Under the Nally doctrine, there was no untoward event and liability rested with the employer at the time of the original injury.
The Board analyzed this complex medical causation issue in order to decide whether the cervical spine surgery performed on the claimant was the legal responsibility of either employer A or employer B. According to applicable law, if a claimant suffers a recurrence, liability rests with the employer at the time of the original injury. On the other hand, if the claimant suffers an aggravation resulting from a new work accident, liability rests upon the employer at the time of the second incident. The applicable law is set forth in Standard Distributing Co. v. Nally, 630 A.2d 640 (1993), where the Delaware Supreme Court stated that responsibility is placed on the carrier at the time of the initial injury when a claimant with continuing symptoms and disability sustains a further injury that is not accompanied by an intervening or untoward event that could be deemed the proximate cause of the new condition.
The Board stated that the claimant’s cervical spine condition in 2017 was clearly a worsening of her cervical complaints, but the key question was whether this worsening was “attributable to an untoward event.” As to what is an untoward event, the Board discussed the Nally case in detail and stated that a mere worsening of the claimant’s symptoms is not the critical factor. Instead, an untoward event requires something such as a fall or being struck by something, rather than merely doing the normal activity of the job, when the pain increases.
As applied to this case, the Board concluded that the claimant did not have an untoward event in the May 2017 incident. Specifically, the claimant did not slip and fall, she was not struck by anything, she was not jerked or pushed. She was just mopping and felt an increase in her pain while pushing the mop through the wringer. Therefore, the Board concluded that liability was with employer A as the original employer since the claimant suffered a recurrence of her original injury rather than an aggravation. The Board ordered that employer A remain responsible for all compensation benefits owing to the claimant. Liability did not shift to employer B.
Case Law Alerts, 3rd Quarter, July 2019
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