Opinion
CIVIL ACTION NUMBER 99A-09-005-JOH.
Submitted: July 19, 2000.
Decided: October 17, 2000.
Upon Appeal from a Decision of the Industrial Accident Board- REVERSED and REMANDED
Gary S. Nitsche, Esq., of Weik, Nitsche Dougherty, attorney for claimant below appellant.
John J. Klusman, Jr., Esq., and Jennifer L. Gioia, Esq., of Tybout, Redfearn Pell, attorney for employer below-appellee.
MEMORANDUM OPINION
Charles Cross has appealed the decision of the Industrial Accident Board denying his petition for additional compensation. After he filed his opening brief, the State moved to affirm the Board's decision. In an earlier decision, this Court granted that motion in part but denied it in part and ordered additional briefing. That briefing has now occurred.
Effective July 1, 2000, Superior Court Civil Rule 72.1 permitting such appeals was repealed.
Cross v. State, Del.Super., C.A. No. 99A-09-005, Herlihy, J. (June 12, 2000).
Cross's current petition arises out of a work-related injury suffered years ago to his back and neck. He sought compensation for bowel and bladder problems and for the condition of his legs. In its earlier decision, this Court affirmed that part of the Board's decision rejecting Cross' bowel and bladder claim. The issue now, after full briefing, is whether the Board's decision relating to his legs can be affirmed. This Court has concluded it cannot and that the matter must be remanded.
FACTUAL BACKGROUND
These facts are abbreviated to only include the relevant facts considered in this motion. The full factual background of this case is set forth in the decision issued June 12, 2000.
Cross, now 82 years old, was injured in 1979 while working for the State of Delaware when a piece of ceiling fell on his head resulting in his being totally disabled. Since the injury, Cross has had two surgeries to his neck and five or six to his low back. He and the State entered into the following agreements to compensate him for his permanent impairment: 50% impairment to the neck, 27.5% impairment to the left upper extremity, 40% impairment to the low back, 21% impairment to the left lower extremity. In 1998, Cross had his last surgery, which was a bilateral laminectomy, with a fusion of screws and plates. He is only able to sit for about a half hour at a time and can only walk for eight-to-ten minutes before needing to stop. He cannot walk unassisted and usually only goes outside once a day as far as his driveway. His legs are very thin and he can hardly move his feet.
Dr. Stephen Rodgers, who is board certified in family, emergency and occupational medicine, testified on behalf of Cross. He reviewed Cross' medical records and noted that he had two cervical spine surgeries. A lumbar surgery for a herniated disk at L4-5 and in April of 1983 a bilateral laminectomy, partial at L3 and partial L2. In 1996 and 1998, Cross had bilateral laminectomies.
Dr. Rodgers used the AMA Guides , specifically the Diagnosis Related Estimate, or DRE, model. Dr. Rodgers believes both of Cross' legs are atrophic and he had no good leg with which to compare the legs. Both of Cross' legs are thin, measure the same and are severely weak. With respect to Cross' legs, Dr. Rodgers placed Cross in the third level, which is for a patient who can rise to standing and maintain standing with difficulty, but, he and all physicians agree, is unable to walk without assistance. Dr. Rodgers gave a 50% impairment for each lower extremity. The AMA Guides allow, however, either for a separate permanency rating for the legs or for a rating for low back conditions which encompass leg problems. Based on Cross' neurologic problems in his legs and functional abnormalities, Dr. Rodgers, in this case, opined that Cross should get a permanence rating for his legs separate from his low back permanency rating.
American Medical Association Guides to the Evaluation of Permanent Impairment, Fourth Edition.
Dr. Alan Fink, who is a board certified neurologist, testified on behalf of the State. He examined Cross twice and also reviewed medical records. In 1998 when Dr. Fink examined him, Cross complained of low back pain with pain radiating down both legs. Dr. Fink stated that there was no anatomic basis for function sensory loss on the left leg; so, therefore, Cross' complaints, he said, were a result of symptom magnification. Dr. Rodgers opined that neither he nor any of the ten doctors who had examined Cross over the years agreed with Dr. Fink on this point, including one orthopaedic surgeon who said Cross should be confined to a wheel chair. Further, Cross testified that when he was examined by Dr. Fink, he was not even asked to undress.
Dr. Fink did not believe the low back problems were related to Cross' work accident. Again, no other physician has agreed with this opinion. Further, Dr. Fink opined that any treatment to low back was not related to work, but to arthritis, even though the State had already acknowledged, by its compensation agreement, the low back injury as related to the accident. Dr. Fink testified that Cross' lower extremities would not qualify for an impairment rating separate from the low back.
In reaching its decision, the Board initially declined to revisit the issue of any causal relationship of Cross' low back condition to his work injury even though Dr. Fink had questioned it. In rejecting, however, Cross' claim for a separate rating for his leg condition but finding that condition was included in his low back rating, the Board said,
The Board agrees with Dr. Fink that a separate rating for the lower extremities is not appropriate when that loss of function is attributable to a low back injury and, as here, is specifically taken into account when rating the low back impairment. Accordingly, the Board will make no separate award for the lower extremities.
Board Decision (September 1, 1999) at 16.
PARTIES' CONTENTIONS
The State's position is not that a claimant can never receive a permanent impairment rating to the lower extremities in addition to a low back rating, but, according to the medical opinion of Dr. Fink, that type of award is inappropriate in the instant case. It argues that the Board appropriately chose to accept Dr. Fink's testimony and that testimony provided substantial evidence to support the Board's decision not to allow Cross to receive a separate impairment rating for his lower extremities. Furthermore, if a rating were given for both back and legs, that would allow double recovery.Cross argues that the Board's decision that his permanent impairment rating for the low back encompasses the permanent impairment claim for the lower extremities, is erroneous as a matter of law. He contends that the Board's decision is based upon a flaw in its understanding of the computation of permanent impairment stated in the AMA Guides. Furthermore, he asserts, the Board relied on Dr. Fink's misinterpretation of the AMA Guides. Finally, Cross argues that Dr. Fink's opinion violates the purpose of 19 Del. C. § 2326, which provides for permanency rating based on the loss of the lower extremities. Furthermore, Cross received a permanency rating for his legs approximately 17 years ago and that issue should not be revisited.
STANDARD OF REVIEW
The Board's decision must be affirmed if it is supported by substantial evidence and free from legal error. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. In determining whether a Board's decision is supported by substantial evidence, the Court will consider the record in the light most favorable to the party prevailing below. Even though this Court would have reached a different conclusion, if the Board's decision is based on substantial evidence, this Court cannot substitute its judgment for that of the Board.
General Motors Corp. v. Freeman, Del.Supr., 164 A.2d 686. 689 (1960).
General Motors Corp. v. Morgan, Del.Super., 286 A.2d 759, 760 (1971).
Streett v. State, Del.Supr., 669 A.2d 9, 11 (1995).
Branum v. Franklin Co., Del.Super., C.A. No. 93A-04-017-JOH (October 18, 1993).
Delaware Alcoholic Beverage Control Comm. v. Alfred I. duPont School District, Del.Supr., 385 A.2d 1123, 1125 (1978).
DISCUSSION
The Board held that a claimant's low back rating takes the complaints of the legs into account; therefore, a separate rating for the lower extremities is not appropriate when the loss of function is attributable to a low back injury. This Court disagrees with the Board's finding.Initially, this Court must dispel the State's argument that a permanent impairment rating given to the legs, in addition to the rating given to the low back, would allow for double recovery. This argument is put to rest in Benson v. General Foods. In Benson, the claimant's upper portion of his body was burned in an electrical explosion. The burns left scarring which was disfiguring, but, more importantly, the skin greatly limited the range of motion in his joints. Claimant's dermatologist gave a permanent impairment rating for the skin, but also suggested that the claimant get an evaluation for loss of mobility to the joints. The court in Benson held that even though the physician relied on the same medical symptoms to support both awards, because of the severity of the injury, the claimant was entitled to additional compensation. Benson is very similar to the instant case. Cross' lower extremity complaints were used in the assessment of the rating for low back pain. This Court finds that it is not double recovery for these same complaints to be used in the assessment for a permanency rating to the legs.
Del.Super., C.A. No. 94A-03-001, Ridgely, J. (January 6, 1995) ( citing Nabb v. Haveg Industries, Inc., Del.Super., 265 A.2d 320 (1969), aff'd 266 A.2d 879 (1970) "These subsections [2326] show a legislative intent to prevent a pyramiding of compensation for losses for a single extremity by providing for a specified degree of loss which constitutes a loss of an arm and a specified degree of loss which constitutes a loss of a hand. . . . Delaware's law of Worker's Compensation does not permit cumulative recoveries."
Id.
The State argues that in some cases, a separate permanent impairment rating for low back and for legs would be appropriate, but is not appropriate in this case. Although, the Board stated in its decision:
With regard to the lower extremities, the Board agrees with Dr. Fink that the DRE low back rating takes those complaints into account. For example, one of the criteria under DRE Category VI is that the patient have permanent, partial loss of lower function bilaterally. . . . The Board agrees with Dr. Fink that a separate rating for the lower extremities is not appropriate when that loss of function is attributable to a low back injury and, as here, is specifically taken into account when rating the low back impairment.
Board Decision (September 1, 1999) at 16.
The Board appears not only to be addressing Cross' situation as the State argues, but giving a blanket rule barring a separate rating for the lower extremities when the impairment is a result of low back injury Since Cross, by prior agreement with the State, has already obtained a permanent impairment rating to the lower extremities, this Court remands this statement back to the Board for clarification. This Court finds that the Board has based its above statement on a misinterpretation of Dr. Fink's testimony and, therefore, has committed an error of law. The following is taken from Dr. Fink's deposition:
Q. Let's go then next to the opinion of Dr. Rogers [sic] that the claimant has 50 percent impairment to each leg. You've touched on that already, but do you think that the claimant has any separate rateable impairment to either leg as a result of either the low back injuries or cervical injuries?
A. No.
Q. And again, simply for the record, state why you would not give him a separate rating for the legs.
A. Because the rating from the low back takes into the account the surgery, the radicular symptoms, and any findings in the legs themselves. I mean, that's in the permanency. You wouldn't get that high a permanency from the surgical model or from using the DRE conversion if you didn't have leg symptoms.
Dr. Fink's Transcript (July 28, 1999) at 26-27.
Dr. Fink stated during cross-examination:
Q. Doctor, as it relates to the legs, you opined that there's no impairment to the legs because you kind of throw that in with the low back impairment; right?
A. No, there is an impairment to the legs, and that's included in the low back in the Table 75, and it's included when I use the conversion for the DRE when I include the patient into the DRE categories by using the DRE conversion factor.
Q. And is it your testimony that whenever someone has a low back injury that effects the use of their legs, the impairment rating as it relates to their legs should be part and parcel of the low back impairment?
A. Well, the [ AMA Guides] specifically states that. If you look at Table 3, for instance, you can't go from Table 2 to Table — you can't go from Level 2 to a Level 3 when you use the DRE categories unless you have the radicular symptoms. And as they become more severe, for instance, if you have paralysis for instance in your legs or if you have weakness, it raises you even another level higher and you get more percentage. So the [ AMA Guides] takes into account difficulty with the legs, whether it's sensory or motor. You do get permanency for that. The DRE categories take that into account.
Q. But the [ AMA Guides] don't say that if you have radicular problems and impairment to the spine, you don't get an impairment to the legs, also. Do the [ AMA Guides] say that?
A. The [ AMA Guides] say that if you have an injury to your low back and you have more than an injury to your low back, if you have impairment to the legs, then you get more of a percentage. It's included in the [ AMA Guides] at different levels.
Q. So any time that our Industrial Accident Board in, say, the last 15 years has ruled that someone has an impairment to their legs and an impairment to the legs that's radicular in nature, they're mistaken?
A. I can't generalize. I mean, I'd have to know each case. But I would say that I would follow the DRE categorization as far as problem with the legs that originates in the back. Now, if you're saying that the patient has a sensory loss in the legs that's due to a lumbar spine injury, then it only makes sense to use a permanency rating that takes into account both the back and the source of the injury, which is the back, which would result in symptoms or potential symptoms of the legs in giving an award for those symptoms or signs that occur in the legs. And I think the [ AMA Guides] taking that into account.
Id. at 48-51.
In the excerpt of Dr. Fink's testimony given above, he clearly states that his opinion is in relation to Cross' situation only. Dr. Fink states that the DRE categories for the low back take into account radicular symptoms such as the impairment to the lower extremities and it appears as though this interpretation is supported by the language of the AMA Guides. Dr. Fink did not state that a claimant could never get a separate rating for both low back and lower extremities. Actually, he stated that he could not generalize to cases of which he was not familiar. In summary, he stated that he could not make a general statement regarding assessment of permanent impairment to the lower extremities as a result of low back injury. Yet, this is exactly what the Board did. It expanded Dr. Fink's testimony into a general statement indicating that the DRE model uses leg complaints to assess the injury to the low back, so giving a permanent impairment rating for the low back also compensates the injury to the legs. This Court finds that the Board's findings are a misunderstanding of Dr. Fink's testimony and, further, are not substantiated by the language of the statute or the AMA Guides.
First, the language of the statute must be examined. 19 Del. C. § 2326 allows for a separate rating for the legs.
There is nothing in § 2326 or in the case law to suggest that a claimant who has sustained an injury to one body part may not be compensated for other body parts which are adversely affected as a result of the same injury. In fact, the Board has acknowledged that an injury to one body part can cause a loss of use on one or more other body parts.
Smagala v. City of Wilmington, Del.Super., C.A. No. 97A-09-006, Barron, J. (February 13, 1998).
Based on the language of the statute, it appears that a separate rating for low back and lower extremities is possible and extremely deserved in the instant case. Furthermore, Cross has already received a permanent impairment rating to the legs; so the Court requests clarification on the Board's statement that permanent impairment to the legs is not appropriate in this case.
Second, the language of the AMA Guides must be examined. Dr. Fink and Dr. Rodgers disagreed as to the appropriate DRE category for Cross. The DRE categories for low back are separated and differentiated by certain traits called "differentiators" that help determine the patient's impairment. Differentiators include: guarding, loss of reflex, decreased muscle circumference, loss of bowel or bladder control. "[I]f a differentiator is present, it provides important evidence as to the category in which the patient belongs." The differentiator helps the physician to define the claimant's permanent impairment. Because the claimant is not being compensated for the differentiator itself, there is no double recovery. This Court finds that symptoms of the lower extremities help to assess the impairment to the spine, but do not preclude the separate rating of the legs for permanent impairment. The issue of separate rating of the back and legs in the instant case has been determined when the Board initially granted Cross' permanent impairment to both separately. This issue should not now be revisited by the Board with a different result, certainly without any supporting evidence whatsoever.
AMA Guides at 3/99.
Id.
Id.
Id.
Dr. Rodgers and Dr. Fink disagree on whether the AMA Guides for permanent impairment of the low back include compensation for the lower extremities. When there is a conflict between the opinions of two experts, the Board is entitled to accept the testimony of one over the view of the other and, therefore, the Board chose to rely on Dr. Fink's interpretation of how to use the AMA Guides in rating an injury for permanent impairment. This Court finds that Dr. Fink's testimony, at a minimum, was misinterpreted by the Board and it committed error of law. Moreover, only where there is no substantial, competent evidence to support the Board's factual findings may this Court overturn the Board's decision. This Court finds that the Board's interpretation of Dr. Fink's opinion is not supported by substantial evidence, is against the language of 19 Del. C. § 2326 and against the language of the AMA Guides.
Standard Distributing Co. v. Nally, Del.Supr., 630 A.2d 640, 646 (1993).
Johnson v. Chrysler Corp., Del.Supr., 213 A.2d 64, 67 (1965).
CONCLUSION
For the reasons stated herein, the decision of the Industrial Accident Board denying Charles Cross' petition for a permanent impairment rating to the lower extremities is REVERSED. The matter is REMANDED for proceedings consistent with this opinion.
IT IS SO ORDERED.