Sewell v. Delaware River & Bay Authority

796 A.2d 655, 2000 WL 303631, 2000 Del. Super. LEXIS 70
CourtSuperior Court of Delaware
DecidedFebruary 29, 2000
DocketCivil Action No. 99A-07-003
StatusPublished
Cited by2 cases

This text of 796 A.2d 655 (Sewell v. Delaware River & Bay Authority) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sewell v. Delaware River & Bay Authority, 796 A.2d 655, 2000 WL 303631, 2000 Del. Super. LEXIS 70 (Del. Ct. App. 2000).

Opinion

MEMORANDUM OPINION

STOKES, Judge.

Presently before this Court is Charles Sewell’s (“Claimant” or “the Claimant”) appeal from a decision of the Industrial Accident Board (“Board”) awarding him partial compensation for the partial permanent impairment to his right leg resulting from an accident that occurred while Claimant was working for the Delaware River and Bay Authority (“Employer”). This appeal places before this Court the following question of law:

Under current Delaware law, is a claimant, under the Worker’s Compensation laws, entitled to complete and non-apportioned compensation for the resulting impairment where an identifiable industrial accident has triggered a pre-existing, asymptomatic, and non-impairing condition?

As discussed fully below, neither the General Assembly nor the Delaware courts [657]*657have clearly addressed this issue. However, the great weight of authority in other jurisdictions finds the injury fully compen-sable and would not attempt to apportion the award between the accident and the pre-existing condition or infirmity. I find that Delaware law supports this majority view and thus reverse the decision of the Board.

STATEMENT OF FACTS

At the time of the accident, the Claimant was employed by the Delaware River and Bay Authority to work at the Lewes, Delaware, terminal for the Cape May-Lewes Ferry. Claimant’s precise position with the Employer was never identified but his duties were quite varied. Upon his arrival at work each morning, Claimant would unlock over forty doors and gates to prepare for the day’s ferry traffic. He also raised the flags that flew on the terminal grounds. Prior to the first ferry’s arrival, he would check the fire escapes and prepare the ropes that moor the ferry while at the terminal. When a ferry arrived, the Claimant would secure the ferry to the dock and run up a fire escape to let foot passengers in the terminal embark. He would collect the foot passengers’ tickets and would count the tickets after the ferry left the terminal. A ferry is scheduled to arrive approximately every forty-five minutes. In between ferry arrivals, he might help clean the grounds or wash police cars. At other times, he might help prepare the ferry between trips by removing trash from the ferry and disposing of it at the terminal. This would entail running up and down several flights of stairs. Overall, his duties involved a substantial amount of walking and climbing steps.

On January 15, 1996, while completing his duties for the Employer, the Claimant fell when a step on a fire escape he was descending failed. He injured his right ankle and knee in the fall. Claimant testified that he completed his shift that day, but that evening, the right knee and ankle began to swell “like a cantaloupe.” The Claimant went to the Bebee Medical Center where he received an injection and a prescription to combat the pain.

Two days after the accident, the Claimant was examined by a board certified orthopedic surgeon, Dr. John Spieker, concerning his injury. Upon examination, Spieker observed a moderate amount of swelling in the knee and tenderness around the ankle. Dr. Spieker also reviewed x-rays of the Claimant’s leg. Based on his examination and the diagnostic study, Dr. Spieker concluded that the Claimant suffered from an acute soft-tissue sprain and a pre-existing severe degenerative condition in his right knee consistent with osteoarthritis.

Dr. Spieker recommended rest and physical therapy and prescribed anti-inflammatory and pain-killing medications. He also placed the Claimant on a “no-work” status. Claimant made some progress but still had difficulties with his knee when Dr. Spieker saw him in early February of 1996. In March, 1996, Dr. Spieker released the Claimant to return to work with restrictions on his activity. The Employer modified Claimant’s duties but after several weeks, it became apparent the Claimant’s injury would prevent him from fulfilling even the restricted duties. The Claimant was unable to return to work.

Dr. Spieker continued to treat the Claimant and as recently as June, 1999, observed that the Claimant continues to be “clinically symptomatic” and that he has never returned to his pre-injury capabilities. While recent x-rays show no significant change in his degenerative condition, his knee is still moderately swollen. It is this swelling that causes pain and decreases his functional capabilities.

[658]*658Based on this history of treatment, Dr. Spieker opined that the Claimant suffered a 22% permanent impairment to his right leg. In reaching this conclusion, he weighed the objective findings on loss of motion, loss of strength, and the diagnostic studies, which included the x-rays. When asked in his deposition to relate this permanent impairment to Claimant’s accident at work, the following exchange occurred:

Q: Since there’s no way to differentiate between the effects of the accident and his preexisting condition, can you relate his current condition, that is his current functional condition, to the accident or to the preexisting arthritis?
A: Well, I’d have to say that the accident is a result or cause of his present functional status. Since there’s a constant here, which is arthritic changes on x-ray, they were present before and after. The only reason he is not able to work it appears at this time is because of the injury that he sustained to his knee that he did not recover fully from.
Q: Would it be fair to say that the limiting symptoms that he experienced are a direct result of the accident and not the preexisting arthritis?
A: Well, the preexisting arthritis, I mean, it plays a major role here because if a person had a normal knee and they had the same injury, they wouldn’t have the same functional impairment at this time. Without giving an absolute with medical certainty assessment at which percent is which, I mean, I would have to say that they are both equally responsible.

Dr. Spieker Deposition at 17.

At the Employer’s request, the Claimant was also examined by Dr. Andrew Gelman, a board certified orthopedic surgeon. Gel-man saw the Claimant on January 17, 1997, and March 12, 1999. Dr. Gelman also reviewed Claimant’s medical records. After examining the Claimant and his medical records, including x-rays, Dr. Gel-man concluded that while the Claimant may have suffered a right ankle sprain and a sprain and contusion of the right knee as a result of the accident at work, those problems have resolved themselves. He also concludes that while the accident may have exacerbated his condition to some extent, the Claimant’s current difficulties are attributed solely to his pre-existing degenerative condition, osteoarthritis. Moreover, he opined that it “is inevitable or would have been inevitable that right knee difficulties might have come to some sort of musculoskeletal attention irregardless of the January 15,1996 accident.” Dr. Gelman Transcript at 10.

Dr. Gelman concluded that Claimant suffered from a 25% permanent impairment to his right leg. In reaching this conclusion, Dr. Gelman relied on Table 62 of the AMA Guides, which provide guidance in establishing permanency ratings for injuries to the leg. Because the x-rays showed significant degenerative changes, and that Claimant’s knee has only one millimeter of joint distance, the table assigns a 25% permanency rating to this condition.

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Bluebook (online)
796 A.2d 655, 2000 WL 303631, 2000 Del. Super. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sewell-v-delaware-river-bay-authority-delsuperct-2000.