Opinion
Civil Action Number 99A-10-006-JOH.
Submitted: January 11, 2000.
Decided. May 30, 2000.
Upon Motion of Employer Below, Appellee to Affirm- GRANTED
Decision of the Industrial Accident Board- AFFIRMED
Upon Motion of Employer Below, Appellee to Strike- DENIED
Joseph W. Weik, Esq., of Weik, Nitsche Dougherty, attorney for claimant below, appellant
Michael R. Ippoliti, Esq., of Michael R. Ippoliti, Attorney-at-Law, attorney for employer below, appellee
MEMORANDUM OPINION
Appellee Tompkins/Dearborn moves to affirm the decision of the Industrial Accident Board terminating appellant Darryl Allen's temporary total disability payments. Allen has appealed that decision. He has also appealed the Board's decision to exclude from evidence a copy of a Social Security decision. That decision awarded disability payments to him for apparently the same back condition as was at issue before the Board.
The Board's decisions will be affirmed without further briefing, if it is manifest from Allen's brief that (1) the issue on appeal is clearly controlled by settled Delaware law, (2) the issue on appeal is factual and clearly there is substantive evidence to support the Board's findings of fact or (3) the issue on appeal is one of administrative discretion and clearly there was no abuse of discretion. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
Superior Court Civil Rule 72.1(b).
Turbitt v. Blue Hen Lines, Inc., Del.Supr., 711 A.2d 1214, 1215 (1998).
In reaching the decision to terminate Allen's disability benefits, the Board chose to accept the testimony of Dr. Alan I. Fink. He determined there was no current objective sign of injury and saw no reason why Allen could not return to work without restrictions. The Board rejected the testimony of Dr. Charles R. Tessier, who had treated Allen and still was treating him on occasion and who said Allen could not return to work. Part of the Board's rejection of Dr. Tessier's testimony and Allen's claim was that it did not find Allen credible.
The Court holds that there was substantial evidence to support the Board's decision to terminate Allen's benefits. The Court also holds the Board was correct to exclude from evidence a copy of the Social Security decision.
FACTUAL BACKGROUND
Allen is forty-four years old and became an union worker around the age of 19 or 20. He was a member of the Iron Workers Union. In 1997, he resided in Louisiana but was sent here by his union to work on a refurbishing job at the Newark Chrysler Assembly Plant. While working there, he suffered a low back injury on February 6, 1997. Allen and Dearborn entered into an agreement whereby he was to receive temporary total disability payments. After a period of time, Dearborn moved to terminate those payments.
Allen told the Board that he has been unable to do any kind of work since the accident. At the time of the hearing, he was taking Lorset and Soma. He described his pain as a six or seven on a scale of ten. He said his pain was in the low back radiating down to his left foot. Allen testified he had difficulty sleeping and riding in a car for long periods of time. Because of his leg pain, he has difficulty sleeping.
Every three months, Allen rides eight hours each way from his current home in Arkansas to Dr. Tessier's office in Baton Rouge, Louisiana. He says his wife drives but they stop frequently. The visits are only for follow-up and medication renewal. Dr. Tessier, a general practitioner, started treating Allen on March 10, 1997. Dr. Tessier's diagnosis was lumbar muscle sprain. Before seeing him, however, Allen had seen an orthopedist whose examination was normal except for low back tenderness. Physical therapy and work hardening after the accident have not helped. Dr. Tessier said Allen's condition has remained the same for the last two years but the clinical neurological examination of his leg has been normal.
Allen underwent a MRI in April 1997, which was normal. A neurologist examined Allen on May 22, 1997. The examination of Allen's low back and legs showed everything was normal. An EMG was administered on June 2, 1997 and indicated a mild denervation of muscles corresponding to the L5 nerve root. In June and July 1997, Dr. Tessier observed only tenderness on Allen's low back. Physical therapy records from July 25, 1997 indicated a normal orthopedic and neurological examination of the low back and legs. Allen underwent a functional capacity evaluation on July 25th also which indicated he could return to light-duty work. The neurologist who examined him in May 1997 saw him again in January 1998. Allen no longer complained of low back pain, just radicular leg pain.
Dr. Fink saw Allen for Dearborn on March 26, 1999 which was around six months before the hearing. He had also reviewed a number of Allen's medical records. Based on his examination and that review, Dr. Fink told the Board that Allen's low back soft tissue injury had resolved as of February 1998 and that he was able to return to his regular job. Dr. Fink did state that, if Allen's complaints were as he said, he could not return to that line of work. There was no reason in any medical record or examination, Dr. Fink testified, why Allen would continue to suffer low back or leg pain.
The Board found Allen not credible. It based that decision on its personal observations, lack of objective findings and contradictions between the medical records and Allen's complaints.
While Allen was testifying, he mentioned he had received a Social Security disability award for his low back condition. The Board knew that fact, therefore, from Allen's testimony. In addition, his counsel sought to introduce a copy of the decision of the Social Security administrative law judge who granted the award. Dearborn objected. The Board upheld the objection, primarily because such a decision was not determinative of the issues before it.
A copy of the decision was made a part of the record to preserve Allen's appeal of the exclusion of that record. Allen has submitted a copy with his brief in this Court. Dearborn, however, views that submission as an effort to supplement the record. It has moved to strike it. The Court views Allen's submission not as an effort to improperly supplement the record the Board considered but as part of its appeal and a challenge to the exclusion.
DISCUSSION Social Security Award
This Court has held that the Board did not commit error when it excluded Social Security reports. In Jarman, this Court noted that the standards used for a Social Security disability award differ from those applicable to Board decisions. This Court cannot say the administrative law judge's decision in Allen's case is typical. But, the Court notes, as did the Court in Jarman, that the standards are different. Further, an examination of the decision in Allen's case shows there is no recital of medical evidence, whether any records were introduced or considered or whether the proceeding was anything more than pro forma.
Jarman v. Willow Grove Meats, Del.Super., C.A. No. 93C-07-OO1, Steele, R.J. (March 30, 1994); Hager v. Acme Markets, Del.Super., C.A. No. 99A-02-001, Alford, J. (February 7, 2000).
The two prior decisions of this Court found the Board's exclusion of the evidence of the award was not an abuse of discretion. The exclusion of the written copy in this case was clearly not an abuse of discretion. The determination is a little easier in this case. Although the Board excluded the actual copy of the decision, it knew from Allen that he had received it.
In addition to there being no abuse of discretion, the Board's decision was clearly controlled by settled Delaware law. For these reasons, Dearborn's motion to affirm the Board's decision to exclude the Social Security opinion will be granted.
Termination of Benefits
Allen challenges the Board's decision to terminate benefits. He makes several arguments in support of this claim. One, he says, since there was disagreement in the medical testimony, the Board should have reviewed the copy of the Social Security disability award. Two, there was no substantial evidence to support its decision. Three, Dr. Fink never said Allen was "cured" or that Allen's back condition had resolved. Fourth. Mien describes Dr. Fink as "well-known among the legal community as a neurologist who frequently testifies on behalf of employers and insurance carriers."
Appellant's Opening Brief at 8.
On appeal, this Court does not sit as the trier of fact with authority to weigh the evidence or determine issues of credibility. This Court will, therefore, not weigh or determine the credibility of Dr. Fink or Allen. Credibility determination is a function of the Board. This principle is particularly applicable here because the Board based part of its rejection of Allen's credibility on his demeanor at the hearing. While it cited that in its opinion, this Court did not observe that demeanor.
Boulevard Electric Sales v. Webb, Del.Supr., 428 A.2d 11, 13 (1981).
Lemmon v. Northwood Constr., Del.Supr., 690 A.2d 912. 914 (1996).
It is well-established law in Delaware that the Board has the right to reject one witness' testimony and accept another's. Also, since Dr. Tessier's opinion was, in large part, based on Allen's subjective complaints, and the Board found those complaints not credible, it is and was within its power to reject Dr. Tessier's opinion. The Board elected to accept the testimony of Dr. Fink, which included the medical records of the other doctors. Dr. Fink's testimony provides substantial evidence to support the Board's decision to terminate Allen's benefits.
Delaware Tire Ctr. v. Fox, Del.Super., 401 A.2d 97, 100 (1979).
Breeding v. Contractors-One-Inc., Del.Supr., 549 A.2d 1102, 1104 (1988).
Finally, contrary to Allen's contentions that Dr. Fink was not definitive about Allen's recovery and ability to return to work, Dr. Fink testified:
Q. Based on your review of the diagnostic film studies, as well as your clinical exam, do you have an opinion when he reached maximum medical improvement after his injury?
A. Yes. I would say that by February of 1998, the patient had reached maximum medical improvement.
Q. You're basically projecting one year after the industrial injury? A. That's correct.
Q. Doctor, in you opinion, did the claimant sustain anything more than a transient soft tissue injury to his low back as a result of the February 1997 industrial accident?
A. No.
Q. Are you satisfied that the claimant had a complete recovery from the effects of his industrial accident by the time he reached maximum medical improvement in February 1998?
A. Objectively, yes.
Q. Doctor, based on not only your examination but also the clinical examinations of both Dr. Hagmann and Dr. Ioppolo, as well as the diagnostic studies which you testified to earlier, is there any anatomic or physiological explanation for his ongoing subjective complaints of low back pain?
A. No.
Q. Any anatomic or physiological explanation for the claimant's subjective complaints of radicular pain?
Deposition Transcript of Dr. Alan Fink at 16-17.
It is manifest, therefore, that the Board's decision to terminate Allen's benefits is clearly controlled by settled Delaware law and that there is substantial evidence to support it.
CONCLUSION
For the reasons stated herein, the motion to affirm of employer-below, appellee Tompkins/Dearborn is GRANTED and the decision of the Industrial Accident Board is AFFIRMED. The motion to strike of employer-below, appellee Tompkins/Dearborn is DENIED.
IT IS SO ORDERED.