Opinion
C.A. 01A-04-005-FSS
Submitted: December 17, 2001
Decided: April 3, 2002
Upon Appeal from the Industrial Accident Board — AFFIRMED.
Raymond Cobb, Esquire, Wilmington, Delaware, Attorney for Appellant.
Gary S. Nitsche, Esquire, Weik Nitsche Dougherty, Wilmington, Delaware, Attorney for Appellee.
ORDER
This is an appeal from the Industrial Accident Board. The Board held one hearing addressing total disability and a second hearing addressing partial disability. Cassidy Painting, Inc., appeals the Board's decisions awarding Jerry Miller total disability benefits for a closed period, on-going partial disability benefits and medical expenses. Basically, Cassidy Painting claims that Miller failed to present substantial evidence to support the Board's conclusion that an industrial accident on May 2, 2000 diminished Miller's earning capacity.
I.
In February 1999, while working as a commercial painter and foreman for Cassidy Painting, Jerry Miller's left wrist was injected with paint. He received "debridement surgery" to remove contaminated tissue and he missed a week of work. He returned to his regular duties, but he had hand, wrist and elbow problems.
On May 2, 2000, Miller again was injected with paint. This injection was on the inside of his left elbow. Miller had "swelling, redness and stinging" and he was admitted to the hospital for almost three days. Following his hospital stay, Miller suffered "severe pain and limited range of motion." After the second injury and treatment, Miller briefly returned to Cassidy. Eventually, however, he hired on as a forklift operator at another company. The circumstances surrounding Miller's departure from Cassidy Painting were disputed, with Cassidy Painting insisting that Miller quit without cause and Miller, basically, contending that his injuries made working at Cassidy Painting impossible.
At the first hearing, Dr. Stephen J. Rodgers, an occupational medicine specialist and Miller's treating physician, testified for Miller. Rodgers testified that Miller's left arm was "swollen . . . red . . . hard to the touch" with a "chemical necrosis from the injected materials, and he had a decrease range of motion at the elbow." He also stated that Miller had decreased grip strength. Rodgers testified that Miller was totally disabled from May 2 to July 9, 2000 due to the accident in May. Further, he stated that the treatment was reasonable, necessary and related to the work accident. Based on the combination of accidents, Rodgers did not believe Miller should return to commercial painting. That conclusion appears to be based on Miller's medical condition, coupled with the doctor's and Miller's concern that Miller should not expose himself to the risk of yet another paint injection. That sort of injury involves not only the likelihood of immediate serious harm, but also the risk of subcutaneous exposure to carcinogens.
Most importantly, Dr. Rodgers testified that during the time he saw Miller for the May 2000 injury, he told Miller that "it would be inadvisable for [Miller] to think about going back to [commercial painting]." When questioned as to whether Miller's inability to return painting resulted from the May 2000 injury, Rodgers stated:
this is sort of the straw that broke the camel's back. . . . [T]wo out of three joints in the arm have been compromised. Also there's a [practical] consideration that twice now he's been injected with what two of the chemicals going by the MSDS sheets are potential carcinogens.
He further testified that:
the second injury occurred at the . . . hollow above the elbow where the biceps get smaller and the bicep tendon roots in. So that was the area of the second injection. . . . [I]t probably just went in subcutaneously and we know from the way that the muscle felt that it did affect the muscle.
Finally, Rodgers stated that:
[m]y official medical opinion was based on the fact that [Miller] now had an arm that was less useful than it was before. There's no way he's going to be able to continue [commercial painting,] while he was more or less muddling through it before. On a practical person to person, man to man level[,] having seen these injuries over the years[,] . . . my advice . . . was to start looking for other work and soon.
For its part, Cassidy Painting offered no medical testimony. Thus, Rodgers' expert medical opinion was unrebutted. Cassidy Painting relied on its cross-examination of Rodgers, which was effective to some extent. As discussed below, however, Rodgers' basic conclusion that the second paint injection effectively ended Miller's professional painting career was not undermined.
At the second hearing, Michael J. Cassidy testified for Cassidy Painting. He stated that "[w]e didn't want to lose [Miller] . . . [Miller] was a big asset to our company." Cassidy testified that he offered Miller an assistant supervisor position, although the job did not exist then. He admitted "I was creating the job to keep Mr. Miller in employment with Cassidy Painting." He believed that on May 12, 2000, Miller quit. He was not fired. The "quit vs. fired" issue concerned a heated exchange that Miller had with this supervisor on May 12, 2000. Miller and the supervisor clashed over Miller's duties. Miller left the job thinking he had been fired. The supervisor, however, testified that he merely wanted Miller to return after he "cooled off." At this point, that issue seems less significant.
Further, Cassidy testified that he gave Miller a letter communicating the supervisor position's availability, but the letter had no job description. He agreed that no job description was written until September 22, 2000. Finally, Cassidy admitted that he offered Miller the assistant supervisor position because it would help Cassidy Painting's insurance rating. Relying on the circumstantial evidence and its assessment of Cassidy's testimony, the Board concluded that the job Cassidy Painting offered to Miller was specially created. And based on the difference between Miller's former pay as a painter and his subsequent pay as a forklift operator, the Board calculated Miller's diminished earning capacity.
Vocational rehabilitation counselor, Rene Gleckner testified for Cassidy Painting. She stated that Miller's forklift operator position was more strenuous than the assistant supervisor position Cassidy Painting eventually offered to Miller. Gleckner's testimony could have supported the Board's concluding that Miller's earning power was unaffected by the paint injections. But, Gleckner's conclusions were not unassailable and they were countered by Miler's and his medical expert's testimony that working for Cassidy Painting left Miller with diminished capabilities.
II.
As mentioned above, Cassidy Painting contends that Miller failed to prove with substantial evidence that the May 2, 2000 accident diminished his earning capacity. It claims that any physical restrictions on Miller's ability to work as a commercial painter were related to Miller's February 1999 injury, not the May 2000 injury. Further, Cassidy Painting argues that Miller's physician-imposed physical limits "do not equate to a diminished earning capacity as Miller failed to provide evidence upon which such a calculation may be made." In other words, Cassidy Painting argues that its vocational rehabilitation counselor's testimony in effect trumps Miller's medical expert. Finally, Cassidy maintains that the assistant supervisor job was not a specially created job. If, however, the post-accident job at Cassidy Painting were created for Miller, the new job has no bearing on Miller's post-accident earning capacity.
Miller contends that the Board's decision should be affirmed. He argues that the Board's decision is supported by unrefuted medical expert testimony. Miller submits that "there are no grounds whatsoever to disturb the sound and well-reasoned decision of the Board."
III.
The Court's authority on appeal is limited by 29 Del. C. § 10142 and 10161(a)(8). It does not reexamine the evidence or make its own factual findings. So long as substantial evidence supports the factual findings, and it has no legal error, the Board's decision stands. Substantial evidence, to a reasonable mind, is adequate to support a conclusion. A medical expert's opinion potentially "constitutes substantial evidence to support the Board's finding." When the Board relies on an expert's opinion, which is backed by substantive evidence, the Court will not disturb the Board's decision.
General Motors Corp. v. Jarrell, 493 A.2d 978 (Del.Super. 1985).
Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del.Supr. 1994).
Lohr v. ACME Mkts., Del. Super., C.A. No. 98A-05-020, Cooch, J. (Feb. 24, 1999) Order at *2 (citing DiSabatino v. Wortman, 453 A.2d 102, 106 (Del.Super. 1982)), aff'd, 734 A.2d 641 (Del.Supr. 1999).
IV.
The analysis here is relatively straightforward. The fundamental problem with Cassidy Painting's argument is that it views the evidence in less than the most favorable light to the appellee, Miller. When the evidence is examined from Cassidy Painting's point of view, it potentially could have convinced the Board. But the Board did not have to see things that way. The evidence support's the Board's conclusions. Cassidy Painting offered no medical expert testimony to refute Miller's medical expert. The Board was able to accept Rodgers' testimony, even taking his cross-examination into account. Moreover, Cassidy tacitly admitted that he created a job to keep Miller on as an employee and to avoid higher insurance rates. It was not difficult for the Board to find that the position offered to Miller was specially created. Thus, the Board also found Gleckner's labor survey testimony irrelevant and that Miller suffered diminished earning capacity. As mentioned, the latter finding was supported, in part, by the difference between Miller's pay as a painter and his pay as a forklift driver.
In summary, Miller undisputedly had toxic substances injected into his skin as he worked for Cassidy Painting and he was injured. While the first paint injection probably was more serious, the doctor considered the second injury as the "straw that broke the camel's back." And in its role as fact-finder, the Board agreed with the doctor's unrebutted opinion. Moreover, the evidence also supports the conclusion that Miller's condition has reduced his earning potential and he deserves compensation for his loss. The Court sees no reason to disturb the Board's findings.
V.
For the foregoing reasons, the Board's March 29, 2001 decision is AFFIRMED.
IT IS SO ORDERED.