Roofers v. Gonzalez-Rodriquez

• Decision Date: 31 December 2018
• Docket Number: C.A. No. N18A-05-004 RRC
• Parties: TRISTATE ROOFERS T/A THE ROOFERS, INC. Appellant, v. GRACIANO GONZALEZ-RODRIQUEZ Appellee.
• Court: Delaware Superior Court

TRISTATE ROOFERS T/A THE ROOFERS, INC. Appellant, v. GRACIANO GONZALEZ-RODRIQUEZ Appellee.

C.A. No. N18A-05-004 RRC

SUPERIOR COURT OF THE STATE OF DELAWARE

Submitted: October 1, 2018

December 31, 2018

On Appeal from the Industrial Accident Board.

AFFIRMED.

MEMORANDUM OPINION

William D. Rimmer, Esquire, Heckler & Fabrizzio, Wilmington, Delaware, Attorney for Appellant Tristate Roofers T/A The Roofers, Inc.

Gary S. Nitsche, Esquire, and Joel H. Fredericks, Esquire, Weik, Nitsche & Doughery, Wilmington, Delaware, Attorneys for Appellee Graciano Gonzalez-Rodriguez.

COOCH, R.J.

I. INTRODUCTION

This is Tristate Roofers' ("Employer" or "Appellant") appeal from the April 17, 2018, decision of the Industrial Accident Board (the "Board") granting Graciano Gonzalez-Rodriguez's ("Claimant" or "Appellee") claim for total disability from March 3, 2017, to August 15, 2017, as a result of low back, neck, and left knee injuries sustained during a work accident which occurred on March 3, 2017. Employer asserts that the Board erred by failing to make sufficient findings with respect to the specific diagnoses, nature, and/or extant of Claimant's injuries. Employer also argues that the Board erred by failing to sufficiently indicate the reasons it found Claimant's expert more persuasive than Employer's expert. Claimant argues that the Board's decision is supported by substantial evidence, and should be affirmed.

The Court concludes that the Board's decision was supported by substantial evidence and that the Board otherwise committed no error of law. Accordingly, the Court affirms the decision of the Board.

II. FACTS AND PROCEDURAL HISTORY

Claimant worked for Employer from January 31, 2017, through March 10, 2017. On March 3, 2017, Claimant was riding in a work vehicle when another vehicle sped through a traffic light and collided with the side of the work vehicle, propelling the work vehicle into a guardrail (the "March 3 Accident"). On June 12, 2017, as a result of injuries sustained during the March 3 Accident, Claimant filed a Petition to Determine Compensation Due with the Industrial Accident Board. He sought a finding of injury to his neck, low back, and left knee, prior and ongoing total disability, compensability of medical expenses, medical witness fees, and attorney's fees.¹ While the Petition was pending, Claimant continued medical treatment.

The Board conducted a hearing on Claimant's petition on January 22, 2018. The Board heard testimony from Claimant, three of Claimant's coworkers, and considered the deposition testimony of Dr. James Zaslavsky, D.O. for Claimant and the deposition testimony of Dr. Robert Smith, M.D. for Employer. The Board ultimately found that Claimant met his burden to establish that he suffered work-related injuries, that his medical expenses were reasonable in light of the injuries, and that he was entitled to attorney's fees and medical witness fees. A key issue at the hearing was the existence and scope of Claimant's injuries.

Claimant testified that immediately following the March 3 Accident he experienced pain in the low back, neck, index finger, and left knee.² Despite the pain, Claimant denied sustaining any injuries to the police officer who arrived on the scene of the accident. Upon his return to work, Claimant was asked "whether he was okay," and he did not complain of pain.³ Claimant explained that "his pain level was pretty low on the day of the accident, so he did not say anything."⁴

Claimant soon began to experience the onset of increased pain in is low back, neck, and left knee. The pain increased to the point that Claimant sought treatment at Abby Medical Center on March 7, 2017. Claimant complained of problems with his work during this time, and had difficulty performing heavy duties at his job due to physical pain. Claimant advised physicians at Abby Medical of pain in his back, neck, and down his left leg. Physicians at Abby Medical Center diagnosed Claimant with injuries to the neck and low back, and referred Claimant to Andrew Leitzke, D.C. for treatment. Dr. Leitzke treated Claimant from March through July 2017.⁵

[Dr. Leitzke's] records indicate that Claimant complained of bilateral neck pain, bilateral low back pain, left knee joint pain, mid back pain, bilateral hand pain, left sacroiliac pain. Dr. Leitzke provided Claimant with manual therapy, including massage, electrical stimulation, heating pads and ultrasound. He also prescribed a home exercise program, and took Claimant out of work .... Dr. Leitzke's partner, Dr. Shelly McPhatter, had provided Claimant "excused from work" notes on April 21, 2017 and May 22, 2017. These notes covered Claimant to be out of work through June 22, 2017, and referred to "injuries sustained in motor vehicle accident."⁶

Dr. Leitzke eventually referred Claimant to James Zaslavsky, D.O, for further treatment. "Dr. Zaslavsky ... agreed with Dr. Leitzke that Claimant was totally disabled, and he continued his out of work status[.]"⁷

[Dr. Zaslavsky] first treated Claimant in July 2017. At that time, Claimant reported that he was a back seat passenger on March 3, 2017 when he was involved in a MVA [motor vehicle accident]. He felt increasing pain across his lumbar spine about two to three days later .... Claimant reported that he was waking four to five times at night with increasing pain across his lower lumbar spine that was shootinginto his left leg. He had to shift positions while sleeping to get comfortable. He reported that most of his pain was located between his lumbar spine and left buttock.

On physical exam, Dr. Zaslavsky noted that Claimant had tenderness to palpation across his lower lumbar spine. He had palpable muscle spasms and trigger point nodules in the lumbar paraspinal muscle region and left PSIS region. He was able to bend forward 30 degrees and backwards 5 degrees. Claimant had good strength in his bilateral lower extremities. He had a positive left straight leg raise, and a positive leg lowering test. [Dr. Zaslavsky stated that the] results [were] indicative of radiculopathy and of an annular tear.⁸

Dr. Zaslavsky reviewed MRI films of Claimant's lumbar spine which were taken on March 29, 2017.

The MRI showed significant annular tears and bulging disc herniations at L4-5, L5-S1, and more minor findings at L3-4. To Dr. Zaslavsky, the findings are acute in nature. The T2-weighted images show edema (or a high-intensity zone lesion) in the annulus, [which appeared] as a bright white spot. [Dr. Zaslavsky stated that] [t]his is consistent with a more recent event, such as a MVA. A tear in the annulus develops this type of inflammation and fluid, typically signifying that an injury occurred sometime in the last six to nine months from the time the MRI was taken. The white area will slowly dissipate over time; in about a year, it turns into a dark area. After even more time has passed, it will start to calcify and become a hard area known as a disc osteophyte complex. The edema consists of inflammatory chemicals in the back of the disc; the edema and inflammation irritate the nerves. The pressure of the bulging disc against the nerves and from the chemical irritation can cause shooting pain into one or both legs. ... Dr. Zaslavsky agreed that there are acute changes shown in the lumbar spine, but there are also degenerative parts of those changes. He clarified that the edema that is seen in the annulus tells him that something acutely happened to rip the annulus off of the bone, which is common. Dr. Zaslavsky acknowledged that annular tears can be degenerative in nature, but an annular tear with edema in the annulus is not degenerative. There is not always a finding of edema as part of an annular tear; some are chronic and have been there for years; thus, they do not light up white on a T2 weighted MRI image.⁹

Dr. Zaslavsky also reviewed an April 21, 2017, Electromyography ("EMG") study of Claimant's spine. "It was an abnormal study, showing lumbar radiculopathy affecting the L2 to L4 nerve roots bilaterally. There was no evidence of cervical radiculopathy. [Dr. Zaslavsky stated that the EMG] study correlated with the MRI and with Claimant's physical presentation on exam."¹⁰ Based on the examinations,Dr. Zaslavsky stated that, "within a reasonable degree of medical probability, he believe[d] that Claimant had had a trauma to cause the edema in his annulus."¹¹

Continuing treatment, Dr. Zaslavsky ordered an updated cervical spine MRI, which was taken on July 25, 2017. "The July 2017 MRI was fairly normal, but showed a small disc bulge at C3-4 and also at C7-T1 ... that could be a pain generator."¹² Instead of C7-T1, Dr. Zaslavsky believed "that the pain was most likely coming from another area other than the discs or soft tissues."¹³ Dr. Zaslavsky, through his physician's assistant Sarah Wagner, saw Claimant in follow up on August 15, 2017.

At that time, claimant was attending medical massage and doing a little better. Dr. Zaslavsky recommended that he incorporate some cervical massage into his routine, and increase his frequency to twice per week. Claimant was to follow up with Dr. Zaslavsky in a month, but he [did not return]. The records are indicative that he [continued] medical massage through September 2017, however. ... Dr. Zaslavsky was unsure why Claimant never returned after August 2017. He was not aware of Claimant having any treatment beyond September 26, 2017.¹⁴

Dr. Zaslavsky also addressed Dr. Smith's findings, or lack thereof, from the defense medical examinations of Claimant. "Dr. Zaslavsky agreed that Dr. Smith['s] ... defense medical examinations revealed no positive findings."¹⁵ However, Dr. Zaslavsky found Dr. Smith's conclusions "inconsistent with [his] own exams of Claimant in which he found palpable muscle spasm and a positive straight leg raise, indicative of radiculopathy."¹⁶ Dr. Zaslavsky further explained that "Claimant's objective diagnostic test results were consistent with his clinical exams."¹⁷

As to the extent of ...