Summary
holding that when there is some conflict between medical findings the Board may choose one version as credible
Summary of this case from DART/STATE v. WILHELMOpinion
C.A. No. 03A-03-001 SCD.
Submitted: December 1, 2003.
Decided: December 10, 2003.
Upon petitioners appeal from the decision of the Industrial Accident Board — AFFIRMED.
OPINION
This is an appeal from the decision of the hearing officer pursuant to 19 Del. C. § 2301B. The claimant had an industrial accident on January 13, 2002. The compensability of the accident was not questioned. His medical expenses and temporary total disability benefits were paid.
A hearing to determine additional compensation due was conducted on February 10, 2003. The Petition sought total disability benefits and partial disability benefits, as well as payment of medical expenses incurred subsequent to the claimant's return to work. The hearing officer concluded that the claimant failed to meet his burden of proving that expenses and disability occurring after claimant's return to work on January 22, 2002, were related to his industrial accident.
Summary of Facts
The sequence of events is as follows. Altoine Alpheaus ("Claimant") was employed by Downtown Visions ("Downtown") on January 13, 2002, when he injured himself while lifting a garbage bag out of a garbage can during a clean up. He immediately went to the emergency room at Wilmington Hospital for treatment. He complained of pain in his right shoulder. Medical records indicate a diagnosis of a shoulder injury. On January 18, 2002, claimant was treated at the Wilmington Occupational Health Department where a record of the visit indicates that the nature of injury was a right shoulder/arm strain, and states that claimant may do sedentary work. On January 22, 2002, claimant was treated at Christiana Care Occupational Health facility where an examination report states that the patient's injury was S/P shoulder strain. The diagnosis was a shoulder strain. Claimant was discharged to return to work on January 22, 2002.
Transcript of Alpheaus v. Downtown Visions, Industrial Accident Board Hearing ("IAB Hearing") 1206371, Feb. 10, 2003, at 10.
Id. at 11.
Id.
IAB Hearing at 35.
Id. at 25-26.
Id. at 26.
Id.
Id. at 28-29.
On April 2, 2002, claimant began treatment with Dr. William R. Atkins, Jr., M.D. ("Dr. Atkins") as a result of a referral from his attorney. Claimant complained that he was experiencing pain in his shoulder and neck. Dr. Atkins ordered an MRI which revealed multiple cervical disk bulges. He continued to treat claimant three times per week through the summer.
IAB Hearing at 13-14.
Deposition of William R. Atkins, Jr., M.D., Jan. 28, 2003, at 4.
Id. at 20.
Id. at 4.
On September 5, 2002, claimant was examined by Dr. Donald I. Saltzman, M.D. ("Dr. Saltzman") at the request of Downtown's insurance carrier. During the examination, Dr. Saltzman performed a number of tests in order to diagnose claimant's condition, including a Spurling's maneuver. On September 24, 2002, claimant returned to Dr. Atkins and complained that his visit with Dr. Saltzman resulted in more severe pain to his neck. Dr. Atkins ordered a second MRI, which revealed, in his opinion, two additional herniated disks. Dr. Atkins recommended claimant not return to work, and continued to treat claimant. On November 26, 2002, Dr. Atkins released claimant back to work with limited restrictions. Claimant continued to see Dr. Atkins for treatment until the end of 2002.
Deposition of Donald I. Saltzman, M.D., Jan. 30, 2003, at 6.
Dr. Saltzman explained the Spurling's maneuver is:
[A] test that's done routinely in taking care of patients who — evaluating them for cervical spine pathology, except for those people who have acute fractures where you can't — you don't have an extended neck. You don't force the neck into extension. You have them extend their neck and you put gentle pressure down on the head. What it does do is it narrows the openings of the canals where the nerves come out, and if they do have some nerve compression there, it will — they will get some symptoms at that time.
* * *
It's what you do to determine radicular symptoms coming from the neck. It's never reported to be a source of disc herniation, from just having the patient extend their neck back. It doesn't put stresses on the disc to herniate the disk. In fact, you're not going to herniate a disc in the back when you put them in that maneuver because of the position that you're holding the neck in.
Your basically holding them in a rotated position. All you're doing is perhaps closing down the foramen to a slight degree. So you may irritate the nerve, which is what you're trying to do with that maneuver. They may or may not have pain down their arm.
In the 30 years plus that I've been doing orthopedics . . . that's the cardinal test that's always used . . . by orthopedists, by chiropractors, by osteopaths.
It's a standard test, and there's no history of that test causing anything, because it's not a major trauma to an extremity causing disc herniation.Id. at 18-19.
Atkins Deposition at 6.
Id. at 7.
Id.
Atkins Deposition at 11.
Id. at 9.
There were three witnesses at the hearing.
Claimant testified that he was injured at work on January 13, 2002, and immediately sought and received treatment. He returned to work eight days later. Sometime later he received a check for worker's compensation benefits which he deposited into his account. The check bounced. He wanted to get the money due him so in April 2002, he sought legal advice from Gary S. Nitsche and was referred by Mr. Nitsche to Dr. Atkins for an examination. Thereafter, claimant commenced a course of treatment with Dr. Atkins. It is unclear from the record whether claimant was employed during this time.
Id. at 11.
Id. at 12.
IAB Hearing at 12.
Id. at 14. Claimant testified: "I went to go see Mr. Nitsche because Mr. whatever his name is for the insurance company and my job didn't want to replace my money that my bank account [sic]. That man had messed up my bank account." Id. at 40.
Id. at 15.
Claimant testified his condition worsened as a result of his examination by Dr. Saltzman in September, when his neck was twisted causing him severe pain. Claimant returned to Dr. Atkins, for subsequent treatment; another MRI was taken. Following Thanksgiving, Dr. Atkins released the claimant back to work in a limited capacity. Claimant returned to work with a different employer, Brookview Apartments, doing maintenance which he described as breaking up materials with a hammer for 8 hours a day. Claimant testified that he worked there for eight days, and had to quit due to the pain. He remained out of work until a couple days before the hearing when he commenced a job doing car vacuuming at Enterprise Rent-a-car.
IAB Hearing at 17.
Atkins Deposition at 7.
Id. at 9.
IAB Hearing at 19.
Id. at 20.
Id. at 20.
Dr. Atkins testified by deposition. He first examined claimant on April 2, 2002. Claimant complained of injuries to his neck and shoulder regions. Based on these complaints, Dr. Atkins recommended claimant seek sedentary work and started him on a therapeutic treatment program. In his opinion, claimant was partially disabled when he saw him during this visit. The claimant's condition improved through continuous treatment. However, he testified claimant's condition had worsened in September after claimant's examination with Dr. Saltzman. On September 24, 2002, claimant complained of severe neck pain resulting from Dr. Saltzman twisting his neck during the exam. Dr. Atkins subsequently ordered a second MRI of claimant's neck which showed two additional disc herniations. He expressed the opinion that the Spurling's maneuver, which applies pressure on the neck to elicit a radicular response, could cause a disc herniation or exacerbate an underlying disc bulging condition. In his opinion, claimant was totally disabled from September 5, 2002 to November 26, 2002, when he recommended claimant be released to sedentary work. Additionally, Dr. Atkins testified that all of claimant's treatments were reasonable and necessary.
Atkins Deposition at 4.
Id.
Atkins Deposition at 4-5.
Id. at 4, 14-15.
Id. at 18.
Id. at 5.
Id. at 6.
Atkins Deposition at 6.
Id. at 33-34.
Id. at 5, 11.
Atkins Deposition at 10.
Dr. Saltzman also testified by deposition. He examined claimant on September 5, 2002. Claimant complained of right shoulder pain in the back of the shoulder region, but had full range of motion. During the examination, claimant did not complain of any neck pain, but Dr. Saltzman conducted a neck exam due to the cervical MRI performed by Dr. Atkins. He testified that claimant's neck exam was normal, and Spurling signs were negative. Dr. Saltzman further testified that he examined claimant a second time on January 30, 2003. Claimant again complained of shoulder pain in the blade area, but not neck pain. Claimant was specifically asked about neck pain by Dr. Saltzman, but claimant denied that he had neck pain. He testified that the exam was normal and his diagnosis was for residual pain in the shoulder, secondary to a sprain. Dr. Saltzman also compared the two sets of MRI's ordered by Dr. Atkins. In contrast to Dr. Atkins opinion that there was evidence of additional disc herniation, he testified that there was no change in claimant's condition, only a variance due to degeneration. Dr. Saltzman denied that the Spurling's maneuver could have caused injury to the claimant. In his opinion, claimant has significant pathology of the neck in both MRI's, but no disc herniation. Dr. Saltzman concluded that claimant was capable of working in a limited capacity after the September 5, 2002 exam, and the same restrictions would apply after the January 5, 2002 exam, based on claimant's subjective complaints. He also opined that based on his review of the records, claimant was not totally disabled from September 5, 2002 to January 30, 2003.
Saltzman Deposition at 4-5.
Id. at 6, 9.
Id. at 6, 10.
Id. at 9-10.
Id. at 13.
Saltzman Deposition at 11.
Id.
Id. at 14.
Saltzman Deposition at 20.
Id. at 18.
Id. at 15, 20.
Id. at 22, 28.
Id. at 53.
Standard of Review
The Delaware Supreme Court and this Court have repeatedly emphasized the limited appellate review of the factual findings of an administrative agency. On appeal from a decision of the Board, the Court is limited to determining whether substantial evidence in the record supports the Board's findings, and that such findings are free from legal error. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. If this Court finds substantial evidence and the Board has not committed an error of law, the Board's decision must be affirmed.This Court does not weigh the evidence, determine questions of credibility, or make its own factual findings. When factual determinations are at issue, the Court "shall take due account of the experience and specialized competence of the agency."
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
29 DEL. C. ANN. 10142(d)(2002).
Analysis
The claimant filed a petition for additional compensation, seeking the payment of medical bills from April 2, 2002 to December 26, 2002, total disability benefits from September 24, 2002 to November 26, 2002, and partial disability benefits thereafter.The first issue presented was whether the alleged disability which commenced in April 2002 and the associated medical treatment were causally related to the compensable accident of January 13, 2002. If not, none of the other claims need be considered.
The hearing officer was presented with a conflict in expert testimony. The hearing officer rejected the opinion of Dr. Atkins because it was based on the claimant's complaints of pain. The hearing officer did not find the claimant to be credible. The record supports the hearing officer's conclusions. There were inconsistencies in the claimant's testimony, there were gaps in his medical history due to a period of incarceration in New Jersey, and he refused to identify the crime which caused him to be incarcerated so that the hearing officer could determine whether his four and one-half years of incarceration were due to a felony conviction.
Decision of the Industrial Accident Board, February 21, 2003, at 6.
IAB Hearing at 54-55.
There exists substantial evidence in the record to support the hearing officer's reliance on the opinion of Dr. Saltzman. Dr. Saltzman testified that the MRI results showed a longstanding degenerative condition, rather than a disc herniation. Dr. Saltzman also explained the purpose of the Spurling technique used in Claimant's exam, and why it would not have caused a herniation. He further testified that there is nothing in the literature to suggest that this technique causes disc herniations. Additionally, there is testimony that Claimant did not complain of neck pain at the time or following the examination. Finally, Claimant did not report these aggravated injuries to Dr. Atkins until 3 weeks subsequent to seeing Dr. Saltzman.
Saltzman Deposition at 15, 20.
Id. at 18.
Saltzman Deposition at 19, 41.
Id. at 14.
IAB Hearing at 18.
A medical expert's opinion of causality may be rejected by the finder of fact when that opinion is based in large part upon what the claimant told the doctor and the finder of fact finds the underlying facts to be different. Therefore, the portion of Dr. Saltzman's opinion that deals with work restrictions was properly rejected, as it based on Claimant's subjective complaints.
Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).
Saltzman Deposition at 22, 28.
NOW, THEREFORE, IT IS ORDERED that the decision of the Industrial Accident Board is AFFIRMED.
SO ORDERED.