this 16th day of August, 2018, upon consideration of the
record and the briefing by the parties, IT APPEARS THAT:
1. Before the Court is the appeal of Appellant Kari-Ann Jones (hereinafter
“Ms. Jones”) from the decision of the Industrial Accident Board (hereinafter “the
Board” or “the IAB”) denying her petition to determine additional compensation due.
Ms. Jones suffered a compensable work injury on April 6, 2014 while working for
Universal Health Services, Inc. (hereinafter “Employer”). She was employed as a
mental health technician who conducted group sessions with adolescents and helped
them with their daily activities. On the date of the injury, Ms. Jones attempted to stop
an altercation between two young men and suffered injuries after being pushed into a
wall.
2. Ms. Jones reported the injury and went to the Kent General emergency
room and complained of shooting pain in the back of her right hand and arm. Several
days later, Ms. Jones saw Dr. Eichenbaum, a hand doctor, who put her hand in a cast.
Ms. Jones alleges that she told Dr. Eichenbaum that she had pain radiating all the way
up her arm, but felt that the doctor did not listen to her. In July of that year, Ms. Jones
saw Dr. Richard DuShuttle, who ordered an MRI of her wrist. Ms. Jones then saw Dr.
Randeep Kahlon who also concentrated solely on her wrist, and gave her two injections
for nerve pain. Next, Ms. Jones was seen by Dr. Lee Osterman, a hand surgeon, who
performed surgery in November 2014 to address a triangular fibrocartilage complex
tear. Dr. Osterman thereafter documented shooting arm pain on March 30, 2015, and
sent her for an MRI of her neck. Ms. Jones then saw Dr. Irene Mavrakakis in November
2015. Dr. Mavrakakis documented arm and neck pain and administered physical
therapy focused primarily on her neck.
3. The April 2015 MRI of Ms. Jones’s neck revealed large, acute disc
herniations and a disc bulge. Dr. Zaslavsky, an orthopedic spine surgeon,
recommended surgery. The surgery performed on December 18, 2015 included a
cervical discectomy and a fusion. In May 2016, she complained that both her neck and
arm pain had returned, and a June 2016 MRI revealed that a cadaver bone used in her
surgery had deteriorated. Dr. Zaslavsky performed a second neck surgery on
December 27, 2016 to re-stabilize Ms. Jones’s neck. She since has received post-
surgical physical therapy and massage therapy.
4. Ms. Jones suffered a compensable right hand and wrist injury. On
September 21, 2016, she filed a petition to determine additional compensation due,
alleging that her neck condition was causally related to the work incident. Specifically,
she alleges that the two spinal surgeries performed in 2015 and 2016 and the follow-
up care are compensable as reasonable and necessary medical treatment causally
2
related to the April 2014 incident. In response, the employer disputes that the neck
treatments are casually related to the work incident.
5. The Industrial Accident Board conducted a hearing in this case on April
19, 2017. The sole issue before the Board was whether Ms. Jones’s spinal surgeries
were causally related to her April 2014 work injuries. The Board considered, inter
alia, testimony from Ms. Jones, testimony from Dr. Zaslavsky, who performed the
spinal surgery, and testimony from Dr. Errol Ger, an orthopedic surgeon testifying on
behalf of the Employer.
6. Dr. Zaslavsky testified that the medical treatment Ms. Jones received for
spinal injuries was reasonable, necessary and causally related to her 2014 work
incident. Dr. Zaslavsky testified that some neck problems include symptoms such as
numbness and tingling in the hand, and that the symptoms slowly advance to pain in
the elbow and shoulder. Furthermore, Dr. Zaslavsky testified that spinal cervical
injuries are difficult to diagnose because disc problems do not always cause neck
complaints.
7. Dr. Ger testified that he examined Ms. Jones and reviewed her medical
records. He noted no recorded complaints by Ms. Jones referring to her cervical spine
until March 2015, eleven months after Ms. Jones’s April 2014 work injuries. He also
testified that his record review revealed that another doctor performed an examination
of her neck in the interim and also had found nothing wrong. Dr. Ger agreed that the
treatment for her neck injuries was reasonable and necessary. He testified, however,
that it was not related to the April 2014 work incident.
8. The Board concluded that the evidence in the case clearly established that
she had no neck-related complaints in 2014. In deciding so, the Board considered Ms.
Jones’s testimony that she complained about neck pain in 2014, but that her doctors
did not listen to her or document these complaints. Nevertheless, the Board found this
testimony unpersuasive. On the other hand, the Board found Dr. Ger’s testimony
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persuasive, including his testimony that the acute disc herniation finding in the 2015
MRI suggested that the injury occurred recently. The Board concluded that the acute
disc herniation more than likely developed in 2015 and was unrelated to the 2014
incident. Accordingly, the Board held that Ms. Jones failed to show by a
preponderance of the evidence that her spinal condition was caused by her April 2014
work incident and it denied her claim for additional compensation.
9. Thereafter, Ms. Jones filed a notice of appeal pro se and a written brief.
She presents no new legal arguments in her brief, but instead restates the facts and
emphasizes that she complained about neck-related symptoms in 2014, but that her
doctors did not document the complaints. Moreover, Ms. Jones claims that the Board’s
decision includes factual errors and should have considered video evidence of the April
2014 accident. Finally, she argues that her attorney did not properly present the neck
injury portion of her claim.
10. This Court's appellate review of the IAB's factual findings is limited to
determining whether the Board's decision is supported by substantial evidence.1
Substantial evidence means “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” 2 On appeal, the Court views the facts in the light
most favorable to the prevailing party below.3 Moreover, the Court does not weigh the
evidence, determine questions of credibility or make its own factual findings.4 Absent
any errors of law, which are reviewed de novo, a decision of the IAB supported by
substantial evidence will be upheld unless the Board abused its discretion. 5 The Board
1
Bullock v. K–Mart Corp., 1995 WL 339025, at *2 (Del. Super. May 5, 1995) (citing General Motors
v. Freeman, 164 A.2d 686, 688 (Del.1960)).
2
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Fed. Mar. Comm'n, 383 U.S.
607, 620 (1966)).
3
Chudnofsky v. Edwards, 208 A.2d 516, 518 (Del. 1965) (citing Turner v. Vineyard, 80 A.2d 177,
179 (Del. 1951)).
4
Bullock, 1995 WL 339025, at *2 (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)).
5
Hoffecker v. Lexus of Wilmington, 2012 WL 341714, at *2 (Del. Feb. 1, 2012) (citing Person–
Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009)).
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abuses its discretion when its decision exceeds the bounds of reason in view of the
circumstances.6
11. Here, the Court finds no error of law in the Board’s decision. The Board
found that, more likely than not, Ms. Jones neck complaints and treatments were not
related to the work incident. It therefore follows that Ms. Jones did not meet her burden
of proof in this matter. Furthermore, after a review of the record, the Court finds
substantial evidence on the record to support the Board’s finding that Ms. Jones’s
spinal surgeries were not causally related to the April 2014 incident. The Board
carefully considered the testimony of Ms. Jones, Dr. Zaslavsky, and Dr. Ger. Although
Dr. Zaslavsky testified that Ms. Jones’s spinal injuries were a result of the April 2014
accident, the Board found his opinions to be conclusory. In contrast, it found Dr. Ger’s
testimony that an acute herniation could not be the result of an injury sustained eleven
months prior to be more persuasive. Ms. Jones’s challenges to the Board’s factual
findings include alleging mistakes in the timeline and its failure to consider video
evidence that was not before the Board. None justify reversing the Board’s decision.
Even if the Court accepted Ms. Jones’s arguments and newly recited facts as true, the
Board found Dr. Ger’s testimony to be more credible. 7 Based upon that finding and
the substantial evidence of record corroborating Dr. Ger’s opinion, the Court must deny
Ms. Jones’s appeal.
NOW THEREFORE, for the reasons cited, the Board's decision in this matter
is AFFIRMED.
IT IS SO ORDERED.
/s/Jeffrey J Clark
Judge
6
Id.
7
Glanden v. Land Prep, Inc., 918 A.2d 1098, 1102 (Del. 2007) (recognizing that it is within the IAB’s
purview to weigh the credibility of conflicting medical expert opinions).
5