Opinion
C.A. No. 03A-01-004 HDR.
Submitted: June 17, 2003.
Decided: September 16, 2003.
Upon Appeal from a Decision of the Industrial Accident Board AFFIRMED
William Bradley, Dover, Delaware, pro se.
John Klusman, Jr., Esq., Wilmington, Delaware, for Appellee State of Delaware.
This is an appeal by an employee from a decision of the Industrial Accident Board ("Board") which, in pertinent part, denied employee's medical expenses and total disability benefits after January 2, 2002. Because the decision is supported by substantial evidence and is free of legal error, it must be affirmed.
I. BACKGROUND
William Bradley is employed by General Foods as a forklift operator and is also a volunteer firefighter. In addition, he has been employed by the Delaware Fire School on a part-time basis for over 20 years. He was injured while responding to a fire on May 7, 2000.
Prior to his May 7, 2000 injury, Bradley went to Dr. Bryan Errico, a chiropractor, for his general health because of twisting and turning in his neck and back in the course of his employment which caused problems that were helped by chiropractic treatment. Dr. Errico described, and Bradley agreed, that he had monthly visits for low back pain, some headaches, and neck pain. He had no leg pain prior to May 7, 2000, however his leg symptoms following the May 7, 2000 injury gave him great problems. Dr. Errico testified by deposition before the Board on behalf of Bradley.
On May 7, 2000, Bradley responded to a fire at Spence's Bazaar in Dover. He was there for approximately twenty-four hours. He returned to the firehouse to gather refreshments for the other firefighters. As he was placing a cooler in the truck, he felt pain immediately after closing the tailgate and his legs went numb as he was walking down the ramp. He was then carried out of the firehouse on a backboard and taken to the emergency room by ambulance. He received injections and was released. He was taken home and was there for approximately ten minutes when his wife called for an ambulance for him again. He was then admitted to the hospital. An MRI taken at the hospital revealed that he had sustained disc herniation at L5-S1, causing an irritation on the right S1 nerve root. Bradley was subsequently treated by Dr. Errico. Dr. Errico's impression was that Bradley had lumbar segmental dysfunction or subluxation complicated by the disc herniation and radiculopathy to the right leg. On October 6, 2000, Bradley underwent an EMG study that was consistent with S1 nerve root impingement and L5 radiculopathy. Bradley was treated at that time with physical therapy and a TENS unit. At that time, Dr. Errico decreased the frequency of Bradley's treatment.
Bradley received permanent impairment benefits in the amount of $11,005.80 for eight and one-half percent permanent impairment to the spine.
The medical records presented to the Board indicated that Bradley had appointments with Dr. Eugene Godfrey for epidural injections, with his last appointment being on March 12, 2001. The records also indicated that, as of September 10, 2001, Bradley had told Dr. Glenn Rowe that he was doing well and was eighty-five percent better. On October 22, 2001, he called Dr. Rowe and asked for a release to return to the Delaware Fire School. Dr. Rowe agreed to release him at that time with the restriction of no lifting greater than fifty pounds. On December 17, 2001, Dr. Rowe released Bradley to return to work with no restrictions. Bradley also returned to work at General Foods at that time. Bradley was able to return to work as a forklift operator at General Foods, but could no longer respond to fires as a volunteer firefighter.
Dr. Errico indicated that Bradley returned to his pre-accident baseline condition and level of care by January 2, 2002. At that time, Dr. Errico noted that Bradley's treatment changed from active corrective care to proactive wellness care. Dr. Errico agreed that Bradley's treatment after January 2, 2002 was not directly related to his industrial accident of May 7, 2000. However, Bradley argued that he does not believe that he was back to his pre-accident baseline level because he still had low back pain and numbness in his legs despite the fact that Dr. Errico's notes did not indicate any leg symptoms on January 2, 2002 and Bradley did not recall mentioning any leg pain to Dr. Errico. Bradley argues that by "baseline," Dr. Errico actually meant "maximum medical improvement," and that he has not returned to his pre-accident baseline for his injuries.
On March 27, 2002, Bradley saw Dr. Errico again for the first time since January 2, 2000 for neck and back pain as a result of daily activities. Bradley believed that those symptoms were from his work at General Foods and were the same pains that he experienced prior to his industrial accident.
On April 2, 2002, Bradley tripped over his child's rollerblades. The following day, April 3, 2002, he saw Dr. Errico. Bradley testified that he did not fall, but rather twisted and hurt his neck. However, Dr. Errico noted that Bradley felt increased low back pain following this incident but did not mention any neck symptoms in his notes. Dr. Errico's notes indicated that he examined Bradley's low back, but not his neck. Bradley disagrees with Dr. Errico's notes as to this point. At that time, Dr. Errico noted that Bradley's low back pain was worse after tripping over the rollerblades and that his prior back injury was exacerbated, although the records did not indicate that Bradley had any problems with his legs as he had before. Bradley, however, testified before the Board that his injury of April 2, 2002 was not the same pain as his work injury.
Bradley saw Dr. Errico again on April 10 and May 8, 2002, and then on a monthly basis as he returned to his baseline status again.
Bradley was able to work between January 2, 2002 and April 2, 2002, and only sought total disability benefits before the Board for periods after the tripping incident of April 2, 2002.
Bradley began seeing Dr. Nazim Ameer, a board certified anesthesiologist and board eligible pain management specialist, on April 12, 2002 for pain in his low back. At that time, Bradley's work at General Foods had picked up and he was working twelve hour shifts and working on weekends. In addition, he testified that he was under quite a bit of stress at work during the period of time when he tripped over the rollerblades. Dr. Ameer treated Bradley with epidural injections to relax his back and help with his lumbar radiculopathy. Each time Dr. Ameer gave Bradley an injection, he would excuse him from work. Bradley was excused from work for a total of thirty-nine days in 2002. Dr. Ameer testified by deposition before the Board on behalf of Bradley that he believed that Bradley's condition stemmed from his industrial accident of May 7, 2000.
On June 4, 2002, Bradley underwent another MRI which showed that the disc herniation had improved since the May 7, 2000 MRI. Dr. Ameer attributed the improvement to the epidural injections because the steroids in the injections reduce the swelling around the nerve root in the low back. On October 30, 2002, Dr. Ameer performed the last epidural injection procedure on Bradley. During his treatment of Bradley, Dr. Ameer issued notes for him to be on bed rest following the epidural injections. Dr. Ameer testified before the Board that Bradley's fall over the rollerblades on April 2, 2002 did not cause Bradley's subsequent condition, discounting Dr. Errico's opinion that Bradley's tripping over the rollerblades exacerbated his condition.
Bradley was also seen by Dr. Donald Saltzman at least five times for defense medical examinations since his industrial accident of May 7, 2000. Dr. Saltzman testified before the Board by deposition on behalf of the State. After performing a physical examination and reviewing Bradley's medical records, Dr. Saltzman's impression was that Bradley had chronic low back pain that predated the industrial accident and his impression remained the same throughout his subsequent examinations of Bradley. Bradley testified that Dr. Errico had previously treated him for cervical spine pain and migraine headaches prior to his industrial accident, but Dr. Errico's records indicated that he had treated Bradley for low back pain. Dr. Saltzman relied on those records. Dr. Saltzman last saw Bradley on October 3, 2002, at which time he found no specific objective findings despite the fact that Bradley still had complaints of discomfort in his back.
II. FINDINGS OF THE INDUSTRIAL ACCIDENT BOARD
The Industrial Accident Board granted in part Bradley's Petition to Determine Additional Compensation Due to the extent of awarding medical expenses for psychiatric treatment and transportation expenses for doctors' appointments through January 2, 2002 for five defense medical examinations. In addition, Bradley was awarded medical witness fees and one attorney's fee. However, the Board denied Bradley's petition to the extent that it found his medical expenses after January 2, 2002 to be non-compensable and found the State not liable for total disability benefits after January 2, 2002.
The Board accepted Dr. Errico's testimony on behalf of Bradley that he had returned to his baseline pre-accident condition as of January 2, 2002. The Board found that Dr. Errico had treated Bradley prior to his industrial accident and, therefore, was in a good position to make such a determination. The Board also accepted the medical testimony that Dr. Rowe released Bradley to work without restrictions on December 17, 2001, which the Board found to be in line with Dr. Errico's opinion. In its decision, the Board noted that Bradley did not return to see Dr. Errico after January 2, 2002 until March 27, 2002, going almost three months without treatment.
See Board Decision at *10.
The Board found that Bradley did not meet his burden of proving that his low back pain after he tripped over his child's rollerblades was related to his industrial accident. The Board did not believe that Bradley was a credible witness, noting that he disputed his own physicians' testimony. Dr. Errico and Dr. Ameer noted that Bradley had severe low back pain following the rollerblade incident on April 2, 2002, although Bradley testified that he did not hurt his low back when he tripped at that time, but rather hurt his neck. The Board found the medical records to be in line with Dr. Errico and Dr. Ameer' s testimony, as opposed to Bradley's testimony, finding that Dr. Errico noted swelling on the low back and treating the low back, not the neck, on April 3, 2002 and that Dr. Ameer treated Bradley for low back pain, and not neck pain, beginning April 12, 2002. The Board also noted that Dr. Saltzman did not believe that Bradley's treatment after January 2, 2002 was related to his May 2000 industrial accident and that he believed that Bradley was back to his baseline condition for months prior to tripping and injuring his low back.
Id. at *11.
The Board went on to find that Bradley's low back pain beginning in April 2002 was not related to his industrial accident, based on Bradley's testimony that he was working twelve hour shifts and on weekends. The Board noted that Bradley had been working since his medical release by Dr. Rowe in December 2001 and he did not have any problems until he was working very long hours and then tripped over the rollerblades. The Board found that those events were sufficient to break the causal connection to his industrial accident. Furthermore, the Board found that epidural injections like those that Bradley had are a treatment for degenerative disc disease, not for a lumbar sprain since lumbar sprains are not cured with epidural injections. The Board concluded that Bradley suffered from chronic degenerative disc disease that predated, and was not related to, his industrial accident of May 7, 2000. The Board found that none of Bradley's treatment after January 2, 2002 was related to his industrial accident and, therefore, that Bradley's medical expenses after January 2, 2002 were not compensable.
Id.
Following the Board's decision, Bradley appealed to this Court. In his Opening Brief on Appeal, he included additional testimony and documents that were not part of the record presented to the Board at the hearing below.
III. STANDARD OF REVIEW FOR APPEALS FROM THE INDUSTRIAL ACCIDENT BOARD
When reviewing a decision on appeal from the Industrial Accident Board, this Court determines whether the Board's factual findings are supported by substantial evidence and are free from legal error. Substantial evidence is defined to mean such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. It is "more than a scintilla of evidence, but less than a preponderance." When factual determinations are at issue, the Court shall take due account of the experience and specialized competence of the agency and of the purposes of the basic law under which the agency has acted. The Court does not stand as the trier of fact and will not weigh witness credibility, therefore it can not substitute its own opinion for that of the Board's if there is sufficient evidence to support the Board's decision, and the Board's ruling will stand if it is supported by substantial evidence. The only function of the Court is to determine if there is substantial evidence to support the Board's decision and only where there is legal error can the decision of the Board be overturned.
Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998); Talmo v. New Castle County, 444 A.2d 298, 299 (Del. 1982).
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
Olney, 425 A.2d at 614.
Olney, 425 A.2d at 613; Johnson v. Chrysler Corp., 213 A.2d 64 (Del. 1965).
Anchor Motor Freight, 716 A.2d at 156.
Johnson v. Chrysler Corp., 213 A.2d 64, 66-67.
IV. DISCUSSION
Bradley asserts that the Board's decision should be reversed because it was contrary to law, contrary to the evidence presented at the hearing, and not supported by substantial evidence. The State, Employer, asserts that the Board's decision was free from legal error and was supported by substantial evidence. Furthermore, the State argues that the additional testimony and documents submitted by Bradley with his Opening Brief should not be considered by this Court because they were not part of the record below.
Decisions of the Board that are appealed to this Court will be decided on the record. Matters outside of the record below may not be considered on appeal, including evidence or testimony not properly admitted before the Board. Therefore, the additional testimony and documents offered by Bradley in his Opening Brief on Appeal that were not made part of the record before the Board will not be added to the record on appeal and will not be considered by this Court.
Super. Ct. Civ. R. 72(g); 19 Del. C. § 2350(b).
See Wallace v. Mountaire Farms, Inc., 2002 WL 31558080 at *2 (Del.Super.Ct.).
The remaining argument concerns whether the Board's decision is supported by substantial evidence and is free from legal error.
Dr. Errico testified that he had treated Bradley prior to his May 7, 2000 industrial accident for low back pain, headaches, and neck pain. Dr. Errico testified that Bradley did suffer a lower back injury on May 7, 2000 for which he was treated through January 2, 2002. As of January 2, 2002, Dr. Errico testified, Bradley had reached his pre-accident baseline for his injuries. Bradley argued that Dr. Errico actually meant "maximum medical improvement" and did not intend to use the term "baseline" to mean that his condition was back to normal for him. In reading the record, it is clear that Dr. Errico intended to mean that Bradley did indeed reach his pre-accident baseline as of January 2, 2002 and, therefore, that any treatment that Bradley received after that date was not related to his May 7, 2000 industrial accident. Furthermore, Bradley's leg symptoms which were directly related to the May 7, 2000 accident did not appear after January 2, 2002 in Dr. Errico's records.
Dr. Errico testified, and his records indicated, that Bradley had tripped on April 2, 2002, and that he saw Bradley the following day, April 3, 2002. Dr. Errico's notes from that date indicated that Bradley felt increased low back pain following the tripping incident but did not mention any neck problems, as asserted by Bradley before the Board, nor problems with his legs. The Board found that Dr. Errico had treated Bradley prior to his May 7, 2000 industrial accident and, therefore, was in a good position to make a determination as to Bradley's injuries after May 7, 2000 and January 2, 2002 as they related to his condition prior to May 7, 2000. Treating physicians have greater familiarity with a patient's condition and their testimony may be afforded substantial weight.
See Diamond Fuel Oil v. O'Neal, 734 A.2d 1060, 1065 (Del. 1999).
Bradley disputed Dr. Errico's testimony. The Board, however, did not find Bradley to be a credible witness. It is within the province of the Board to make such determinations and, therefore, this Court will not weigh witness credibility.
Olney, 425 A.2d at 613.
Dr. Rowe's records indicated that Bradley's condition had improved and that he released Bradley to work with restrictions on October 22, 2001, and with no restrictions on December 17, 2001. Bradley also disputes this evidence. However, the Board found Dr. Rowe's records convincing that Bradley did return to work without restrictions prior to January 2, 2002.
Dr. Ameer testified before the Board on behalf of Bradley. Dr. Ameer noted that Bradley had experienced lower back pain following the tripping incident of April 2, 2002. However, he opined that Bradley's condition after January 2, 2002 was directly related to his industrial accident of May 7, 2000. This testimony contradicted the testimony of the other doctors that testified and could have been accepted by the Board. However, the Board accepted the testimony of Dr. Errico and Dr. Rowe in making its decision, as well as that of Dr. Saltzman. When presented with differing medical testimony, the Board is free to reject, in full or in part, the testimony of one physician based on its experience in gauging the testimony of witnesses who give conflicting testimony. Therefore, it was well within the Board's power to reject Dr. Ameer's testimony in the face of conflicting medical testimony and evidence.
See Simmons v. Delaware State Hospital, 660 A.2d 384, 388 (Del. 1995), citing General Motors Corp. v. Veasey, 371 A.2d 1074, 1076 (Del. 1977), overruled on other grounds by Duvall v. Charles Connell Roofing, 564 A.2d 1132 (Del. 1989).
The Board took note of the fact that Bradley had been working since his medical release by Dr. Rowe in December 2001 and did not have any problems until April 2002. The Board found that intervening events were sufficient to break the causal connection between Bradley's industrial accident and his injuries after January 2, 2002. The Board concluded that Bradley suffered from chronic degenerative disc disease that predated, and was not related to, his industrial accident of May 7, 2000. Therefore, the Board found that none of Bradley's treatment after January 2, 2002 was related to his industrial accident and, therefore, that Bradley's medical expenses after January 2, 2002 were not compensable.
The Board, sitting as the trier of fact, is permitted to pass on the credibility of witnesses and evidence and to accord the testimony and evidence the appropriate weight. I am satisfied that the Board's determination, that Bradley's injuries and treatment after January 2, 2002 were not related to his May 7, 2000 industrial accident, was based on substantial evidence.
Playtex Products, Inc. v. Leonard, 2002 WL 31814637 (Del.Super.Ct.), aff'd by 823 A.2d 491 (Del. 2003); Gehr v. State of Delaware, 2000 WL 305495, *9 (Del.Super.Ct.).
V. CONCLUSION
This case turns on the interpretation of disputed evidence presented to the Board. The Board accepted the testimony of various doctors, including Bradley's treating physicians and chiropractor, and evidence presented by the State. There is substantial evidence in the record to support the Board's decision which is free of legal error. Therefore, the Board's decision regarding the denial of medical expenses and total disability benefits after January 2, 2002 is AFFIRMED.
IT IS SO ORDERED.