Opinion
C.A. No. 00A-05-007-JOH
Submitted: December 1, 2000
Decided: February 5, 2001
Appeal from a Decision of the Industrial Accident Board — AFFIRMED.
J. R. Julian, Esq., of J. R. Julian, P.A., attorney for employer below/appellant, Bell Atlantic-Delaware, Inc.
Robert C. McDonald, Esq., and Michael I. Silverman, Esq., of Silverman McDonald, attorneys for claimant below/appellee James Hall
MEMORANDUM OPINION
Employer Bell Atlantic-Delaware, Inc. appeals the decision of the Industrial Accident Board compensating James Hall for injuries resulting from a work-related automobile accident. Bell argues that the Board erred by (1) rendering a decision not supported by substantial evidence, (2) finding Hall's injuries were causally related to the work accident, (3) accepting the allegedly flawed testimony of Hall's doctor over the testimony of its doctor, and (4) rendering a decision that was contrary to a previous decision on another aspect of this case.
This Court finds that in compensating Hall for his injuries, the Board committed no error of law. Its decision and finding as to causation of Hall's injuries were both supported by substantial evidence and not barred by any previous Board decision. The Board properly accepted the testimony of Hall's doctor, who testified by deposition, over Bell's doctor, who testified at the Board hearing. It found inconsistencies with Bell's doctor's medical opinion and gave specific reasons for those findings. Therefore, the Board's findings and decision are AFFIRMED.
FACTS
Hall suffered injuries in a work-related accident while working for Bell as a repair technician. On September 4, 1996, Hall was operating a Bell vehicle in route to a survey job. He pulled off to the side of the road to determine the exact location of the survey job when his vehicle was struck forcefi.illy in the rear. The damage was severe and Hall later described the vehicle as an accordion. He was taken to the hospital and, after being discharged, was examined and treated by several doctors.
On April 25, 1998, Hall was in a second accident. In this non-work-related accident, Hall's car was struck on the driver's side. He had his first surgery on his right shoulder on January 27, 1998. He had left shoulder surgery on June 1, 1998 and right shoulder surgery again on September 28, 1998. As a result of the second accident, Hall had a recurrence of symptoms that he suffered form the first, job-related 1996, accident. The Board conducted a hearing to determine the amount of damages and compensation that was recoverable by Hall, as a result of the first work-related accident. Hall testified at the hearing to the nature of his injuries, treatment and the accident.
Dr. William Atkins, a physiatrist who testified by deposition, examined Hall immediately following the 1996 accident. Hall complained of neck, mid-back and lowback pain and headaches. Due to the numerous injuries, Dr. Atkins prescribed chiropractic, massage, injections and pain management as treatment. Hall was referred for treatment to Dr. Eric Johnson, Dr. Michael Sugerman, Brandywine Pain Management, Dr. Trent Camp and Debbie Jedlicka at the Delaware Message Center. Dr. Atkins agreed in the diagnoses with the other doctors that the work-related accident caused Hall to suffer a low-back strain, neck strain, radiculopathy stemming from the neck and low-back, degenerative changes in both the left and right shoulders, and disk herniation in the thoracic spine.
Dr. Johnson, an orthopedic surgeon, also testified by means of deposition on behalf of Hall. On January 6, 1997 three months after the accident, Dr. Johnson examined Hall. He did not review any medical records from previous providers. Through his own examination of the right shoulder, Dr. Johnson found tenderness in the subacromial and acromial [AC] regions. He reviewed a report of the MRI examination conducted by Dr. Atkins, but did not review the actual film. He concluded it was positive showing arthritic changes in the AC joint and impingement where pressing on the muscles about the shoulder. Therapy was ordered and was unsuccessful. Dr. Johnson suggested injections of the right shoulder but Hall declined to have them performed. Physical therapy continued on an as-needed basis.
Hall's answering brief mistakes this date as January 4, 1997, which was the actual referral date, not the examination date.
On September 17, 1997, Hall revisited Dr. Johnson and complained for the first time of left shoulder pain. He was diagnosed with a slightly positive impingement sign on the left shoulder with tenderness over the AC joint and pain in the AC joint on the cross-body adduction. Hall agreed to injections in the left shoulder.
Hall continued with physical therapy, now consisting of treatment to both shoulders. His left shoulder was improving, however, and on a November 11, 1997 visit to Dr. Johnson's office, Hall complained of a "recurrence of symptoms, particularly with vigorous activities." Dr. Johnson did not recall for the Board what those "vigorous activities" were. X-rays taken on that visit of the left shoulder portrayed arthritic changes involving the AC joint on the left side with hypertrophic changes noted and some subacromial spurring. Although the left shoulder was not successfully responding to the injections, treatment was delayed because the doctor concluded surgery needed to be performed on the right shoulder first. He wanted to solve one problem at a time.
Bell's opening brief mistakenly refers to this date as October 15, 1997.
Eric T. Johnson Deposition (March 13, 2000) at 31.
On January 27, 1998, arthroscopy, subacromial decompression and AC joint resection surgeries were performed on the right shoulder. Thereafter, the right shoulder improved while the left shoulder continued to show signs of degenerative changes, which were symptomatic. On June 1, 1998, Hall underwent a claviculectoy on his left shoulder to reduce the symptoms caused by bone spurring. Then on September 28, 1998, Dr. Johnson performed AC joint resection surgery on the right shoulder surgery due to persistent degenerative changes.
The Board's opinion at 4-5 states that left should surgery was performed on January 27, 1998, and Dr. Johnson testified that left shoulder surgery was performed on January 27, 1998, when in fact right shoulder surgery was performed. The testimony following the misstatement between the right and left shoulder is also confusing, as it becomes apparent that Dr. Johnson refers to one shoulder when in fact it was actually the other shoulder. These inconsistencies were brought to attention in Hall's answering brief. Dr. Johnson's testimony is clearly relevant and of most importance in the Board's findings. The mistaken testimony of which shoulder underwent surgery and when does not create error in the Board's findings to the extent that the Board would have held otherwise.
Q. [on direct] At that point I take it conservatives measures of treatment had failed for Mr. Hall regarding the left shoulder?
A. Yes.
Q. Can you tell the Board what kind of surgery you performed?
A. I performed arthroscopic left shoulder. . .
Q. We will get back to that. But tell us if you would how the left shoulder did following your surgical repair on January 27, 1998.
A. The patient tolerated or Mr. Hall tolerated the surgery well. He was seen post-operatively and was noted to be making favorable gains in therapy.
Q. Mr. Hall, however, continued to treat with you through the spring of 1998, this is following the surgical repair, correct?
A. Correct.
Q. And he was continuing to have left shoulder problems, not with standing the surgical intervention?
A. That is correct.
Q. But also continuing to have right shoulder symptoms?
A. That is correct.
Q. What was your plan at that point with respect to the right shoulder?
A. In regards to the right shoulder, I thought it was best to continue with non-operative treatment as I thought we should get him over one problem first at a time. But we continued with physical therapy for the — for both shoulders actually.
Q. [on cross] You scheduled the surgery on January 27 and you performed that at Christina. The procedure was arthroscopy of the left shoulder, subacromial decompression, AC joint resection, correct?
A. Yes.
Id. at 8, 9-10, 31. All references to right shoulder should be left shoulder and vise versa. On January 27, 1998 and September 28, 1998 right shoulder surgery was performed and on June 1, 1998 left shoulder surgery was performed.
Hall's answering brief mistakenly states left shoulder when it was the right shoulder.
Dr. Johnson testified on direct examination that the work-related accident, in his medical opinion, caused the injuries to both shoulders. He relied on Hall's subjective statements that he had no history of these shoulder symptoms until after the accident.
Q. Dr. Johnson, let's break this down and talk first about the right shoulder. Do you have an opinion, in terms of reasonable medical probability, as to whether the right shoulder problems and the need for surgery were related to the automobile accident that Mr. Hall described to you being September 4 of 1996?
A. Yes, I do. I believe they are a result of his accident.
Q. Can you tell us why you believe that?
A. Because he had previously symptomatic shoulders prior to this accident and presented with chief complaint of shoulder pain shortly after his accident to my office, or within a reasonable time period.
Q. Do you have an opinion but for the automobile accident as to whether the left shoulder would have been symptomatic, had it not been for the accident?
A. I believe that's accurate.
Q. In other words, but for the accident, do you have an opinion in terms of reasonable medical probability as to whether Mr. Hall would have had a left shoulder problem ultimately resulting in the need for surgery?
A. I don't believe he would have developed left shoulder symptoms because he would have not had to have used his left shoulder or upper extremity to the extent that he did as a result of his right upper extremity injury.
Johnson Deposition (March 13, 2000) at 11-12.
Dr. Johnson opined that Hall was totally disabled from January 27, 1998 through March 5, 1998 and from September 28, 1998 through November 15, 1998 due to the shoulder surgeries.
Dr. David Saland, an orthopedic surgeon, testified in person before the Board on behalf of Bell. He examined Hall six times following the date of the accident and reviewed Hall's medical records in determine his medical opinion. He opined that Hall's right shoulder complaints were consistent with a soft tissue strain and would heal with time. He concluded that the shoulder surgery performed in January 1998 was unrelated to the accident. He noted that Hall's initial complaints did not involve the left shoulder, but only the right shoulder. Dr. Saland believed the second accident caused a recurrence of symptoms and, thereafter, left shoulder surgery was necessary only because of the intervening second accident. He did not mention the fact that Hall complained of the left shoulder pain before the second accident.
Dr. Saland reasoned both shoulders had degenerative changes consistent with various of Hall's non-job activities. He concluded that the degenerative changes existed prior to the first accident in 1996. These degenerative changes, he said, were caused by the overuse of the AC joint normally associated with karate techniques and motorcycle racing, which were both regular hobbies of Hall. He conceded, though, that he had no medical evidence to support his testimony that Hall ever suffered any shoulder injury prior to the accident. Dr. Saland concluded that Hall sustained a soft tissue strain to the cervical and lumbar spines, as well as a soft tissue strain to the right shoulder. Dr. Saland opined only six weeks of chiropractic treatment were necessary because of the nature of the injuries. Any treatment beyond six weeks would be excessive and unnecessary. Dr. Saland specifically denied that Hall suffered a herniated disk in his cervical spine. He stated that all therapy and surgeries occurring after the second accident were the result of the second accident, and not the first accident.
The Board noted that Dr. Saland was unresponsive and resisted answering certain questions. Several times throughout cross-examination, Dr. Saland stated he did not understand the question or gave an answer unrelated to the question. At one point, a hearing officer stepped in and tried to help Dr. Saland clarify an unresponsive and confusing answer, but to no avail. He also could not explain why Dr. Johnson found signs of impingement and he did not.
Bernard Walker, Hall's former supervisor, and Joseph Williams, Hall's current supervisor, both testified on behalf of Bell. Walker testified that Hall returned to work in February 1997, after the 1996 work-related accident, but with numerous restrictions. He was assigned to be an assistant to the head clerk because the restrictions prevented him from performing the work of a repair technician, his former position. His duties involved clerical and computer work and, apparently, no stressful use of either shoulder. Walker was unaware of Hall performing any work outside of his restrictions, and said Hall refused to undertake anything that he thought would be detrimental to his condition.
Williams testified he permitted Hall time off from work to obtain medical treatment. At first, it was once or twice a month, but now it is two to three times a month. Hall never mentioned the second accident to either supervisor, but he was not required by any company policy to do so.
In Hall's initial petition for benefits, he advised the Board that he had been compensated for most of his injuries, but there was an issue to determine compensation for an alleged thoracic disk herniation and medical treatment associated with that injury. On September 10, 1997, the Board found that Hall's thoracic spine condition was causally related to the work accident, but held that chiropractic treatment for the thoracic spine injury was no longer necessary after April 25, 1997. The Board also concluded that treatment performed by Dr. Atkins was unreasonable and limited it to once every two months at $85 a visit.
Hall filed a petition to determine additional compensation due on November 8, 1999 seeking medical expenses and total disability benefits for his neck, lower back and left and right shoulder surgeries. He contended that the surgeries were causally related to the September 4, 1995 work accident, while Bell argued to the contrary. Bell asserted the surgeries were unnecessary, unreasonable and controlled by the Board's prior order of September 10, 1997.
On May 1, 2000, the Board determined that the first period of total disability from January 27, 1998 to March 5, 1998 and all medical expenses prior to the second accident on April 25, 1998 were compensable and granted attorney's fees and medical witness fees. Based upon the medical opinions of Drs. Johnson and Saland, the Board agreed that Hall was suffering from symptomatic degenerative changes. All treatment and surgeries after the second 1998 accident were, therefore, non-compensable. The Board found Dr. Johnson's testimony to be persuasive in determining the injuries were caused by the 1996 accident.
The Board found Hall to be a credible witness and accepted his testimony that he began experiencing right shoulder symptoms following the work accident, that he had no prior shoulder problems and, as a result of primarily relying on and/or favoring his left shoulder while suffering from the right shoulder injury, he sustained a left shoulder injury. The Board accepted the testimony of Dr. Johnson over that of Dr. Saland. It reasoned that Dr. Johnson had more opportunities to examine Hall, since he was the treating physician. It also considered Dr. Saland's opinion that Hall suffered only a soft tissue strain, but found it be unsupported and inconsistent with Hall's testimony and ongoing symptoms. The Board believed Dr. Saland's opinion was unpersuasive and that he also avoided answering certain questions.
The Board incorporated its earlier order as to Dr. Atkins' charges and frequency of treatment. It viewed the costs of treatment performed at Dr. Atkins' office as unreasonable and reduced the cost to $85 per visit. Additionally, it limited the frequency of office visits to one visit every two months, which was deemed to be reasonable and medically necessary.
Bell contends Hall failed to meet his burden of proof in demonstrating that the work accident caused his shoulder injuries and medical treatment thereafter. It argues that the Board erred, as a matter of law, and abused its discretion by rendering a decision that was contrary to its prior award and erred by accepting the deposition testimony of Dr. Johnson over that of Dr. Saland, who testified in person. It also complains that the Board impermissibly gave a presumption of greater weight to Dr. Johnson merely because he was the treating physician.
STANDARD OF REVIEW
On appeal, the function of this Court is to ascertain whether the Board's findings are supported by substantial evidence and free from legal error. Substantial evidence means such evidence as a reasonable mind might accept as adequate to support a conclusion. In reviewing the record for substantial evidence, this Court will consider the record in the light most favorable to Hall, the prevailing party below. This Court does not sit as a trier of fact with authority to weigh the evidence, determine questions of credibility and make its own factual findings and conclusions.
Lemmon v. Northwood Constr., Del.Supr., 690 A.2d 912, 914 (1996).
Breeding v. Contractors-One-Inc., Del.Supr., 549 A.2d 1102, 1104 (1988).
Stigars v. Speakman, Del.Super., C.A. No. 92A-08-21, Herlihy, J. (March 19, 1993); aff'd, Del.Supr., No. 125, 1993, Moore, J. (September 28, 1993) (ORDER).
Boulevard Electric Sales v. Webb, Del.Supr., 428 A.2d 11, 13 (1981).
DISCUSSION A
Bell contends Hall failed to meet his burden of proof that the work-related accident caused his shoulder injuries, subsequent treatment and total disability benefits from January 27, 1998 to March 5, 1998, as the Board found. A claimant, such as Hall, has the burden of establishing the work-related injury and the extent of that injury. Generally, medical evidence must be presented to support Hall's claim. Since Hall's injury is internal, medical evidence is essential in order to properly determine that an injury, in fact, has occurred and the extent of such injury." In General Motors Corp. v. Freeman, the Board's decision was upheld as based on substantial evidence because the Board relied on medical evidence concerning causation in conjunction with the claimant's subjective testimony.Hall testified on his behalf that he had no prior history of shoulder problems until after the 1996 work-related accident. He testified that, as a result of the injured right shoulder, his left shoulder became symptomatic and then also injured. The Board found Hall to be a credible witness and relied on his testimony in reaching its decision.
Dr. Johnson testified that Hall's shoulder injuries were caused from the work-related accident. The Board accepted his medical testimony over that of Dr. Saland. Dr. Johnson reasoned that Hall complained of right shoulder problems within a reasonable time after the accident and then because of the injured right shoulder, the left shoulder became symptomatic. Dr. Johnson examined the MRI report conducted by Dr. Atkins and concluded the right shoulder sustained injury. Particularly, he said the MRI showed arthritic changes in the AC joint and impingement where pressing in the muscles of the shoulder. Dr. Atkins agreed with Dr. Johnson and other doctors that the work-related injury caused Hall's shoulder injuries.
Hall met his burden of proof that the shoulder injuries were caused by the accident because the Board relied on his testimony, as well as the medical evidence presented by Dr. Johnson. Once this burden was met, Bell offered testimony to the contrary, but the Board found it to be unpersuasive. Dr. Saland, who testified on behalf of Bell, opined that Hall's shoulder injuries existed prior to this work-related accident. However, he could not provide any medical evidence to support his conclusion because he never examined Hall prior to the 1996 accident and there were no medical records showing any such injury or condition. Additionally, on cross-examination, Dr. Saland stated he only referenced causation once in his reports. His report stated that Hall had surgery on his shoulder and that he was in an accident prior to that surgery. Dr. Saland never connected the two facts. Dr. Saland's opinion as to causation was not made until he testified before the Board.
Hall met his burden of proof that the work-related accident caused his shoulder injuries. The Board correctly relied on his testimony in conjunction with the testimony of Drs. Johnson and Atkins. It also found the opinion of Bell's medical expert, Dr. Saland, to be inconsistent and, therefore, did not rely on his opinion when making its decision.
B
The Board relied on substantial evidence to conclude that Hall's shoulder injuries were causally connected to the work-related accident. Bell's argument for lack of substantial evidence, at one point, misinterprets the facts. Bell states that Hall complained of right shoulder pain initially, but then had two surgeries on his left shoulder. Bell confusingly, but understandably, misread Dr. Johnson's testimony. The first surgery was performed on the right shoulder. Bell essentially was arguing against payment for left shoulder surgery, but the Board's decision did not permit recovery for the left shoulder surgery because it was after the second, intervening, accident. The Board held that Hall could recover for the January 1998 right shoulder surgery, chiropractic treatment for the thoracic spine before April 25, 1997 and other treatment before the 1998 second accident, which was all deemed medically necessary and related to the 1996 work accident. The only payments made for the left shoulder were treatment that was rendered before the second accident which was unrelated to his work.
The Board's decision was based on substantial evidence. It relied on the testimony of Drs. Johnson and Atkins, and Hall, all of which was stated in detail earlier.
C
The Board rightfully accepted the opinion of Dr. Johnson over that of Dr. Saland. The function of the Board is to determine the credibility of expert witnesses and ascertain the appropriate weight to each expert's opinion. It can rely on one expert's opinion over another's. When qualified experts give conflicting medical testimony, the Board is free to rely on either opinion and it will be deemed as substantial evidence for purposes of the Board's decision.
Acme Markets v. Revello, Del.Supr., No. 14, 1988, Christie, J. (June 30, 1988) (ORDER).
Id.
DiSabatino Bros. v. Wortman, Del.Supr., 453 A.2d 102, 106 (1982).
Bell argues that the Board erred, as a matter of law, by accepting Dr. Johnson's testimony over Dr. Saland's because it created an impermissible presumption for the treating physician. Bell argues the Board may not accept the testimony of one doctor over another solely because he is the treating physician. Dr. Johnson concluded the shoulder injury was causally related to the work accident. He formed his opinion from the facts that Hall entered his office for the purpose of treatment and the resulting diagnosis of the right and left shoulders. The Board relied on the fact that Dr. Johnson had more opportunities to observe Hall compared to Dr. Saland's six examinations of Hall, but this was not the only reason the Board relied on Dr. Johnson's opinion.
The Board specifically stated that Hall was a credible witness. It believed his testimony that he had no prior shoulder injuries and that the 1996 accident caused his injuries. The Board also relied on the testimony of Dr. Atkins, who agreed with Dr. Johnson, that the 1996 accident caused Hall's injuries.
The Board considered Dr. Saland's opinion after noting that he was unresponsive to answering certain questions. The Board, as the trier of fact, was permitted to give greater wright to the testimony of Dr. Johnson over that of Dr. Saland; it set forth numerous reasons for this determination. The Board found Dr. Saland's opinion inconsistent with Hall's testimony and the opinion of Dr. Johnson. Dr. Saland opined that the right shoulder injury was a soft tissue injury which would resolve on its own within six weeks. Six weeks passed, however, and Hall's symptoms continued. Additionally, Dr. Saland could not explain why Dr. Johnson found signs of impingement in the shoulders and he did not.
Turbitt v. Blue Hen Lines, Del.Supr., 711 A.2d 1214, 1215 (1998).
The Board gave greater deference to the opinion of Dr. Johnson because of the inconsistencies found in the opinion of Dr. Saland. Additionally, this Court will not disturb the Board's credibility findings, especially, when it is determined that testimony of a witness is characterized as unresponsive, confusing and evasive. The Board did not create an impermissible presumption for Dr. Johnson because he was the treating physician.
Reliable Corp. v. Sierra, Del.Super., C.A. No. 97A-l0-010 (Carpenter, J. (August 31, 1999).
Johnson Controls v. Wooleyhan, Del.Super., C.A. No. 98A-01-009, Herlihy, J. (August 13, 1998).
Bell also argues that Dr. Johnson's opinion was based solely on the subjective complaints of Hall and cites Lindsay v. Chrysler Corp. for the proposition that it is generally not accepted in the medical field to base a medical diagnosis solely upon the subjective complaints of the patient. The Lindsay court stated, in part, the Board's decision was not supported by substantial medical evidence because it relied on the persuasiveness of one doctor over another instead of making conclusions of fact based on the substantial amount of medical evidence. That is not the case here.
Del.Super., C.A. No. 94A-04-005, Barron, J. (December 7, 1994).
The Board made conclusions of fact based on the deposition of Dr. Johnson and his medical diagnosis of Hall. He opined that the right shoulder suffered arthritic changes in the AC joint and impingement where pressing on the muscles about the shoulder. The left shoulder became injured through overuse and would not have become symptomatic but for the work-related accident. It was diagnosed with a slightly positive impingement sign with tenderness over the AC joint. Dr. Johnson made his own examinations of Hall and came to a medical opinion based on those examinations. He reviewed the MRI report conducted by Dr. Atkins and performed surgeries which he felt were medically necessary.
The Lindsay court also took into consideration the fact that the Board relied on a doctor who only examined the claimant once, as compared to the treating physician who treated the claimant on a regular basis. Here, the Board relied on the testimony of Dr. Johnson, not only because he was treating Hall on a regular basis, but also because inconsistencies were found pertaining to Dr. Saland's opinion compared to the subjective complaints of Hall, who was found to be a credible witness.
Id. at 11.
Bell refers to Children's Bureau of Delaware v. Nissen, to argue that because the Board did not hear the testimony of Dr. Johnson in person, it cannot accord more weight to that testimony over Dr. Saland's testimony, who testified in person. The Nissen Court did not overrule the Board's decision based solely on this proposition; other factors were even more substantial. In this case, the Board acted appropriately by giving more weight to the deposition of Dr. Johnson over the live testimony of Dr. Saland because the Board's decision states that Dr. Saland's opinion was inconsistent with Hall's ongoing symptoms and that Dr. Saland was found not to be a credible witness.
Del.Super., 29 A.2d 603, 609 (1942).
The Board's task is to weight conflicting evidence and determine which evidence is most credible. Therefore, a doctor's in-court testimony could be accorded more weight if found credible. On the other hand, if a doctor's in-person testimony is found not to be credible, the Board could accord less weight to that testimony. The Board in Walden v. Georgia-Pacific Corp., disregarded the in-person testimony of a doctor because he was not as "persuasive" as the other doctors who testified in person and by deposition. On appeal, the Court found insufficient evidence to justify the Board's conclusion because the Board failed to state sufficient reasons for not accepting the testimony of the doctor, who testified in person. The Board, however, in this case, has stated sufficient reasons to give less weight to the testimony of Dr. Saland.
Collins v. Giant Food, Inc., Del.Super., C.A. No. 98A-11-002, Cooch, J. (October 13, 1999).
Del.Super., C.A. No. 94A-03-024, Baron, J. (August 19, 1994).
Finally, Bell argues that Dr. Johnson's testimony should not have been accepted over Dr. Saland's opinion because Dr. Johnson's opinion could not be generally accepted as a reliable technique in the medical field. Bell made no objection to this testimony at the Board hearing and, as a result, waived any right to appeal whether the evidence was admissible. The Court will review Bell's argument under the plain error standard.
See McIntyre v. State, Del.Supr., No. 159, 1998, Hartnett, J. (February 9, 1999) (ORDER).
Id.
Bell relies on Daubert v. Merrell Dow Pharm., and the AMA Guides to the Evaluation of Permanent Impairment to articulate this proposition. Bell cited to an AMA Guides provision which states,
509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Daubert's tests have been made part of Delaware jurisprudence. M. G. Bancorportion, Inc. v. LeBeau, Del.Supr., 737 A.2d 513, 522 (1999).
4th Ed. 1993 at 315-18
Documentation of. . . "causation" will depend on a large measure on the acquisition, review, and analysis of existing office and hospital records dating from the onset of the condition and including the initial evaluation for the condition; the results of tests or diagnostic procedures showing when and how the individual's health was affected by the alleged physical, chemical or biological factor.
Id. at 317.
Daubert, in part, held that an expert's opinion must be based on evidence generally accepted and relied on by experts in their particular field. The Daubert court was concerned with a "free for all" in admitting medical opinions based on absurd and irrational conclusions.
Daubert, 509 U.S. at 594, 113 S.Ct. at 2797.
Id. at 595, 113 S.Ct. at 2798.
Bell's argument fails. Dr. Atkins referred Hall to Dr. Johnson for the sole purpose of receiving diagnosis and treatment for the injury to his right shoulder. It was unnecessary for Dr. Johnson to review the medical records of other doctors' diagnoses relating to injuries other than the right shoulder. Dr. Atkins examined Hall and performed the MRI. Dr. Johnson did not examine the actual MRI film, but reviewed and accepted the ensuing report conducted by Dr. Atkins. Dr. Johnson also relied on his own examination of Hall, the subjective complaints of Hall and the fact that Hall stated he had no prior shoulder problems. Dr. Johnson's opinion was not based on absurd or irrational conclusions as the Daubert court was concerned with.
Besides the provision quoted by Bell, the AMA Guides state:
With a new injury, an identifiable new incident must be shown to have caused the injury. If it is thought that a preceding factor or situation, such as one related to an illness or occupation, might have had a role in the injury's development, then the causation must be established as described above.
AMA Guides at 317.
Here, the work-related accident was the cause of the "new injury." Bell has failed to provide medical evidence that a preceding factor or situation such as Hall's hobbies for karate or motorcycling caused the "new injury." Hall's injury would not have been recoverable if Bell demonstrated, through expert medical testimony, that he would have sustained the injury even in the absence of the usual stress and strain of his employment. Bell offered the testimony of Dr. Saland, who opined the injuries were pre-existing to the accident, but the Board found it unpersuasive, since he could not provide medical evidence to support his opinion. The Board also accepted Hall's testimony that he never experienced any shoulder problems before the 1996 accident.
Culver v. Bennett, Del.Supr., 588 A.2d 1094, 1097 (1991).
D
All decisions of the Board are final unless appealed within thirty days. The Board's decision on September 10, 1997 found that chiropractic treatment after April 25, 1997 was no longer necessary for the thoracic spine and Dr. Atkins' medical treatment and expenses were excessive. In its May 1, 2000 decision, the Board ordered Bell to pay all reasonable charges prior to the second accident on April 25, 1998. This included charges for physical therapy, chiropractic care and massage therapy relating to his head, neck, shoulders, mid- and low-back, excluding post April 25, 1997 chiropractic care relating to the thoracic spine The Board incorporated its earlier finding as to the frequency and expense of treatment by Dr. Atkins' office; limiting charges to $85 per visit and one visit every two months.
Bell argues that the Board never limited its September 10, 1997 decision to chiropractic care of the thoracic spine, rather the Board clearly stated "the chiropractic treatment was no longer reasonable and medically necessary after April 25, 1997." In its May 1, 2000 decision, the Board awarded expenses for all chiropractic care except for the thoracic spine.
The Board clarified its prior judgment in its decision of May 1, 2000 by stating that its September 10, 1997 decision found that chiropractic care for thoracic spine after April 25, 1997 would be unreasonable and unnecessary. The Board stated it did not rule against chiropractic care for non-thoracic problems. This Court agrees with the Board.
The Board decision of September 10, 1997 does not exclude chiropractic treatment for non-thoracic problems. It stated that chiropractic treatment was no longer necessary "because the claimant had continuing mid-back complaints without a confirmed diagnosis." The Board was stating that chiropractic treatment was unnecessary after April 25, 1997 for the thoracic spine only. Therefore, the Board's determination that chiropractic treatment for non-thoracic injuries was necessary and compensable is deemed proper.
Board Decision (September 10, 1997) at 17.
CONCLUSION
For the reasons stated herein, the decision of the Industrial Accident Board of May 1, 2000 is AFFIRMED.
IT IS SO ORDERED.