Air Mod Corp. v. Newton

• Citation: 215 A.2d 434,59 Del. 148,9 Storey 148
• Parties: , 59 Del. 148 AIR MOD CORPORATION, Defendant Below, Appellant, v. Charles W. NEWTON, Plaintiff Below, Appellee.
• Decision Date: 29 November 1965
• Court: United States State Supreme Court of Delaware

Page 434

215 A.2d 434

9 Storey 148, 59 Del. 148

AIR MOD CORPORATION, Defendant Below, Appellant, v. Charles W. NEWTON, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Nov. 29, 1965.

Harold C. Schmittinger, of Schmittinger & Rodriguez, Dover, for defendant below, appellant.

Joseph Donald Craven, Wilmington, for plaintiff below, appellee.

WOLCOTT, C. J., and CAREY and HERRMANN, JJ., sitting.

HERRMANN, Justice:

The defendant, Air Mod Corporation, appeals from a judgment of the Superior Court affirming an award by the Industrial Accident Board (hereinafter the 'Board') of workmen's compensation to its employee, Charles W. Newton, the plaintiff. The award is attacked upon several grounds: (1) that the finding of a compensable accident is not supported by sufficient evidence; (2) that the finding of a causal connection between the alleged accident and the plaintiff's physical disability is not supported by the requisite quantum of expert medical testimony; (3) that i was reversible error to bar evidence regarding certain questionable statements, as to his physical condition, made by the plaintiff in his application for employment; and (4) that the apportionment provisions of the Delaware Workmen's Compensation Act, 19 Del.C. § 2329, ¹ should apply.

I.

The pertinent facts are these:

In 1937, the plaintiff suffered a back injury as the result of a fall. For 12 years thereafter, his back pain was intermittent; then progressively more frequent; then continuous. In April 1959, the plaintiff underwent surgery for the condition, the diagnosis being sciatic neuralgia, ruptured intervertebral disc, and discogenic spondylosis. A lumbar laminectomy (surgical removal of the posterior arches of the vertebrae) was performed and discs were removed. The operation included opening of the dura, one of the membrane coverings of the spinal cord. Within a few weeks, the plaintiff returned to the hospital complaining of pain in the left leg and, shortly thereafter, he was hospitalized again for pain in the right hip and leg. The diagnosis on both of these occasions was sciatic neuralgia.

In September 1959, the plaintiff applied to the defendant for employment as a welder and was hired. On December 30, 1960, according to the plaintiff's testimony before the Board, he slipped and fell in the course of his employment while pushing a hand truck on an icy street pavement. He experienced no pain until he had driven part way home that evening; but thereafter he suffered severe back pains. On January 9, 1961, the plaintiff first made a report to the defendant and first consulted a physician about the pain he was experiencing. He made no mention of a fall either in the first report or to the doctor first consulted. On January 23, 1961, the plaintiff signed a statement in which he stated he 'did not actually fall from the ice.' The plaintiff continued to work for the defendant until the end of March 1961. His record of attendance at work was good both before and after the December 30 incident.

In April 1961, the plaintiff underwent more back surgery, the diagnosis being recurrent herniated intervertebral disc and cauda equina arachnoiditis. The following operative procedures were performed: a lumbar laminectomy involving the same vertebrae as in the 1959 surgery, with extradural removal of an extruded disc fragment; exploration of the cauda equina (aggragation of nerve fibers) for arachnoiditis (inflammation of the arachnoid, a second membrane covering of the spinal cord) and removal of scar tissue overlaying the dura; a spinal fusion was also done. During this hospitalization, the plaintiff signed an application form for non-occupational group accident and health insurance benefits, stating that his sickness or injury did not arise out of his employment.

In July 1961, the plaintiff was again hospitalized for pain. The diagnosis was arachnoiditis cauda equina; a left chordotomy (cutting of pain fibers in spinal cord) was performed. In April 1962, the plaintiff was again hospitalized, the diagnosis being arachnoiditis; this time, the operation was a right chordotomy. Since then, the plaintiff has been completely and permanently disabled, paralyzed from the chest down.

On October 25, 1962, the plaintiff filed a petition for workmen's compensation, claiming that his permanent disability resulted from the occurrence of December 30, 1960. The Board found that the plaintiff 'strained his back' on that date; that such injury 'aggravated the pre-existing back disability' suffered by him; that his disability constituted a compensable occupational disease under § 2329; and the Board awarded compensation acccordingly. On appeal by the defendant, the Superior Court affirmed the award, but held § 2329 inapplicable because the plaintiff's disability 'does not amount to an occupational disease.' The defendant takes this further appeal.

II.

The defendant contends that the occurrence of a compensable accident on December 30, 1960 is not supported by substantial evidence. The defendant points to the absence of any eye witness and of any res gestae; the continuation of work for over two months; the failure to make any report of the occurrence for ten days; the failure to mention a fall, as described in the hearing before the Board, in any report to the defendant or in any history given to a physician prior to February 14, 1961; and the lapse of two years before a claim for compensation was filed.

Upon review of the record, we agree that the plaintiff's acts and statements are highly inconsistent with his testimony, at the hearing before the Board, of a fall. In the final analysis, however, the question is one of credibility and the weight to be accorded the plaintiff's testimony. The Board saw and heard the witnesses and considered all the evidence now before us. Our function and the function of the Superior Court on appeal from the Industrial Accident Board, where the Board heard and saw the witnesses, is to determine whether the record made before the Board shows substantial evidence sufficient to support the Board's findings and conclusions. General Motors Corp. v. Freeman, 3 Storey 74, 164 A.2d 686 (1960); Lester Newton Trucking Co. v. Neal, Del., 204 A.2d 393 (1964); Nardo v. Nardo, Del., 209 A.2d 905 (1965).

It is our opinion that the testimony of the plaintiff, if believed, is substantial evidence sufficient to sustain the Board's finding of a compensable accident on December 30, 1960. Obviously, the Board accepted the plaintiff's testimony, his prior inconsistent statements and acts notwithstanding. We will not substitute our judgment for that of the members of the Board as to credibility. Therefore, the Board's finding of a compensable accident will not be disturbed.

III.

The defendant claims the lack of the expert medical testimony requisite to establish a causal connection between the occurrence of December 30, 1960 and the plaintiff's present disability. In this connection, the defendant points to the absence of any expert evidence to establish 'with reasonable medical certainty' that the fall described by the plaintiff caused the plaintiff's present condition.

Two doctors testified before the Board on behalf of the plaintiff. A neurologist, who had not treated the plaintiff but who heard his testimony before the Board, stated that the fall described by the plaintiff 'could result' in the disc injury. The orthopedic surgeon who performed the operation of 1961 testified that, upon opening the dura, a large piece of extruded disc was found; that in his opinion it had been recently extruded because, otherwise, considerable pain would have been experienced and, based upon the plaintiff's statements, it was assumed that there was 'relatively little pain' after the 1959 operation; that, according to the medical records (the operating surgeon being unavailable as a witness), the subsequent chordotomies were performed a surgical pain relief to relieve 'continuing' and 'intractable' pain caused by reformed adhesions of nerve roots resulting partially from prior surgery and partially from the fall; and that the plaintiff's present condition, as found by the surgeon on December 20, 1962 after the second chordotomy, was, in his opinion, 'consistent' with the plaintiff's description of a fall, and 'could have' resulted therefrom.

Admittedly, from a legal point of view, a more positive causal connection between the occurrence of December 30, 1960 and the plaintiff's disability would be desirable; and, unquestionably, the 'reasonable medical certainty' test, furnishing probability of causation rather than mere possibility, is preferable when obtainable. We must recognize, however, the understandable reluctance of medical witnesses to be dogmatic as to causation of a physical condition. In the thinking and reasoning of a physician, we realize, the realm of probability and the realm of possibility often overlap. Semantics must given way in the search for a fair and just result; and the distinction between words like 'possible', 'probable', 'reasonable certainty', and the like, may not be over-emphasized. A 'could have' answer of a medical witness, such as we have here, may not be isolated and considered alone; it must be considered in the light of all of the other evidence in the case. General Motors Corp. v. Freeman, supra; Annotation 135 A.L.R. 516; 2 Larson's Workmen's Compensation Law, § 80.32. In the instant case, considering the medical testimony in the light of all of the evidence, we have reached the conclusion that it is sufficient to establish the requisite causal connection and to sustain the award.

There is a loose end in this part of the case which needs securing. It appears that the orthopedic surgeon based his opinion of a recent disc extrusion upon the assumption that the plaintiff suffered 'relatively little pain' after the operation of 1959. The Board barred the defendant from testing this assumption by examining ...