Opinion
C.A. No. N10A-04-007 MMJ.
Submitted: March 1, 2011.
Decided: April 26, 2011.
Appeal of March 10, 2010 Decision of the Industrial Accident Board. AFFIRMED.
Michael R. Ippoliti, Esquire, Wilmington, Delaware, Attorney for Claimant-Below/Appellant.
John J. Ellis, Esquire, Michael D. Rimmer, Esquire, Heckler Frabizzio, Wilmington, Delaware, Attorneys for Employer-Below/Appellee.
MEMORANDUM OPINION
William Schreffler ("Claimant") has appealed the March 10, 2010 decision of the Industrial Accident Board ("Board"). After a July 16, 2009 hearing, the Board granted Heavy Equipment Rentals, Inc.'s ("HER") Petition to Terminate Claimant's Total Disability Benefits.
Claimant contends that the Board's decision constituted legal error and was not supported by substantial evidence.
FACTUAL AND PROCEDURAL CONTEXT
On August 14, 2008, Claimant, a truck driver, injured his back on the job while connecting a large hose to a fire hydrant. HER acknowledged that this injury was compensable. Claimant has received $430.36 per week, based on an average weekly wage of $645.51. On March 10, 2009, HER filed a Petition to Terminate Claimant's Total Disability Benefits.
Claimant's Treatment
Claimant experienced back problems prior to his August 14, 2008 injury. In 2006, Claimant visited his family physician, Dr. Nicholas Guiliani, and complained of low back pain. Dr. Guiliani administered x-rays, which revealed no abnormalities.
Claimant returned to Dr. Guiliani in April 2008 with similar complaints. Dr. Guiliani examined an MRI, which showed dessication at L3-4, L4-5, and L5-S1 and bilateral foraminal stenosis.
Prior to the August 14, 2008 injury, Claimant also treated with Dr. Hagop Derkrikorian, a neurosurgeon and pain management specialist. Claimant complained of thigh, shoulder, and low and mid back pain, which radiated into his buttocks. Ultimately, Dr. Derkrikorian performed decompression surgery on Claimant at C5-6.
In June 2008, Claimant saw Dr. Gregory Pharo, a pain management specialist. Claimant complained of low back pain radiating into his groin. Dr. Pharo administered an MRI, identifying disc dessication but no herniation. Dr. Pharo diagnosed Claimant with lumbar degenerative disc disease and lumbar facet osteoarthritis with radicular symptoms. Dr. Pharo did not impose work restrictions on Claimant.
Shortly before the August 14, 2008 accident Claimant's symptoms worsened. A July 2008 MRI revealed multiple abnormalities, including a paracentral herniated at T6-7, T5-6, and T9-10. Claimant was briefly hospitalized for these problems.
On August 15, 2008, one day after the injury, Claimant saw Dr. Guiliani. Claimant complained of low back pain that radiated into his hips, buttocks, and legs. Dr. Guiliani diagnosed Claimant with acute mechanical low back pain and advised that he be on "no work status." Dr. Guiliani recommended that, upon returning to work, Claimant be on light duty. Dr. Guiliani prescribed anti-inflammatory medication and physical therapy.
In September 2008, Claimant again treated with Dr. Guiliani. At this time, an MRI revealed mild accentuated thoracic kyphosis. Dr. Guiliani advised that Claimant remain on no work status and continue medication and physical therapy.
On September 29, 2008, Dr. Derkrikorian performed a study on Claimant's low back. Dr. Derkrikorian compared an April 2008 MRI with an August 2008 MRI that was taken after the injury. He concluded that the MRIs reveal no structural differences, and therefore, Claimant's symptoms are consistent with degenerative spine disease.
Dr. Andrew Gelman, an orthopaedic surgeon, examined Claimant on December 17, 2008 and June 24, 2009. Claimant complained of mid to upper lumbar pain. From an August 28, 2008 MRI, Dr. Gelman diagnosed a diminished disc at L2-3 without any nerve root compromise. Also, Dr. Gelman reviewed an electromyography ("EMG"), and determined that Claimant was not experiencing lumbar radiculopathy.
Claimant continued treatment with Dr. Guiliani on December 23, 2008 and January 22, 2009. Claimant informed Dr. Guiliani that his pain was slightly better but he still experienced intermittent radicular symptoms. Dr. Guiliani advised that Claimant remain on no work status.
On March 3, 2009, Guiliani updated his diagnosis to chronic pain and degenerative joint disease of the low back. Further, on April 16, 2009, Guiliani identified lumbosacral disc herniation and foraminal stenosis. Dr. Guiliani continued Claimant's no work status.
Claimant's Condition and Work Experience
Claimant has not worked since his August 14, 2008 injury. Claimant has contacted HER in an attempt to return to light duty work, but HER has no such work available. Claimant spends most of his time at home, watching television, and drives very little.
Claimant has been a truck driver for the last nineteen years. He explained that the job requires bending, squatting, standing, pushing, stretching a bungee cord, and scraping dirt from a "spreader plate." Claimant explained that it is a physical job, although he spends 90 percent of the time behind the wheel.
Claimant is part of the Teamster's union, which has an exclusive collective bargaining agreement with HER ("CBA"). Claimant has a high level of seniority with the Teamsters. Pursuant to the CBA, Claimant must obtain a full medical release before returning to work.
The Hearing
Dr. Guiliani testified by deposition that Claimant's current condition is related to both the August 14, 2008 accident and the "cumulative detrimental effect" of his employment over the years. However, Dr. Guiliani believes that Claimant's back was asymptomatic before the accident. Dr. Guiliani explained that, if Claimant's condition improved, he could perform light duty work with the occasional lifting of up to twenty pounds. Dr. Guiliani still restricts Claimant to no work status.Barbara Stevenson, a vocational rehabilitation specialist, performed a labor market survey ("LMS") for Claimant. Stevenson identified nine jobs that have an average salary of $447.95 per week. Seven of the nine positions are consistent with Dr. Guiliani's restrictions — that Claimant be on light duty with no lifting over twenty pounds. Claimant testified that he reviewed the LMS but did not apply for any of the positions because he did not want to lose his union benefits.
Dr. Gelman testified by deposition that Claimant been capable of working without restrictions since December 2008. He opined that any work restrictions that were imposed after the August 14, 2008 injury resulted from Claimant's pre-existing condition. Dr. Gelman compared lumbar studies from before and after Claimant's injury, and concluded that there are no structural differences. Dr. Gelman found that Claimant's complaints after the injury are consistent with the chronic deterioration of his pre-injury condition. He believes that Claimant has a tendency to exaggerate the severity of his symptoms. Dr. Gelman opined that Claimant could perform all nine jobs in the LMS.
Richard DeLitta, Claimant's supervisor at HER, explained that, if Claimant obtained a full medical release and light duty work was available, HER would accommodate him due to his seniority. However, HER has no light duty work, and Claimant remains on no work status pursuant to Dr. Guiliani's orders. Nonetheless, Claimant remains a member of the Teamsters and an employee of HER.
The Board's Opinion
The Board held that Claimant was employable as of March 10, 2009, the date of HER's petition. The Board found Dr. Gelman more persuasive than Dr. Guiliani, noting that Dr. Gelman performed a more thorough review of Claimant's medical records. Dr. Gelman concluded that Claimant's condition is consistent with degenerative spine disease, which was diagnosed well before the August 14, 2008 injury. The Board also found it convincing that the EMG indicated that Claimant was not suffering from radiculopathy. The Board accepted Dr. Gelman's opinion that "Claimant's lumbar sprain or strain resulting from the work injury returned to baseline by December 2008."
The Board rejected Dr. Guiliani's opinion because he did not differentiate between Claimant's ongoing degenerative condition and the impact of the August 14, 2008 injury. The Board found that Dr. Guiliani relied upon Claimant's subjective complaints without a proper understanding of his prior treatment. The Board was convinced that, consistent with Dr. Gelman's testimony, Claimant had the propensity to exaggerate the severity of his symptoms.
The Board also concluded that Claimant is not entitled to partial disability benefits. The Board again relied on Dr. Gelman's testimony that Claimant's condition returned to baseline in December 2008, and he was capable of returning to his position with HER at that time. The Board noted that Claimant remained employed by HER, but HER does not have any light duty work available. The Board explained that, because HER notified Claimant that it had no light duty work available, pursuant to Hoey v. Chrysler Motors Corp., Claimant is not entitled to partial disability benefits following the termination of his total disability benefits.
1994 WL 723023 (Del.).
STANDARD OF REVIEW
On appeal from the Industrial Accident Board, the Superior Court must determine if the Board's factual findings are supported by substantial evidence in the record. "Substantial evidence" is less than a preponderance of the evidence but is more than a "mere scintilla." It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The Court must review the record to determine if the evidence is legally adequate to support the Board's factual findings. The Court does not "weigh evidence, determine questions of credibility or make its own factual findings." If the record lacks satisfactory proof in support of the Board's finding or decision, the Court may overturn the Board's decision. On appeal, the Superior Court reviews legal issues de novo.PARTIES' CONTENTIONS
Claimant argues that the Board erred as a matter of law by misapplying the Hoey Doctrine. Claimant contends that, pursuant to the Hoey Doctrine, he is entitled to total disability benefits because he is still employed by HER and HER did not notify him that it had no light duty work available.In Hoey, the claimant, Hoey, was unable to work and received total disability benefits from her employer, Chrysler. Subsequently, Hoey's physician determined that she could return to work with restrictions. Hoey continued to be an employee of Chrysler and did not seek other employment. Chrysler had no work that fit Hoey's restrictions; however, Chrysler did not inform her that she would be terminated. Hoey sought ongoing partial disability benefits.
Hoey, 1994 WL 723023, at *1.
Id.
Id.
The Delaware Supreme Court stated that a "displaced employee . . . who does not know or have reason to know that she is a displaced employee cannot be expected to seek new employment." Therefore, the Court found that "[u]nder these particular facts and circumstances . . . Chrysler had a duty to advise Hoey that it intended to discharge her if it did not intend to provide her with light-duty work." The Court held that Hoey was entitled to ongoing partial disability benefits.
Id. at *2.
Id.
Id.
Claimant also asserts that the Board erred as a matter of law by disregarding the CBA, which provided that HER could not offer Claimant light duty work unless he had a full medical release. Claimant argues that, because he is still employed by HER and did not receive a full medical release, he remains totally disabled. Further, Claimant contends that the Board erred as a matter of law because it did not sufficiently set forth its reasons for denying Claimant partial disability benefits. Finally, Claimant asserts that the Board's decision to rely upon Dr. Gelman's testimony — that Claimant's lumbar strain and sprain returned to baseline in December 2008 — was not based on substantial evidence.
HER responds that the Board was correct not to apply the Hoey Doctrine when it terminated Claimant's total disability benefits, because the Board found that Claimant's condition returned to baseline in December 2008. For the same reason, HER contends, the Board was correct not to apply the Hoey Doctrine when it concluded that Claimant is not entitled to partial disability benefits. HER asserts that there was substantial evidence supporting the Board's decision to accept Dr. Gelman's testimony over Dr. Guiliani's testimony.
DISCUSSION The Hoey Doctrine does not apply to the Board's termination of Claimant's Total Disability Benefits or the Board's determination that Claimant is not entitled to Partial Disability Benefits.When the Board considers a petition to terminate disability benefits, "[t]he burden upon the employer [is] to show that the disability [has] terminated, entirely or partially, or that any continued disability was not the result of the accident." If the employer satisfies this burden, the claimant generally may rebut by showing that he is a "displaced worker." A worker is displaced if he "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." However, if the Board determines that the claimant's remaining restrictions solely relate to pre-existing injuries or conditions, the claimant is not entitled to total or partial disability benefits. If the Board's decision is supported by substantial evidence, the Court need not consider whether the claimant is a displaced worker.
Bd. Of Pub. Educ. in Wilm. v. Rimlinger, 232 A.2d 98, 101 (Del. 1967).
Torres v. Allen Family Foods, 672 A.2d 26, 30 (Del. 1995) (citing Franklin Fabricators v. Irwin, 306 A.2d 734, 737 (Del. 1973)).
Id. (citing Ham v. Chrysler Corp., 231 A.2d 258, 261 (1967)).
Farrelly v. State, 1995 WL 339027, at *3 (Del. Super.); Chickadel v. Delmarva Power and Light Co., 1992 WL 9059, at *3 n. 3 (Del. Super.).
Farrelly, 1995 WL 339027, at *3; Chickadel, 1992 WL 9059, at *3 n. 3.
If the Board's determination — that Claimant's remaining restrictions solely relate to his pre-existing condition — is supported by substantial evidence, the Court need not apply the Hoey Doctrine to decide whether Claimant is a displaced worker.
The Court finds that the Board's determination that Claimant's remaining restrictions do not relate to the August 14, 2008 accident is supported by substantial evidence. The Board found persuasive Dr. Gelman's finding that "Claimant's lumbar sprain or strain resulting from the work injury returned to baseline by December 2008." The Board, within its discretion, weighed the evidence and considered conflicting expert medical testimony. The record shows that Dr. Gelman thoroughly reviewed Claimant's medical records, including MRIs and an EMG, and examined Claimant twice. Finally, the Board considered that Dr. Derkrikorian's opinion is consistent with Dr. Gelman's opinion.
The Court finds that the Board's decision is based on substantial evidence that a reasonable mind would accept as adequate to support the conclusion that Claimant's ongoing symptoms are unrelated to the August 14, 2008 injury. As a result, the Court need not consider whether Claimant is a displaced worker and whether the Hoey Doctrine applies. Therefore, the Board did not commit legal error by failing to consider the Hoey Doctrine when it terminated Claimant's total disability status and declined to award partial disability benefits. Because the Court finds that the Board was correct not to apply the Hoey Doctrine, it need not consider whether HER provided Claimant with proper notification that it could not accommodate Claimant with light duty work.
The Court acknowledges that the Board found that Claimant is not entitled to partial disability benefits because HER notified Claimant that no light duty work was available pursuant to the Hoey Doctrine. Thus, the Board erred as a matter of law by considering whether HER notified Claimant that it intended to terminate his employment pursuant to the Hoey Doctrine. Nonetheless, consistent with this Court's decision, the Board correctly concluded that Claimant is not entitled to partial disability benefits. Therefore, the Board's legal error is harmless.
The Board did not commit legal error by disregarding the CBA.
Because the Court finds that the Board's determination that Claimant's ongoing symptoms are unrelated to the August 14, 2008 injury is free from legal error and supported by substantial evidence, the terms of the CBA are irrelevant. Claimant is not entitled to total or partial disability benefits because his injuries relate to a pre-existing condition.
The Board set forth sufficient reasons for denying Claimant partial disability benefits.
The Board considered and weighed the detailed testimony of expert medical witnesses. This is precisely the type of evidence the Board is required to consider. The sequence of events, Claimant's medical records, and Claimant's work history with HER are essentially undisputed. Therefore, the Court finds that the Board sufficiently justified its decision to deny Claimant partial disability benefits. Again, Claimant is not entitled to total or partial disability benefits because his injuries relate to a pre-existing condition.
CONCLUSION
The Board did not commit legal error by failing to apply the Hoey Doctrine when it considered HER's Petition to Termination Claimant's Total Disability Benefits. The Board's decision to terminate Claimant's total disability benefits is supported by substantial evidence that Claimant's ongoing symptoms are related solely to his pre-existing condition. The Board committed legal error by considering the Hoey Doctrine when concluding that Claimant is not entitled to partial disability benefits. However, because the Board determined that Claimant's ongoing symptoms solely relate to his pre-existing condition, he is not entitled to partial disability benefits. Therefore, the error is harmless. The Board did not commit legal error by disregarding the CBA because it found that Claimant's ongoing symptoms solely relate to his pre-existing condition. The Board set forth sufficient reasons for denying Claimant partial disability benefits by finding that Claimant's ongoing symptoms solely relate to his pre-existing condition. THEREFORE, the Court hereby AFFIRMS the Board's decision in its entirety.
IT IS SO ORDERED.