Opinion
C.A. No. 99A-07-004-JOH.
Submitted: October 28, 1999.
Decided: December 20, 1999.
Home Paramount Pest Control's Motion to Affirm — GRANTED . Decision of the Industrial Accident Board — AFFIRMED .
Gary S. Nitsche, Esq., Weik, Nitsche Dougherty, Wilmington, DE.
Eric D. Boyle, Esq., Chrissinger Baumberger, Wilmington, DE.
Home Paramount Pest Control moves to affirm the Industrial Accident Board's decision that Tim Brady was temporarily, permanently disabled for a period of time less than Brady had claimed. He had appealed that decision arguing it was not supported by substantial evidence and that it contravened Delaware law.
The Board's decision will be affirmed without further briefing, if it is manifest that (1) the issue on appeal is clearly controlled by settled Delaware law, or (2) the issue on appeal is factual and clearly there is substantial evidence to support the Board's findings. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The Board's decision and the record will be examined in the light of these standards.
Superior Court Civil Rule 72.1(b).
Street v. State, Del.Supr., 669 A.2d 9, 11 (1995).
FACTUAL BACKGROUND
Brady is fifty years old and had been working for Home Paramount since 1992 as an inspector for termites in residential and commercial properties. Home inspections require looking in attics, crawl spaces, basements and all over. On January 27, 1997, Brady injured his back while working in a crawl space under a house. He missed only one week of work due to this accident. First State Healthcare treated him for this injury in 1997 and part of 1998. Brady was working again in a crawl space on July 15, 1998 when, as he described it, he heard something pop. He crawled out but said he could not stand up. This happened on the third of Brady's nine inspections that day, all of which he completed. Brady notified Home Paramount of the injury which directed him to his family doctor, Dr. David Jezyk. He also resumed treatment with First State Healthcare. On August 14, 1998, the pain was so unbearable, Dr. Jezyk took him off the job placing him on total disability. Brady sees Dr. Jezyk every three-to-four weeks. His bills amounted to $4,141.92.
In December 1998, Brady started treating with The Pain Center in Philadelphia. Dr. Lawrence Lavine of the Pain Center told the Board about his treatment of Brady, which summarized it as follows:
Dr. Lavine specializes in treating patients who have had no success with traditional treatment for back pain. Dr. Lavine treated [Brady] by performing radio frequency neurolisis [sic] ("Zap"). First, Dr. Levine performs a prognostic block, which entails placing a small amount of anesthetic into an area where [Brady] had pain. In a few minutes, if [Brady] describes a decrease in pain in that area, Dr. Lavine would perform a Zap. In doing so a thin probe, similar to a needle, is placed in the designated area and then the area is heated for a few minutes. Then the needle is moved over to another area and the procedure is performed again.
Dr. Lavine explained that the procedure performed is not a rhizotomy, which is the destruction of a nerve. Zap is only destructive of nerve sprouts, which are caused by trauma to the nerve and the nerve itself is not destroyed. [Brady] had several injured areas. [He] was treated approximately once a week from December 8, 1998 through the end of April 1999. At each visit Dr. Lavine would perform one to two procedures and each procedure consists of several sub-procedures. The goal of the treatment is to improve [Brady]'s activities of daily living and take [him] off medication for pain and anti-inflammation. Dr. Lavine noted dramatic improvement in [Brady]'s complaints following the first procedure.
Board Decision (June 17, 1999) at 3.
Dr. Lavine testified that the bills for this treatment, which total $172,528, were reasonable and necessary. He also said Brady needed about one-to-two more treatments but that he saw no permanent injury. In addition to receiving treatment from D. Jezyk and at the Pain Clinic, Brady was receiving chiropractic treatment.
Dr. Jezyk believes Brady is totally disabled from his home inspection job. He could do sedentary work as long as he could change physical positions from time to time. The doctor testified Brady could have returned to this sedentary work in December, 1998.
Home Paramount produced two physicians to the Board, Dr. Jerry Case and Dr. John Townsend. Dr. Case examined Brady twice, April 13, 1998 and November 2, 1998. He also reviewed Brady's treatment records. When he saw Brady in November, he complained of back pain and stated that he could not stand for more than two hours. Dr. Case opined that Brady suffered lumbar sprain and degenerative arthritis in the same area. None of Dr. Case's findings, he said, were significant. Dr. Case told the Board that Brady's subjective complaints meant he should do only light-duty work, avoid repetitive bending and twisting, and lifting anything over twenty pounds. Following the July 15th injury, Dr. Case said only six-to-twelve weeks of therapy would have been appropriate, followed by a home exercise program. Brady, Dr. Case said, could have returned to light duty in two-to-three weeks after the July 15th injury.
Dr. Townsend also performed an independent medical examination on May 14, 1999, just about three weeks before the Board's hearing. He noted a May 1998 CAT scan finding of bulging but not impinging discs. Brady reported to him that he was having pain in his lower left back radiating into his hip and left leg.
While Dr. Townsend found a mild decrease in range of motion in the low back, the neurological examination was normal. It was his opinion that Brady suffered a lumbosacral sprain on July 15th Appropriate treatment would have been about thirty physical therapy or chiropractic treatments then six-to-eight weeks of strengthening exercises at home. Dr. Townsend mentioned the same job restrictions Dr. Case cited.
Dr. Townsend told the Board that Brady was totally disabled from work for about six-to-eight weeks following July 15th. He based this in part on medical records showing that eight weeks after the injury Brady's level of pain was two to four on a level of ten. As to the Pain Center bills, Dr. Townsend found the treatment unnecessary and the cost excessive, particularly since a diskectomy with fusion costs about $11,000. He said no further treatment, other than ice, heat and home exercises, is needed.
Judy Whipp, testifying for Home Paramount, said the employer considered him a good employee. It has positions available within his restrictions, including sales positions. She acknowledged that the Delaware Department of Labor contacted her in February 1999 to see if Home Paramount would be interested in interviewing Brady for a sales position. The record is silent whether there was any follow up to this inquiry. Whipp said Home Paramount still considers Brady an employee but has not made an offer of a job within his restrictions. Nor did Brady ever contact them about an interview or job.
Brady has one and one-half years of college education. He has considerable sales experience, owned a clothing store at one time and has worked in automobile sales. He testified he has no computer skills. Just prior to the hearing, he said the treatment people suggested he find a new career. While working for Home Paramount, he related to the Board, he was making $1,200 per week on commission. His Internet job search, however, led him only to jobs paying $25,000 per year. He said he had been in touch with the Department of Labor about a job rehabilitation program. At the moment, he testified, because of physical restrictions, he said he could not work for anyone. The restrictions are that he can only sit for an hour and a half before he has to stand up. And, he can only stand for an hour.
The issues presented to the Board were the length of Brady's inability to work and the reasonableness of his medical expenses. Relying on Dr. Townsend, the Board found that Brady was totally disabled from August 14, 1998 for a period of eight weeks. This was not the period Brady had claimed before the Board, which was at least through May 31, 1999. In addition, the Board found it was Brady's duty to seek out work with Home Paramount within his restrictions and that he had not. Again, Brady had contended to the contrary that he was employed by Home Paramount until it offers him a light-duty job. He had not done this and his job search was minimal. After sifting through the conflicting medical testimony, the Board adopted Dr. Townsend's view that $176,669 in medical expenses was extreme and excessive.
DISCUSSION
Brady, however, has not appealed the Board's denial of his medical expenses. He challenges the Board's decision concerning his employment status. Before the Board, he argued that he was totally disabled through, at least, May 31, 1999. Interestingly, too, is his own testimony that he was unable to work for anyone at the time of the Board hearing on June 8th.
The Board's decision that he was totally disabled for only eight weeks following his July 1998 injury (starting August 14th when he was taken off the job) and not until May or June 1999 was a factual decision supported by substantial evidence. Such determinations fall squarely within Rule 72.1(b). But, now in this appeal, Brady shifts gears. He raises an argument, not raised below and, obviously, one which the Board did not consider, that his case falls within the holding of Hoey v. Chrysler Motors Corp.
Del.Supr., No. 85, 1994, Hartnett, J. (December 28, 1994) (ORDER).
Even though not raised below, Brady's argument fails. While working for Chrysler, Hoey was injured and totally disabled from work for a while. She was then permitted to return to work with restrictions. Though not clear, it seems that after receiving that clearance from her doctor, she was examined by a Chrysler doctor. Again, while not clear, it appears that doctor did not clear Hoey for even restricted work. She was kept on as an employee but never offered a light-duty job nor told one was unavailable.
This case does not fall within Hoey. As to Home Paramount, Brady claimed total disability which is also his posture before the Board. There is some suggestion his doctor, Dr. Jezyk opined in May 1999 that Brady could have returned to sedentary work several months before, none of this, however, was made known to Home Paramount. The only contact Brady made was an indirect one through the Department of Labor. There is no indication that anything came of this — a rejection of a job or willingness to employ. It does not appear there was even an request for a light-duty job, as Brady was still claiming total disability.
This factual scenario does not place Brady within Hoey's holding. Unlike Hoey, he was not being strung along by Home Paramount. He took insufficient steps to seek any work within Home Paramount. Thus, he failed in his part of the obligation to seek work. In this regard, to the extent the Board inferentially may have considered the Hoey holding, its decision was factual with substantial evidence to support it. To the extent it was a legal determination, it is clearly controlled by settled Delaware law. To the extent that Brady shifts gears in this appeal, he has presented no basis for reversal.
Chrysler Corp. v. Duff, Del.Supr., 314 A.2d 915 (1973).
CONCLUSION
For the reasons stated herein, the motion to affirm of Home Paramount Pest Control is GRANTED and the decision of the Industrial Accident Board is AFFIRMED.
IT IS SO ORDERED.