Opinion
C.A. No. 02A-05-003 CHT.
Submitted: January 21, 2003.
Decided: May 5, 2003.
On The Employer's Appeal from the Decision of the Industrial Accident Board
Thomas J. Gerard, Esquire, MARSHALL, DENNEHEY, WARNER, COLEMAN GOGGIN, Attorney for the Employer-Below/Appellant.
Kenneth F. Carmine, Esquire, POTTER, CARMINE LEONARD, P.A., Attorney for the Claimant-Below/Appellee.
OPINION AND ORDER
STATEMENT OF FACTS NATURE OF PROCEEDINGS
This is an appeal from the decision of the Industrial Accident Board (hereinafter "Board") arising out of a petition to determine additional compensation due filed by the Claimant-Below/Appellee, Sharon Moore, against Employer-Below/Appellant, HR Block ("Block"). Ms. Moore injured her back and shoulder on February 10, 2000 while employed by Block, and received total disability compensation benefits each week thereafter. On May 11, 2001, Block filed a petition to terminate benefits, alleging Ms. Moore's total disability had ceased. Ms. Moore stipulated that she would not contest that petition, which was ultimately granted by the Board on November 6, 2001, effective as of the date of its filing. However, Ms. Moore filed the petition underlying this appeal on November 2, 2001, just prior to the Board's decision on Block's petition, seeking reinstatement of total disability benefits from October 12, 2001 forward, as well as compensation for surgery that was to be performed on her injured shoulder.
This surgery was performed on November 21, 2001.
The Board held a hearing on Ms. Moore's petition on March 5, 2002, and issued its decision on April 17, 2002. It determined that Ms. Moore had been unable to work since October 12, 2001, the date upon which her second treating physician/surgeon told her she was unable to work. It also granted Ms. Moore's petition for her medical expenses, as well as attorney's fees and medical witness fees. The Board made no mention in its decision of the effect its April 17, 2002 decision had, if any, on its November 6, 2001 grant of Block's motion to terminate benefits.
The Board's April 17, 2002 decision refers to the date of the recurrence of Ms. Moore's total disability as both October 12, 2001 and October 21, 2001. The Court assumes that the different dates represent typographical error, and that the date of recurrence is October 12, 2001, when Ms. Moore's second surgeon disabled her from all work.
On May 8, 2002, Block timely appealed the Board's decision, and raised three primary arguments in its August 15, 2002 opening brief. First, Block argues that the Board erred as a matter of law by reinstating Ms. Moore's total disability benefits, since her present surgeon, Dr. Brent R. Noyes, based his testimony in part on the notes of her previous surgeon, Dr. Chris Cassells. Block also contends that the Board erred as a matter of law by shifting the burden to Block to prove that Ms. Moore's November 21, 2001 surgery was unrelated to her February 10, 2000 work injury. Finally, Block alleges that the Board erred in awarding continuing compensation from October 12, 2001 onward in light of its November 6, 2001 decision to terminate Ms. Moore's benefits. Despite several requests from the Court, Ms. Moore failed to file a response. The Court must therefore base its decision on the documents before it, and that which follows is the Court's response to the issues so raised.
Dr. Cassells performed two surgeries on Ms. Moore's shoulder — one in April 2000 and a second in September 2000. Ms. Moore apparently sought treatment with Dr. Noyes after Dr. Cassells indicated that he could do nothing further to treat her condition.
DISCUSSION
This Court is bound by the Board's findings if they are supported by substantial evidence and absent abuse of discretion or error of law. "Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." It "is more than a scintilla and less than a preponderance" of the evidence. This Court does not weigh the evidence, determine questions of credibility or make its own findings of fact. This Court's function is to determine if the evidence is legally adequate to support the factual findings below. The Court's review of alleged errors of law is plenary. An evaluation of the Board's decision in light of these standards requires this Court to affirm that decision in part, and remand it in part for further development of the record.
Ohrt v. Kentmore Home, 1996 Del. Super. LEXIS 356 at 8.
Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998); and Streett v. State, 669 A.2d 9, 11 (Del. 1995).
City of Wilmington v. Clark, 1991 Del. Super. LEXIS 118 at 6.
Johnson v. Chrysler, 213 A.2d 64, 66 (Del. 1965).
Brooks v. Johnson, 560 A.2d 1001 (Del. 1989).
In response to Block's first argument, the Court agrees that a reading into the record of a doctor's report cannot provide adequate support for the Board's findings on critical medical issues. However, that is not the case here. Although Dr. Noyes did refer to Dr. Cassells' notes regarding Ms. Moore's condition prior to his assumption of her care, he also proffered his own medical opinion as a surgeon who had personally examined Ms. Moore and made subsequent medical diagnoses of his own. It is not unusual for one doctor to be forced to draw on the histories and notes, however limited, compiled by those who previously cared for their new patients. Dr. Noyes did not speak on Dr. Cassells' behalf — he testified as to his own medical opinion, and bolstered it with what he perceived to be the prior and consistent findings of another member of the medical community. Block's argument that the Board erred legally by allowing such testimony is therefore unfounded, and the Board was therefore free to accept the medical opinion it found more credible.
See Reliable Corp. v. Sierra, 1999 Del. Super. LEXIS 354 at 10.
The Court notes that Block omits the fact that Dr. Errol Ger (who testified on behalf of Block) also relies on Dr. Cassells' notes in the development of his opinion. March 15, 2002 Deposition of Errol Ger, M.D., Tr. at 15-17, 25.
See DiSabatino Brothers, Inc. v. Charles J. Wortman, 453 A.2d 102 (Del. 1982), in which the Delaware Supreme Court held that as the triers of fact, the Board was entitled to accept or reject expert testimony without any clarification beyond their lay opinions of credibility.
The Court notes Block's contention that the Court is not obligated to defer to the Board's findings of credibility based upon deposition testimony like Dr. Noyes'. However, the testimony of the doctor testifying for Block — Dr. Errol Ger — was also offered via deposition. Faced with two competent medical witnesses, both testifying via deposition, and both relying on the notes of an unavailable physician, the Board exercised its discretion in choosing to accept the opinion of the witness it found most credible. As there is no legal error and the Board's decision is based upon the substantial evidence submitted by Dr. Noyes, the Court will not disturb that determination.
Carey v. HH Maintenance, Inc., 2001 Del. Super. LEXIS 335 at 6, in which the Court held that the general rule that a court defers to the Board's credibility rulings falls when the testimony is given by deposition because the rationale behind that general rule fails. The Board is not in a better position to assess the demeanor of witnesses or to determine the weight and credibility of the witnesses' testimony when it is given by deposition.
A similar conclusion applies to Block's second argument, that a Claimant claiming a recurrence of total disability bears the burden of proving a recurrence occurred. Block argues that the Board erroneously assigned Block the burden of proving that Ms. Moore's November 21, 2001 surgery was unrelated to her February 10, 2000 injury, and submits the following statement from the Board's decision in support of its argument:
City of Wilmington v. Jones, 2003 Del. Super. LEXIS 70.
"Dr. Ger, on the other hand, thought that just because Dr. Cassells did not mention the subluxation or SLAP lesion, these were not present. On this point, the testimony of Dr. Cassells may have been helpful. But it was not offered."
Ms. Moore at some point developed a superiorly labral anterior posterior ("SLAP") lesion which required surgery in November 2001. It is the timing of the development of this lesion, as well as whether it was attributable to her February 2000 injury that is the point of disagreement between the medical experts. Dr. Noyes testified that the SLAP lesion was attributable to her injury at Block, while Dr. Ger testified that Dr. Cassells' omission of any mention of the lesion in his notes indicates that it could not be attributed within a reasonable degree of medical probability to her work injury.
It is clear from the Board's decision that it felt Ms. Moore met her burden via Dr. Noyes' testimony in which he causally linked her February 10, 2000 injury to the SLAP lesion on which he operated in November 2001. Contrary to Block's claim that Dr. Ger was the only physician to testify within a degree of medical probability, Dr. Noyes agreed that his opinion as to causation was expressed to a "reasonable degree of medical probability based on [his] examination" of Ms. Moore. He only retreated from that conclusion when questioned as to what Dr. Cassells' may have observed when performing Ms. Moore's first surgery, to which Dr. Noyes was not privy.
February 11, 2002 Deposition of Brent R. Noyes, M.D., Tr. at 29. The Court notes that the language contained as a quote in Appellant's brief at page 9 is not an accurate quote of the language contained in the transcript, but that the correct language is contained in that brief at page 4.
Id. at 36.
It should also be noted that Dr. Ger testified that he could not opine that Ms. Moore's SLAP lesion existed at the time of her first surgery within a reasonable degree of medical probability. However, that is different and can clearly be distinguished from an opinion, within a reasonable degree of probability, expressing that the condition was not present at that time. The Board was within its discretion to accept Dr. Noyes' testimony as credible, and then appropriately shifted the burden to Block to prove that Ms. Moore's surgery was not compensable, which is what the Board did. Dr. Ger, while not able to link her November 2001 surgery to her February 2000 injury, did agree that Ms. Moore's surgery was reasonable and necessary. Given the experts' agreement on these two points, the Board was left with only the issue of causation, and gave the greater weight to the evidence that it found most reliable and persuasive. Again, the Court finds no abuse of discretion or error of law, and must conclude as a result, that the Board's decision is supported by substantial evidence.
March 15, 2002 Deposition of Errol Ger, M.D., Tr. at 15.
Block's final argument is that the Board erred by disregarding its November 6, 2001 termination of Ms. Moore's total disability benefits when it rendered its decision in her favor on April 17, 2002. Block argues that the Board should not have awarded reinstatement of those benefits as of October 12, 2001, but as of November 6, 2001. Block appears to contend that Ms. Moore is being unjustly enriched with three extra weeks of retroactive benefits, since her benefits were not terminated until November 6, 2001.
A close examination of the Board's November 6, 2001 order reveals that Block filed its petition to terminate Ms. Moore's total disability benefits on May 11, 2001. The Board specifically stated that ". . . the Employer's Petition is GRANTED as of the date of its filing." Consequently, it appears to the Court that Ms. Moore's benefits were terminated retroactively as of May 11, 2001. She did not, therefore, receive duplicate benefits by virtue of the reinstatement of her benefits as of October 12, 2001.
Industrial Accident Board Stipulation and Order in the matter of Sharon Moore v. HR Block, I.A.B. Hearing No. 1186334, November 6, 2001. While the Court notes the retroactive effective date of this decision, the record is silent on whether Ms. Moore received benefits between May 11 and November 6, 2001, or whether the Board's November 6, 2001 decision failed to provide for that contingency. Absent the production of evidence by Block in support thereof, the Court declines to reach the conclusion that Ms. Moore received duplicate benefits between October 12, 2001 and November 6, 2001.
CONCLUSION
Based upon the foregoing, the Court finds that the decision of the Industrial Accident Board is free of legal error and substantial evidence. Nor did the Board abuse any discretion with which it was vested. Accordingly, its decision must be, and hereby is, affirmed.
IT IS SO ORDERED.