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Vicki Fountain v. McDonald’s, C.A. No. S15A-07-005 MJB (Del. Super. June 30, 2016)

Superior Court affirms Industrial Accident Board ‘s Decision denying Claimant’s Petition seeking compensability of a 2014 lumbar spine surgery related to the Claimant’s August 2001 work accident.

Claimant sustained injures to her lumbar spine as a result of a slip and fall while working for McDonald’s in August 2001.  In 2005, Claimant filed a Petition with the Industrial Accident Board seeking payment of medical expenses with Dr. Balu for pain management.  The Industrial Accident Board in 2006 granted Claimant’s Petition, finding Dr. Balu’s testimony to be more persuasive than employer’s expert, Dr. Sopa.  Dr. Sopa at the time testified that the Claimant’s present symptoms and need for treatment were related to Claimant’s degenerative condition stemming from her 1970 surgery to address developmental scoliosis.  Claimant has suffered from intermittent back pain for year prior to the work accident. However, the Board relied upon Dr. Balu’s testimony that Claimant’s lumbar facet syndrome, lumbar radiculopathy and post-traumatic spondylolisthesis were related to the 2001 work accident.

In December 2014, Claimant filed a Petition to Determine Additional Compensation Due seeking compensability of lumbar spine surgery performed by Dr. Yalamanchili on September 25, 2014 and payment of related medical treatment expenses.  At the time of the 2015 Hearing, Dr. Yalamanchili testified on behalf of the Claimant that she failed conservative treatment and was a candidate for surgery to include an extension of her decompression and spinal fusion to incorporate L4-5 and L5-S1.  He further testified that when he performed surgery he found severe nerve impingement.  Dr. Yalamanchili opined that Claimant’s spondylolisthesis in 2002 “probably” stemmed from her work injury. 

Alternatively, Dr. Stephens testified on behalf of the Employer opining that Claimant’s lumbar spine complaints were not related to the work accident and that she would have likely needed a spinal fusion regardless of the work accident. Dr. Stephens addressed Dr. Sopa’s prior opinions in 2003 during his testimony.  He opined that there were convincing and consistent records of the problems Claimant was experiencing arising in patients who had scoliosis surgery of the exact type ay the exact level 40 years prior.  Claimant had evidence of arthritic changes at L5-S1 following her thoracolumbar fusion which Dr. Stephens believed were directly related to her 1975 scoliosis surgery. Following the Hearing, the Industrial Accident Board denied Claimant’s 2014 Petition finding that Claimant failed to meet her burden of proof that the 2014 surgery and resulting medical treatment was reasonable, necessary and causally related to the work accident, relying upon Dr. Stephens’ testimony.

Claimant appealed the Board’s Decision arguing three issues on appeal: 1) the doctrine of collateral estoppel and res judicata precluded the Board from relying upon Dr. Sopa’s prior opinions; 2) the Board erred in permitting Employer’s expert testimony and presenting a defense to the Petition and 3) the Board’s Decision was not supported by substantial evidence. 

During the course of the IAB Hearing Claimant made a Motion to Strike Dr. Stephens’ testimony due to late production of his medical report and failure of the Employer to timely file a Pretrial Memorandum.  The Board denied the Motion.  On Appeal the Court also found that these arguments were without merit and that there was no unfair surprise as Employer’s defense was not uncommon or unique and Claimant ad a fair opportunity to review and comment on Dr. Stephens’ opinions prior to her expert’s testimony.

The Superior Court further held that the Board’s reliance upon Dr. Stephens’ testimony and finding that Dr. Stephens’ opinion was more credible than Dr. Yalamanchili’s opinion, was supported by substantial evidence.  Dr. Stephens had the opportunity to evaluate the Claimant and review medical treatment records in conjunction with his evaluation.  The Court held that Dr. Stephens had sufficient information on which to base his opinions.

Claimant believed that Dr. Stephens “largely” relied upon Dr. Sopa’s prior findings in his testimony and thus the doctrine of res judicata, collateral estoppel or both was applicable as the Board in previously considered and rejected Dr. Sopa’s opinion.  The Court however rejected these arguments and held that Dr. Stephens testimony was devoid of any reference that he relied upon Dr. Sopa’s prior opinions.  Dr. Stephens simply reviewed Dr. Sopa’s prior opinions and confirmed that they were similar to his own opinions.  The Court also stated that the Board did not reject Dr. Sopa’s prior opinions at the 2005 Hearing, but simply found that it was outweighed by contradictory medical testimony.  Thus, the Board’s 2015 Decision was not contradictory of its prior 2006 Decision as the Board did not find in 2015 that Claimant’s medical conditions previously determined to be related to the work accident were no longer causally related. Alternatively, the Board held that the 2014 surgery was not related to these condition and that it was necessitated by her degenerative conditions resulting from her prior scoliosis surgery. 


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