Opinion
C.A. No. 98A-05-012 WCC.
Submitted: August 30, 1999.
Decided: January 28, 2000.
Appeal from Decision of Industrial Accident Board — AFFIRMED
Kenneth F. Carmine, Esquire; Stephen B. Potter Associates, P.A., 840 N. Union Street, P.O. Box 514, Wilmington, DE 19899. Attorney for Employee-Appellant.
Dennis J. Menton, Esquire; Heckler Frabizzio Durstein, Suite 1300, Mellon Bank Center, 919 N. Market Street, Wilmington, DE 19899-0128. Attorney for Employer-Appellee.
ORDER
This 28th day of January, 2000, after considering Charles A. Blackstock's ("Appellant") appeal from the Industrial Accident Board's (the "Board") decision, terminating his benefits, it appears that:
1. On September 26, 1996, Appellant injured his low back while operating a jackhammer for J.S. Alberici Construction Company, Inc. ("Employer"). After a hearing on February 19, 1997 (the "first hearing"), the Board found that Appellant had suffered a lumbosacral sprain/strain due to the work-related accident and awarded him total disability benefits from September 25, 1996 to January 27, 1997, followed by a period of partial disability where he could return to light-duty work. Thereafter, Employer filed a petition for reargument. The Board denied the petition, stating:
While the Board found Claimant's complaints to be exaggerated, it did not find them to be fabricated. Claimant had an injury and there are residual credible symptoms consistent with a soft tissue injury that support restrictions and partial disability payments for loss-of-earning capacity at least until there has been maximum healing. Claimant's injury was less than six months old at the time of the hearing.
(Bd. Dec. of 4/14/97.)
2. On August 25, 1997, Employer petitioned for a termination of benefits, arguing that Appellant's partial disability had ceased. At the Board's April 8, 1998 hearing (the "second hearing"), Dr. Alan J. Fink, a neurologist, testified that he examined Appellant on November 26, 1996, January 21, 1997, July 29, 1997 and February 13, 1998. Similar to his conclusions from the two examinations which occurred prior to the first hearing, he found no neurological evidence nor objective findings to explain Claimant's subjective complaints of low back pain. A discography test, ordered by Dr. Fink, revealed no diskogenic problems as the source for Appellant's pain. In sum, Dr. Fink opined that there was no medical basis for Appellant's complaints, his complaints were medically suggestive of malingering, and he was capable of full time work without restrictions.
John J. Moore, D.O., Appellant's treating physician, stated that Appellant saw him monthly from March 1997 to October 1997, and then again in February 1998, and he found that Appellant had diminished range of motion in his low back due to painful symptoms and spasm and continually complained of low back pain. Dr. Moore opined that Appellant suffered cervical, thoracic, and lumbar strain and sprain, despite no specific findings on diagnostic tests. In addition, he stated that in spite of Appellant's cooperation, physical therapy was unsuccessful. Dr. Moore opined that from March to October 1997, Appellant could not have tolerated any type of work including sedentary work. But, since his range of motion capabilities may have improved minimally in February 1998, Dr. Moore believed that he could perform very light duty employment with restrictions.
Appellant testified that since the last Board hearing, he was still unemployed due to the pain from his injury. In March 1998, Appellant attempted to return to work by selling cars but was fired because he could not stand for hours nor test drive the vehicles. He exercises daily by stretching and walking and uses a cane when his leg gets tired. While he subsequently moved to South Carolina, he continued to see Dr. Moore, and he would either take the train where he could stand or sit whenever he wanted, or drive and stop frequently to walk. He mentioned that his pain was always present but fluctuated throughout the day.
3. After accepting Dr. Fink's testimony and finding that Appellant's injury had sufficient time to heal, the Board terminated his partial disability benefits. The Board noted that in its earlier decision, it had allowed for partial disability benefits because it was too soon after the accident. But, the Board found that sufficient time had passed and agreed with Dr. Fink's finding of no objective results nor diskogenic problems. It stated in part:
Claimant argues that, because Dr. Fink's opinion at this hearing was virtually identical to his testimony in the prior hearing, after which the Board found partial disability, this Board can not now rely on Dr. Fink to decide that the partial disability has ceased. In the March Decision, however, the Board found it credible that Claimant, despite his symptom magnification, still suffered lingering effects of the accident because it was still so recent. See April Order, at 1. That justification no longer exists. As of Dr. Fink's July 1997 examination, approximately ten months had passed. The Board, in its experience, notes that this is more than sufficient time for a soft issue injury to heal. The Board accepts Dr. Fink's statement that, while some low back strains do not completely heal, those cases present a different clinical picture than Claimant's case. Thus, the Board no longer finds it credible that Claimant would still have lingering effects of the accident as of the date of the filing of Alberici's petition. This is confirmed by Dr. Fink's finding that there is no objective evidence of any problem and that Claimant is malingering.
(Bd. Dec. at 10.)
As an additional response to Appellant's argument that Dr. Fink's testimony could not be relied upon because it was identical to the first hearing and was not accepted, the Board further stated in footnote two:
As an aside, the Board notes that, if it were to accept Claimant's argument, then Alberici could never terminate Claimant's partial disability. Dr. Fink found no problem at the first hearing. He could hardly testify at a later hearing that there was "even less than no problem." It would, however, be irrational to say that, because the Board found Claimant to be partially disabled in January of 1997, it is forever barred from finding that that disability has ceased.
Id.
4. Appellant appeals the Board's April 1998 decision, arguing that no proof existed to show that the disability ceased because Employer's evidence had not changed since the first hearing. As such, relying upon Turbitt v. Blue Hen Lines, Inc., Appellant argues that the Board improperly used its experience as the only basis in finding that Appellant had enough time to recover from his injury. Specifically. Appellant points to the following statement made by the Board: "[t]he Board, in its experience, notes that this is more than sufficient time for a soft tissue injury to heal." Appellant asserts that the Board cannot rely upon its experience in matters requiring medical testimony and that it substituted its own expertise for that of a physician and was not permitted to do so without some basis in the record under Turbitt.
See infra note 14 and accompanying text.
(Bd. Dec. at 10.)
In response, Employer argues that Appellant mischaracterized the Board's usage of its experience in terminating the benefits. Specifically, Employer asserts that while the Board noted in its experience that more than a sufficient time had passed for healing, the Board's conclusions were based on Dr. Fink's opinions and that it was not relying upon findings outside of the record.
Employer first moved to affirm the Board's decision, which was denied on May 12, 1999. See Blackstock v. J.S. Alberici Constr. Co., Inc., Del. Super., C.A. No. 98A-05-012, Carpenter, J. (May 12, 1999) (ORDER).
Appellant did not file a Reply Brief.
5. This Court's standard of review for an appeal from a Board decision is to determine whether there was substantial evidence to support the Board's findings and conclusions. The Court does not sit as trier of fact with authority to weigh evidence, determine questions of credibility, nor make its own factual findings and conclusions. Weighing the evidence and determining questions of credibility, which are implicit in factual findings, are functions reserved exclusively for the Board.
DiSabatino Bros. Inc. v. Wortman, Del. Supr., 453 A.2d 102 (1982).
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64 (1965).
Breeding v. Contractors-One-Inc., Del. Supr. 549 A.2d 1102 1106 (1988); Conner v. Wells Fargo, Del. Super., C.A. No. 92A-11-006, Goldstein, J. (Oct. 4, 1994) (ORDER).
6. The Board's decision to terminate benefits was based upon 19 Del. C. § 2347, which provides in part:
On the application of any party in interest on the ground that the incapacity of the injured employee has subsequently terminated, increased, diminished or recurred . . ., the Board may at any time, but not oftener than once in 6 months, review any agreement or award.
The employer's burden is to prove that the employee is no longer entitled to receive compensation.
Brokenbrough v. Chrysler Corp., Del. Super., 460 A.2d 551 553 (1983).
7. Appellant argues that in light of the Board's statement, and because the Board's position changed after the second hearing despite Dr. Fink's almost identical testimony in both hearings, the only logical conclusion is that the Board improperly relied upon its own experience, thereby violating Turbitt v. Blue Hen Lines, Inc. The Court finds no merit in Appellant's argument.
See supra note 5 and accompanying text.
Del. Supr., 711 A.2d 1214 (1998).
First, the Court finds substantial evidence to support the Board's reliance on Dr. Fink's testimony despite the similarity of his testimony between the two hearings. In the second hearing, Dr. Fink's testimony focused on his latter examinations that occurred after the first hearing:
Q: Finally, a few more questions. We talked earlier about your impressions in July of `97. We have now reviewed the medical course from July `97 all the way to present day. You've reviewed, in conjunction with your interviews and your examinations and your review of this medical history . . . what are your overall impressions in terms of his subjective complaints, Dr. Fink? A: That there is no basis medically for his complaints. Q: And do you find without evidence of finding that those subjective complaints are suggestive of malingering? A: Yes. * * * * Q: Dr. Fink, you commented earlier upon medical expense issues, and medical treatment, do you find any medical treatment beyond January of `97 to be reasonable, necessary or causally related to the work occurrence? A: No.
(Tr. Bd. Hr'g at 53-54.)
While Dr. Fink's opinion remained unchanged after his subsequent examinations, the Board did not err in relying upon it. The Board heard testimony regarding examinations that occurred after the first hearing. As such, the Board's decision was based upon additional evidence that was not presented in the first hearing. Furthermore, while the Board found that benefits were necessary after the first hearing, it is not fair to characterize the Board's decision as totally discounting Dr. Fink's testimony. At best, it is only fair to conclude that, in spite of that testimony, the Board gave Appellant the benefit of the doubt due to the brief duration between the injury and the hearing and awarded him benefits until the injury appropriately healed. Based on the evidence provided at the second hearing, that time had reasonably passed.
The Court also finds no violation of Turbitt. In Turbitt, the Delaware Supreme Court found that it was improper for an administrative agency to base a decision on information outside of the record or compare a claim to other cases decided by it without notice to the parties. While the Board's administrative expertise may be used as a tool for evaluating evidence, it may not be used as a source for creating evidence. Yet, in finding that the Board improperly used its institutional experience in making its decision, the Court in Turbitt specifically indicated that a Board was free to use its experience to gauge the testimony of conflicting experts.
The Court notes that the Board's decision was rendered three months before the Supreme Court's decision in Turbitt. As such, the Board did not have the benefit of the Supreme Courts guidance, which may explain the unartful language used by the Board.
Turbitt, 711 A.2d at 1216.
Id.
Id. at 1215-16 (citations omitted).
This is simply what occurred in this case. Six months had passed since the Board awarded benefits. It heard two experts who gave conflicting testimony as to whether Appellant had sufficiently healed to justify termination of these benefits. The Board decided to give greater weight to Dr. Fink's testimony because it was consistent with the Board's experience that injuries of the nature suffered by Appellant would normally heal during this time. As such, its experience was used to gauge the expert's testimony, not to create new evidence.
8. For the reasons set forth above, there was substantial evidence that Appellant was no longer entitled to benefits. As such, the Board's decision is AFFIRMED.
IT IS SO ORDERED.