Opinion
C.A. No. 00A-02-002.
Submitted: July 19, 2000.
Decided: October 31, 2000.
Upon Consideration of Appeal From Decision of the Industrial Accident Board AFFIRMED
William F. Jaworski, Jr., Esq., Dover, Delaware. Attorney for Claimant-below Appellee.
J.R. Julian, Esq., Wilmington, Delaware. Attorney for Employer-below Appellant.
ORDER
Upon consideration of the parties' briefs and the record in this case, it appears that:
1. Playtex Products, Inc., appeals a January 14, 2000, decision of the Industrial Accident Board ("Board"), which granted Lottie Lewis compensation, medical expenses, attorney's fees and medical witness fees in connection with knee replacement surgery. The Board concluded that Ms. Lewis injured her knee when she pushed a box across the floor with her right leg while at work and that the injury caused the need for knee replacement surgery.
2. On March 25, 1996, Lewis injured her knee when she pushed a large, steel edged box of gloves across the floor at work. The box hit a snag. The Board concluded that when the box hit the snag, Lewis' knee struck the box. Her knee became swollen and painful. The next day Lewis went to Dr. DuShuttle, an orthopedic surgeon, for treatment. X-ray studies revealed the presence of mild arthritis. A subsequent MRI test, however, which more accurately identifies soft tissue abnormalities, ruled out a tear of the cartilage and also detected the presence of severe arthritis. Initially, Lewis was treated conservatively with medication and physical therapy; however, this regimen proved to be ineffective. Consequently, in an effort to confirm and treat the arthritis and rule out other injuries not detected by the MRI, Dr. DuShuttle performed arthroscopic surgery on the knee in October 1996. During the procedure the internal knee compartment was flushed out and some of the joint edges were shaved down to relieve, at least temporarily, her symptoms. Notwithstanding this intervention, Lewis continued to deteriorate physically. In April 1997, Lewis underwent a total knee replacement.
3. The only material dispute between the parties is whether the March 1996 work incident caused the need for the knee replacement surgery. The Board considered testimony from the claimant, her treating physician Dr. DuShuttle, another orthopedic surgeon, Dr. Saland, and Dr. Atkins, a physiatrist. Drs. DuShuttle and Saland testified per deposition that the work accident caused only a temporary exacerbation of the claimant's pre-existing arthritic condition. By contrast, Dr. Atkins, after reviewing the claimant's medical record and treating her with physical therapy after her second surgery, concluded that the knee replacement was causally related to the work accident. After reviewing the depositions and listening to testimony, the Board determined that the injury Lewis sustained, while at work, was a substantial cause of her need for the knee replacement surgery.
4. The court's function on appeal is to determine whether the Board's decision 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. The appellate court does not weigh the evidence, determine questions of credibility or make its own factual findings. It merely determines if the evidence is legally adequate to support the agency's factual findings.
General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960); Johnson v. Chrysler Corporation, Del. Supr., 213 A.2d 64, 66-67 (1965).
Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), appeal dism., Del. Supr., 515 A.2d 397 (1986).
Johnson at 66.
5. Playtex first contends that the Board abused its discretion and violated Playtex's due process rights by injecting itself into the testimony of a witness. Playtex claims that the Board did not act as a neutral and impartial decision maker and that the Board was predisposed to find in Ms. Lewis' favor. Specifically, according to Playtex, the Board posed leading questions to Lewis which were designed to "elicit a confirmation" from her instead of permitting her to formulate her own answers. I have reviewed the portion of the record containing the questions complained of by Playtex and I am not persuaded by this argument. Lay members of state boards, such as the Industrial Accident Board, have to be given reasonable latitude to ask their questions. In this case the questions asked by the Board followed claimant's responses to other questions and were asked in an effort to clarify, rather than suggest, those particular answers. I conclude that the record does not demonstrate bias on the part of the board members, and that the questioning which they conducted did not breach their duty as a neutral, detached and impartial decision maker.
Stoltz v. Delaware Real Estate Commission, Del. Super., 473 A.2d 1258, 1265 (1984).
6. Playtex next contents that the Board erred as a matter of law and abused its discretion by accepting the testimony of Dr. Atkins. Playtex presented testimony from two orthopedic surgeons, one of whom was Ms. Lewis' treating physician. Lewis presented the testimony of a physiatrist, Dr. Atkins, in support of her claim. A physiatrist is a physician who, like the orthopedic surgeons, graduated from medical school. After medical school, orthopedic surgeons enroll in residency programs designed to instruct them in disease and treatment of the skeletal system while physiatrists concentrate on physical rehabilitation. In this case, Dr. Atkins testified that although he does not perform orthopedic surgery, he is licensed as a physician and surgeon and did complete a one year surgical internship post medical school. During that time period Dr. Atkins indicated he was involved in orthopedics when he was on an orthopedic rotation. Presently, he performs outpatient procedures. Because Dr. Atkins does not practice in the specialty of orthopedic medicine, Playtex asserts he is not qualified to render an opinion regarding causation. In support of its contention, Playtex references a case in which the Board refused to permit a nurse to testify at a hearing regarding a proper course of treatment. The case relied upon is distinguishable. Unlike a nurse who is specifically prohibited from performing surgery or independently treating illnesses, it is within the province of physicians to diagnose and treat both physical and mental ailments. Likewise, it is not necessary for a physician to be of a particular specialty in order to provide admissible testimony. The Board was informed that Dr. Atkins examined and treated Ms. Lewis post-operatively. Likewise, Atkins derived his conclusions regarding her condition based on his personal observations as well as a review of all of her records. These included the medical records generated by Dr. DuShuttle, Smith and Brown Physical Therapy, an MRI, a bone scan and an x-ray. In addition, the Board heard testimony from Lewis herself in which she stated that prior to the work injury, she regularly walked one mile each day and participated in 7 to 10 mile walk-a-thons with her church. Significantly, Lewis testified that she was completely asymptomatic prior to the work injury. Further, although Playtex' experts indicated claimant's symptoms constituted a temporary exacerbation of her pre-existing arthritis, Lewis stated her symptoms remained constant well beyond the predicted 12 week mark and ultimately necessitated the additional surgical intervention of knee replacement. I find that the Board neither erred as a matter of law nor abused its discretion in relying on Dr. Atkins testimony. Reliance upon the testimony of one expert is sufficient and constitutes substantial evidence The Board was obligated to weigh the conflicting evidence and make a determination; it did so and ultimately based its decision on substantial evidence.
Red Clay Consolidated School District v. Lamb, Del. Super., 1988 WL 109365, Taylor, J. (October 14, 1988) (ORDER).
DiSabatino Bros., Inc. v. Wortman, Del. Supr., 453 A.2d 102, 106 (1982).
Conagra, Inc. v. Mayra Tijerino, Del. Super., C.A. No. 98A-08-003, Vaughn, J. (October 29, 1999) (ORDER), quoting, Reese v. Home Budget Center, Del. Supr., 619 A.2d 907, 910 (1992).
General Motors Corp. v. Veasey, Del. Supr., 371 A.2d 1074 (1977), rev'd on other grounds, Duvall v. Charles Connell Roofing, Del. Supr., 564 A.2d 1132 (1989).
7. Finally, Playtex contends that the Board's conclusion regarding the work injury and the knee replacement was not supported by competent substantial evidence. Dr. DuShuttle's records do not include any reference to direct trauma to the knee. There is evidence in the record that when Lewis initially presented herself to Dr. DuShuttle, she was in considerable pain. Ms. Lewis testified that because of the pain she was in, she had her daughter complete the necessary paperwork and that her daughter's failure to include a specific reference to Ms. Lewis striking her knee on the box must have been a misunderstanding on the part of the daughter. Lewis testified that she did mention it to Dr. DuShuttle. When Lewis presented herself to Dr. Atkins, she told him she banged her knee on the edge of the box. Dr. Atkins concluded that this direct injury precipitated the need for the replacement surgery. Because of these conflicting descriptions regarding the mechanism of injury, not born out in a bone scan which would have detected the presence of occult or hidden, healed fractures, Playtex alleges the Board did not base its decision on competent, substantial evidence and causation was not established. The Board in making its finding chose not to rely upon Dr. DuShuttle's testimony nor his medical history information. Instead, it accepted the claimant's testimony that she struck her knee on the box which was noted in Dr. Atkins' records. Lewis offered a plausible explanation of the apparent differences in the accounts of how the accident happened and the Board was entitled to resolve this issue as it did. "The Board is free to choose between conflicting diagnoses of examining physicians and either diagnosis constitutes substantial evidence on appeal." Furthermore, assuming Lewis's arthritic condition preceded the injury at work, it is not necessary that the work mishap be the sole or even a substantial cause of the injury. "If the accident provides the `setting' or `trigger,' causation is satisfied for purposes of compensability." Accordingly, I find that Lewis sustained her burden of proof, and that the Board's decision was supported by substantial evidence and is free from legal error.
Jackson v. State, Del. Super., C.A. No. 96A-05-015-CHT, Toliver, J. (August 28, 1997) (Opinion and Order), quoting Branch v. Kraft General Foods, Del. Super., C.A. No. 93A-06-004, Goldstein, J. (March 24, 1994).
Reese v. Home Budget Center, Del. Supr., 619 A.2d 907, 910 (1992).
Id.
For the reasons stated above, the decision of the Industrial Accident Board is affirmed.
IT IS SO ORDERED .