Opinion
C.A. NO: 05A-12-007 (RBY).
Submitted: June 8, 2006.
Decided: September 7, 2006.
Upon Consideration of Appellant's Appeal from the Decision of the Industrial Accident Board AFFIRMED.
Charles E. Whitehurst, Esq., Dover, Delaware, for Claimant-Below, Appellant.
John J. Klusman, Esq., Tybout, Redfearn Pell, Wilmington, Delaware, Respondent-Below, Appellee.
OPINION
Employer, Voshell Builders, petitioned the Industrial Accident Board ("Board") to terminate the total disability benefits of claimant, John Freebairn. Freebairn brings the present appeal from the decision of the Board, which held that Freebairn was not totally disabled, and was not a displaced worker. For the following reasons, the Board's decision is AFFIRMED.
FACTS
Claimant, John Freebairn, has been receiving total disability benefits, since he injured his left ankle and low back while working for Voshell Builders on December 20, 1996. As a result of his injuries, Freebairn has undergone eight surgeries to repair his left ankle fracture. Freebairn's medical treatment also includes nerve blocks, injections, and physical therapy. Freebairn continues to experience pain, which he treats with medication, including morphine sulfate, Percocet, and Baclofen, prescribed by pain management specialist, Frank J.E. Falco, M.D. He also uses a rocker shoe on his left foot to aid his walking. Dr. Falco opined that, as a result of the work accident, Freebairn has sustained permanent injuries to his left ankle and lumbar spine at L2-3, L3-4, and L4-5. Freebairn has also been diagnosed with complex regional pain syndrome. Dr. Falco's opinion is that Freebairn is unable to return to work, based on his injuries, effects of the pain medication, and his sleep difficulty.On May 24, 2005, Freebairn was examined by neurologist, Alan J. Fink, M.D., at the request of Voshell Builders. After his initial examination, Dr. Fink did not believe Freebairn was able to return to work. Dr. Fink's original opinion was based on the nature of the injury, his examination, Freebairn's subjective complaints, and Freebairn's inability to sit or stand for long periods of time. However, after Dr. Fink reviewed surveillance video taken of Freebairn on behalf of Voshell Builders, Dr. Fink changed his opinion that Freebairn was totally disabled. Dr. Fink is now of the opinion that Freebairn is capable of working part-time in a sedentary to light duty capacity.
Appellant's Opening Br. at 6.
Freebairn v. Voshell Builders, IAB Hearing No. 1096576 (Nov. 28, 2005), at 2.
Id. at 3.
Id.
PROCEDURAL HISTORY
On July 28, 2005, Voshell filed a petition to terminate Freebairn's total disability benefits, arguing that he is capable of performing sedentary work. Freebairn is not eligible for partial disability benefits, which were previously commuted. On November 28, 2005, the Industrial Accident Board ("Board") granted Voshell's petition to terminate Freebairn's total disability benefits, and further determined that Freebairn was not a displaced worker. Freebairn subsequently brought the present appeal.DECISION OF THE INDUSTRIAL ACCIDENT BOARD
At the hearing on November 14, 2005, the Board heard live testimony from Freebairn and Barbara Stevenson, senior vocational case manager. The Board also considered the deposition testimony of Alan J. Fink, M.D., and Frank J.E. Falco, M.D.
Id.
Id.
The Board held that Freebairn's testimony about his physical capabilities was not credible. During the hearing, Freebairn testified that he takes medication for his pain, including MS Contin, Percocet and Baclofen. Freebairn claimed that the medication takes the edge off of his pain, but he is never pain-free. Freebairn also testified that the medication causes him to have trouble thinking, concentrating, and staying awake for the first hour. During his office visits with Dr. Falco, Freebairn reported that he has no movement in his left ankle, and is limited to driving short distances, standing for five to ten minutes, and sitting for twenty minutes.
Id. at 5.
Id. at 6.
Id.
Id.
Id. at 2.
However, the Board found that Freebairn's testimony, presentation at the hearing, and subjective complaints to Drs. Falco and Fink were contradicted by the surveillance video. The surveillance video showed Freebairn carrying a weed whacker, running across his front yard, driving his car, walking across his lawn, working with a hose in his garage, standing, walking and bending without difficulty. Dr. Falco did not view the surveillance video.
Id. at 7.
Id. at 3.
Id. at 8.
Claimant argues that the surveillance showed mere snippets of total, day-long activity. To begin with a "24/7" (or even, say, a constant 6 hour) surveillance would be essentially unobtainable in any undercover circumstance. Moreover, such a thing could create rather a potentially undesirable privacy claim. The idea is to take information from the subject regarding physical activities that he claims he cannot do; and then film him doing those sorts of things. That is the impeachment to be assessed by the fact finder. It is on that basis that Dr. Fink changed his original opinion and that the Board assessed the claimant.
The Claimant then argues repeatedly that the Board based its decision, at least partially, upon "evidence not in the record." That is, unbeknownst to Freebairn, the Board watched him on the day of the hearing in the lobby and parking lot. The Board observed Freebairn moving freely, and walking at a normal or brisk pace. The Board noted that this behavior markedly different from Freebairn's presentation at the hearing, during which he demonstrated his pain by frequently rubbing his ankle.
Id. at 7.
Id.
Id.
Because Dr. Falco's opinion was based on Freebairn's subjective complaints, and the Board determined Freebairn not to be credible, the Board accepted the opinion of Dr. Fink over Dr. Falco. The Board followed Dr. Fink's opinion that Freebairn is capable of working part-time in a sedentary to light duty position.
Id.
Id. at 8.
The Board also held that Freebairn was not a prima facie displaced worker based on his age, physical limitations, education, mental capacity and training. The labor market survey indicated that part-time, entry-level jobs, which do not required previous training, experience, or education, are available. The Board found that Freebairn is capable of obtaining one of these jobs.
Id.
Id.
Id. at 8-9.
Finally, the Board concluded that Freebairn failed to rebut the prima facie showing that he is not a displaced worker by demonstrating that he was unable to secure employment because of his injury. In fact, Freebairn has not attempted to find a job. Accordingly, the Board could not find that Freebairn was a displaced worker, because he did not prove that he has tried, but has been unable to find work.
Id. at 9.
Id.
Id.
STANDARD OF REVIEW
On appeal, this Court reviews a decision of the Industrial Accident Board to determine whether the Board's decision was supported by substantial evidence and free from legal error. Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In addition, substantial evidence is "more than a scintilla but less than a preponderance." On appeal, this Court does not have the "authority to weigh evidence, determine the credibility of witnesses or make independent factual findings." If the Board's decision is supported by substantial evidence, this Court "must affirm the ruling unless it identifies an abuse of discretion or a clear error of law." Questions of law are reviewed de novo.DISCUSSION
Freebairn argues that the Board's decision to terminate his total disability benefits is not supported by substantial evidence. Freebairn complains that the Board erred in adopting the opinion of Dr. Fink over Freebairn's treating physician, Dr. Falco, solely on the issue of Freebairn's credibility. Freebairn maintains that the only evidence to support a finding that he was not credible was the video surveillance tape, which does not contradict his claims about his physical condition. Further, the Board's decision that Freebairn was not credible was in error to the extent that it was influenced by their observations of Freebairn outside the ambit of the hearing.Contrary to Freebairn's position, the record indicates that the Board's decision was supported by substantial evidence. When weighing the conflicting opinions of expert witnesses, the Board is "free to accept one opinion over the other opinion" if they are supported by substantial evidence. The opinion that the Board ultimately adopts will be considered "substantial evidence for purposes of appellate review." Because the claimant's treating physician is more familiar with the claimant's condition, the Board may grant the treating physician's opinion substantial weight. However, the Board is not bound to follow the opinion of the treating physician, and may "discount the testimony of any witness on the basis of credibility, provided it states specific, relevant reasons for so doing."
Standard Distributing, Inc. v. Hall, 897 A.2d 155, 158 (Del. 2006) ( citing DiSabatino Bros. v. Wortman, 453 A.2d 102, 106 (Del. 1982)).
Bolden, 2005 Del. LEXIS 527, at *4.
Bradley v. State, 2003 Del. LEXIS 331, at *16 (Del.Super.) ( citing Diamond Fuel Oil v. O'Neal, 734 A.2d 1060, 1065 (Del. 1999)).
Jepsen v. University of Delaware-Newark, 2003 Del. LEXIS 320, at *6 ( citing Turbitt v. Blue Hen Lines, Inc., 711 A.2d 1214, 1216 (Del. 1998)).
In this case, the crux of the Board's decision was Freebairn's credibility. The Board adopted the opinion of Dr. Fink over the opinion of Freebairn's treating physician, Dr. Falco, because the Board determined that Freebairn was not credible. The most influential piece of evidence was the video surveillance, which captured images of Freebairn walking, bending repeatedly, standing, running short distances, and carrying objects, such as a child car seat and weed whacker, without difficulty. After viewing the videotape, Dr. Fink changed his opinion that Freebairn was totally disabled. The Board found it significant that Dr. Falco, who did not view the videotape, formulated his opinion that Freebairn could not work solely from Freebairn's subjective complaints.
The Board also viewed the videotape, and observed Freebairn during the hearing and after the hearing in the lobby and parking lot. The Board has the sole discretion in assessing the credibility and demeanor of a witness, and this Court on appeal "`may not substitute its judgment for that of the Board.'" To the extent that the Board decision was based on Freebairn's testimony and demeanor during the hearing, and Freebairn's actions in the surveillance videotape, the Board's decision is supported by substantial evidence. Not only were Freebairn's subjective complaints contradicted by the videotape, but the Board also held that Freebairn's testimony about the side effects of the medication did not comport with his subjective complaints to Drs. Falco and Fink.
Eldridge v. Walter S. Bandurski, Inc., 1995 Del. Super. LEXIS 66, at *7 ( citing Joyner v. Chrysler Corp., 1989 Del. LEXIS 287, at *2).
It is the opinion of this Court that the surveillance videotape, testimony, and medical records provide substantial evidence that Freebairn was not credible; therefore, the Board did not err in adopting the opinion of Dr. Fink over Dr. Falco. However, as previously indicated, Freebairn objects to the Board's decision to the extent that it relied on observations made outside of the hearing as abuse of its discretion.
In Trader, the Superior Court held that the Industrial Accident Board violated a claimant's due process rights, when the Board's decision to terminate a claimant's total disability benefits was predicated on observations made of the claimant in the parking lot after the hearing. Because the Board's observations were inseparable from its finding that the claimant was exaggerating his claims, the Court reversed and remanded the Board's decision. The Trader Court also recognized that
Trader v. L.D. Caulk, 1992 WL 148094, at *2 (Del.Super.) ( citing Del. Alcoholic Bev. V. Alfred I. duPont Sch., 385 A. 2d 1123, 1127 (Del. 1978); 2 Am.Jur. 2d, Administrative Law, § 444 (1962); Annot., 18 A.L.R. 2d 552 § 3 (1951)).
[i]n certain limited situations, however, the use of information or evidence acquired outside a hearing is not a violation of due process, such as where the information or evidence does not provide information an administrative agency does not have; where there is no indication the administrative agency based its decision this evidence; and where there is other sufficient competent evidence to support the administrative agency's decision.
Id.; Guy v. State, 1996 WL 111116, at *4 (Del.Super.) (holding that Board's observations of claimant in the parking lot after the hearing did not constitute new information, and the parties fully addressed the issue of claimant's level of disability during the hearing.)
In this case, there was ample competent evidence to support the Board's finding that Freebairn was not credible. The Board did not hinge its decision on the observations made of Freebairn in the lobby and parking lot. To the contrary, the Board's decision was influenced by Freebairn's testimony, which conflicted with the surveillance videotape, and his subjective complaints to Drs. Falco and Fink. The Board's observations of Freebairn outside the hearing can best be described as cumulative; therefore, the Board's decision did not violate Freebairn's due process rights.
Having determined that the Board did not err in its decision that Freebairn is not totally disabled, the Court moves to the issue of whether Freebairn is a displaced worker. In a petition to terminate total disability benefits, the employer bears the initial burden of establishing that the employee is not totally disabled from work. The analysis does not end, however, if the employee is not considered totally disabled from a medical standpoint. The employee may also be deemed "totally disabled economically."
Kidd v. Community Systems, Inc., 1995 WL 862129, at *2 (Del.Super. 1995) ( citing Governor Bacon Health Center v. Noll, 315 A.2d 601, 603 (Del.Super. 1974)).
Id.
A worker who is determined to be totally disabled from an economic standpoint is referred to as a "displaced worker." A displaced worker is one "`who, while not completely incapacitated from work, is so handicapped by a compensable injury that he will no longer be employed regularly in any well known branch of the competitive labor market and will require a specially-created job if he is to be steadily employed.'"
Id.
Id. ( quoting Ham v. Chrysler Corp., 231 A.2d 258, 261 (Del. 1967)).
An employee will be considered a prima facie displaced worker if there is evidence of "`obvious physical impairment, coupled with other factors such as the injured employee's mental capacity, education, training, or age.'" If an employee is a prima facie displaced worker, then the burden shifts to the employer to demonstrate that there are jobs available that are consistent with the employee's capabilities. However, if "`the evidence of degree of physical impairment, coupled with the other specified factors, does not obviously place the employee prima facie in the [displaced worker] category, the primary burden is upon the employee to show that he has made reasonable efforts to secure suitable employment which have been unsuccessful because of the injury."'
Id. at *3 (Del.Super. 1995) ( quoting Franklin Fabricators v. Irwin, 306 A.2d 734, 737 (Del. 1973)).
Id.
Id.
In the present case, there was substantial evidence in support of the Board's determination that Freebairn was not a prima facie displaced worker based on his age, physical limitations, education, mental capacity and training. The Board considered the entry-level jobs available on the labor market survey with Freebairn's age, tenth grade education, ability to read and write, and license to drive a motor vehicle to conclude that he was not a prima facie displaced worker. Upon that finding, the burden shifted to Freebairn to demonstrate that he had made reasonable efforts to find a job. Because Freebairn, by the surveillance video, showed physical abilities consistent with employment potential, and because he admitted that he has not applied for any jobs, he failed to rebut the finding that he is not a prima facie displaced worker.
CONCLUSION
Upon review of the record, this Court is satisfied that the decision of the Industrial Accident Board, granting Appellee Voshell Builders' petition to terminate Appellant Freebairn's total disability benefits, is supported by substantial evidence and free from legal error. Accordingly, the decision of the Board is AFFIRMED.
SO ORDERED.