Opinion
C.A. No. 00A-09-010 RRC
Submitted: May 2, 2001
Decided: June 11, 2001
Upon appeal from a decision of the Industrial Accident Board. Affirmed. On State of Delaware's motion to strike appellant's opening brief. Denied as Moot.
Dean Colpo, pro se, Employee-below, Clayton, Delaware, Appellant.
John J. Klusman, Jr., Esquire, Tybout, Redfearn Pell, Wilmington, Delaware, Attorney for Employer-below, State of Delaware, Appellee.
MEMORANDUM OPINION INTRODUCTION
Dean Colpo ("Claimant") suffered lower back injuries resulting from two alleged incidents, which occurred on December 22, 1997, and October 26, 1998 while employed by the University of Delaware for the State of Delaware ("Employer"). Claimant received certain worker's compensation benefits up until February 29, 2000, when the Board granted Employer's Petition to Terminate Claimant's total disability benefits. On April 13, 2000, Claimant filed a Petition to Determine Additional Compensation Due with the Industrial Accident Board ("Board"). In that petition, Claimant alleged a total of 13% permanent impairment to his low back. Half of that permanent impairment, 6.5%, was related to a December 22, 1997 work accident, while the other 6.5% permanent impairment was attributed to an October 26, 1998 work accident. Claimant additionally sought the payment of his medical expenses, which amounted to $16,542.70.
On August 16, 2000 a Hearing Officer conducted a hearing in place of the Board, pursuant the parties' stipulation and under the authority of 19 Del. C. § 2301B.
Board's decision at 2 (hereinafter "Bd. Dec. at __.") 19 Del. C. § 2301B states in pertinent part that "There is hereby created within the Department of Labor the full-time position of hearing officer . . . the hearing officers shall have: . . . (4) [t]he power, with consent of the parties, to conduct hearings, including any evidentiary hearings . . . and to issue a final decision determining the outcome of such hearings. In such circumstances, the hearing officer's decision has the same authority as a decision of the Board and is subject to judicial review on the same basis as a decision of the Board. . . ."
Employee now appeals, in part, the hearing officer's decision which terminated his total disability benefits after August 14, 2000. Employee also appeals the hearing officer's denial of any award for permanent impairment attributable to the December 22, 1997 accident.
FACTS AND PROCEDURAL HISTORY
Claimant was apparently injured on two separate occasions while employed by Employer. The first work-related incident for which Claimant now seeks compensation occurred on December 22, 1997. The second incident occurred on October 26, 1998. Claimant received worker's compensation benefits for the December 22, 1997 injury. On November 9, 1999 the State and Claimant made an agreement to redress the October 26, 1998 work-related injury. On October 26, 1998 Claimant injured his back (specifically a lumbar strain/sprain) from lifting a water valve, concrete block and shoveling mud out of four inch deep hole.
Bd. Dec. at 2.
State of Delaware Office of Worker's Compensation Agreement as to Compensation dated November 17, 1998.
Pursuant to the agreement, the State began to pay Claimant compensation for total disability, in the amount of $657.50 (bi-weekly), effective as of April 13, 1999 The State later filed a petition to terminate Claimant's total disability benefits which was granted by the Board on February 29, 2000. In that decision, the Board determined that Claimant was capable of full time work with some restrictions.
State of Delaware Office of Worker's Compensation Agreement as to Compensation dated November 9, 1998.
Id.
Thereafter, on April 13, 2000, Claimant filed a Petition to Determine Additional Compensation Due with the Board. Claimant sought payment of his medical expenses in the amount of $16,542.70, permanent impairment benefits attributable to his low back, and total disability benefits ongoing from April 4, 2000 for the 1998 work-related injury. Claimant essentially disputes the termination of his total disability benefits after August 14, 2000 and the finding of the Board that the remaining 6.5% permanent impairment to Claimant's low back was not attributable specifically to his 1997 work-related injury.
At the hearing, Dr. James Berlin testified by deposition on behalf of Claimant. Dr. Berlin had been treating Claimant since the October 26, 1998 accident. He first treated Claimant on March 26, 1998, and continued to treat Claimant on several other occasions. After Dr. Berlin determined that "all attempts at conservative therapy, medication, physical therapy, restricted duties, [and] no work . . ." failed to relieve Claimant's discomfort, Dr. Berlin referred Claimant to Dr. Anthony Cucuzella (a local physical medicine specialist) for possible nonsurgical intervention.
Dr. Berlin was deposed on February 18, 2000 and again on August 11, 2000.
Dr. Berlin testified that he saw Claimant on April 3, 1998, April 17, 1998, June 18, 1998 and again on June 30, 1998.
Berlin Aug. 11, 2000 Dep. at 6.
Dr. Cucuzella performed a diskogram on Claimant, which results ended in essentially an L4-5 and L5-S1 disk disruption. On April 4, 2000, Dr. Cucuzella performed an Intradiscal Electrothermal Therapy ("IDET") procedure on Claimant. Following that procedure, Dr. Berlin issued a disability slip, which took Claimant out of work until September 1, 2000. Dr. Berlin believes that Claimant has a 6.5% permanent impairment to his lower back, which is a result of the 1998 work accident. Dr. Berlin is also of the opinion that Claimant's remaining 6.5% permanent impairment is attributable to a "previous injury." Dr. Berlin also agreed that based upon his May 12th records, Claimant condition was stable and as of August 11, 2000, he believed Claimant was capable of returning to full time work in a sedentary position. Dr. Berlin reviewed a labor market survey submitted by Employer and agreed Claimant could perform these jobs if Claimant was permitted to move about as needed. Dr. Berlin believed Claimant's medical treatment had been reasonable and necessary. Dr. Berlin also acknowledged in his deposition that Claimant had suffered several previous injuries before the 1998 injury.
Id. at 8.
Bd. Dec. at 3.
Id.
The dates of these other previous injuries are as follows: Sept. 21, 1995; Nov. 26, 1996; Aug. 15, 1997; and Dec. 22, 1997.
Dr. Jack L. Wapner, a Board certified orthopedic surgeon, testified by deposition on behalf of the State. Dr. Wapner examined Claimant on several occasions, on May 7, 1999, again on January 14, 2000 and lastly on July 21, 2000. On this last visit, Dr. Wapner determined that Claimant's condition was unchanged after the IDET procedure performed by Dr. Cucuzella. He also found that Claimant "did not have any neurological deficits but his range of motion was still somewhat restricted." Dr. Wapner believes Claimant is capable of sedentary work with restrictions. He also believes Claimant has a 13% permanent impairment to his lower back, 6.5% of which is attributable to the 1998 accident. However, Dr. Wapner was not of the opinion that the specific cause of Claimant's other 6.5% permanent impairment is the result of the 1997 work accident. Dr. Wapner reviewed Claimant's MRI film and stated that the MRI film revealed "degenerative disk disease between the fourth and fifth lumbar and fifth lumbar and the first sacral, but there was no evidence of disk herniation."
Wapner deposition at 3; Bd. Dec. at 3.
Bd. Dec. at 4.
Wapner Dep. at 7.
Dr. Wapner agreed with Dr. Berlin that Claimant's medical expenses were reasonable and necessary as a result of the 1998 accident.
Although Dr. Wapner agreed that Claimant suffered injuries at his work before the 1998 incident, Dr. Wapner was not able to state the exact cause of the chronic changes noted on Claimant's MRI film. Claimant apparently told Dr. Wapner he had a history of ongoing back problems. Dr. Wapner further testified that as to notations of another physician Claimant had seen (for four spinal root blocks) which stated, "[Claimant] was having ongoing back problems prior to the October 26, 1998 accident, and they were significant and severe enough that he had to have medical intervention." Dr. Wapner stated that
Bd. Dec. at 4.
Wapner Dep. at 4.
Wapner Dep. at 5.
[Claimant] has an underlying degenerative condition of his back. That certainly didn't happen at the time of the [1998] accident; he's already got MRI findings that show advanced degenerative changes, which has taken years to occur. And this current symptomatology is related to some degenerative changes, and instability as a result of those degenerative changes. I think that it's fair and reasonable to say that as a result of the two injuries from 10/26/98 and 4/13/99, he's caused an exacerbation, muscle spasm and that sort of thing.
Wapner Dep. at 9.
Dr. Wapner believed Claimant has a 13% permanent impairment to the low back, and agreed with Dr. Berlin that Claimant has 6.5% permanent impairment as a result of the 1998 accident.
Lastly, Robert Stackhouse, a vocational rehabilitation consultant, testified for the State. Mr. Stackhouse conducted a labor market survey. This survey identified thirteen positions within Claimant's educational and vocational abilities along with the restrictions Dr. Wapner noted. The positions identified in this survey paid an average weekly salary $361.20. The Board noted that this survey was a representative sample of the jobs in the current labor market, and each of the jobs listed allows the employee to change positions as the employee may need. As noted by the Board, "[a]ll of the positions are entry level [positions] and provide on the job training."
Bd. Dec. at 4.
Id.
The hearing officer found that Claimant's medical bills were reasonable and necessary, as neither party disputed these bills. Thus, Claimant was awarded the full amount of his medical expenses ($16,542.70). The hearing officer also found that Claimant suffered from a 6.5% lower back permanent impairment as a result of the October 26, 1998 work-related incident. The hearing officer, however, did not find that Claimant had met his burden of proving that he suffered from 6.5% permanent impairment as a result of the December 22, 1997 work accident. Claimant was therefore not awarded any disability benefits pertaining to this incident. Claimant was nevertheless awarded total disability benefits from April 4 through August 14, 2000 for the 1998 work-related accident. Moreover, Claimant was awarded partial disability benefits ongoing from August 15, 2000 in the amount of $190.87 per week.
These medical bills were stipulated to by the parties prior to the hearing.
Bd. Dec. at 4.
Bd. Dec. at 4-5.
Bd. Dec. at 5.
With respect to medical witness fees and attorney's fees, the hearing officer awarded medical witness fees to Claimant pursuant to 19 Del. C. § 2320(e). However, Claimant was not awarded attorney's fees on the issue of Claimant's permanent impairment, as the State's offer, prior to the hearing, was "equal to or greater" than the amount awarded by the Board. The offer made by the State for total disability was not "equal to or greater" than the amount awarded by the Board, and thus attorney's fees were taxed against the State on that particular issue. The Board found that Claimant was entitled to receive 30% of the award or $2,250, whichever was less, as reasonable attorneys fees. Claimant was represented at the hearing by counsel, but is now pro se on this appeal.
Bd. Dec. at 7.
Id.
The Parties' Contentions
Claimant apparently claims that the hearing officer's decision to deny benefits attributable to the 1997 incident was erroneous. Claimant's Opening Brief was somewhat vague as to what Claimant was actually asserting, therefore this Court assumes that Claimant is appealing only the Board's determination that the 1997 incident is not compensable and that Claimant's total disability should not have been terminated on August 14, 2000.
The Board's decision was otherwise in favor of Claimant and moreover, awarded Claimant his medical expenses and other benefits which Claimant originally sought. Since the Board denied benefits for the 1997 incident and terminated Claimant's total disability, this Court assumes that those are the issues Claimant seeks to have reviewed upon appeal. Furthermore, this Court holds that Employer's Motion to Strike Claimant's Opening Brief is denied as moot, as this Court now affirms the Board's decision.
Employer contends that "the Board's findings and conclusions as to total disability and permanent impairment were supported by substantial evidence" as Claimant's treating physician agreed that Claimant was able to return to work at a sedentary level as of August 11, 2000. Employer also contends that both physicians agreed that Claimant had a total of 13% permanent impairment to the lumbar spine, 6.5% related to the October 1998 accident, but that both physicians agreed that the remaining 6.5% was the result of a pre-existing accident, which neither physician could specifically state was the result of the 1997 accident.
Employer's Answering Brief at 7.
Employer's Answering Brief at 9.
STANDARD OF REVIEW
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 to determine whether substantial evidence supports the agency 5 decision. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. This Court on appeal, does not weigh the evidence, determine questions of credibility, or make its own factual findings. This Court's duty is limited to determining whether substantial evidence supports the Board's findings of fact and whether errors of law exist. As the Court performs this duty, it views the facts in a 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 Superior Court overturn it. Furthermore, this Court will give deference to the expertise of administrative agencies and must affirm the decision of an agency even if the Court might have, in the first instance, reached an opposite conclusion.DISCUSSION
The Board is free to accept or reject in whole or in part testimony offered before it and to fix its verdict upon testimony accepted. Weighing of evidence, determining credibility of witnesses, and resolving any conflicts in testimony are functions reserved exclusively for the Board. This Court has upheld Board decisions of accepting one physician's testimony over another because one physician's testimony more fully comports to the Board's understanding of an impairment based on its experience with individuals with similar symptoms.In this case, Claimant and Employer relied upon competing medical expert opinions. So long as the Board's decision is supported by substantial evidence in the record of the proceedings below, the Board is entitled to adopt the medical opinion of one physician, in this case Dr. Wapner, over the opinion of another physician, Dr. Berlin.
The Board articulated its reasoning as Claimant could not specifically trace the remaining 6.5% of Claimant's permanent impairment to the 1997 work accident. The Board stated in its Findings of Facts and Conclusions of Law that although Dr. Wapner believes Claimant has 6.5% permanent impairment to the low back attributable to a pre-existing condition, Dr. Wapner is not able to state the cause of those findings. Similar to Dr. Wapner's testimony, Dr. Berlin testified that he believed Claimant has a 6.5% permanent impairment as a result of "the other injury" yet he did not specifically relate "the other injury" to the 1997 work accident. The Board also noted that the evidence presented revealed that Claimant had several other injuries to his lower back prior to December 1997. The Board stated that "without expert medical testimony specifically relating the 6.5% permanent impairment to the December 1997 accident, there [was] no competent evidence to support such a finding." Thus, the Board awarded Claimant the 6.5% permanent impairment for the 1998 incident, but not for the 1997 accident.
Bd. Dec. at 5.
Id.
Id.
This Court will give deference to the expertise of administrative agencies and must affirm the decision of an agency even if the Court might have, in the first instance, reached an opposite conclusion. In this case, the Board was free to utilize its own experience and expertise in deciding whether or not to rely upon Dr. Wapner's opinion that the 1997 could not conclusively be established as the other incident which caused the remaining 6.5% permanent impairment to Claimant. As such, the Board's decision appears to be supported by substantial evidence elicited at the hearing.
Petty v. University of Delaware, Del. Super., 450 A.2d 392, 396 (1982); Levitt v. Bouvier, Del. Supr., 287 A.2d 671 (1972).
With respect to the termination of Claimant's total disability for the 1998 accident, the Board's decision was based upon the testimony of Dr. Wapner and Dr. Berlin, that Claimant could return to sedentary work, with restrictions. The Board noted, in support of its decision, a recent Delaware Supreme Court case, which held that "[e]ven assuming a claimant could, if absolutely necessary, physically maintain a job of some sort, he nevertheless remains `disabled' from the viewpoint of workmen's compensation so long as his treating physician insists that he remain unemployed. . . ." Noting that the evidence in Claimant's case may have supported a finding that Claimant had returned to "baseline" as of April 25, the hearing officer nevertheless found that Claimant was entitled to rely upon his treating physician's (Dr. Berlin) advice. The note issued by Dr. Berlin, introduced as evidence at the hearing, took Claimant out of work from April 4, 2000 through September 1, 2000. As of August 14th, Claimant knew his physician believed Claimant was no longer totally disabled and the Board found that Claimant was, at the point, capable of returning to work in some capacity. Based upon the holding of Gilliard-Belfast, the Board's decision is supported by sufficient evidence.
Gilliard-Belfast v. Wendy's Inc., Del. Supr., 754 A.2d 251 (2000).
Id. at 254 (citing Malcom v. Chrysler Corp., Del. Super., 255 A.2d 706, 710 (1969).
Bd. Dec. at 6.
CONCLUSION
This Court finds that the Board's decision is supported by substantial evidence presented at the hearing. Thus, the Board did not commit any legal error for denying Employee's Petition to Determine Additional Compensation Due. The Board's decision to accept the opinion of Dr. Wapner was supported by substantial evidence in the record before this Court. The Board did not otherwise commit any other errors of law. The decision of the Board is AFFIRMED. Appellee's Motion to Strike Appellant's Opening Brief is DENIED as MOOT.
IT IS SO ORDERED.