Opinion
CIVIL ACTION NUMBER 99A-111-012-JOH.
Submitted: May 26, 2000.
Decided: August 16, 2000.
Appeal from a Decision of the Industrial Accident Board — AFFIRMED
David R. Scerba, Esq., of Ramunno Ramunno, P.A., attorney for claimant/appellant
Christopher T. Logullo, Esq., of Chrissinger Baumberger, attorney for employer/ appellee
MEMORANDUM OPINION
Cynthia Anderson was injured while working for the Wilmington Housing Authority. Several weeks after her injury, WHA offered her a full-time, but sedentary, job within her restrictions. When she declined, WHA petitioned the Industrial Accident Board for review.
Anderson argued to the Board that she was still totally disabled. Among the injuries she claimed was one to her right hand and wrist. The Board determined she was capable of accepting the sedentary job and also found her hand/wrist was not injured to the extent claimed. It is that latter portion of the Board's decision Anderson appeals contending it lacks substantial evidence to support it and that the Board improperly relied upon hearsay evidence.
The Board's decision is supported by substantial evidence and it did not impermissibly rely upon hearsay evidence in reaching its decision. Therefore, the Board's decision is AFFIRMED.
FACTUAL BACKGROUND
On April 23, 1999, Anderson was performing a home inspection, as part of her WHA job duties. She was injured when she stepped into a hole and fell forward onto the ground. She tried to work for a while but, several hours later, went to the St. Francis emergency room. Its records do not indicate a complaint of a wrist injury, although she told the Board she made one. She also saw two doctors. One, her family doctor, Dr. Mary Conner, she saw four days after the fall. There is no record she complained of a hand injury or pain. She also saw Dr. Conrad King, a pain management specialist six days after her fall. His preliminary diagnosis did not include anything relating to a hand/wrist injury.Dr. King told the Board that he next saw Anderson on May 3, 1999, when she reported a severe flare-up of right hand/wrist pain. He ordered x-rays which revealed no fracture or dislocation but a modeling deformity, a pre-existing condition which he said had been asymptomatic. While pre-existing, he said, the fall made the condition symptomatic. A bone scan of the same areas revealed only degenerative changes.
Because of her hand/wrist complaint and the x-ray finding, Dr. King referred her to Dr. Erroll Ger for consultation. Dr. King wanted a diagnosis of and treatment plan from Dr. Ger. Dr. Ger told Dr. King the hand/wrist problem was a flare-up of her preexisting osteoarthritis. For treatment he recommended only continuing the anti-arthritis medication she had been taking for that arthritic condition prior to her fall. Dr. Ger did not testify before the Board.
Dr. Jerry Case performed an independent medical examination several weeks after the accident and, among other findings, said Anderson had suffered a contusion to her right hand. But, Dr. Case believed that with restrictions, primarily Anderson's subjective complaints, she could return to a sedentary position. Based on that opinion, WHA offered her such a job which would have been at the same pay rate as her prior job. She declined and WHA filed its review petition.
Anderson testified that she sustained injuries to her neck, knees, shoulders and right wrist as a result of her fall. She also stated that she still had pain and weakness in her right arm and wrist which causes her problems with writing and opening items such as bottles, jars, car doors and house doors. In addition, Anderson claimed that it was difficult to pick up and hold items in her hand.
After considering Anderson's testimony and the other evidence on WHA's petition, the Board determined Anderson was fit enough to accept the sedentary job. It rejected her contentions that various injuries meant she remained totally disabled. In doing so, it found a number of discrepancies between Anderson's testimony, the medical records and the testimony of several doctors. Specifically, as to her hand/wrist complaints, the Board noted the first record of it was a week after the fall and that medical records in the intervening time had no mention of it. The Board also noted Anderson's history of arthritis and arthritis medication prior to her fall. In addition, the Board recited that Dr. Case said Anderson had only suffered a contusion to her hand. Finally, the Board said Dr. Ger indicated Anderson's hand condition was arthritis-related. The Board concluded her hand/wrist condition was not attributable to the extent she claimed.
STANDARD OF REVIEW
The duty of this Court on an appeal from the Board is to determine whether the Board's decision is supported by substantial evidence and free from legal error. The Board's decision must be affirmed if it is supported by substantial evidence. Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The credibility of witnesses, the weight of their testimony and the factual inferences to be drawn therefrom are for the Board to determine. As to use of hearsay or rulings on evidence, this Court will not disturb the Board's decision unless there was an abuse of discretion.
Chicago Bridge and Iron Co. v. Walker, Del.Supr., 372 A.2d 185, 188 (1977).
Streett v. State, Del.Supr., 669 A.2d 9, 11 (1995).
General Motors Corp. V. Freeman, Del.Supr., 164 A.2d 686, 689 (1960).
Oceanport Indus, Inc. v. Wilmington Stevedores, Inc., Del.Supr., 636 A.2d 892, 899 (1994).
Coleman v. Dept. of Labor, Del.Super., 288 A.2d 285, 287 (1972).
General Motors Corp. v. Burgess, Del.Supr., 545 A.2d 1186, 1194 (1988).
DISCUSSION
There is substantial evidence to support the Board's finding that Anderson's hand/wrist condition was not attributable to her fall at work to the extent she claimed. That decision is based on several factors. One is the objective medical history, such as the emergency room and physician records which mention no complaints about a hand/wrist injury for a week after her fall. Other objective records show Anderson had pre-existing arthritis and was taking medication for it. Post-fall tests also revealed the presence of degenerative arthritic changes on her hand and wrist area.Another factor recited by the Board is the frequent discrepancies between what Anderson said she suffers, or suffered from, and what she did but did not tell doctors. Not the least of these were, despite no record of it, that she testified she told the emergency room attendants of the wrist injury and also doctors on her initial visits with them. It is manifest from reading the record and the Board's decision that these discrepancies severely undermined Anderson's credibility. That resulted in serious doubt on the Board's view about the nature and extent of any injury of which Anderson complained, including a litany of things having to do with the hand and wrist. This is important because Dr. King opined about her condition, in large part, based on her subjective complaints. Once the Board, based on the record, justifiably rejected some or all of her subjective complaints, it was within its power to reject physician opinions based on them.
Breeding V. Contractors-One-Inc., Del.Supr., 549 A.2d 1102, 1104 (1988).
The Board had the additional evidence from Dr. Case that all Anderson suffered was a hand contusion. He coupled this with an opinion that she was able to work, albeit in a less physically demanding position. Another factor is the evidence of Dr. Ger's involvement and opinion. He did not testify. Dr. King mentioned his referral to Dr. Ger during direct examination by Anderson's counsel. He was responding to a question about what he was doing to treat her. Dr. King said he referred Anderson to Dr. Ger because of her hand/writs complaint. He wanted a diagnosis and treatment plan from Dr. Ger. WHA's counsel followed up on this during cross-examination and asked what were Dr. Ger's diagnosis and treatment plan. Dr. Ger reported to Dr. King that her condition was a flare-up of her arthritis and said she should continue to take the same medication for it she had been taking prior to the fall. Anderson's counsel did not object to Dr. King's direct or cross-examination testimony.
As mentioned earlier, the Board cited Dr. Ger's opinion among the other evidence before it when it made its finding about the limited extent of Anderson's hand/wrist condition. The rules of evidence before the Board are not as strict as before this Court. But, to rely exclusively upon hearsay or significantly so to make an essential finding is, however, an abuse of discretion.
Morris v. Gillis Gilkerson, Inc., Del.Super., C.A. No. 94A-09-006, Lee, J. (August 11, 1995).
Barbour v. Unemployment Ins. App. Bd., Del.Super., C.A. No. 89A-MR-4, Herlihy, J. (October 26, 1990).
The Board did not rely exclusively or significantly upon what Dr. King said Dr. Ger told him. The other factors upon which the Board relied which were listed above demonstrate that. Alone, they provide substantial evidence for the Board's decision. In addition, however, testimony about Dr Ger was brought up by Anderson. The consultation/referral to Dr. Ger was in the context of his overall treatment and Dr. King, obviously, relied upon it as part of his treatment of her. The Board did not abuse its discretion in using Dr. Ger's diagnosis as part of its decision concerning Anderson's hand/wrist condition.
CONCLUSION
For the reasons stated herein, the decision of the Industrial Accident Board is AFFIRMED.