Opinion
C.A. No. 04A-12-002.
Submitted: June 27, 2005.
Decided: August 3, 2005.
John H. Klusman, Esquire Tybout, Redfearn Pell Wilmington, Delaware.
Walt F. Schmittinger, Esquire, Lori A. Brewington, Esquire, Schmittinger Rodriguez, Dover, Delaware.
Dear Counsel:
Vera Bolden ("Claimant") sustained two compensable injuries to her knees in 1990 and 1998 while employed with General Foods Corporation. Since those injuries, she has undergone several knee surgeries and replacements on both knees. At the time of her petition to the Industrial Accident Board ("IAB"), Claimant had been awarded fifteen percent (15%) permanent impairment status for her injuries and corresponding surgeries. She petitioned the Board to Determine Additional Compensation Due.
Claimant testified on her own behalf at the hearing. She testified that, following the initial injuries, she received five percent permanent impairment to both knees. After several surgeries addressing the injuries, Claimant received an additional ten percent impairment award. Claimant uses a cane and regularly feels pain when walking. However, she told the Board that she is able to perform minimal daily tasks at home.
Dr. Stephen Rodgers testified on behalf of Claimant. In December 2002 and January 2004, Dr. Rodgers examined Claimant for the purposes of determining her level of permanent impairment. In his testimony, Dr. Rodgers described the Claimant's injuries and surgeries, as well as the tendonitis, synovitis, chondromalacia and degenerative disease which resulted from her work accidents. The Claimant's medical records did not contain any abnormalities in her knees before the work accident.
To determine Claimant's impairment rating, Dr. Rodgers used the Fifth Edition of the AMA Guides to the Evaluation of Permanent Impairment ("AMA Guides"). He referred to tables 17-33 and 17-35 of the AMA Guides. Dr. Rodgers explained how these guides helped lead to his opinion that Claimant qualified for a fifty percent impairment to her left knee and a seventy-five percent impairment to her right knee. However, on cross-examination, Dr. Rodgers acknowledged that several methods can be used to assess impairment, including a Range of Motion assessment. He was asked to apply the Range of Motion method to Claimant's injuries and conceded that the test yielded a mild impairment status which indicates a ten percent (10%) impairment to Claimant's knees. Dr. Rodgers agreed with a departure from the AMA guidelines when the patient's conditions warranted different considerations. Dr. Rodgers also confirmed the positive reports that Claimant received from her knee surgeon following the surgeries.
Dr. Sopa, an orthopedist, testified on behalf of General Foods Corporation. Dr. Sopa examined Claimant on seven occasions between 1995 and 2004. He reviewed Claimant's entire medical record, including the medical history preceding and following Claimant's work injuries. Dr. Sopa testified that his 2004 examination showed Claimant to have good motor control and no atrophy in her leg muscles, as well as a decreased range of motion in her knees. Dr. Sopa also noted Claimant's ability to perform normal functions such as driving, shopping and riding a stationary bike.
In determining Ms. Bolden's permanent impairment, Dr. Sopa referred to the Range of Motion method detailed in the AMA Guides. He admitted that he did not precisely follow the AMA guides, but contended that the methods set forth in the AMA Guides are not mandatory for determining impairment. He argued that the AMA Guides should not be read mechanically, and that an impairment rating should take other factors into consideration, such as the amount of motion a patient has in her knee.
Sopa Dep. at 42-43.
Dr. Sopa agreed that the AMA Guides call for impairment ratings to be set at the highest rating achieved by the methods contained within it. He also agreed with Dr. Rodgers' findings, i.e. that a mechanical reading of the AMA Guides required a higher permanent impairment rating for a patient who has good results from a knee replacement surgery. But Dr. Sopa maintained that the AMA Guides are merely instructive and are not mandatory considerations in a permanency rating. Despite the fact that the Guides call for the highest possible rating to be used in impairment evaluations, Dr. Sopa contends that Claimant's level of impairment is only ten percent (10%).
Dr. Sopa acknowledged that he found it difficult to discern between the Claimant's pre-existing knee issues and those following her accident. He made several contentions as to causation. In particular, Dr. Sopa attributed Claimant's injuries to an anatomical defect, rather than a workplace injury. He also believed that some of Claimant's knee issues were a result of arthritis unrelated to the work accidents. However, causation was not at issue in this hearing. And Dr. Sopa testified that, without regard to causation, the work accident resulted in a ten percent impairment to Claimant. Therefore, Dr. Sopa made a determination as to impairment caused by the work injury, which he assessed at ten percent.
Sopa Depo. at 41.
The Board found that the Claimant's testimony was credible. It acknowledged that she does experience pain and restrictions as a result of the work injuries. The Board also noted the fact that Claimant is able to perform daily activities including shopping for herself. But the Board did not find Dr. Rodgers' testimony credible. Instead, the Board adopted Dr. Sopa's opinion on Claimant's level of impairment. The Board ruled in favor of the Employer and denied the Claimant's request for additional compensation due.
Appellant requested review of the Board's decision, citing what she contends to be errors of law made by the Board. Appellant claims that the Board erred in refusing to find an increased impairment in relation to the injuries she suffered. Appellant claims that the Board improperly based its decision on the testimony of General Foods' physician, who evaluated Appellant's impairment at a much lower level than her personal physician.
When addressing matters on appeal from the Board, the Superior Court is confined to a narrow standard. The Court does not serve as a trier of fact to determine the credibility of certain testimony or to weigh evidence. The Court's principal function is to determine whether the findings of the Board are supported by substantial evidence and to reverse clear errors of law. The Court's role is therefore a very limited one.
See General Motors Corp. v. Edwards, 2000 Del. Super. LEXIS 117, at *2.
See Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
See id. at 66-67.
A Board decision is supported by substantial evidence if it contains "relevant evidence as a reasonable mind might accept as adequate to support a conclusion." This evidence must be more than a scintilla, but may be less than a preponderance. If the Court finds that there is substantial evidence to support the decision, it must affirm the Board's ruling, unless it identifies a clear error of law.
See Schuh v. State, 2000 Del. Super. LEXIS 54, at *2.
See Olney v. Cooch, 425 A.2d 610, 614 (Del.Supr. 1981).
See Edwards, 2000 Del. Super. LEXIS 117, at *2-3.
This Court recognizes the narrow standard it must apply to its review of agency decisions. Therefore, this Court is not in a position to weigh the credibility of doctors who testified in this case. The Court's only obligation is to ensure that the IAB substantially supported its decision to deny Vera Bolden's Petition to Determine Additional Compensation Due.
Appellant claims that the Employer's expert did not provide a scientifically valid methodology for his opinion and therefore the Board's adoption of his testimony is unfounded and lacks substantial evidence. Appellant also objects to Dr. Sopa's opinion on causation, which was not at issue in the case. Appellant claims that Dr. Sopa's impairment opinion was improperly affected by his "inability to accept [the stipulated] causation in this matter." Although Dr. Sopa testified as to causation, the Board explicitly rejected his opinion on this issue.
App.'s Op. Br. at 21.
Appellee, General Foods, contends that the Board properly attributed more credibility to Dr. Sopa's opinion. It claims that the Board's decision was based on substantial evidence and should be affirmed.
Under Delaware law, a physician's testimony is admitted as expert testimony regardless of whether he is a specialist in that particular condition. A physician is permitted to proffer expert testimony in the area of medicine. When medical testimony between two physicians conflicts, the IAB is permitted to rely more heavily on one physician's proffer than the other.
"It is settled in Delaware that an experienced practicing physician is an expert, and it is not required that he be a specialist in the particular malady at issue in order to make his testimony as an expert admissible." Di Sabatino Bros., Inc. v. Wortman, 453 A.2d 102, 106 (Del. 1982) citing Delmarva Power Light v. Stout, 380 A.2d 1365, 1369 (Del. 1977).
See id.
General Motors v. Veasey, 371 A.2d 1074, 1076 (Del. 1977).
In its written decision dated December 6, 2004, the Board carefully explained why it found Dr. Sopa's opinion to be more persuasive than Dr. Rodgers' testimony. First, the Board was troubled by Dr. Rodgers' relatively high impairment rating despite Ms. Bolden's testimony regarding her reasonable functional ability. The Board found that Dr. Rodger's reliance on the AMA Guides was too technical and failed to take into account individual variables such as positive reports by Ms. Bolden's surgeon or good knee range of movement evaluations. In particular, the Board noted Dr. Rodgers' failure to consider the loss of use element, a required finding for an impairment award by the Worker's Compensation Act.
Second, the Board noted that both doctors agreed with the other's impairment determination. Dr. Rodgers' agreed that had he employed a Range of Motion impairment rating to evaluate Ms. Bolden, his assessment would have matched Dr. Sopa's findings of 10% impairment. Dr. Sopa conceded the same as to the accuracy of Dr. Rodgers findings. The doctors differed on the method of rating impairment. Ultimately, the Board acknowledged Dr. Rodgers' adherence to the AMA guidelines, but found that his impairment rating was "unsupported by the totality of the medical and factual testimony."
The Board rejected Dr. Sopa's opinion that Ms. Bolden's injuries existed prior to her work accidents. The injuries were previously found to be work related and compensable, therefore the Board refused to consider causation. However, the Board adopted the impairment portion of Dr. Sopa's testimony and based its decision on his evaluation of Ms. Bolden. The Board is free to accept portions of a medical witness' testimony while rejecting the remainder. Hart v. Columbia Vending Serv., 1998 Del. Super. LEXIS 143 (Del.Super.Ct. 1998).
The Board agreed with Dr. Sopa's common sense approach to impairment ratings, which considered Ms. Bolden's ability to complete normal living tasks as well as encouraging reports from her surgeon. The Board recognized that Dr. Sopa did not adhere to strict AMA guidelines in his evaluation. Instead, it found that his numerous examinations of Ms. Bolden over a period of nine years permitted Dr. Sopa to make a more thorough determination of impairment. The Board agreed with Dr. Sopa's considerations and his reliance on the Range of Motion method prescribed by the AMA for impairment ratings. It found his opinion and history observing Ms. Bolden yielded a more accurate account of her impairment. Dr. Sopa's opinion was a result of reliance on the AMA Guides and other relevant factors such as Ms. Bolden's comfort and functionality.
The Board's decision is supported by substantial evidence to support its findings. The record demonstrates that both doctors presented reliable and scientifically valid theories of impairment ratings. Both doctors used the AMA guidelines in their determinations. Ms. Bolden's doctor adhered strictly to the AMA guidelines and did not consider additional evidence including Ms. Bolden's functional ability. The Employer's doctor applied different AMA guidelines more loosely and considered additional information to reach his impairment rating. Both doctors used acceptable and established methods of impairment rating. The Board concluded that Dr. Sopa's methods, findings and conclusions were more credible. This Court will not upset the Board's determination since it was grounded in substantial evidence. For these reasons, the decision of the Board is AFFIRMED.