Opinion
C.A. No. 00A-02-008
Date Assigned: January 17, 2001
Decided: May 15, 2001
On the State's Appeal from the Decision of the Industrial Accident Board.
J. R. Julian, Esquire, Attorney for the Appellant.
Joseph W. Weik, Esquire, Attorney for the Appellee.
OPINION AND ORDER
The matter before the Court concerns an appeal by the State of Delaware from a decision rendered by the Industrial Accident Board granting workmen's compensation benefits to Betsy A. Stevens, a former employee of the State of Delaware.
FACTS
Ms. Stevens injured her lower back and groin on January 27, 1994, when she slipped on ice during the course of her employment with the Red Clay Consolidated School District. She first received treatment for those injuries from Dr. Carl Smith, but because little improvement resulted from Dr. Smith's treatment, Ms. Stevens eventually sought treatment from Dr. Steven Hershey. Dr. Hershey initially treated her complaints conservatively, but eventually performed surgery on her back to repair a lumbar disc herniation on August 8, 1997.
Several days after returning home from that surgery, Ms. Stevens fell while taking a shower. At that point in time she appeared to have been making progress recovering from the injury and subsequent surgery. The fall interrupted and reversed that progress, exacerbating the injury to her back. Shortly thereafter, Dr. Hershey ordered an MRI of Ms. Stevens' back which revealed a "large extruded recurrent disc rupture." Hr'g Tr. at 42. Further surgery was deemed necessary and was performed by Dr. Hershey on March 17, 1998. Ms. Stevens last treated with Dr. Hershey on October 1, 1998, but has continued treatment since with her family physician, Dr. Domingo Singson.
Magnetic resonance imaging: An imaging technique used primarily in medical settings to produce high quality images of the inside of the human body.
Ms. Stevens began receiving total disability benefits from the State as of January 28, 1994, the day following her work-related injury. Those benefits were terminated as of October 1, 1997, which was the date that the State determined that she would have returned to work, but for the renewed difficulties she experienced following her fall in the shower in August 1997. On November 9, 1997, Ms. Stevens filed a petition with the Board seeking disability benefits pursuant to 19 Del. C. § 2324. The State opposed that petition, alleging instead that the ailments suffered by Ms. Stevens were the result of longstanding back problems, not related to the accident she suffered at work. A hearing on the petition was held on January 5, 2000.
Appearing by deposition testimony on behalf of Ms. Stevens were Doctors Steven Hershey and Domingo Singson. Ms. Stevens testified in person. The State relied on the testimony of Doctors Richard J. Morris and Martin Gibbs. Robert Stackhouse, a vocational expert, also testified on behalf of the State.
Dr. Hershey testified that he first examined Ms. Stevens on December 18, 1996. At that time, Dr. Hershey diagnosed her with a lumbar disc herniation and attributed that injury to the 1994 workrelated fall. He stated that throughout his treatment of Ms. Stevens, her symptoms continued to worsen. While the fall in the shower exacerbated her symptoms, Dr. Hershey indicated that the fall would have produced no significant injuries absent the workrelated injury. He opined that at the time he began seeing her, Ms. Stevens was totally disabled and unable to perform any job until 1998, when he released her to perform light duty work. However, it was his opinion that she could not return to her previous employment with the State.
Dr. Singson began treating Ms. Stevens on March 2, 1999. He testified that Ms. Stevens remains disabled and unable to return to any type of gainful employment. Dr. Singson also confirmed Dr. Hershey's conclusion that Ms. Stevens' back injuries are a result of the work-related injury.
Dr. Morris indicated that he had treated Ms. Stevens on six occasions beginning on February 26, 1994. He noted that Ms. Stevens had been involved in a motor vehicle accident on May 1, 1976 and had fallen at a convenience store on October 12, 1982. He testified that Ms. Stevens suffers from degenerative disc changes and small annular bulges, which he attributes to aging and osteoarthritis, as opposed to the work-related accident about which she complains.
Reference was also made to another incident which Dr. Morris felt was significant. Specifically, Dr. Morris stated that at Ms. Stevens' appointment with him on August 4 or 5, 1995, she claimed that a man grabbed her around the neck as she was leaving the office of the Union Street Insurance Company and attempted to drag her back into that establishment. That action, he testified could have been the cause of Ms. Stevens' right leg numbness. He went on to question the validity of Ms. Stevens complaints, which he opined were exaggerated and completely inappropriate based upon his assessments. Finally, it was his opinion that Ms. Stevens could perform light duty or sedentary work. Dr. Gibbs confirmed that assessment.
Mr. Stackhouse's testimony focused on a labor market survey that he prepared, identifying the availability of, and pay associated with employment openings occurring during Ms. Stevens' disability. This study and his testimony is not relevant to the issues before the Court.
At the conclusion of the hearing, the Board awarded Ms. Stevens total disability for the period of October 1, 1997 to October 1, 1998. Partial disability benefits were also awarded for a loss of earning capacity as well as for medical expenses, expert witness fees and attorney's fees. In reaching its decision, the Board relied primarily upon the testimony of Dr. Hershey. Specifically, in relevant part, it stated:
. . . Dr. Hershey's testimony is more reliable because he followed Claimant's treatment over a period of time and he performed two surgeries. In addition, the Board finds convincing Dr. Hershey's opinion that discs do not always herniate immediately, but with injury are weakened and, over time, progress to herniation and nerve root irritation . . .Stevens v. State, Indus. Accident Bd., Hearing No. 1020170, (Jan. 19, 2000) (Bd. Dec. at 10). The Board found the testimony of Dr. Gibbs to be less convincing because he did not examine Ms. Stevens until after the second surgery. Id. It did not find the testimony provided by Dr. Morris persuasive because his testimony was viewed as misleading and contradictory. Id.
The State first contends that the Board erred as a matter of law by accepting and relying on the testimony of Dr. Hershey. More specifically, it complains that the Board erred because Dr. Hershey's testimony did not meet the requisite level of reliability required under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and the Delaware Rules of Evidence, and that his testimony did not constitute substantial evidence which would support the Board's decision. Ms. Stevens counters that the State stipulated to Dr. Hershey's qualifications and did not make timely objections to his qualifications or testimony he rendered. As a result, she contends that the State is precluded from raising the issue on appeal.
The State's second argument is that the Board's factual determinations of the causal relationship between the work-related accident and the surgeries are not supported by substantial evidence. Ms. Stevens, as might be expected, asserts that the necessary quantum of evidence to sustain the Board's decision was placed in the record.
On June 5, 2000, following receipt of the State's opening brief in support of its appeal, Ms. Stevens filed a motion to affirm the Board's decision pursuant to Superior Court Civil Rule 72.1. That motion was subsequently denied by the Court. The briefing was then resumed and completed. That which follows is the Court's resolution of the issues so presented.
DISCUSSION
When reviewing decisions of administrative agencies on appeal, this Court must determine whether the decision 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 first contention to be addressed in the argument by the State that the Board's acceptance of Dr. Hershey's testimony violated the standards for admissibility of scientific evidence articulated by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals. Inc., 509 U.S. 579 (1993). However, whether or not a Daubert analysis was required before Dr. Hershey testified need not be addressed for the purpose of this appeal. The State stipulated to Dr. Hershey as a medical expert and failed thereafter to object to his testimony at the time it was received. The proper time to make objections to an expert's qualifications or proffered testimony is at trial; not on appeal. Yankanwich v. Wharton, Del. Supr., 460 A.2d 1326 (1983). Consequently, the only conclusion that can be reached is that there was no legal error and that the State waived the right to pursue this issue on appeal.
As indicated above, the State asserts that Dr. Hershey's opinion does not constitute substantial evidence and that the Board's reliance thereon renders its decision void. It argues that when his treatment of Ms. Stevens commenced, he requested only certain medical records and relied chiefly upon oral assertions of Ms. Stevens concerning the cause of her injuries. Because Dr. Hershey did not base his opinion on Ms. Stevens' complete medical history, the State argues that his diagnosis does not meet the requirements of Daubert, and is therefore unreliable.
However, Daubert is not the standard to which the substance of the Board's decision must be measured. As stated throughout this opinion, that standard is substantial evidence. Stoltz at 1208. "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). In addition, "[t]he Board is freely authorized to accept opinion testimony of one expert and summarily disregard the opinion testimony of another expert." Downes v. State, Del. Super., C.A. No. 92A-03-006, Graves, J. (1992).
In light of the aforementioned, it is clear that the Board was empowered to accept the opinion of Dr. Hershey, in whole or in part, and reject the testimony of the other testifying experts to the extent it deemed appropriate. The Board articulated it reasons for accepting Dr. Hershey's diagnosis and opinions regarding Ms. Stevens' medical condition. Having examined those reasons along with the balance of the record, the Court is satisfied that the Board's reasoning was sufficiently grounded and constitutes substantial evidence. As a result, the State's challenge in this regard must fail.
The remainder of the challenge raised by the State concerns findings by the Board relative to the existence of a causal relationship between the work-related accident and the surgeries. The essence of the State's argument is that the Board's decision is not supported by substantial evidence given the injuries suffered by Ms. Stevens both before and after the work-related accident. Unfortunately for the State, a review of the record before the Board requires a contrary conclusion.
The State cites to Jordan v. Sears Roebuck Co., Del. Super., C.A. No. 95A-05-013, Silverman J. (Nov. 29, 1995) (ORDER), where the claimant, who was suffering from a congenital knee problem, suffered an injury in a work-related accident to that same knee. The Board held that the pre-existing condition was the cause of the claimant's injuries and not the work-related fall. The State contends that Ms. Stevens' prior injuries are likewise the cause of her back problems and not the work related fall.
The State also cites to Owen v. State, Del. Super., C.A. No. 96A-03-001, Barron, J. (Oct. 17, 1996) (ORDER), where the Board held that an event occurring after the work-related accident was the event that caused the claimant's injury and therefore held the employer was not responsible for the same. The State analogizes the assault on Ms. Stevens to the intervening event in Owen, which it contends absolves the State of liability to Ms. Stevens.
However, the rule of law to be gleaned from these cases is not that when an employer shows the existence of a prior or intervening injury, the reviewing court should overrule a decision in favor of the employer. Rather, the applicable rule of these cases is that the Board may find that a prior of intervening event was the cause of the injury, and if supported by substantial evidence, this Court must affirm the Board's findings. These cases are not controlling and do not require this Court to overrule the Board's decision. Again, the function of this Court is to examine only the evidence presented to the Board and determine whether it is "substantial" and sufficient to support the decision reached. Stoltz at 1208.
In this regard, Dr. Hershey testified that disc herniations are capable of, and often do, become more and more clinically significant over time. It was his opinion that Ms. Stevens did in fact suffer a slight herniation of a lumbar disc in the workrelated fall. He asserted that this slight herniation progressed to the point where surgery was ultimately required. Stated differently, according to Dr. Hershey, the work-related accident was the precipitating event, which over time necessitated the first surgery. Moreover, no intervening events occurred which could have caused the herniation.
In sum, Dr. Hershey's testimony constitutes substantial evidence upon which the Board could reasonably rely in reaching its conclusion that the work-related fall was the causal factor necessitating the first surgery.
The State also attacks the Board's reliance on Dr. Hershey's opinion that the second surgery is causally related to the workrelated accident. Dr. Hershey testified that the work related accident set in motion a string of events that ultimately caused the second surgery. In particular, he testified that without the initial work-related injury, the slip-and-fall in the shower would have been a nonevent. Ms. Stevens' physical condition following the work-related injury and the first surgery, the doctor opined, necessitated the second surgery. This opinion is based on valid reasoning and a rational methodology, and therefore constitutes substantial evidence.
CONCLUSION
For the reasons set forth above, the Court must conclude that the decision of the Industrial Accident Board is free from legal error and supported by substantial evidence. The appeal by the State of Delaware must therefore be denied and that decision affirmed.
IT IS SO ORDERED.