Standard Distributing Co. Through Pennsylvania Mfrs. Ass'n Ins. Co. v. Nally

• Decision Date: 27 April 1993
• Citation: 630 A.2d 640
• Court: Supreme Court of Delaware
• Parties: STANDARD DISTRIBUTING COMPANY, Through its Workers' Compensation Carrier, PENNSYLVANIA MANUFACTURER'S ASSOCIATION INSURANCE COMPANY, Employer-Appellee Below, Appellant, v. Robert NALLY, Claimant-Appellee Below, Appellee, and Standard Distributing Company, Through its Workers' Compensation Carrier, Northbrook Property & Casualty Company, Employer-Appellant Below, Appellee. . Submitted:

Page 640

630 A.2d 640

STANDARD DISTRIBUTING COMPANY, Through its Workers' Compensation Carrier, PENNSYLVANIA MANUFACTURER'S ASSOCIATION INSURANCE COMPANY Employer-Appellee Below, Appellant, v. Robert NALLY, Claimant-Appellee Below, Appellee and Standard Distributing Company, Through its Workers' Compensation Carrier, Northbrook Property &amp Casualty Company, Employer-Appellant Below, Appellee.

Supreme Court of Delaware.

Submitted: April 27, 1993.

Decided: Sept. 17, 1993.

Appeal from Superior Court. Reversed and Remanded.

J.R. Julian (argued), J.R. Julian, P.A., Wilmington, for employer-appellee below, appellant Standard Distributing Co. through Pennsylvania Manufacturer's Ass'n Ins. Co.

Sidney Balick (argued), Wilmington, for claimant-appellee below, appellee Robert Nally.

George B. Heckler, Jr. (argued), and John J. Klusman, Jr., Heckler & Cattie, Wilmington, for employer-appellant below, appellee Standard Distributing Co. through Northbrook Property & Cas. Co.

Before VEASEY, C.J., WALSH and HOLLAND, JJ.

WALSH, Justice:

In this appeal from the Superior Court, we address the vexing question of successive carrier responsibility for alleged recurrence of a previous injury resulting in a claim for workers' compensation. The Superior Court, in reversing the Industrial Accident Board, ruled that, as a matter of law, a recurring injury resulting from the performance of normal employment duties constitutes a new injury for which the compensation carrier at the time of the new injury is responsible. In our view, the appropriate methodology for determining successive carrier responsibility requires the determination of whether the new episode is the producing cause of an industrial accident resulting in changed physical condition before the second carrier may be held liable. Accordingly, we reverse.

I

The facts which underlie the successive claims are essentially undisputed. On March 1, 1988, claimant-appellant, Robert Nally ("Nally"), injured his lower back in a work-related accident that occurred while he was employed by Standard Distributing Company ("Standard") as a delivery person. At the time of the accident, Northbrook Property and Casualty Company ("Northbrook") was the workers' compensation insurance carrier for Standard.

On the day of the accident, Nally was driving a delivery truck with five bays on each side, each with its own door. Nally was injured when he attempted to open a bay door that was stuck. As the door opened, six cases of beer fell out and pushed Nally to the ground. Some of the cases landed on Nally and he immediately felt pain in his lower back, right buttock and right leg. Nally was initially treated by Dr. Brent Noyes. Thereafter, he was treated by Dr. Ross Ufberg for pain in his lower back and his right leg.

As a result of the accident, Nally, under an agreement with Northbrook, collected total disability benefits from March 2, 1988 through June 28, 1988 and partial disability benefits thereafter until May 14, 1989. In January 1989, Nally returned to work on a restricted basis as a night packer, a lesser paying job which required him to place bottles in boxes. On March 10, 1989, Dr. Ufberg released Nally to return to work without restriction, although Nally continued to experience some back pain for which he took medication.

On March 20, 1989, while making a delivery, Nally once again injured his lower back in a work-related event. The second episode occurred as Nally was unloading several full kegs of beer, weighing 160-165 pounds each, from his delivery truck. Delivering beer kegs was one of Nally's regular duties. One of the kegs to be unloaded was toward the rear of the truck and had to be pulled to the door. Nally's normal method of getting a full keg from the back of the truck to the door was not to lift the keg, but to roll the keg to the front and to flip it out the door, allowing it to fall approximately 20 inches to the ground. As Nally prepared to flip the keg out the door, he put his foot on the truck to gain leverage. He immediately felt pain across his lower back, right buttock and right thigh. At the time of the second accident, Pennsylvania Manufacturer's Association Insurance Company ("PMA") was the workers' compensation insurance carrier for Standard.

In a petition filed with the Industrial Accident Board ("Board"), Nally alleged that the March 20, 1989 injury was a "recurrence" of the March 1, 1988 accident for which Northbrook was responsible. Subsequently, Nally added PMA as a party, alleging that the March 20, 1989 disability was a new accident for which PMA was responsible. Northbrook filed a Petition to Terminate with the Industrial Accident Board ("Board"), alleging that Nally suffered a new accident/injury on March 20, 1989 for which PMA was on the risk. The carriers did not contest Nally's entitlement to compensation for the medical expenses attributable to the second episode. The dispute is over which carrier, Northbrook or PMA, is responsible for paying Nally's benefits.

The Board conducted an evidentiary hearing at which several physicians testified. Nally's treating physician for both incidents was Dr. Ufberg. Dr. Ufberg testified that when he saw Nally shortly after the first accident, he complained of lower back pain with sharp aching across his right lumbosacral region that was worse while standing straight or while sitting for prolonged periods of time. Dr. Ufberg stated that his initial impression was that Nally suffered a lumbosacral strain and fibromyalgia. Dr. Ufberg continued to see Nally through May 1988, but Nally exhibited little improvement. Based upon Nally's symptoms as well as the type of work that he did, Dr. Ufberg considered the implications of a disc injury and ordered a CAT scan. In Dr. Ufberg's opinion, the CAT scan, dated May 9, 1988, revealed findings suspicious of herniation of the nucleus pulposus at L3-4. The doctor testified that an injury at L3-4 disc is not common in industrial accidents involving bending and lifting but is consistent with a fall backwards.

Thereafter, Dr. Ufberg ordered an MRI that, in his opinion, revealed a degeneration of the L3-4 disc as well as posterior bulging at L3-4 causing encroachment on the thecal sac. Dr. Ufberg continued to treat Nally through June and July of 1988 and his office notes reveal that Nally was still complaining of pain, sometimes severe, and reflect that Nally was having good and bad days. Dr. Ufberg noted Nally's general condition worsened with activity. At that time, Dr. Ufberg had the same three impressions as before: herniated disc; lumbosacral strain; and fibromyalgia.

Dr. Ufberg's report of September 1, 1988, recited that Nally continued to note significant lower back pain that worsened with certain activities such as lifting or carrying heavy items. He further noted occasional tingling sensations radiating to the right buttock. Dr. Ufberg ordered an EMG nerve conduction study that showed no nerve root irritation. Dr. Ufberg stated that this test was performed to determine if there was active pressure from the disc on the nerve roots. In Dr. Ufberg's opinion, however, the test results did not rule out herniation since the EMG merely tests nerve function. Dr. Ufberg continued to see Nally through March 10, 1989, when, at Nally's urging, Dr. Ufberg released him to work without restriction but to continue on prescribed medication.

As previously noted, Nally sustained his second injury one week after returning to full duty, and was seen by Dr. Ufberg on March 21 with complaints of sharp pain across his lumbosacral region radiating into his right posterior thigh. Dr. Ufberg testified that these findings were similar to, and consistent with, the prior findings. In Dr. Ufberg's opinion, Nally suffered a "flare-up" of his old injury, not a new injury, as a result of the incident with the keg. Dr. Ufberg related all of Nally's disability to his March 1, 1988 injury and viewed the 1989 event as a recurrence of the 1988 injury.

Dr. Joseph M. Barsky, Jr. performed an independent medical examination in February 1990 at the request of PMA after reviewing all the medical records of the treating physicians since the 1988 accident. Dr. Barsky testified that Nally had a herniated disc at L3-4 as a result of the first accident. This diagnosis was based on Dr. Ufberg's history and records as well as the CAT scan and MRI that were performed. Dr. Barsky ordered a second MRI that was performed on April 26, 1989, which, in his opinion, revealed no significant change from the MRI performed in May 1988. Dr. Barsky testified that the March 20, 1989 incident was a recurrence of the prior disc problem. Finally, Dr. Barsky testified that he would not have released Nally to work without restrictions in March 1989 because he had a herniated disc at the L3-4 level which would require restrictions. Dr. Barsky testified that the purpose for not releasing a patient of this type to full duty is to limit exposure to any type of recurrence.

Dr. Bikash Bose, a neurosurgeon who performed a lumbar diskectomy on Nally in 1989, testified that the lumbar myelogram and CAT scan performed on August 8, 1989 revealed a herniated disc at L3-4. Dr. Bose testified that the surgery confirmed the results of the myelogram. Dr. Bose's testified that there was no new injury as a result of the March 20, 1989 incident. He stated that the type of accident that Nally experienced on March 1, 1988 was competent to cause the disc injury described in the CAT scan and MRI.

Dr. Jerry L. Case performed a series of independent medical examinations of Nally at the request of Northbrook. Dr. Case stated that when he first saw Nally on June 14, 1988, he obtained a detailed history from him. Dr. Case testified that there was no clinical evidence of disc herniation at his June 14, 1988 examination of Nally. Dr. Case further testified that there was no evidence of a herniation when Nally returned to work in March 1989. Dr....