Opinion
C.A. No. 02A-02-010 CHT
Date Assigned: August 2, 2002
Decided: December 2, 2002
Nancy Chrissinger Cobb, Esquire, CHRISSINGER BAUMBERGER, Attorney for the Employer-Below/Appellant.
Joseph W. Weik, Esquire, WEIK, NITSCHE DOUGHERTY, Attorney for the Claimant-Below/Appellee.
OPINION AND ORDER On The Employer's Appeal from the Decision of the Industrial Accident Board
STATEMENT OF FACTS
This is an appeal from the decision of the Industrial Accident Board (hereinafter "IAB") arising out of a claim for worker's compensation benefits based upon psychological injuries allegedly suffered by the Claimant-Below/Appellee, Tony Herring, during the course of his employment with the Employer-Below/Appellant, Citisteel USA. Mr. Herring claims that his psychological injuries (including post-traumatic stress disorder and panic attacks) have left him completely disabled and unable to work, effective January 29, 2001. Specifically, he claims that his present disability primarily resulted from the terms and conditions of his employment with Citisteel and points to three incidents in that regard.
Mr. Herring began his employment with Citisteel as a crane worker in the late 1980s. He was last employed by Citisteel on January 29, 2001 as a crop shear operator.
The first incident occurred in June 1996, when Mr. Herring observed his co-worker, Eddie LeJeune, severely injure his legs when they were caught between two large steel rollers. Mr. Herring, employed as a crane operator at the time, operated the crane that was used to free Mr. LeJeune, an effort that took approximately two hours. According to Mr. Herring, he felt that Mr. LeJeune's life was "in his hands." Mr. Herring returned to work that day without interruption, and did not seek medical psychiatric or psychological care. He did, however, "dream" about the accident on his way home and continued to think about it up to the day of the IAB hearing, as if it had happened the day before.
On the evening of April 13, 1999, after running on a treadmill, Mr. Herring went to St. Francis Hospital with complaints of chest pains, sweating and shortness of breath. He told the hospital personnel that he'd had similar symptoms that morning with no precipitating event. He was hospitalized overnight and a cardiac work-up was prepared. Although those tests all produced negative results, Mr. Herring was diagnosed with high blood pressure.
On April 29, 1999, a piece of steel fell on the foot of a co-worker named Albert Jackson. Mr. Herring, still a crane operator, did not personally observe this incident, but used a crane to assist in removing the piece of steel from Mr. Jackson's foot. Unfortunately, that effort was delayed because the first crane Mr. Herring approached was not in the proper position to perform the appropriate task.
According to Mr. Herring, the Jackson accident, like the LeJeune accident, later became a recurrent reflection, and he began to relive both on an almost daily basis.
Immediately following the incident, Mr. Herring suffered from shaking, chest pains and a feeling he was having a heart attack. Again, he was taken to St. Francis Hospital, and was this time diagnosed with an anxiety disorder. His family doctor subsequently started him on a regimen of Paxil, as well as medications for hypertension and high cholesterol. Mr. Herring missed several weeks of work. Upon his return he requested that he be reassigned to another position because he felt that he might have another anxiety attack and hurt someone if he were to remain a crane operator. That request was granted and he was reassigned to a position as a crop sheer operator.
A crop shear operator mans a crop shear machine which removes excess scrap from steel plates by cropping off the ends of those plates.
Finally, in 1999, at some point subsequent to the Jackson incident, Mr. Herring learned that a security guard was injured at Citisteel and died. Although he did not assist in any rescue effort, he saw the emergency personnel arrive and knew another accident had occurred. There were no reported medical problems, nor was any treatment rendered for medical problems based upon this incident alone.
Mr. Herring did, however, continue to suffer from the same problems and receive the treatments which began following the Jackson accident.
In January 2001, as one of the duties of his new crop shear position, Mr. Herring was instructed by his foreman (Mr. Al Ravert) to participate in a test run of a mill change operation. Mr. Herring descended a ladder into the mill change pit during the test run, but began to feel sweaty and short of breath. He had chest pains and felt as if he was having a heart attack. Mr. Herring reported these feelings to Mr. Ravert that day and was excused from any further participation in that activity pending a meeting with management.
There is some dispute in the record as to the date that the test run actually occurred. Mr. Herring testified at the hearing that it was on January 21, 2001, while his supervisor, Mr. Keeley, testified that it occurred on January 14, 2001. The IAB simply adopted "January 2001", and the Court has accordingly done so here.
A mill change operation consists of changing the four rollers that roll the steel plates to a desired thickness. The rollers are located below the floor level in a pit fitted with steel planks on which one can walk. Each mill change can take between three and a half to four hours.
On January 29, 2001, he met with Mr. Jerome Downie, a manager, to inform him that he did not feel capable of performing the duties assigned to him during the mill change. After Mr. Herring met with management on January 29, 2001, he went to the plant nurse and later to the hospital because he thought he was having another heart or panic attack. Mr. Herring's family doctor referred him to Dr. Barbara Giardina, a psychologist. He began treatment with Dr. Giardina once every two weeks and also began receiving medical prescriptions to address his problems from a psychiatrist in Dr. Giardina's practice group, a Dr. Robert Cohn.
Mr. Herring related to Dr. Giardina that since the January 14, 2001 mill change pit incident, he suffered from a myriad of symptoms and was unable to work as a result. More specifically, he indicated that he had difficulty sleeping and was fearful of activities such as going to the grocery store and driving over bridges. In addition, he reported experiencing as many as four panic attacks a day and spending most of his time in the house. Before the 1996 and 1999 incidents, Mr. Herring insisted, however, that he was in good health and took no medications. Based upon that history, Dr. Giardina concluded that Mr. Herring suffered from posttraumatic stress disorder and panic disorder, and that he was in fact totally disabled beginning January 29, 2001.
Mr. Herring filed a petition on September 17, 2001, seeking total disability benefits based upon his inability to work as diagnosed by Dr. Giardina. He claimed that his psychological problems were caused by the stressful conditions he was exposed to during the course of his employment with Citisteel. Citisteel opposed that petition, arguing that Mr. Herring's condition was not causally related to his employment with Citisteel, and that even if a causal relationship did exist, Mr. Herring is not totally disabled. A hearing was held before the IAB on January 7, 2002.
Mr. Herring also sought medical expenses, attorney's fees, and medical witness fees.
Dr. Giardina and Mr. Herring appeared on behalf of the latter. Dr. Wolfram Rieger, Mr. Steve Keeley, Mr. Phil Taylor, Mr. Al Ravert, Ms. Patricia Stevens and Mr. Jerome Downie appeared on Citisteel's behalf. To a substantial degree, the facts material to the instant controversy were not in dispute. It was the expert testimony as to the essence of a causal relationship between the injury (and the stress that allegedly triggered it), as well as Mr. Herring's own testimony that occupied most of the hearing.
On January 18, 2002, the Board released its decision in favor of Mr. Herring. Relying on State v. Cephas and M.A. Hartnett, Inc. v. Coleman, the Board found that Mr. Herring had proven that his work environment was objectively stressful, rendering him totally disabled as of January 29, 2001. He was therefore entitled to total disability benefits effective on that date.
226 A.2d 910 (1967).
The IAB denied Mr. Herring's claims for medical expenses, but determined that he was entitled to reasonable attorney's fees pursuant to 19 Del. C. § 2320(j).
The IAB found Mr. Herring to be a credible witness, and that any reasonable person would have felt stress if exposed to the conditions surrounding the 1996 and 1999 rescue efforts. It further concluded that he had established a causal relationship between his work conditions and the psychological illness from which he was suffering. More specifially, the IAB opined that Mr. Herring had credibly proven through expert testimony that he had developed additional problems (e.g., panic attacks, overwhelming reluctance to leave his home, fear of driving over bridges, etc.), and that these afflictions were proximately caused by the posttraumatic stress that resulted from the 1996 and 1999 rescue incidents.
Simply put, the IAB found the opinion of Dr. Giardina to be more persuasive than that of Dr. Rieger. The IAB determined Dr. Giardina's diagnosis of posttraumatic stress and panic disorder to be reasonable, especially in light of Mr. Herring's lack of prior health problems, and his lack of family history involving anxiety and depression. The IAB further found Dr. Giardina's explanation of panic disorders, what could potentially trigger them, and the causal relationship between Mr. Herring's employment with Citisteel and the resultant psychological problems, more persuasive than that offered by Dr. Rieger. Lastly, the IAB also accepted Dr. Giardina's opinion that Mr. Herring's "injury or illness" rendered him totally incapable of employment of any kind as of January 29, 2001.
The IAB rejected Dr. Rieger's opinion as to the cause of Mr. Herring's psychological illness or injury, concluding that the medical records and history did not support the opinion that Mr. Herring's panic disorder pre-existed the 1996 and 1999 incidents. Citing Dr. Giardina's explanation of Mr. Herring's delayed reactions as consistent with posttraumatic stress disorder, the IAB disagreed with Dr. Rieger's conclusion that the panic attacks in January 2001 were unrelated to Mr. Herring's work environment.
Citisteel timely filed an appeal of the IAB's decision. It argues that the IAB's decision as to the causal relationship between Mr. Herring's injury or illness is not supported by substantial evidence and is erroneous as a matter of law. That which follows is the Court's response to the issues so raised.
DISCUSSION
This Court is bound by the IAB's findings if supported by substantial evidence and absent abuse of discretion or error of law. "Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." It "is more than a scintilla and less than a preponderance" of the evidence. This Court does not weigh the evidence, determine questions of credibility or make its own findings of fact. Its function is to determine if the evidence is legally adequate to support the factual findings below. An evaluation of the IAB's decision in light of these standards requires this Court to affirm that decision.
Ohrt v. Kentmore Home, Del. Super., C. A. No. 96A-01-005, Cooch, J. (Aug. 9, 1996) (Mem. Op. at 8).
Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (1998); and Streett v. State, 669 A.2d 9, 11 (1995).
City of Wilmington v. Clark, Del. Super., C. A. No. 90A-FE-2, Barron, J. (March 20, 1991) (Mem.Op. at 6).
Johnson v. Chrysler, 213 A.2d 64, 66 (1965).
Citisteel timely filed the present appeal on June 13, 2002. As indicated above, Citisteel advances three primary arguments: First, that there was no competent evidence to sustain a finding that the work environment was "objectively stressful" as of January 29, 2001. Second, that there was no competent evidence to establish a causal nexus between the work environment (as of January 2001) and the development of Mr. Herring's panic disorder. Third, Citisteel argues that because the IAB failed to address discrepancies in the testimony, its decision does not sufficiently articulate whether given testimony was considered, discounted, reconciled, accepted or rejected. Accordingly, the IAB's decision contravenes the requirements of the Administrative Procedures Act, 29 Del. C. § 10101, et. seq., and is erroneous as a matter of law.
In response to Citisteel's first argument, an examination of the record supports the IAB's determination that Mr. Herring's workplace was stressful in light of objectively measurable factors. Factually, the IAB not only felt that Mr. Herring's participation in the 1996 and 1999 incidents was understandably stressful to him, but that they would be stressful to any reasonable person. The decision consequently reflects the IAB's determination that Mr. Herring's perception that his work conditions were causally related to his illness was not imagined, nor was it purely subjective. This Court agrees.
Indeed, a close reading of Cephas fails to yield the "objectively stressful" test that Citisteel so emphatically propounds. In Cephas, the Court clearly held that:
[T]he "claimant must offer evidence demonstrating objectively that his or her work conditions were actually stressful and that such conditions were a substantial cause of claimant's mental disorder. . . . The stress causing the injury need not be unusual or extraordinary, but it must be real and proved by objective evidence. Where a claimant merely imagines or subjectively concludes that his or her work conditions have cause a psychological illness, there is no basis for holding the employer responsible . . ."
Cephas at 27-28.
The Court then, in a footnote, warned that:
It should be recognized that the objective causal nexus test we adopt does not require proof that a reasonable or average person would have been affected by the job-related stress. Instead, the test focuses on the objectively provable impact of actual stress on the particular claimant, regardless of whether the claimant is more or less susceptible to mental disorders than the reasonable or average person. (Emphasis in original).
Cephas at n. 43.
Cephas at n. 43. Notwithstanding the protestations to the contrary by Citisteel, the record reflects that the IAB appropriately applied the standards set forth in Cephas to the facts as presented.
The Court also, based upon the record, rejects Citisteel's argument that there was no competent evidence before the IAB to establish a causal nexus between the work environment in January of 2001 and the development of Mr. Herring's panic disorder. In January of 2001, Mr. Herring was involved in a mill change operation that could have conceivably triggered a delayed manifestation of posttraumatic stress disorder, panic attacks, or anxiety disorder. The IAB's finding in this regard is substantially supported by Dr. Giardina's testimony, which the IAB is free to accept over competing medical testimony. Citisteel's final argument contends that the IAB failed to address discrepancies in the hearing testimony. Citisteel contends that the IAB's decision does not sufficiently articulate whether conflicting testimony was considered, discounted, reconciled, accepted or rejected. The decision of the IAB is therefore not in compliance with the Administrative Procedures Act, 29 Del. C. § 10101, et. seq.
Standard Distributing Company v. Nally, 630 A.2d 640, 646 (1993).
The IAB's decision is based almost exclusively on the credibility of Mr. Herring, and the competing medical opinions of Drs. Giardina and Rieger. The functions of weighing the evidence and determining credibility of witnesses in these cases are reserved exclusively for the IAB. And, as discussed supra, it is the IAB's role to resolve conflicting medical testimony, and its prerogative to accept the testimony of one expert over another, so long as it is supported by substantial evidence. In the present case, the IAB weighed the evidence and determined which witnesses it found to be more credible than others. Although a more complete review of each witnesses' testimony could have been made, this Court finds the IAB's decision to be sufficiently articulated for the purposes of this appeal. As a consequence, this argument, like the others raised by Citisteel, must be rejected.
Keeler v. Metal Masters Food Service Equipment Company, Inc., 712 A.2d 1004 (1998); Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (1988).
General Motors v. McNemar, 202 A.2d 803 (1964).
See n. 10, supra.
See DiSabatino Brothers, Inc. v. Charles J. Wortman, 453 A.2d 102 (Del. 1982), in which the Delaware Supreme Court held that The IAB officers' decision to accept one expert's testimony over that of another expert without specifically stating in medical terms why they found the one more persuasive was insufficient reason to overturn the IAB's decision. As the triers of fact, the Supreme Court held, the IAB was entitled to accept or reject expert testimony without any clarification beyond their lay opinions of credibility.
CONCLUSION
Based upon the foregoing, the decision of the Industrial Accident Board is supported by substantial evidence, contains no legal error and therefore must be, and hereby is affirmed.
IT IS SO ORDERED.