Summary
noting that the Board found for claimant and awarded temporary partial disability benefits from date of termination " ongoing"
Summary of this case from Merritt v. United Parcel ServiceOpinion
No.: 98A-04-002-RSG.
Date submitted: February 22, 1999.
Date decided: May 18, 1999. Opinion Affirmed: February 8, 2000.
Upon Review of Employer-Appellant's Appeal from Decision of the Industrial Accident Board, AFFIRMED.
Nancy E. Chrissinger, Esq., Chrissinger Baumberger, Wilmington, Delaware, for Employer-Appellant Delaware Supermarkets.
Gordon L. McLaughlin, Esq. and Richard T. Wilson, Esq., Wilmington, Delaware, for Employee-Appellee Terry Alphin.
OPINION AND ORDER
This is the Court's decision on Employer-Appellant Delaware Supermarkets ("Employer")'s Appeal from the Industrial Accident Board ("Board")'s decision of December 15, 1997 awarding Employee Terry Alphin ("Claimant") medical expenses, transportation expenses, permanent partial impairment and temporary partial disability benefits. The Board also determined that Claimant's medical witness fees and his reasonable attorney's fees could be taxed against the appropriate carrier.
There are two employer/carriers in this case — Delaware Supermarkets and Shaffer's Market. The case was consolidated for the purposes of the Board hearing, but have now been issued separate Case Numbers as the arguments on appeal differ. This opinion deals solely with the arguments and contentions set forth by Delaware Supermarkets.
I. Background
A. Claimant's Injury and Return to Work
Claimant was employed as a stock person at the ShopRite Supermarket in Stanton, Delaware, from 1984 until he was terminated in December, 1996. On May 21, 1993, while helping to unload a large mixer for the Bakery department, the mixer fell against Claimant, pushing him against a wall. Claimant fell to the floor and the mixer was partially on top of him. As a result of this accident, Claimant experienced back and shoulder pain. Claimant initially received medical care from his primary care physician, David Maged, M.D.. In late July, 1993, Craig Sternberg, M.D. and William Newcomb, M.D. treated Claimant for his back and shoulder pain.
It was not Claimant's normal work duties to unload trucks. The mixer that caused Claimant's injury stood over five feet high, was made of metal and weighed between 1200 and 1500 pounds. (Tr. Bd. Hr'g of 12/15/97 at 39-42).
After an initial period of total disability, Claimant returned to work in September, 1993. Claimant worked back into a fall time schedule.
In 1995, Claimant consulted David Sowa, M.D. for right hand pain. Claimant's hands were continually cold and throbbing; he also suffered numbness and tingling in his hands. Eventually, Claimant had "clicking" and "popping" in his right hand, as well as a fluid build-up, for which Dr. Sowa performed surgery in October, 1995. Dr. Sowa operated on Claimant's right carpal tunnel and right middle finger. The surgery somewhat alleviated Claimant's symptoms. In December 1995, Dr. Sowa operated on Claimant's left carpal tunnel. Dr. Sowa also performed two additional surgeries on Claimant's hands during the spring of 1996.
Claimant returned to work on July 7, 1996. His restrictions included no repetitive use of his hands, no working in a cold room, no working on a register, no lifting more than 25 pounds and limitations on overhead work, bending and stretching.
Employer contends that in late 1996 it had positions available in various departments which fit within Claimant's restrictions, including: front end cashier, hot foods cashier, price checking, doing returns, manning the courtesy booth, greeter and supervising baggers. When Claimant returned to work, Claimant began doing advertisement checking, but he was reassigned to a register in hot foods after a couple of days. He was also assigned to scrub shelves and to do damages and removals of the frozen/dairy foods that had passed their expiration date. Claimant had been offered a job in customer service; however, the customer service manager indicated to Claimant that the job was outside of his restrictions.
Throughout the fall of 1996, Employer gathered restrictions from Claimant's various doctors, and on December 3, 1996, Employer created a job for Claimant consisting of two hours of advertisement checking, two hours of returns and four hours of supervising baggers and directing customers through the check out lines. These job duties were then discussed with Claimant. On December 5, 1996, Claimant contacted Shirley Bonk of Employer's Personnel Department and informed Ms. Bonk that his rheumatologist, Daniel Burge, M.D., had placed Claimant off of work for hand problems until January 4, 1997. Ms. Bonk testified that while she did not have any reason to doubt that Claimant was telling the truth, she required formal paperwork regarding such orders, and further, did not have any formal record, aside from Claimant's phone call, that Dr. Burge was treating Claimant. On December 19, 1996, Employer received final restrictions on Claimant from Dr. Sowa. Ms. Bonk directed a letter, dated December 20, 1996, to Claimant scheduling him to return to work in the position of courtesy booth as in accordance with Dr. Sowa's restrictions. Claimant, following Dr. Burge's orders, did not return to work. Ms. Bonk testified that sometime before Christmas, perhaps on December 23, 1996, Claimant's wife presented Ms. Bonk with Dr. Burge's disability certificate, keeping Claimant off of work until January, 1997.
Claimant and Employer did not have any further contact, and Claimant did not return to work. Ms. Bonk stated at the hearing that had Claimant contacted Employer in January, 1997, the job would have remained available to Claimant at his same rate of pay.
B. Medical Diagnoses and Treating Physicians
Because of the several physicians involved in this matter and in Claimant's treatment, this section will briefly illustrate their roles and relevant testimony.
Claimant's injuries resulted in a permanent partial impairment to his low back of 8% and 17% impairment to his left shoulder. Claimant developed bilateral carpal syndrome and trigger fingers in the left and right index and middle fingers. As a result of these injuries, Claimant has permanent partial impairments of 5% to each hand.
After the accident, Claimant consulted his family physician, Dr. Maged, who referred Claimant to Dr. Steinberg in late July, 1993. Dr. Sternberg prescribed home exercises, and Claimant treated with Dr. Steinberg until 1996.
In December, 1993, Claimant was referred to Dr. Newcomb, who treated Claimant with injections and physical therapy for shoulder and lower back problems. Dr. Newcomb prescribed an MRI in June, 1994 and performed surgery in December, 1995.
Claimant was referred to Dr. Sowa in late August, 1995 as a result of Claimant having developed a cold sensitivity, loss of sensation, pain and numbness in his hands. Dr. Sowa performed surgery on Claimant in October and November, 1995 and in Spring, 1996. Dr. Sowa placed restrictions on Claimant in July, 1996. Dr. Sowa took Claimant out of work in early November, 1996.
Claimant began to see Dr. Burge in November, 1996. Dr. Burge disabled Claimant from work in December, 1996 for a 30 day period. When Employer instructed Claimant to return to work on December 19, 1996, Claimant responded that he had instructions from Dr. Burge to not return to work until Dr. Burge performed further evaluation.
The job that Employer offered to Claimant in November, 1996 did not conform to Claimant's physician-imposed restrictions.
C. Procedural History
As a result of his injuries, Claimant sought temporary total disability from December 3, 1996 to July 1, 1997. Claimant also sought temporary partial disability benefits from August 29, 1997 and ongoing and the payment of medical expenses and transportation expenses. As to the Employer in this instance, the Board considered claims that Claimant developed bilateral carpal tunnel syndrome and trigger fingers in the left and right index and middle fingers as well as cold sensitivity as a result of his repetitive work and working in the cold while employed with Employer. The Board further considered: (1) Claimant's claim for a permanent partial impairment of 5% to each hand; (2) Claimant's claim of temporary total disability from December 3, 1996 to July 1, 1997; and (3) the claim of temporary partial disability benefits from August 29, 1997 ongoing.
As against Shaffer's, the Board considered Claimant's claims of injuries to the left shoulder, neck and mid and lower back. The Board also considered Claimant's claim that he suffered a permanent partial impairment to his low back and left shoulder. No further discussion of the Board's findings as against Shaffer's will ensue.
The Board concluded that the bilateral carpal tunnel syndrome and trigger fingers were related to Claimant's work at Shop-Rite and that Claimant had suffered a 5% permanent impairment to each hand. The Board rejected Claimant's claim for temporary total disability, but did find in Claimant's favor as it related to temporary partial disability commencing on the date he was terminated from his employment at Shop-Rite.
On April 3, 1998, Delaware Supermarkets filed its appeal with this Court. This is the Court's decision on appeal.
D. Arguments
On appeal, Employer sets forth three arguments in support of this appeal. Employer first contends that the Board erred in awarding Claimant temporary partial disability benefits when Employer offered and Claimant refused a position within his work restrictions at his regular rate of pay.
Second, Employer contends that the Board erred in relying on the testimony of Ms. Joycelyn Langrehr in awarding loss of income because Ms. Langrehr's testimony was based on the Labor Market Survey that the Employer had prepared but never entered into evidence.
Finally, Employer argues that there was not sufficient evidence to support the Board's award of permanent partial disability to each of Claimant's hands. In support of this contention, Employer argues that the weight of the evidence demonstrated that Claimant's hands had been returned to their pre-accident condition.
Claimant contends that the Board's decision awarding Claimant temporary partial disability benefits and permanent partial disability benefits against Delaware Supermarkets was proper and supported by substantial competent evidence because a position that was offered to Claimant was not offered to Claimant after Employer learned of Dr. Burge's no work order in December, 1997. As such, Claimant contends that he did not refuse a position within his work restrictions.
Second, Claimant contends that the Board properly relied on the testimony of Ms. Jocelyn Langrher in awarding partial disability benefits.
Finally, Claimant contends that there was sufficient evidence to support the award of permanent partial disability to each of Claimant's hands.
II. Standard of Review
The Supreme Court and this Court have repeatedly emphasized the limited appellate review of the factual finding of an administrative agency. The function of the reviewing Court is to determine whether the agency's decision is supported by substantial evidence. The substantial evidence requirement can be defined as 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, but rather it merely determines if the evidence is legally adequate to support the agency's factual findings.
Johnson v. Chrysler Corporation, Del. Supr., 164 A.2d 64 [ 213 A.2d 64], 66-67 (1965); General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960).
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), app. dism., Del. Supr., 515 A.2d 397 (1986).
Johnson v. Chrysler Corp., 213 A.2d at 66.
III. Discussion
A. Employer's Offer of Position Within Claimant's Work RestrictionsOn a petition to determine additional compensation due, the claimant has the burden of proof, and with regard to the temporary partial disability claim filed by Claimant, the Board concluded that he was entitled to temporary partial disability benefits. In awarding Claimant the benefits, the Board stated that the position created by Shop-Rite was a specially created job in that the "job duties were pulled together from other positions in order to create a position in which the employer believed the claimant could work. In addition, the employer did not communicate those job duties to the claimant after learning of Dr. Burge's no work order."
Bd. Decision 12/15/97 at 32.
1. The Board's Reliance on the Specially Created Job Doctrine
Employer contends that the Board's reliance on the specially created job doctrine is erroneous because the specially created job doctrine applies only in determining whether or not a claimant is a displaced worker.The seminal case in the area of displaced worker law is Ham v. Chrysler Corp., and while Ham discusses the specially created job doctrine as the basis for awarding total disability to a claimant, Ham does not indicate that a court is unable to consider whether a job is specially created in cases where a claimant is not claiming to be a displaced worker. This Court's finding that Ham does not limit the use of the doctrine to displaced worker analysis, however, is not dispositive of this issue.
Del. Supr., 231 A.2d 258 (1967).
2. Claimant's Response to Employer's Job Offer in December, 1996
More important than the Board's alleged reliance on a doctrine allegedly exclusively reserved for displaced worker analysis is Claimant's alleged voluntary refusal to accept the specially created job. It is clear from the record that Ms. Bonk was initially unaware that Claimant was treating with Dr. Burge, the doctor who placed Claimant off of work until January 1997. On December 5, however, Claimant contacted Shirley Bonk of Employer's Personnel Department and informed Ms. Bonk that Dr. Burge had placed Claimant off of work for hand problems until early January, 1997. Ms. Bonk was only aware that Claimant was treating with Dr. Sowa, and that on December 19, 1996, Dr. Sowa had released Claimant back to work subject to various restrictions. Ms. Bonk directed a letter, dated December 20, 1996, to Claimant scheduling him to return to work in the position of courtesy booth as in accordance with Dr. Sowa's restrictions. Claimant, following Dr. Burge's orders, did not return to work. On December 23, 1996, Claimant's wife presented Ms. Bonk with Dr. Burge's disability certificate, keeping Claimant off of work until January 1997. Claimant and Employer did not have any further contact, and Claimant did not return to work.
Employer cites Watson v. Computer City for the proposition that if an employee voluntarily leaves a job within his restrictions with his employer, then that is enough to meet the employer's burden that the employee is no longer entitled to partial disability benefits.
Hearing No. 1103532 (May 4, 1998).
Employer takes issue with the Board's conclusion that there was no job offered to Claimant for him to refuse, and that therefore, Claimant did not voluntarily leave his job with Employer. It is established that when a claimant voluntarily leaves employment, the claimant is not eligible to receive disability payments. However, whether a claimant has voluntarily refused employment requires factual analysis.
See e.g., Sharpe v. W.L. Gore and Assoc., Del. Super., Civ.A. No. 97A-10-017, Silverman, J. (May 29, 1998) (discussing what constitutes voluntary refusal of employment); Turnbull v. Perdue Farms, Inc., Del. Super., Civ.A. No. 96A-07-002, Lee, J. (Mar. 26, 1997) (same); Moore v. Perdue, Inc., Del. Super., Civ.A. No. 90A-09-001, Lee, J. (Jan. 2, 1991) (same).
The facts in Littleton v. Townsend's, Inc. are somewhat similar to the case sub judice. In Townsend's, the claimant informed her employer the day after she visited her doctor that she was unable to perform the light duty job she had recently been given. The claimant did not have a statement from her doctor indicating as such, and in fact, the only communication the employer had from the doctor was that the claimant could perform the light duty job. The doctor wrote a letter to the employer six days after the claimant's office visit, and the doctor did not indicate that the claimant was unable to perform the light duty job. The employer, therefore, had no indication at any time, other than the claimant's word, that the claimant's doctor had disapproved of the light duty position. The Board in Townsend's held that in the absence of a note or a further verbal message, the employer continued to believe that the light duty position was approved for the claimant. Moreover, the Board found that the claimant failed to meet the burden that she left her employment for good cause because she failed to show that her doctor advised her that she could not perform the light duty job.
Del. Super., Cr.A. No. 95A-07-002, Graves, 1. (July 26, 1996).
Contrary to the facts in Townsend's, Ms. Bonk received Dr. Burge's restrictions on Claimant's return to work from Claimant's wife three days after Ms. Bonk addressed a letter to Claimant requiring him to return to work. Unlike the employer in Townsend's, therefore, Employer in this case had no question as to whether Claimant did, in fact, have a doctor's advisement on job restrictions; that is, Employer received confirmation that Dr. Burge was one of Claimant's treating physicians, and that Dr. Burge required Claimant to be out of work until early January. 1997.
Employer further contends that because Claimant did not call in January. 1997 to inform Ms. Bonk of when he could return to work, he is not entitled to disability payments. Employer states that Ms. Bonk could not have known whether he was able to return to work in January, 1997 or if Dr. Burge had taken Claimant out of work for another four weeks. Employer states, "Ms. Bonk is not a mind reader and placing an affirmative duty on [Employer] to re-offer a position . . . requires her to be one." On the contrary, once Ms. Bonk was notified of Dr. Burge's restrictions, she had an ample opportunity to re-construct and/or follow-up her letter to Claimant of December 20, 1996 regarding his start date of the specially created job, bearing in mind Dr. Burge's restrictions.
Appellant's Reply Brief at 5, Delaware Supermarkets v. Alphin, C.A. No 98A-04-002-RSG.
Because Employer had notification of Claimant's work restrictions, therefore, Claimant did not voluntarily refuse Employer's December, 1996 job offer. Accordingly, the Board did not err in holding that the Employer's failure to communicate job duties to Claimant after learning of Dr. Burge's no work order allowed Claimant to meet his burden of proving a loss of earning capacity necessary for an award of temporary partial disability benefits.
B. Testimony of Jocelyn Langrher, Vocational Expert
Employer contends that the Board erred in relying on the testimony of Ms. Joycelyn Langrehr in awarding loss of income because Ms. Langrehr's testimony was based on the Labor Market Survey that the Employer had prepared and never entered into evidence. In response, Claimant contends that the Board properly relied on the testimony of Ms. Jocelyn Langrher in awarding partial disability benefits.
In support of Employer's position on this issue, Employer cites and relies on Kump v. Quaker City Motor Co. In Kump, the vocational rehabilitation expert testified that he prepared a labor market survey based on the claimant's medical records. The parties began the hearing with the expectation that the doctor, upon whose findings the expert's report was based, would testify. When the employment expert was called to testify, the claimant objected to the testimony on the grounds that there was some confusion regarding the testimony of the doctor pertaining to the physical limitations of the claimant. This Court, citing D.R.E. 703, stated that experts can testify as to an opinion based on medical reports provided to them. "However," this Court stated, "the weight of the testimony is limited by the strength of the facts which form the foundation for the testimony," and ultimately determined that the record lacked substantial competent evidence to support the board's finding. The apparent reason for this Court's holding is that when the vocational expert was asked a specific question which would have required interpreting the doctor's notation of assessment, the expert stated, essentially, that she did not know and that the doctor should be consulted. As such, a question remained as to what was the claimant's medical condition. This Court stated "[t]he deficiency in this case is the absence of the medical testimony which forms the basis for the testimony" of the vocational expert. "Without that evidence as a foundation, the Board is speculating about the extent of the claimant's physical limitations . . ."
Del. Super., Civ.A. No. 93A-09-009, Del Pesco, J. (Oct. 6, 1994).
Id. at 3. Delaware Uniform Rules of Evidence Rule 703 states,
[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Kump, supra n. 5, at 3.
Employer uses the Kump case as the pinnacle of this Court's stand on the use of medical records for the basis of an opinion and report formed by an expert vocational rehabilitation specialist. Unlike the situation in Kump, in the case sub judice, there was no such question as to the reliability of the medical records. The Board did not have to speculate; in fact, cross-examination by Employer of Ms. Langrher clearly demonstrated that this case is different from Kump in that Ms. Lengrher spoke directly with Claimant's treating physicians and ascertained Claimant's physical limitations so that her report was based on substantial evidence.
The Labor Market Survey upon which Ms. Langrher relied was prepared by Danny O'Neil, a vocational rehabilitation specialist that was retained by Employer specifically for this case. Employer listed Mr. O'Neil as a witness, but never called him to testify. Regardless, Ms. Langrher reviewed Mr. O'Neil's labor market survey. She testified that she reviewed each of the jobs listed in the survey and job requirements with respect to the physical requirements and academic or mental requirements. As such, Ms. Langrher personally verified the information contained in the survey. She testified as to her personal familiarity, based on her professional experience, with job requirements and pay scales mentioned in Mr. O'Neil's report.
Tr. Bd. Hr'g of 12/15/97 at 142.
Id.
See Id. at 142-50, 153.
Furthermore, Ms. Langrher prepared her own vocational reports after having spoke with Claimant in 1997. She reviewed all of the medical records in the case, and she was aware of the restrictions placed on Claimant and the medical reasons therefor. She discussed with Claimant his education, work history and earnings.
Id. at 129-30.
Id. at 131. Claimant met with Drs. Sternberg, Newcomb, Burge, Sowa, Case and Gelman. The only doctor she did not see was Dr. Fink.
Id. at 131-36.
There was no issue subject to interpretation within the records upon which Ms. Lengrher relied. Moreover, in conformance with D.R.E. 703, such records are exactly the type of evidence relied upon by experts in the field of forming opinions or inferences upon a claimant's extent of disability and return-to-work ability. As such, the Board properly relied on the testimony of Ms. Langrher in awarding temporary partial disability benefits.
C. Award to Claimant for Permanent Partial Impairment to his Hands
Employer argues that there was not substantial evidence to support the Board's award of 5% permanent impairment to Claimant's hands. Specifically, Drs. Sowa, Burge and Fink all agreed that Claimant's complaints about his hands after surgery exceeded any objective findings. Dr. Sowa testified that Claimant's grip strength was the same before and after the surgeries. Dr. Sowa testified that it would be difficult to evaluate Claimant's permanency of disability because most of Claimant's complaints were subjective, while there appeared no objective deficits.
Moreover, there was some question presented during Dr. Burge's testimony as to whether Claimant's complaints and difficulties with his hands were attributable to work activities or to daily personal activities.
Dr. Fink stated that he would support a finding of permanent impairment only if the impairment was related to the work accident, but did not agree with Dr. Sowa that Claimant's condition was work-related. Dr. Fink did agree with Dr. Sowa that a rating of 5% impairment to each of Claimant's hands was reasonable based on his examination of Claimant and the medical records.
Claimant argues that "the Board is free to choose and rely upon a particular expert over another and that such reliance is not grounds for reversal as substantial evidence is present to support the Board's decision." It is true that the Board is free to determine credibility of the witnesses and evidence presented and that the Board may rely upon one expert over another; however, when the Board makes such determinations, substantial evidence for the determination must exist. In the case sub judice, the doctor's agree that a 5% impairment to each of Claimant's hands is an accurate and reasonable assessment, but whether substantial evidence exists to support the contention that the impairment is work-related is in dispute in light of Dr. Sowa's assessment of grip strength and Drs. Burge and Fink's reservation as to the causality of the impairment.
Appellee's Opening Brief at 5, Delaware Supermarkets v. Alphin, C.A. No. 98A-04-002-RSG (emphasis added), citing Sears, Roebuck Co v. Farley, Del. Supr., 290 A.2d 639, 641 (1972), citing DeBernard v. Reed, Del. Supr., 277 A.2d 684 (1971).
The Court finds that while there is substantial dispute among the experts, there exists substantial evidence in the record to support the Board's conclusion, on the basis of the testimony of Drs. Fink, Sowa and Burge, that Claimant is entitled to an award of permanent partial impairment to his hands.
IV. Conclusion
For the foregoing reasons, the decision of the Board awarding Claimant temporary partial disability, based on the findings that Claimant did not voluntarily refuse a job offer and that the vocational rehabilitation expert's opinion testimony was proper, is AFFIRMED.
The decision of the Board awarding Claimant permanent partial impairment is AFFIRMED.
IT IS SO ORDERED.