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Brooks v. Lowe's

Superior Court of Delaware, New Castle County
Nov 27, 2002
C.A. No. 01A-12-006 WCC (Del. Super. Ct. Nov. 27, 2002)

Opinion

C.A. No. 01A-12-006 WCC

Submitted: July 19, 2002

Decided: November 27, 2002

On Employer Lowe's Appeal from Industrial Accident Board. Denied.

Cassandra Faline Kaminski, Esquire, Young, Conaway, Stargatt Taylor, LLP, The Brandywine Building, 17th Floor, 1000 West Street, P.O. Box 391, Wilmington, DE 19899. Attorney for Employee-Appellee.

Thomas J. Gerard, Esquire, Marshall, Dennehey, Warner, Coleman Goggin, 1220 N. Market Street, P.O. Box 130, Wilmington, DE 19899. Attorney for Employer-Appellant.


ORDER


This 27th day of November 2002, after consideration of Lowe's ("Employer") appeal from the decision of the Industrial Accident Board ("Board") it appears that:

1. On October 13, 1999, Dennis Brooks (the "Claimant") was employed by Lowe's Home Centers, Inc., when he sustained a compensable back injury in the course of his employment. Claimant, who had corrective surgery in August 2000, entered an agreement where he was to receive total disability benefits. Subsequently, based upon its belief that Claimant was no longer totally disabled, Employer filed a petition to terminate his total disability benefits with the Industrial Accident Board on July 27, 2001. The Board held a hearing on November 28, 2001, at which time the Board heard testimony from Dr. King and Dr. Bosacco, both of which were presented in the form of depositions. On December 3, 2001, the Board found that the Employer had failed to establish by a preponderance of the evidence that Claimant was physically capable of working a job for which a reasonably stable market exists. The Employer appeals the Board's decision.

The Agreement as to compensation was dated January 5, 2001, which provided that Lowe's was to pay Claimant compensation for total disability effective August 24, 2000. The compensation rate was $289.39 per week, based on a weekly wage of $434.68. See Brooks v. Lowe's Home Centers, Inc., IAB No. 1154204, at 2 (Dec. 3, 2001) (hereinafter "IAB decision at ___").

The parties stipulated to adjudication by a Hearing Officer in lieu of the Industrial Accident Board pursuant to Title 19, Section 2301B(a)(3) of the Delaware Code.

Dr. King testified for the Claimant by oral deposition on November 7, 2001. Dr. Bosacco testified for the Employer by oral deposition on November 15, 2001. There was also the testimony of Claimant, as well as Shelly Palmer, a vocational rehabilitation specialist who testified on behalf of Employer. Ms. Palmer conducted a labor market survey which identified eleven sedentary positions.

2. This Court's standard of review for an appeal from a Board decision is to determine whether there was substantial evidence to support the finding of the Board, and, if it finds such in the record, to affirm the findings of the Board. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The Court is not the trier of fact nor has the authority to weigh evidence, determine questions of credibility, or make its own factual findings and conclusions. Rather, this Court merely determines if the evidence is legally adequate to support the Board's factual findings. 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, 453 A.2d 102 (Del. 1982).

Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994).

Johnson v. Chrysler Corp., 213 A.2d 64 (Del. 1965).

Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1106 (Del. 1988); Conner v. Wells Fargo, 1994 WL 682486 (Del.Super.Ct.).

3. In a Petition to Terminate Benefits the employer has the burden of proof to show by a preponderance of the evidence that the Claimant is no longer totally disabled. Total disability arises when an employee is unable to perform services "other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist." Therefore, the threshold issue is not whether Claimant can do "something" for a period of time, but whether the Claimant is physically capable of working a job for which a reasonable stable market exists. Employer claims both that the Board erred as a matter of law in continuing Claimant's disability benefits and that the Board's decision is not supported by substantial evidence, asserting that both Dr. King and Dr. Bosacco agreed that Claimant could return to work in some capacity.

Torres v. Allen Family Foods, 672 A.2d 26 (Del. 1995).

M.A. Hartnett, Inc. v. Coleman, 226 A.2d 910, 913 (Del. 1967) (internal quotations omitted).

Id.

4. Contrary to Employer's assertion, the record does not reflect a general agreement by the doctors that Claimant could return to work. Dr. Bosacco, who examined Claimant on April 6, 2000, and again on April 26, 2001, opined that Claimant could return to work in a sedentary position, however to do so he required severe restrictions. Specifically, he found that for Claimant to return to work, he would be required to find a position that required no bending, squatting, crawling, climbing or reaching and no use of the upper extremities for pushing or pulling. He also believed that Claimant should lift no more than ten pounds on occasion and that standing or walking must be limited to one hour per day. In addition to this, Dr. Bosacco found that Claimant was at maximum medical improvement, meaning that he would not significantly improve and that his symptoms may wax and wane and that his progress was guarded.

Transcript at 4-5 (hereinafter "Tr. at ___"); Deposition of Dr. David Bosacco at 23 (Hereinafter "Bosacco Dep. at ___").

5. Dr. King was the Claimant's treating physician and in describing the condition of the Claimant in April of 2001 said:

I saw the patient in follow-up on April 9th of this year, at which time I felt that he had certainly reached a clinical plateau with any formal treatment, and other than doing self directed home exercises and taking medications, I felt that, other than just seeing him in follow-up every 12 weeks, there was nothing more that I could do for this gentleman, and, basically, I have continued to see him since, most recently saw him on September 20th of this year, at which time I supplied him with his medications, which include a narcotic analgesic, Vicodin, extra strength, muscle relaxant, Flexeril, and Neurontin, which is for the neuropathic pain. There also appears in Dr. King's notes of the April 2001 assessment the possibility of the Claimant attempting to return to work. When asked to explain the notation with his opinion that the Claimant remains disabled, Dr. King testified:

Deposition of Dr. Conrad King at 6 (hereinafter "King Dep. at ___").

Basically, when this patient came under my care in March of 2000, the goal always was to get him back to work, if not in his pre-injury level of activity, at least doing something. To that end, I had given the patient a prescription for physical therapy back in May of 2000. When he had completed his course of therapy, I released him to sedentary duty in July of 2000, hopeful that he would be able to do it.

He was not. After about an hour and 15 minutes, even on the ride to work, he was experiencing exacerbations of his pain. I, again, rendered him totally disabled. So, following his surgical procedure in August and then with the treatment I have already testified to, the physical therapy, the injections, it reached a point, by April 9th of 2001, when I felt he had reached a clinical plateau, it certainly made sense, at that point, to, again, give it a try.

We did. It did not work. He was unable to sustain even part-time, sedentary duty, and it became my impression that he would not be able to sustain it day in, day out, week in, week out. So, I have rendered him totally and permanently disabled. In the June 2001 evaluation, Dr. King testified that he found Claimant's conditions had worsened such that there was a "decrease in his range of motion to the lumbar spine" and that there was a "worsening of the myospasm." In maintaining at the time of the disposition that Claimant remained totally disabled, Dr. King testified that due to Claimant's history, his exam findings, the diagnosis of failed back syndrome and the potential need for further surgery as well as several medications he was taking which produced drowsiness, he considered that Claimant was not capable of maintaining any level of employment.

King Dep. at 7-8.

King Dep. at 23-24.

King Dep. at 26-27.

6. When faced with conflicting testimony, "[t]he Board is free to choose between conflicting medical opinions and either opinion will constitute substantial evidence for an appeal." In this case the Board articulated specific reasons for finding Dr. King's testimony to be more credible than that of Dr. Bosacco and the Court finds those conclusions to be reasonable and supported by the record. In its simplest terms, the dispute centers around a decision by the Board on whether to give greater weight to a doctor's opinion about one's ability to work which included significant and "erroneous" restrictions, versus another doctor who has regularly treated the patient and who, in spite of herculean efforts by the Claimant, found that he simply could not work. The Employer's attempt to take advantage of Dr. King's last effort to find some productive work for the Claimant is at best a desperate attempt to avoid their obligation to this employee. Fortunately this effort has not been successful. Based on the above findings, this Court cannot say that the Board erred as a matter of law, nor that the Board's decision is unsupported by substantial evidence.

Justison v. Home Health Corp., 1999 WL 463702, at *3 (Del.Super.Ct.) (citing Reese v. Home Budget Ctr., 619 A.2d 907, 910 (Del. 1992)).

7. There also does not appear to be any substance to employer's argument that the Board erred in finding that the positions identified by Ms. Palmer are not within Dr. Bosacco's restrictions. First, it is clear that the Board found the testimony of Dr. King to be more consistent and reliable in determining the condition of the Claimant and his ability to work. Since Dr. King believed the Claimant was disabled and unable to work, there is some question whether Ms. Palmer's findings are even relevant at this juncture in the litigation. However, putting that issue aside for the moment, the Court believes the findings of the Board are supported by substantial evidence. Dr. Bosacco testified that he did not consider the Claimant capable of performing work that required reaching. As the Board noted from the testimony, "[o]f the eleven positions identified only one of the positions did not require reaching with any frequency but did indicate reaching on an intermittent basis." Therefore, despite Ms. Palmer testifying that she took Dr. Bosacco's restrictions into consideration when she compiled the survey, it appears she had significant difficulty matching the Claimant's capabilities to the market place. The Board noted as much stating that "Dr. Bosacco never reviewed the positions nor did he approve them as being within Claimant's restrictions." The Court simply finds the Employer's argument on this issue to be without merit.

Tr. at 4, 5; Bosacco Dep. at 24-25.

IAB decision at 5.

Tr. at 7-8, 10.

IAB decision at 5.

Because the employer has not satisfied the initial burden of demonstrating that the employee is no longer totally incapacitated for the purposes of working, we need not address the Employer's second argument that the Board erred in failing to address Employee's burden of establishing a "displaced worker" status. See, e.g., Torres, 672 A.2d at 30; Wade Insulation, Inc. v. Visnovsky, 773 A.2d 379, 381 (Del. 2001).

8. As a result, the Court finds that the Board's decision is supported by substantial evidence and is free from legal error, and for the reasons set forth above, its decision is AFFIRMED.

IT IS SO ORDERED.


Summaries of

Brooks v. Lowe's

Superior Court of Delaware, New Castle County
Nov 27, 2002
C.A. No. 01A-12-006 WCC (Del. Super. Ct. Nov. 27, 2002)
Case details for

Brooks v. Lowe's

Case Details

Full title:DENNIS BROOKS, Employee-Appellee, v. LOWE'S, Employer-Appellant

Court:Superior Court of Delaware, New Castle County

Date published: Nov 27, 2002

Citations

C.A. No. 01A-12-006 WCC (Del. Super. Ct. Nov. 27, 2002)