Opinion
C.A. No. 99A-05-008 RRC.
Submitted: August 30, 1999.
Decided: November 19, 1999.
Upon Appeal From a Decision of the Industrial Accident Board. Affirmed.
Michael P. Freebery, Esquire, Freebery Houghton, P.A., 1232 King Street, Suite 300, Wilmington, Delaware 19801, Attorney for Claimant-Below, Appellant.
David G. Culley, Esquire, Tybout, Redfearn Pell, 300 Delaware Avenue, Suite 1110, P.O. Box 2092, Wilmington, Delaware 19899, Attorney for Employer-Below, Appellee.
Dear Counsel:
Pending before this Court is the appeal of Employee-Appellant Berlin Dean (Employee) of an April 29, 1999 decision of the Industrial Accident Board (Board) denying Employee's Petition to Determine Additional Compensation Due for a claim of disfigurement. For the reasons set forth below, the Board's decision is AFFIRMED.
INTRODUCTION
Employee was injured in a compensable industrial accident when he tripped on a rug and hit his head against a concrete wall, resulting in various permanent impairments. Employee has been receiving total disability benefits from Three Little Bakers (Employer). Employee received three weeks of compensation for disfigurement for a cervical scar, and permanent impairment to the cervical spine, left upper and lower extremities, right upper and lower extremities, bladder, bowel and kidney. Employee filed a Petition to Determine Additional Compensation Due seeking compensation for disfigurement due to an alleged limp that causes him to be heavily reliant on a wheelchair. The Board held a hearing and issued a decision denying Employee's petition. Employee has appealed the decision of the Board, contending that the Board erred as a matter of law when it concluded that no compensation can be awarded for disfigurement where the Employee's limp is so severe that he is reliant on a wheelchair. Employee claims that disfigurement benefits should be awarded because he (1) suffers from a limp and (2) is heavily reliant on a wheelchair. Employer contends that the Board's decision is supported by substantial evidence in the record and that compensation for the Employee's limp cannot be awarded because the alleged disfigurement (his limp or "altered gait") was not demonstrated for evaluation by the Board at the hearing.
The record does not indicate the correct name of Employer.
Employee alleges that he is confined to a wheelchair because of his limp. Specifically, Employee's appeal claims that his injury is a severe limp called an "altered gait" and he is confined to the wheelchair because he has "posture deviation." Appellant's Opening Brief at 6.
FACTS AND PROCEDURAL HISTORY
On March 28, 1995, Employee was severely injured when he tripped on a rug and hit his head against a concrete wall. Employee has been receiving total disability benefits from his Employer at the compensation rate of $346.17 per week. Employee also received three weeks of compensation for disfigurement for a cervical scar at the same rate, and compensation for permanent impairment to the cervical spine, left upper and lower extremities, right upper and lower extremities, bladder, bowel, and kidney, all at the rate of $352.35 per week. On January 19, 1999, Employee filed a Petition to Determine Additional Compensation Due, seeking compensation for disfigurement due to an alleged limp that causes him to be heavily reliant on a wheelchair. On April 22, 1999, a hearing was held on the petition.
At the hearing, Employee's counsel stated in his opening statement to the Board that Employee went through a period of rehabilitation and was able to "get back up [to] using a cane." Counsel for Employee also stated that Employee had been using a cane but had "regressed" to a walker and then to a wheelchair. Employee's counsel advised the Board that "[Employee has] brought a cane today, and I've asked him if he can get up and use the cane at all, and he indicates that if he gets up he can use the cane."
Tr. Bd. Hr'g of 4/22/99 at 1.
Id.
Id. at 2.
Employee then testified that for the last year he had been using a wheelchair on a steady basis. He testified, that prior to that, he had used a walker and his one foot would drag. Counsel for Employee questioned him about his moving around the house. Employee stated that he doesn't walk unless there's a table top or furniture that he can hold on to and that he "can't balance himself." He stated that he has regressed from a cane to a walker to a wheelchair. He further testified that he is very shaky and needs to use a cane and the furniture to move about his home. He also stated that the wheelchair is embarrassing but that he needs it to get around.
Id. at 5.
Id.
Id. at 6.
Id.
At the hearing, counsel for Employee asked, "[c]an you get up without the aid of the cane or the wheelchair? Can you stand on your own and walk at all?" Employee answered, "I'd be afraid to. I could get up but I'd start shaking, but I can walk in the house a little bit if I've got something to . . . steady myself with."
Id. at 7.
Id.
A member of the Board asked Employee if "during the last year or so, [did] you do any walking outside at all?" Employee then replied, "[n]ot unless somebody's there to steady me, my wife." Employee's claim is that he is very reliant on a wheelchair because of his limp. However, the Employee did not get out of the chair to demonstrate the limp for the Board.
Id. at 8.
Id.
In its April 29, 1999 decision denying Employee's petition, the Board stated that "(a) the size, shape and location of the disfigurement, (b) the social and psychological impacts suffered by the [Employee], (c) the comparative severity of the disfigurement and (d) other relevant matters" are the factors that are to be considered when determining the number of compensable weeks. The Board also noted that a limp, while compensable as a permanent impairment, may also be considered a disfigurement because it affects a person's appearance. The Board then stated that this case was even more difficult to evaluate because the Employee was in a wheelchair. The Board stated that non-anatomical factors are not considered and then quoted from Antonelli v. E. Earle Downing, Inc., an earlier Board decision, stating that
Bd. Dec. at 3.
Bd. Dec. at 3. These factors considered by the Board in a disfigurement case are known as the Conway factors. See Colonial Chevrolet, Inc., v. Conway, Del. Super., C.A. No. 79A-FE-13, Longobardi, J., (April 28, 1980) (Mem. Op.).
See. e.g., Bonkowski v. New Castle County, Del. IAB, No. 958387, (Dec. 22, 1998) (holding that the "limp" caused some degree of embarrassment and awarding the compensation); O'Brien v. U.S. Electric, [so captioned] Del. IAB, No. 1057130, (July 17, 1997) (holding that a "limp" was a compensable disfigurement and awarding Claimant compensation).
Bd. Dec. at 3.
The Board would not conclude that being in a wheelchair is, in and of itself, disfiguring. As the Employer points out, it is not a body part under this statute. . . . The Board does not consider canes, walkers, TENS units, or braces as an element of disfigurement. When the Board looks at disfigurement, they look at it without prosthesis. The Board considers its role in viewing a disfigurement as evaluating an anatomical variation resulting from an industrial accident.
Bd. Dec. at 3, quoting Antonelli v. E. Earle Downing, Inc., Del. IAB, No. 546483, (Dec. 4, 1997) (holding that the Board does not consider canes, walkers, TENS units, or braces as an element of disfigurement.
The Board noted that Employee's nature of walking was not demonstrated to the Board to display the limp and that no other anatomical variation, such as apparent atrophy, was demonstrated for the Board to consider.
The Board concluded that "[t]here is simply no proper evidence from which [the] Board can make the requisite evaluation because it has not seen the claimed [limp]" and denied the petition. Appellant appealed the decision of the Board.
Bd. Dec. at 4.
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 s 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.
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66-67 (1965); General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960).
Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), appeal dismissed, Del. Supr. 515 A.2d 397 (1986).
Johnson at 66.
See Chudnofsky v. Edwards, Del. Supr., 208 A.2d 516, 518 (1965).
Johnson at 66.
See 29 Del. C. § 10142(d); Petty v. University of Delaware. Del. Supr., 450 A.2d 392, 396 (1982); Levitt v. Bouvier, Del. Supr., 287 A.2d 671 (1972).
DISCUSSION
Employee cites several Board decisions holding that a "limp," "altered gait," and a "posture deviation" are compensable under 19 Del. C. § 2326(f). Employee submits that the Board, in those decisions, took into account that the claimants could not walk without a cane and that its decision in this case is inconsistent with those prior Board decisions.Employee's claim for disfigurement based on the limp is centered around the concept that a limp is a compensable disfigurement. This Court need not, however, reach the question of whether a limp can be a compensable disfigurement because the Board did not hold that a limp is not a compensable disfigurement. It held, rather, that no sufficient evidence had been presented to determine whether the Employee was indeed disfigured because the Employee did not demonstrate his limp for the Board to evaluate.
Employee's related claim for disfigurement benefits for "posture deviation" derives from Employee's heavy reliance on a wheelchair. Employee contends that this reliance on a wheelchair is, in and of itself, sufficient evidence to exhibit Employee's disfigurement, and argues on appeal that "[t]he mere fact that [Employee] is substantially confined to a sitting position whenever he is in public is sufficient evidence to exhibit an "altered gait or posture deviation." Employee cites no case to support this proposition and although this Court has not found any such authority either, the Board in Antonelli did state that "it would not conclude that being in a wheelchair is, in and of itself, disfiguring." Furthermore, the alleged "posture deviation" claimed by Employee (heavy reliance on a wheelchair) is not similar to the claim of disfigurement in Hendrickson v. Gaylord Containers Corp., where the Board awarded disfigurement compensation because the Claimant could not extend his right elbow entirely.
Appellant's Reply Brief at 4.
See Antonelli, supra, at n. 18, the Board did not conclude that being in a wheelchair, in and of itself was a disfigurement.
Id. at 3.
Supra, at n. 29.
Counsel for Employee advised the Board at the beginning of the hearing that Employee "brought a cane today, and I've asked him if he can get up and use the cane at all, and he indicates that if he gets up he can use the cane." Employee testified that he has used a cane and a walker in the past. Employee then testified that he had used the cane and furniture to move about his home. Employee further testified that he could get up but that he was "awfully shaky." Other than testifying that he would be afraid to stand on his own and walk, Employee presented no evidence as to why he could not demonstrate the limp or why he should not get out of the wheelchair. This Court is entirely sympathetic to Employee's physical limitations, but on the state of the present record, this Court cannot conclude that Employee was unable, in a medically safe manner, to have gotten up from his wheelchair (as he could do at home) to demonstrate his "limp" or "altered gait" for the Board. He elected not to do so.
Tr. Bd. Hr'g of 4/22/99 at 2.
Id. at 5.
Id. at 5.
CONCLUSION
This Court finds that the Board's decision is supported by substantial evidence in the record. Although this Court takes no pleasure in affirming the Board's decision denying additional disfigurement compensation to the Employee, this Court must be faithful to the standards governing appellate review of decisions of boards, agencies, and commissions and must affirm a decision if that decision is supported by substantial evidence in the record. This Court finds that substantial evidence exists for the Board to have concluded that Employee's evidence did not preponderate below. Based on the lack of evidence presented, specifically that Employee did not demonstrate his limp, the Board's decision to deny additional compensation for a limp or "posture deviation" was based on substantial evidence. There is no proper basis for this Court to remand the case to the Board so that Employee can present additional evidence (demonstration of the limp) to the Board. For the reasons stated above, the decision of the Board is AFFIRMED.
This Court has addressed the issue of what constitutes substantial evidence. As has been noted by Judge Quillen, "some [cases] cited . . . define substantial evidence `as more than a scintilla but less than a preponderance of the evidence' . . . [but], as a definition of substantial evidence, it has always seemed to me that the comment is simply inaccurate. Every time an affirmative claim in a typical matter is affirmed on the basis that there is substantial evidence, some finder of fact has made a finding by the preponderance of the evidence in the appellee's favor. Therefore, in my view, as a matter of definition, substantial evidence should not be defined as "less than a preponderance.'" Tri-State Liquor Mart, Ltd. v. Delaware Alcohol Beverage Control Comm., Del. Super., C.A. No. 94A-11-008, Quillen, J. (Oct. 2, 1995) Letter Op. at n. 4.
IT IS SO ORDERED.