Opinion
C.A. 01A-10-009-PLA
Submitted: February 26, 2002
Decided: April 4, 2002
Upon appeal from a decision of the Industrial Accident Board affirmed.
Elizabeth Lewis, Esquire, Jacobs Crumplar, P.A., Attorney for Employee Below-Appellee.
Maria Paris Newill, Esquire, Heckler Frabizzio, Attorney for Employer Below-Appellant.
ORDER
This 4th day of April, 2002, upon consideration of the record in this case and the papers filed by the parties, it appears to the Court that:
Lillie Taylor ("Appellant") has appealed from the October 5, 2001, decision of the Industrial Accident Board ("IAB" or "Board") resulting in the termination of disability benefits. This is the Court's decision on appeal.
FACTS
The Appellant suffered injuries to her back on June 30, 2000, as a result of lifting instruments from a surgical cart. At the time of the accident, the Appellant was employed by Christiana Care as a service assistance. Following the incident, the Appellant was evaluated and treated by Drs. Nicholas Biasotto and Bikah Bose and by Kevin Ward, an occupational health nurse practitioner. On August 3, 2000, an agreement regarding compensation for the injuries in question and treatment thereof, was entered into by the parties.
The Appellant was initially seen on June 30, 2000, by Kevin Ward, a nurse practitioner with Employee Health at Christiana Care. Mr. Ward examined Appellant next on July 6, 2000, and again on July 19, 2000, at which time he indicated that she was improving. Mr. Ward testified that, on July 26, 2000, he discussed with Appellant a plan for her to return to work on a four-hour shift basis if her treating physician approved.
Mr. Ward testified that on November 21, 2000, Appellant advised him that she was walking better. She denied any back pain at that time. Two months later, on January 24, 2001, Mr. Ward engaged in a lengthy discussion with Appellant about returning to work. Mr. Ward testified that the Appellant's last visit to Employee Health was on February 15, 2001. By that time, she had applied for long-term disability and did not expect to return to work.
The Appellant was treated by Dr. Nicholas Biasotto, her family doctor, in July of 2001. Dr. Biasotto, who is board certified in family practice, testified by deposition that it was his opinion that Appellant is "still disabled from even a sedentary capacity because of her continued pain and use of pain medications." Dr. Biasotto prescribed physical therapy and anti-inflammatory medications. He initially kept Appellant out of work for ten days. After several more visits with no improvement, Dr. Biasotto ordered an MRI to rule out disc herniation and he continued to keep Appellant out of work.
Board Decision, dated October 5, 2001, at 20 (hereinafter "Bd. Dec. at ___.").
Dr. Biasotto also referred Appellant to Dr. Bikah Bose, a neurosurgeon. It was Dr. Biasotto's opinion that Appellant could not return to work, even in a sedentary position, because she was experiencing a lot of pain. The results of a nerve condition study showed L5-S1 radiculopathy, which was consistent with Appellant's complaints. A cane was prescribed for Appellant because of her gait instability. Dr. Biasotto's opinion was that the weakness was also objectively indicated in the myelogram.
Dr. Bose first examined Appellant on September 19, 2000, upon a referral from Dr. Biasotto. During her first appointment with Dr. Bose, Appellant complained of severe pain and stated that the only comfortable position for her was when she was lying on her stomach. Appellant also told Dr. Bose that she had previously experienced ongoing back pain, but that it had not prevented her from carrying on her daily activities.
Dr. Bose testified that he did not consider that Appellant exaggerated her history to him in any way. He stated in his notes that Appellant had back pain off and on for years, but was able to control it by taking Motrin. His review of the MRI taken of her thoracic and lumbar spine indicated that the Appellant had multi-level disc disease involving the entire spine. The findings were consistent with Appellant's subjective complaints and consistent with the accident as she had explained it to him. Dr. Bose did not feel that Appellant could return to her job at the hospital. He suggested that she have a myelogram because, in his opinion, Appellant was functionally impaired.
When Dr. Bose last saw Appellant on April 30, 2001, she was not improving. He recommended surgery. At that point, Appellant declined surgery. On June 25, 2001, Dr. Bose documented an estimated functional capacity form for disability insurance, in which he expressed the opinion that Appellant was capable of sedentary activity.
Appellant testified that she has not returned to work in any capacity because she had not received permission to do so either from Dr. Biasotto or from Dr. Bose. Since she decided not to have surgery, she stated that there was nothing more Dr. Bose could do for her.
On March 7, 2001, Dr. John Townsend, III, examined Appellant as part of an independent medical examination. He found that Appellant injured herself at work and that her history was consistent with the records of Dr. Biasotto. In contrast to Dr. Bose's findings, however, Dr. Townsend did not believe that there was any nerve root damage. Dr. Townsend opined that Appellant suffered a lumbar-sacral strain from her June 22, 2000 work accident but that she was not rendered totally disabled as a result of the accident. Dr. Townsend found that Appellant was capable of returning to work with limitations. Further, Dr. Townsend felt that Appellant was exaggerating her symptoms.
In reaching his decision, Dr. Townsend relied upon his own findings upon physical examination in conjunction with Appellant's medical records. Specifically, Dr. Townsend reviewed an MRI report, and EMG study, as well as the records from both Dr. Biasotto and Br. Bose. Dr. Townsend testified at the Board Hearing that Appellant's MRI was indicative of "severe lumbar spondylosis . . ." which results from "predominately degenerative changes . . . ." He further testified that "[t]he patient has multi-level spondyleses . . . . both spurring and disc herniations at multiple levels in the thoracic and lumbar spine." As to the EMG study, it was Dr. Townsend's opinion that the findings of L5-S1 radiculopathy must have been mild, as there were "poly-phasic waves seen in three muscles" and "no signs of nerve or muscle irritability."
Board Hearing Transcript at 5-6.
Id. at 6.
Id. at 6-7.
Dr. Townsend's review of Dr. Biasotto's records, dating back to 1985, revealed a multitude of symptoms involving numbness in extremities, and body aches and pain in Appellant's arms and shoulders. There was also a record of a visit in February of 1999, at which time Appellant complained of back pain. On Appellant's first post-accident visit to Dr. Biasotto on July 7, 2000, Appellant complained of back pain radiating to her left leg after heavy lifting at work. Dr. Biasotto excused Appellant from work for ten days and prescribed Vioxx and Ultram. Dr. Townsend testified that Dr. Biasotto noted Appellant visited seven more times, from July 7, 2000 until her last visit on August 23, 2000. During this time period, Dr. Townsend found no documentation in Dr. Biasotto's records of Appellant's work status or of the prescription of narcotic medications. Dr. Townsend testified concerning an August 23, 2000 note which indicated that Appellant's disability was "open-ended," as well as a note indicating that Appellant could return to work as of August 24, 2000. Dr. Townsend testified that there was no indication in the records that the disability was still "open-ended."
Dr. Townsend reviewed the records of Dr. Bose. At the time of the first examination on September 19, 2000, Appellant gave a history of both her June 22, 2000 accident and a history of prior back injury "several years ago." Appellant last visited Dr. Bose on April 30, 2001. Dr. Townsend found no documentation in Dr. Bose's notes of Appellant's work capability or status.
Dr. Townsend also reviewed Christiana Care Employee Health records. On November 23, 1998, Appellant complained of back pain. Dr. Townsend reviewed Christiana Care Physical Therapy records from March 3, 2000, wherein Appellant's complaint was low back pain.
Dr. Townsend's own examination of Appellant revealed a complaint of mid to low back pain, "around her tailbone." Dr. Townsend found several non-organic complaints upon physical examination, complaints that did not make any sense. Appellant complained of pain when foot shake and log roll tests were conducted. Dr. Townsend testified these complaints were inconsistent with Appellant's alleged injuries. This finding was supported by neurological examination. Dr. Townsend also found that Appellant had "break away weakness," which meant that Appellant did not exert a good effort on her exam.
Dr. Townsend found that Appellant was not totally disabled. He stated that Appellant could return to work in a sedentary position with lifting restriction to no more than ten pounds with allowance for frequent position changes and without persistent standing. In addition, Dr. Townsend stated that there was only one narcotic listed on Appellant's Social Security disability medication list and that any narcotic medication could be adjusted to permit Appellant to return to work.
On April 30, 2001, the Appellee filed a "Petition for Termination of Benefits," seeking to terminate compensation on the ground that the Appellant was physically able to return to work. A hearing before the Board was held on September 21, 2000.
On October 5, 2001, the Board issued its decision granting the Appellee's petition to terminate benefits, finding that the Employer met its burden of proof and that Appellant was no longer physically disabled, and therefore, no longer totally disabled. On October 25, 2001, the Appellant filed a timely appeal of the Board's decision to this Court, arguing that the decision was not supported by substantial evidence and contained errors of law.
DISCUSSION
The Supreme Court and this Court repeatedly have emphasized the limited appellate review of factual findings of an administrative agency. The function of the reviewing Court is limited to determining whether substantial evidence supports the Board's decision and is free from legal error. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The reviewing Court does not weigh the evidence, determine questions of credibility, or make its own factual findings.
DEL. C. ANN. tit. 29 Del. C. § 10142(d) (1997); Soltz Management Co. v. Consumer Affairs Bd., 616 A.2d 1205, 1208 (Del.Supr. 1992); Johnson v. Chrysler Corp., 213 A.2d 64, 66-67 (Del.Supr. 1995); General Motors v. Freeman, 164 A.2d 686, 688 (Del.Supr. 1960).
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battista v. Chrysler Corp., 517 A.2d 295, 297 (Del.Super. 1986), app. dism., 515 A.2d 397 (Del.Supr. 1986).
Johnson, 213 A.2d at 66.
Simply put, the Court does not sit as trier of fact, nor should the Court replace its judgment for that of the Board. It is the exclusive function of the IAB to evaluate the credibility of witnesses before it. Moreover, due deference shall be given to the experience and specialized competence of the Board. The Court determines if the evidence is legally adequate to support the agency's factual findings. Application of this standard "requires the reviewing court to search the entire record to determine whether, on the basis of all the testimony and exhibits before the agency, it could fairly and reasonably reach the conclusion that it did." In this process, "the Court will consider the record in the light most favorable to the prevailing party below." Only where there is no satisfactory proof in support of the factual findings of the Board may the Superior Court or the Supreme Court overturn it.
Id.
See, e.g., Vasquez v. Abex Corp., 1992 Del. LEXIS 431, Horsey, J. (Nov. 2, 1992) (ORDER).
DEL. C. ANN. tit. 29 Del. C. § 101429 (d) (1997); Histed v. E.I. duPont de Nemours Co., 621 A.2d 340, 342 (Del.Supr. 1993).
Id.
National Cash Register v. Riner, 424 A.2d 669, 674-75 (Del.Super. 1980).
General Motors Corp. v. Guy, 1991 Del. Super. LEXIS 347, Gebelein, J. (Aug. 16, 1991).
Johnson, 213 A.2d at 64.
The Appellant contends that the Board erred in its termination of her total disability benefits because the Board's decision was not based on substantial evidence. The Appellee responds that the Board did not err as a matter of fact or law and that the Board's decision is supported by substantial evidence.
Applying the foregoing standard, the Court finds the testimony of Dr. Townsend, based upon his examination of the Appellant and his review of Appellant's medical records, constitutes substantial evidence to support the Board's findings. It is within the purview of the Board, and not this Court, to weigh the credibility of the witnesses, and to accept or reject the Appellant's subjective complaints. In the instant case, the Board rejected the Appellant's subjective complaints. In justifying its findings the Board stated:
See, e.g., Vasquez v. Abex Corp., 1992 Del. LEXIS 431.
As to Dr. Biasotto
Dr. Biasotto's testimony was vague and factually inaccurate at points and the Board found Dr. Townsend more persuasive. Dr. Biasotto testified that her [Appellant's] pre-existing severe arthritic condition "may" have been exacerbated by the lifting incident. His post-accident diagnosis of [Appellant] is the same as Dr. Townsend's: lumbar strain and sprain. [When] asked to describe what his diagnosis of lumbar radiculopathy is based upon . . . there was no testimony as to this diagnosis."
Bd. Dec. at 14.
In addition, the Board found:
There was no testimony specifically about [a] conversation with [Appellant] on April 16, 2001. [H]is last communication with [Appellant] was on June 1, 2001. Dr. Biasotto testified that, "at some point," he discussed returning to work with [Appellant]. His testimony was that lifting would be "out of the question," but he "asked" [Appellant] if she could return to sedentary work. Apparently [Appellant] said no. On cross-examination, however, he testifies a sedentary position "might" now be possible for [Appellant].
As to Dr. Bose
The Board was not persuaded by Dr. Bose's testimony. Dr. Bose found [Appellant] had multi-level disc disease. . . . Dr. Bose first saw [Appellant] on September 19, 2000. By October 25, 2000, [Appellant] [told] Dr. Bose that she was felling better an din slightly less pain. In spite of that improvement, that is his first record of her inability to work. Dr. Bose provided a disability slip dated October 25, 2000, through January 10, 2001. His testimony was that after this date, [Appellant] was told to get disability documentation from her primary care physician, Dr. Biasotto. Dr. Bose's last contact with [Appellant] was on April 30, 2001. Although Dr. Bose indicates muscle relaxants can "make you sleepy," on June 25, 2001, he documented on a disability insurance form that [Appellant] could be released to sedentary work. "I wasn't providing [Appellant] any medications at that point."
Id. at 14-15.
Id. at 15.
The Board, in reaching its conclusion, chose not to rely upon either the Appellant's subjective complaints or her treating doctors' testimony. Instead, the Board found the Appellee's expert, Dr. Townsend, to be more credible. The Board is "free to choose between the conflicting diagnoses of examination physicians and either diagnosis constituted substantial evidence on appeal." As previously noted, substantial evidence is evidence that a reasonable mind might accept as suitable to support a conclusion. It must be more than a scintilla but less than a preponderance.
Branch v. Kraft General Foods, 1994 Del. Super. LEXIS 426, Goldstein, J. (Mar. 24, 1994); see also Reese v. Home Budget Center, 619 A.2d 907, 910 (Del.Supr. 1992); and DiSabatino Bros., Inc. v. Wortman, 453 A.2d 102, 106 (Del.Supr. 1982).
Streett v. State, 669 A.2d 9, 11 (Del.Supr. 1995); Olney v. Cooch, 425 A.2d 610, 614 (Del.Supr. 1981).
Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).
The Board performed its exclusive function and reconciled the inconsistent testimony and determined the credibility of witnesses. Absent an abuse of discretion, the Board's decision may not be disturbed by a reviewing court. Since the record does not reflect that the Board abused its discretion when assessing the credibility of witnesses, this court will not disturb its findings.
Simmons v. Delaware State Hospital, 660 A.2d 384, 388 (Del. 1995); Breeding, 549 A.2d at 1106.
Id.
Accordingly, this Court must conclude that the decision of the Industrial Accident Board terminating Appellant's benefits is based upon substantial evidence and free of legal error.
CONCLUSION
For the foregoing reasons, the decision of the Industrial Accident Board is hereby AFFIRMED.
IT IS SO ORDERED.