Opinion
C.A. No. 98A-11-002 RRC.
Submitted: July 16, 1999.
Decided: October 13, 1999.
UPON APPEAL FROM A DECISION OF THE INDUSTRIAL ACCIDENT BOARD. AFFIRMED.
Gary S. Nitsche, Esquire, Weik, Nitsche Dougherty, Attorney for Employee below, Appellant.
John J. Klusman, Jr., Esquire, Tybout, Redfearn Pell, Attorney for Employer below, Appellee.
MEMORANDUM OPINION
INTRODUCTION
Employee-Appellant Beverly Collins (Employee) injured her head and shoulder when a thirteen inch television fell off a shelf while working in the office of a Giant Food, Inc. (Employer) Supermarket. Employee filed a Petition to Determine Additional Compensation Due seeking permanent disability benefits arising from the work accident. The Industrial Accident Board (Board) held a hearing and issued a decision denying Employee's petition. Employee has appealed the decision of the Board, contending that the Board improperly determined the percentage of permanent partial disability to the Employee's cervical spine because (1) the wrong model was used by Employer's expert and the Board in determining the percentage of permanent impairment and (2) it was error for the Board to have accepted the findings of Employer's expert using that model. This Court affirms the decision of the Board, holding that (1) the Board did not err in accepting the testimony of employer's expert, Dr. Fink over that of employee's expert, Dr. Rodgers in reaching its award of nineteen percent (19%) permanent impairment to the cervical spine and (2) there was no error of law for the Board to have accepted the finding of permanent impairment as determined by Dr. Fink using a modified version of the DRE method.
Dr. Rodgers testified that he relied upon the 4th Edition of the AMA Guidelines to rate Employee's permanent partial impairment and that he placed the Employee in Diagnosis Related Estimate method (DRE) category III. He further testified that this rating translates into a 15% whole person impairment and to convert the whole person impairment rating of 15% into the specific body part impairment, Section 3.3K of the AMA Guidelines required that the whole person estimate based upon the DRE model be divided by the conversion factor of .35 for the cervical spine to reach the appropriate cervical spine impairment, which according to Dr. Rodgers, was 43%. Tr. p. 39-40.
Dr. Fink testified that he placed Employee into DRE category III. He further testified that instead of using the .35 conversion factor he used the .80 conversion factor to be fair. He testified that the .35 conversion factor would lead to an excessive permanency rating and that his actions are permissible because the AMA Guidelines are only a guide. Fink Dep. at 75-87.
FACTS AND PROCEDURAL HISTORY
On May 3, 1994, Employee injured her head and shoulder when a thirteen inch television fell off a shelf while she was working in the office of Employer's supermarket. On February 10, 1998, Employee filed a Petition to Determine Additional Compensation Due seeking permanent disability benefits arising from the work accident. On October 6, 1998, the Board held a hearing to decide Employee's petition. On October 15, 1998, the Board issued its decision denying Employee's petition.
Stephen J. Rodgers, M.D., board certified in occupational medicine and disability evaluation, testified at the hearing on behalf of employee. Dr. Rodgers testified that based on a March 19, 1996 myelogram and post myelogran CT scan, the Employee sustained three and possibly four disc herniations as a result of the work injury. Dr. Rodgers testified that upon physical examination, Employee showed muscle spasm and her range of motion was limited by pain, and that her left upper extremity was 0.8 centimeters smaller than the right. Dr. Rodgers used the AMA Guides, Fourth Edition to determine Employee's permanent impairment. Using that guide, Dr. Rodgers placed Employee in DRE Category III which corresponds to a neck injury with radiculopathy. Dr. Rodgers found that using the appropriate conversion factor for regional estimates, "category III assigns a forty-three percent (43%) rating to the cervical spine." Dr. Rodgers further testified that Employee's medical records included a positive Romberg test indicating abnormal balance. Additionally, a December 1994 EMG, which measures eye scan, was positive, indicating vertigo. Based on Employee's examination, the positive Romberg test, and the EMG, Dr. Rodgers rated Employee's impairment to her balance function at ten percent (10%).
Joseph Henry, M.D., board certified in occupational health and emergency medicine, testified by deposition on behalf of Employee. Dr. Henry saw Employee every month or two throughout 1994 and noted that the Employee continued to complain of vertigo. Dr. Henry testified that Employee's vertigo was related to the May 1994 work accident but he did not believe he was qualified to rate permanent impairment from vertigo.
Alan Fink, M.D., board certified in neurology, testified by deposition on behalf of Employer. Dr. Fink had examined Employee on April 3, 1998 and had reviewed Employee's medical records. He diagnosed a cervical sprain with restriction of neck motion and radiculopathy. He noted that an August 1995 EMG showed an abnormality at C5, which is not consistent with Employee's complaints. He noted the March 1995 CAT scan showed three or four disc herniations, which were asymptomatic and probably due to degenerative disk disease. Under the Range of Motion model, Dr. Fink testified, cervical spine impairment would be rated at seven percent (7%) which he believed was too low. Based on that reasoning, Dr. Fink placed Employee in DRE Category III but used the conversion factor for the Range of Motion Model to rate a nineteen percent (19%) impairment. Dr. Fink further testified that Employee had no permanent impairment for vertigo related to the May 1994 work accident. Furthermore, Dr. Fink found no significant objective findings, no nystagmus on her neurological examination, and no signs of imbalance intensive of coordination. He testified that if Employee had trauma induced vertigo she would have suffered intensely for a few weeks after the accident and then would have gradually improved. He noted that Employee's medical history did not indicate any characteristics consistent with trauma-induced vertigo.
In its decision on the Petition to Determine Additional Compensation Due, the Board determined that the Employee did not meet her burden of proving that the May 1994 work accident caused a forty-three percent (43%) impairment to her cervical spine and a ten percent (10%) impairment to her balance function. The Board thus rejected the testimony of Dr. Rodgers, accepted the testimony of Dr. Fink and thus found that Employee had a nineteen percent (19%) cervical spine permanent impairment and no compensable permanent impairment to her balance function. The Board agreed with Dr. Fink's assessment that the use of the DRE model for the cervical spine resulted in an "inflated rating". The Board noted that a forty-three percent (43%) rating was not consistent with Employee's ability to drive, work, and move about at the hearing. The Board agreed with Dr. Fink's reasoning that a modified version of the DRE method to obtain a nineteen percent (19%) rating was fair and accurate. Furthermore, the Board agreed with Dr. Fink's determination that Employee's history was not consistent with trauma-induced vertigo and that he was correct in finding no permanent impairment to her balance function. The Board accepted Dr. Fink's testimony over Dr. Rodgers because Dr. Fink had found no objective findings and had determined that Employee was able to perform the usual activities of daily living without assistance. Dr. Fink found no nystagmus or oscillation of the eyeballs. Moreover, the Board found that despite the fact that Employee's records included a positive Romberg's test, that alone is not sufficient to justify an impairment rating. The Board concluded that the Employee had a nineteen percent (19%) permanent impairment to the cervical spine and granted fifty-seven weeks of compensation. Appellant subsequently appealed the decision of the Board to this Court.
Bd. Dec. at 5.
For the reasons stated below, the Board's decision is AFFIRMED. This Court finds that the Board did not err in accepting the testimony of Dr. Fink over Dr. Rodgers in reaching its award of nineteen percent (19%) permanent impairment to the cervical spine. This Court holds that the Board's determination that the use of the DRE model for the cervical spine in this case, which without adjustment would have resulted in an "inflated rating" which was inconsistent with Employee's ability to drive, her ability to work and with Dr. Fink's range of motion measurements was not erroneous. This Court also finds that the Board's determination that Dr. Fink's use of the modified version of the DRE method to obtain a nineteen percent (19%) rating because Dr. Fink found that modification was fair and accurate was not erroneous. Furthermore, this Court finds that the Board's acceptance of Dr. Fink's testimony that Employee did not qualify for a permanent impairment rating for partial loss of her balance function was not erroneous.
STANDARD OF REVIEW
The Supreme Court and this Court repeatedly have emphasized the limited appellate review of factual findings of an administrative agency. The function of the reviewing Court is to determine whether substantial evidence supports the agency's decision. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. This Court, on appeal, does not weigh the evidence, determine questions of credibility, or make its own factual findings. This Court's duty is limited to determining whether substantial evidence supports the Board's findings of fact and whether errors of law exist. As the Court performs this duty, it views the facts in a light most favorable to the prevailing party below. Only where there is no satisfactory proof in support of the factual findings of the Board may Superior Court overturn it. Furthermore, this Court will give deference to the expertise of administrative agencies and must affirm the decision of an agency even if the Court might have, in the first instance, reached an opposite conclusion.
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66-67 (1965); General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960).
Oceanport Ind v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), appeal dismissed, Del. Supr. 515 A.2d 397 (1986).
Johnson at 66.
See Chudnofsky v. Edwards, Del. Supr., 208 A.2d 516, 518 (1965).
Johnson at 66.
See 29 Del. C. § 10142(d); Petty v. University of Delaware, Del. Supr., 450 A.2d 392, 396 (1982); Levitt v. Bouvier, Del. Supr., 287 A.2d 671 (1972).
DISCUSSION
I. THE BOARD'S DECISION IS AFFIRMED AS THERE WAS NO ERROR OF LAW IN THE BOARD'S DENYING EMPLOYEE'S PETITION TO DETERMINE ADDITIONAL COMPENSATION DUE FOR PERMANENT IMPAIRMENT AS THE BOARD COULD HAVE ACCEPTED THE TESTIMONY OF DR. FINK AND HIS USE OF A MODIFIED VERSION OF THE DRE METHOD.
A. The Board Did Not Err in Accepting the Testimony of Dr. Fink over Dr. Rodgers.
The Board is free to accept or reject in whole or in part testimony offered before it and to fix its verdict upon testimony accepted. Weighing of evidence, determining credibility of witnesses, and resolving any conflicts in testimony, are functions reserved exclusively for the Board. Furthermore, this Court has upheld Board decisions of accepting one physician's testimony over another because one physician's testimony more fully comports to the Board's understanding of an impairment based on its experience with individuals with similar symptoms.
Debernard v. Reed, Del. Supr., 277 A.2d 684 (1971).
Downes v. State, Del Supr., No. 25, 1993, Holland, J. (Mar. 30, 1993) (ORDER).
Barczak v. State, Del. Super., C.A. No. 97A-06-011, Alford, J. (Dec. 24, 1997) (Mem. Op.).
The Board accepted the medical testimony of Dr. Fink and found that the employee suffered a nineteen percent (19%) permanent impairment. Dr. Fink's opinion and finding of a lower permanent impairment is supported by substantial evidence. Dr. Fink had examined the Employee and had reviewed her medical records. Dr. Fink diagnosed a cervical sprain with restriction of neck motion and left C6 radiculopathy. Although the August 1994 EMG showed an abnormality at C5, Dr. Fink noted this was not consistent with Employee's complaints. He noted that the March 1995 CAT scan showed three or four disc herniations, which were asymptomatic and probably due to degenerative disk disease. Dr. Fink placed the Employee in DRE category III and used the conversion factor for the Range of Motion Model to rate a nineteen percent (19%) impairment, which he be was fair. Furthermore, Dr. Fink further testified that he found no subjective findings, no systagmus on her neurological examination, and no signs of imbalance intensive of coordination.
The Board found that the forty-three percent (43%) rating, opined by Dr. Rodgers, was not consistent with Employee's ability to drive to work, her ability to work, Dr. Fink's range of motion measurements, and Employee's ability to move about at the hearing. Furthermore, the Board also found that Employee did not qualify for a permanent impairment rating for partial loss of her balance function. The Board accepted the determination made by Dr. Fink that Employee's history was not consistent with trauma-induced vertigo. Moreover, the Board found that Employee is able to perform the usual activities of daily living without assistance. Based on the foregoing reasons, the Board agreed with Dr. Fink's assessment and rejected the testimony of Dr. Rodgers.
This Court finds that the Board's decision to accept the testimony of Dr. Fink and reject the testimony of Dr. Rodgers is not an error of law.
B. The Board Did Not Err in Accepting Dr. Fink's Determination of a Nineteen Percent (19%) Permanent Impairment Based on the Use of a Modified Version of the DRE Method.
A reviewing court can only examine the record and determine if there is substantial evidence to support the findings and conclusions of the agency. Furthermore, 29 Del. C. § 10142(d) provides in pertinent part, "[t]he Court, when factual determinations are at issue, shall take due account of the experience and specialized competence of the agency and of the purposes of the basic law under which the agency has acted."
Mooney v. Benson Mgt. Co., Del. Super., 451 A.2d 839 (1982).
Fleetwood v. Matlack, another case before the Board involving a compensable work injury to the cervical spine, provides a useful guide in the case presently before this Court. In that case, the Board found that using the DRE Model would result in a rating that was too high. The Board found that using the Range of Motion Model as a differentiator may be appropriate because of the particular symptoms exhibited by the claimant as well as the extent or lack of certain notable findings such as atrophy, reflex loss or weakness. Furthermore, the Board in that case acknowledged that the AMA Guidelines can be applied differently under various circumstances. Specifically, the Board quoted the Guidelines which states
Fleetwood v. Matlack, IAB Hearing No. 1116490 (August 11, 1998).
All persons evaluating impairments according to Guides [sic] criteria are cautioned that either one or the other approach should be used in making the final impairment estimate. If one component were used according to Guides [sic] recommendations, then a final impairment estimate using the other component usually would not be pertinent or germane. However, if disagreement exists about the category of the Injury Model in which a patient's impairment belongs, then the Range of Motion Model may be applied to provide evidence on the question.
Id. at 8-9.
The Board in Fleetwood used a totality of the circumstances approach, which consisted of the Claimant's symptoms, complaints, medical history and physician's findings to determine that a modified Model was the appropriate method to determine the percentage of permanency.
This Court finds that the Board's acceptance of Dr. Fink's testimony that use of the DRE model for the cervical spine would result in an "inflated rating" and that a forty-three percent (43%) impairment was inconsistent with the Employee's ability to drive, work and move about the hearing. This Court finds that the Board's acceptance of Dr. Fink's use and reasoning behind his use of a modified version of the DRE method to obtain a nineteen percent (19%) rating was not an error of law. This Court finds that the Board's acceptance of Dr. Fink's finding is supported by the fact that the Employee is able to perform the usual activities of daily living. Furthermore, this Court agrees with Employer that 19 Del. C. § 2326(g) when addressing a modified version of the DRE method. That section states in pertinent part, "the Board shall award proper and equitable compensation for the loss of any member or part of the body or loss of use of any member or part of the body. . . ." In accordance with this provision, Dr. Fink testified that the forty-three percent (43%) rating was "inflated" and that the nineteen percent (19%) rating was more fair.
This Court finds that the Board's acceptance of Dr. Fink's testimony and use of a modified version of the DRE method was not erroneous.
CONCLUSION
This Court finds that there was substantial evidence to support the Board's decision. This Court finds that the Board did not err in accepting the testimony of Dr. Fink over Dr. Rodgers in reaching its award of nineteen percent (19%) permanent impairment to the cervical spine. This Court holds that the Board's determination that the use of the DRE model for the cervical spine in this case, without adjustment would have resulted in an "inflated rating" which was inconsistent with Employee's's ability to drive, work and with Dr. Fink's range of motion measurements was not erroneous and was supported by substantial evidence. This Court also finds that the Board's determination that Dr. Fink's use of the modified version of the DRE method to obtain a nineteen percent (19%) rating because Dr. Fink found that modification was fair and accurate was not erroneous and was supported by substantial evidence. Furthermore, this Court finds that the Board's acceptance of Dr. Fink's testimony that Employee did not qualify for a permanent impairment rating for partial loss of her balance function was not erroneous and was supported by substantial evidence.
IT IS SO ORDERED.