Opinion
C.A. No. 99A-10-007-CHT.
Submitted: January 8, 2000.
Decided: May 1, 2000.
Motion to Affirm by Appellee, City of Wilmington — Granted
Oba Kenyetta-Bey, Pro Se, 1901 Lancaster Avenue, Wilmington, DE 19805.
Brenda James-Roberts, Esquire, City of Wilmington Law Department, City/County Building, 9th Floor, 800 French Street, Wilmington, DE 19801.
OPINION AND ORDER
This matter concerns an appeal by the Claimant, Oba Kenyetta-Bey, from the decision of the Industrial Accident Board denying his Petition for Additional Compensation Due for a series of injuries he sustained while he was employed by the City of Wilmington. Pursuant to Superior Court Rule 72.1, the City of Wilmington moved to affirm the decision of the Board. That which follows is the Court's resolution of the issues so presented.
NATURE OF THE PROCEEDINGS AND STATEMENT OF FACTS
The Claimant began his employment with the City in 1979 as a laborer and ultimately advanced to the position of equipment operator. He initially suffered compensable injury to his lower back as well as his left and lower right extremities on July 6, 1981. An agreement as to compensation was entered into shortly thereafter. Unfortunately for him, the Claimant continued to suffer from those injuries resulting in further treatment and disability. In fact, since 1985, he has been unable to return to work with the City.
Counting his original petition and agreement as one, there appear to have been a total of seven agreements between the Claimant and the City to obtain additional compensation for the injuries in question.
On February 16, 1999, the Claimant filed the instant petition seeking an increase in the permanent injury previously suffered to his back and left lower extremity. The Claimant relied on the disability ratings provided by Dr. Ross M. Ufberg. The City opposed that petition relying instead upon its physician, Dr. Oluseyi Senu-Oke. The Board held a hearing to resolve the dispute on August 30, 1999.
Testifying on behalf of the Claimant were the Claimant himself and Dr. Ufberg. The Claimant testified, among other things, as to the continuing limiting effects of his injuries on his every day existence. Dr. Ufberg, a board certified physician in physical medicine and rehabilitation, opined that the Claimant's disability of his back and left lower extremity had increased from twenty percent (20%) and two percent (2%) at the time of his preceding evaluation in 1997 to twenty-seven percent (27%) and seven percent (7%) in July, 1999, when the doctor saw him most recently prior to the filing of the petition.
Appearing on behalf of the City was Dr. Senu-Oke. The substance of his testimony was that there was no objective evidence of any disability in terms of the left lower extremity and that based upon a comparison of diagnostic test in the past versus the most recent efforts in that regard, there was no increase in the extent of the incapacitation of the lower back. He also indicated that any problems with the left lower extremity were more than likely associated with the back rather than with that extremity.
For some unknown reason, the direct testimony of Dr. Senu-Oke was not recorded before the Board. This omission was noted by counsel for the City in its motion to affirm. See Employer's Mot. To Affirm at 3, note 2. [Check form of cite.] and was apparently inadvertent. In any event, no claim of error is attached and the Court finds none given the fact that Dr. Senu-Oke's testimony is essential undisputed.
The Board, after reviewing the testimony presented, ruled on September 11, 1999, that the Claimant had failed to establish that he had in fact experienced any increase in permanent incapacitation of either area of the body. As to the left lower extremity, the Board accepted the testimony of Dr. Senu-Oke, who relied on the lack of objective findings, over that proffered by Dr. Ufberg, and stated why it did so in some detail. (Bd. Op. at 6-8.) When it came to the lower back, the Board found, based principally upon the testimony of Dr. Ufberg, that the extent of permanent incapacitation had not yet become fixed. Therefore, the Claimant had failed to establish that it had increased. To be specific, the Board stated:
Claimant has previously received a 20% permanent impairment to the low back by the prior agreements in 1987 and 1994. The Board finds no justification for a 7% increase in permanency as recommended by Dr. Ufberg, at this time. In the fall of 1997 Dr. Boulos recommended a further lumbar discectomy to alleviate Claimant's continuing pain symptoms. Claimant's treating physician, Dr. Ufberg, opined that such a surgery has the potential for significant improvement in his condition and that without it Claimant's prognosis will remain the same or get worse. Dr. Ufberg also suggested that Claimant's 1992 discectomy was unsuccessful in removing the offending piece of the herniated disc. that was causing problems and possibly irritating the nerve roots. As a result of these opinions the Board does not find that Claimant's condition has reached maximum medical improvement with respect to any increased loss of function. Determination of the date on which a permanency becomes fixed is a medical question to be decided on the basis of expert medical testimony. Pusey v. Natkin Co., Del. Supr., 428 A.2d 1155 (1981). Claimant failed to show that any increase in permanency was fixed and established when Dr. Ufberg determined his recent permanent impairment rating. Claimant has already received permanent impairment benefits well beyond the 14% loss of use to which Dr. Senu-Oke testified. . . .
(Bd. Op. at 8-9.) Shortly thereafter, the Claimant filed the instant appeal.
Although it is not clear from the Claimant's opening brief, he appears to be claiming that the Board erred in accepting the testimony of Dr. Senu-Oke over Dr. Ufberg because the former is not board certified in physical medicine and rehabilitation while the latter is so qualified. He also appears to challenge the Board's decision because the Board failed to take into account his mental condition when it ruled against him. The City denies that the Board erred. It argues instead that the Board's decision should be summarily affirmed because the issues involved in the appeal are factual and there is sufficient evidence in the record to support that decision. Unfortunately for the Claimant, the City is correct.
DISCUSSION
On appeal from a decision of an administrative agency, the reviewing court must determine whether the agency ruling is supported by substantial evidence and free from legal error.Stoltz Management Co. v. Consumer Affairs Bd., Del. Supr., 616 A.2d 1205, 1208 (1992); State, Dept. of Labor v. Medical Placement Services Inc., Del.Super., 457 A.2d 382, 383 (1982), aff'd, Del. Supr., 467 A.2d 454 (1983). "Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Anchor Motor Freight v. Ciabattoni, Del. Super., 716 A.2d 154, 156 (1998); Streett v. State, Del. Supr., 669 A.2d 9, 11 (1995); Olney v. Cooch, Del. Supr., 425 A.2d 610, 614 (1981). "The courts on appeal do not sit as triers of fact to weigh evidence and determine credibility."DiSabatino Bros., Inc., v. Wortman, Del. Super. 453 A.2d 102, 105-106 (1982); and Johnson v. Chrysler Cortoration, Del. Supr., 213 A.2d 64, 66 (1965). Finally, this Court may grant a motion to affirm pursuant to Rule 72.1(b)(3) if" [t]he issue on appeal from a commission or board is factual, and clearly there is substantial evidence to support the findings of fact below[.]" Super. Ct. Civ. R. 72.1(b)(3). It is in light of these principles that the Claimant's contentions have been reviewed
First, it is well settled that the Board is free to choose between conflicting diagnoses of examining physicians and that the diagnosis of one physician will constitute substantial evidence in an appeal of a decision of the Board to this Court.Scarberry v. Chrysler Corp., Del. Super., C.A. No. 96A-07-003, Herlihy, J. (Dec. 12, 1996) (Mem. Op.) The Board chose to rely on the testimony of Dr. Senu-Oke as opposed to Dr. Ufberg. He was a licenced board certified physician in the area of family practice and had examined the Claimant several times from 1996 to 1999 for the purposes evaluating the extent of his permanent incapacitation and/or disability. Consequently, Dr. Senu-Oke's opinions regarding that issue and the Board's acceptance thereof constitutes substantial evidence in support of the Board's decision.
Nor did the Board err in allowing Dr. Senu-Oke to testify as an expert and interpret the Claimant's medical records notwithstanding the fact that he was not certified in physical medicine and rehabilitation. Simply put, in this state a practicing physician is considered an expert in the field of medicine. It is not required that he or she be a specialist in the particular malady at issue in order to make his testimony as an expert admissible. ?DiSabatino Bros., 453 A.2d at 106; Delmarva Power Light v. Stout, Del. Supr., 380 A.2d 1365, 1369 (1977); Board of Public Education in Wilmington v. Rimlinger, Del. Supr., 232 A.2d 98, 100 (1967); and Drucker v. Philadelphia Dairy Products Co., Inc., Del. Super., 166 A. 796, 798 (1933). Therefore, while Dr. Senu-Oke's area of specialization may not be Physical Medicine and Rehabilitation, his training and experience in family medicine certainly qualify him as an expert under Delaware law.
To the extent that this contention involves a legal issue, the Court will address it sua sponte pursuant to Rule 72.1(c) (1) given the City's limitation of its motion to the grounds set forth in Rule 72.1(b)(3).
Second, the Claimant complains that Dr. Senu-Oke, and therefore the Board in accepting his testimony, failed to consider his mental state when reviewing the evidence presented in attempting to determine the extent of any increase in the permanent physical incapacitation in his lower back and left lower extremity. He does not identify his mental state other than to refer to it as "depression and medicine prescribed to [him]", or reference where it was considered by Dr. Ufberg, whom he claims did take it into consideration. Claimant's Opening Br. at Para. 5. However, a review of the record fails to reveal any indication that any doctor who examined the Claimant in connection with his latest petition, used such evidence to determine the extent of the incapacitation at issue here. Nor was there was a claim for disability based upon any emotional or psychological condition resulting from those injuries before the Board. Consequently, there was nothing for Dr. Senu-Oke or the Board to address in this regard.
CONCLUSION
The issues appealed were factual and there was sufficient, indeed, substantial evidence to support the Board's findings. To the extent those issues may also be deemed involved legal questions, there were clearly controlled by settled Delaware law which the Board correctly interpreted. Based upon the foregoing, the decision of the Industrial Accident Board must be, and hereby is, summarily affirmed pursuant to Superior Court Civil Rule 72.1.
IT IS SO ORDERED.