Opinion
C.A. No. 03A-05-008-JOH.
Submitted: November 4, 2003.
Decided: December 8, 2003.
Appeal from a Decision of the Industrial Accident Board — REVERSED and REMANDED.
Christopher J. Sipe, Esquire, of Bailey Wetzel, Wilmington, Delaware, attorney for claimant-below, appellant.
Christopher T. Logullo, Esquire, of Chrissinger Baumberger, Wilmington, Delaware, attorney for employer-below, appellee.
MEMORANDUM OPINION
Denise Henson appeals the Industrial Accident Board's denial of her claim for benefits and medical expenses. The Board denied her claim either because it determined there had been no work related incident or if there were, Henson had not been injured. It found significant problems with her credibility. This finding undermined much of Henson's claim of injury since her complaints were primarily subjective in nature.
But the record below reveals two separate medical findings of objective signs of injury. These medical findings were not addressed by the Board in its denial of Henson's claim. For that reason the matter must be returned to the Board. The Board's decision is REVERSED and REMANDED
Facts
Henson is a Certified Nursing Assistant and was employed by Ken-Crest Services as a Residential Advisor at Ken-Crest's group home for mentally retarded adults. Her duties included assisting clients with all functions that they were not able to accomplish on their own.On the evening of October 13, 2002, Henson was the only employee working during her shift due to Ken-Crest being short-staffed that night. She was, therefore, in charge of caring for four mentally retarded adults by herself. That evening, she helped a female patient into the bathroom and onto the toilet. She left. Upon her reentry into the bathroom, she says she slipped on water or urine that was on the floor and fell landing on her buttocks. She also struck her head on the wall or a railing as she fell. There were no witnesses to this incident. Henson acknowledged that there was no water or urine on the floor when she and the patient initially entered the bathroom. Margaret Gardley, the Delaware Director of Ken-Crest, testified that the toilets in the bathroom in question had not been repaired since the accident occurred and were not leaking.
Henson immediately reported the accident to her immediate supervisor, Felicia Beasley, via telephone. She completed an incident report per Beasley's instructions. Subsequent to this incident, Beasely left Ken-Crest's employ and moved to Michigan. There was no testimony from her put before the Board. Henson worked the rest of her shift until 11:00 p.m., and Beasley transported her to Newark Emergency Center. During her stay in the emergency room, she acknowledged that she never lost consciousness in the fall and that she was in no acute distress. Henson was found to have good range of motion and she was released to return to work without restrictions. Apparently, the entire Newark Emergency Center's emergency room record was not placed before the Board. A portion of it or a bill, was and whatever was indicated Henson was suffering from a muscle spasm in her back.
On the following day, October 14, 2002, Henson received treatment at the Omega Medical Center. Upon examination, it was noted that she was in no distress, that she could do full weight bearing on each side, that there was no visible asymmetry, no swelling, and no bruising in her neck and back. It was further noted that her range of motion was almost full with some subjective stiffness and discomfort and that she had no neurological findings. Henson was released to return to work in a light duty capacity.
On October 23, 2002, Henson, however, visited Dr. Craig Sternberg for treatment. He was not her family doctor. He diagnosed Claimant with soft tissue strains and sprains and issued a no-work slip. He also found on palpation muscle tightening in her back. During the time period between October 14 and October 23, Henson went on a one-week bus trip to Detroit, Michigan.
On December 9, 2002, Henson underwent carpal tunnel surgery performed by Dr. David Sowa. Claimant's carpal tunnel medical condition was unrelated to her October 13, 2002 work accident and the surgery she underwent did not affect Dr. Sternberg's decision to totally disable Claimant from working.
She saw Dr. Sternberg on December 11, 2002 and January 8, 2003. His diagnosis remained the same during these visits. However, on the March 12, 2003 visit, Dr. Sternberg released Henson to light duty work. Dr. Sternberg testified by deposition, that she was totally disabled from October 23, 2002 until March 5, 2003 as a result of the work injury. He also stated that the medical treatment has been reasonable, necessary and related to the work accident.
On January 22, 2003, Dr. John Townsend examined Henson per Ken-Crest's request. Upon examination, Dr. Townsend noted that she had decreased range of motion and tenderness in her lower back, but noted no objective signs of injury. Dr. Townsend also testified at the hearing that Claimant sustained a cervical and lumbar strain as a result of the work accident based on her recitation of the events and her complaints. It was his opinion that she would have been totally disabled for six weeks following the accident, again based on her complaints. After these six weeks, she would have been capable of light duty work with restrictions on lifting. Dr. Townsend further testified that there was some evidence during his examination of Henson that she was embellishing the severity of her condition. He testified that the medical treatment she received was reasonable, necessary and related to the accident.
Industrial Accident Board Hearing No. 1221483, (March 12, 2003), at 67.
Margaret Gardley testified by deposition, on behalf of Ken-Crest, that prior to the work accident Henson had several disciplinary problems in August, September and October 2002 and that she was about to be terminated from employment. Henson was not terminated, however, due to her going on disability following the accident. Gardley further testified that she did not have knowledge of and was not shown the incident report that Claimant completed until the day of the Board hearing. Henson denied being aware she was close to termination or on notice she was facing termination.
Claimant's disciplinary problems included two instances of unauthorized use of a work van without permission, two instances of changing her work schedule without notifying her supervisor, one instance of misappropriating a resident's funds, and one instance of calling out without giving proper notice.
The Board denied Henson's claim for benefits making two apparent findings. One is that Henson had not proven a work-related incident occurred. The other is that she had not shown any injury. The Board noted medical records showing no signs of injury, good range of motion and so forth. The Board found that Henson's bus trip to Detroit within days of the accident was inconsistent with the injury and symptoms of which she complained.
Standard of Review
This Court's function on appeal from the Industrial Accident Board is to determine whether its decision is supported by substantial evidence on the record and free from legal error. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Only where there is no substantial, competent evidence to support the Board's factual findings may this Court overturn the Board's decision. In reviewing the record for substantial evidence, the Court will consider the record in the light most favorable to the prevailing party 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.
29 Del. C. § 10142(d); Lemmon v. Northwood Constr., 690 A.2d 912, 914 (Del. 1996).
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
Streett v. State, 669 A.2d 9, 11 (Del. 1995).
General Motors Corp. v. Guy, Del. Super., C.A. No. 90A-JL-5, Gebelein, J. (August 16, 1991) at 8.
Delaware Alcoholic Beverage Control Comm. v. Alfred I. DuPont School District, 385 A.2d 1123, 1125 (Del. 1978).
This Court does not sit as the trier of fact with authority to weigh the evidence, determine issues of credibility and make its own factual findings and conclusions. The credibility of witnesses, the weight of their testimony and the factual inferences drawn therefrom are for the Board to determine.
Boulevard Electric Sales v. Webb, 428 A.2d 11, 13 (Del. 1981).
Keeler v. Metal Masters Foodservice Equip. Co., 712 A.2d 1004, 1006 (Del. 1998).
Discussion
Henson's primary argument on appeal is that the Board's decision that she was not injured is "flagrantly unsupported by substantial evidence." She points to a "veritable mountain of evidence" that she was in fact injured at work. Such evidence includes: her reporting of the work accident via telephone to her immediate supervisor, Beasley; her completion of an incident report the day the accident occurred and the giving of it to Beasley that day; her trip to Newark Emergency Center for treatment after completion of her shift; her telephone call to Gardley the next business day after the accident reporting her work accident; Gardley's testimony during her deposition verifying that Claimant was injured as a result of her work accident; and both Dr. Sternberg and Dr. Townsend testifying that Claimant was injured.The Court notes, however, the record shows matters which arguably undermine Henson's credibility and authenticity of her claim and which clearly concerned the Board.
One, Henson's slip and fall was not witnessed by any other employees at Ken-Crest.
Industrial Accident Board Hearing No. 1221483, at 39.
Two, Gardley testified that there were no reported problems that the toilet was leaking and that it had not been repaired since the accident occurred.
Margaret Gardley dep. at 12-13.
Three, Henson had six documented disciplinary problems within two months of the work accident, and at the time of the accident, she was about to be terminated from employment.
Id. at 4-10.
Four, Gardley, the Delaware Director of Ken-Crest, testified she did not know about and had not seen Henson's incident report until the day of the Board hearing.
Id. at 3.
Five, Dr. Sternberg testified that the October 13th medical records from Newark Emergency Center indicated that Henson was in no acute distress, had good range of motion, and that there were no notations indicating that she was disabled from working. Also, Dr. Sternberg testified that the October 14th medical records from Omega Medical Center indicate that Claimant was in no acute distress, that she could do full-weight bearing on each side, and that there was no visible asymmetry, swelling or bruising on her neck and back. The Omega Medical Center's medical records also noted that her range of motion was almost full with some subjective complaints of stiffness and discomfort on the full range and that she could return to work on a light-duty capacity.
Industrial Accident Board Hearing No. 1221483, at 89.
Id. at 90-91.
Id. at 92.
Six, Henson took a bus trip to Detroit, Michigan, the week following the accident, an activity one would not expect someone with Claimant's injury the ability to do.
Id. at 48.
Seven, Dr. Townsend's testified that there was some evidence that Claimant was embellishing her injury during his examination of her. According to Dr. Townsend, the Arcon Testing's results came back invalid because of one of two reasons: (1) she did not give a good effort; or (2) she gave a variable effort.
Id. at 67.
Arcon Testing measures a person's range of motion.
Industrial Accident Board Hearing No. 1221483, at 61-63.
Also, it is important to note that Dr. Townsend's diagnosis of cervical and lumbar strain, and his opinion that Claimant was disabled for six weeks, was based solely on Henson's subjective complaints. Under Delaware law, the trier of fact may reject an expert's medical opinion when that opinion is substantially based on the subjective complaints of the patient. Therefore, the Board's rejection of Dr. Townsend's opinion that Henson was injured, which is implicit in its decision that she had not been injured, was proper since his opinion was solely based on her subjective complaints.
Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).
Id.
Despite these matters affecting the credibility of Henson's claim, there are two objective signs of injury that the Board did not address in its opinion.
The Board had before it evidence of two findings of objective injury. One was from the Newark Emergency Center on the night of Henson's fall indicating a back spasm was present. The other was Dr. Sternberg's note or testimony when he first saw Henson that there was muscle tightness. This would be consistent with spasm. The Board had both these items before it an there was even this exchange between Henson and a Board member:
Q: And I'm just looking here at the diagnosis of Newark Emergency and it just says "muscle spasm", is that fair to what you were told?
Industrial Accident Board Hearing No. 1221483, at 55.
Dr. Townsend did not address these findings. Nor did the Board. Henson presented unrebutted medical evidence of objective injury. Generally, when an in injured party presents such evidence, that party is entitled to compensation.
See Amalfitano v. Baker, 794 A.2d 579 (Del. 2001).
As noted earlier, the Board's decision is unclear as to whether it rejected Henson's claim because no work-related accident occurred, or one occurred, but she was not injured. Whatever the basis for rejection, this objective evidence must be addressed.
Because of this Court's limited role on appeal, this case must be reversed and remanded to the Board for consideration of these two objective signs of injury. This Court also suggests that the full Newark Emergency Center's emergency room record be admitted as evidence in the record.
See Lemmon, 690 A.2d at 914.
Conclusion
For the reasons stated herein, the decision of the Industrial Accident Board is REVERSED and REMANDED.
IT IS SO ORDERED.