Opinion
C.A. No. 05A-05-003-JOH.
Submitted: August 23, 2005.
Decided: October 26, 2005.
Upon Appeal from a Decision of the Industrial Accident Board — AFFIRMED.
Gary S. Nitsche, Esquire, of Weik, Nitsche, Dougherty Componovo, Wilmington, Delaware, attorney for claimant-below, appellant.
Eric D. Boyle, Esquire, of Chrissinger Baumberger, Wilmington, Delaware, attorney for employer-below, appellee.
MEMORANDUM OPINION
When appellant John Dennison sought additional compensation before the Industrial Accident Board, he sought benefits for permanency for 10% loss of use of his cervical spine, 8% loss of use to the thoracic spine, 10% loss of use to the right lower extremity, 25% percent loss of use to the left upper extremity, 23% percent loss of use to the low back and 5% percent loss of use to the right upper extremity. The Board awarded 10% percent involving the right lower extremity, 30% percent for the left upper extremity, and 23% percent loss of use of the lumbar spine. It also made an award for disfigurement.
When first briefing the Board's award, Dennison sought to overturn the Board's failure to award permanency relating to his right upper extremity, his cervical spine, and thoracic spine. His notice of appeal, however, said that the only issue being appealed was the Board's decision on the rib/thoracic area. The notice of appeal does not include any reference to the cervical spine or the right upper extremity. The only issue, therefore, before this Court involves the Board's decision denying an award for permanency for the rib/thoracic area.
Superior Court Civil Rule 72 states:
"(c) Notice of Appeal. The notice of appeal shall specify the parties taking the appeal, shall designate the order, award, determination, or decree, or part thereof appealed from; shall state the grounds of the appeal; shall name the Court to which the appeal is taken; and shall be signed by the attorney for the appellants. In appeals from the Industrial Accident Board, where the claimant accepts part of the award while appealing the remainder of the award, the notice of appeal must specify that portion of the award accepted. In the absence of a cross-appeal as to the accepted portion of the award, that portion is deemed `due' and subject to a proper demand under 19 Del.C. § 1103." Dennison concedes this issue in his reply brief as he argues only about the rib/thoracic decision.
For the reasons stated herein, the Board's decision denying permanency and benefits for the rib/thoracic claim is AFFIRMED.
Factual Background
While employed for I.D. Griffith, Inc., on October 16, 2000, Dennison fell about eight feet from a ladder into a pile of conduit. He was a pipe fitter. He suffered two rib fractures and a left shoulder injury. This injury led to two rotator cuff surgeries which did not prove totally successful. He was in the hospital after the fall for five to six days.The basis for Dennison asking for the rib/thoracic permanency finding is that he has ongoing left-sided rib pain and problems with scar tissue below his rib cage. This causes, he says, trouble sitting.
Dr. Matthew Burday had been Dennison's family physician. As to the injuries sustained in this matter, the doctor started seeing Dennison while he was still in the hospital. He continued to treat him thereafter. He testified that Dennison continued to complain about pain in his ribs. This was 2000-2002. Considering Dennison is in his early 60's, Dr. Burday said slower recovery is to be expected. His medical records, however, indicate the focus of Dennison's pain complaints in 2003 onward shifted to other areas of the body.
Dr. Stephen Rodgers examined Dennison in June 2003 and April 2004. He assigned an 8% permanent loss of use due to Dennison's rib/thoracic injury (4% for each of the two broken ribs). He attributed the loss to problems with the intercostal nerve attached to each rib. Also, there is a noticeable difference in Dennison's rib cage. Dennison also complained to Dr. Rodgers that the pain went from his chest wall around to his back. While the AMA Guidelines do not set out a rating system for this kind of permanency, the doctor said, they do allow for a clinical assessment. He did concede that a May 2001 x-ray showed the fractures healed.
Dr. Jerry Case testified for I.D. Griffith. He examined Dennison in July 2001, March 2002, March 2003, and on November 29, 2004. He told the Board Dennison did not have a permanent rib related injury. Dr. Case indicated that in his examination of Dennison in March 2003, the rib pain was better.
As a result of his for examinations of Dennison, Dr. Case believed that there had not been a permanent rib injury. There was no evidence that the rib fractures had not healed well. There was no rib pain complaint at the last exam on November 29, 2004, and there were no signs of a tenderness complaints. Dr. Case did concede that there is visible left rib cage prominence but did not see that as an impairment.
The Board accepted Dr. Case's opinions and found no permanency arising from the original job-related rib fractures. As Dr. Case said, that while a one-sided prominence is a common result of rib fracture, it is not ratable by the AMA guidelines. The Board concurred. The Board rejected Dr. Rodgers' permanency opinion. That opinion was based on pain complaints in the chest wall and mid-back stiffness. Yet Dr. Rodgers had not found any decrease in the range of motion in the thoracic spine and no abnormal muscle tone or tenderness on palpation.
The Board also concluded that pain alone without loss of function to not form a basis for a permanency award.
Standard of Review
The role of this Court on an appeal from the Board is to determine whether the Board's decision is supported by substantial evidence and is free from legal error. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. This Court does not weigh the evidence, determine questions of credibility, or make its own factual findings. It merely determines if the evidence is legally adequate to support the agency's factual findings.
Histed v. E.I. duPont de Nemours Company, 621 A.2d 340, 342 (Del. 1993).
State v. Cephas, 637 A.2d 20, 23 (Del. 1994).
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
29 Del.C. §§ 10142(d); E.I. duPont de Nemours v. Faupel, 859 A.2d 1042, 1047 (Del.Super. 2004).
In this case the "Board" constituted a hearing officer. The decisions of such hearing officers are subject to the same standards of review as if the Board were comprised of several persons.
19 Del.C. § 2301(B).
Id.
Discussion
Dr. Rodgers testified that Dennison has a permanent rib/thoracic injury. He bases that on Dennison's pain complaints, the original fracture, his opinion that there is intercortal neuritis and AMA guidelines which he says allow him to clinically assign some degree of permanency.There is no question that Dennison suffered two rib fractures in 2000 in a job-related accident. The medical records also indicate that for a period of a year or two thereafter, he complained of pain in his ribs. But medical records also say those complaints diminished over time.
Dennison testified that he develops rib pain while driving and there is some indication that several years ago while performing a household chore, he experienced a "tearing" sensation. But his testifying physician, Dr. Rodgers, found no decrease in loss of use of Dennison's thoracic spine; or for that matter, apparently, any loss of use of any other function due to the original rib injury.
Dr. Case opined there was no permanent injury in connection with the ribs. He reported Dennison did not mention rib or thoracic pain in his 2003 and 2004 exams. He found no evidence of tenderness and, apparently, no evidence of loss of use resulting from any rib injury/thoracic function.
Dennison argues that the medical records showing injury and pain complaints for several years, thereafter, and his own ongoing occasional pain, first, undercut Dr. Cases's contrary opinion and, second, the Board's reliance on that opinion.
That argument founders on the rocks of several principles. First, this Court does not weigh the evidence or determine credibility. Second, the Board has the power to accept Dr. Case's opinion over that of Dr. Rodgers (or other doctors).
State v. Dalton, 878 A.2d 451, 454 (Del. 2005).
Clements v. Diamond State Port Corp., 831 A.2d 870, 877 (Del. 2003).
In this case the ongoing pain complaints are subjective. No physician testified and no medical records indicated that there was any permanent rib/thoracic injury and those pain complaints were (1) not found on examination and (2) basically came from Dennison. The Board did not find Dennison to be a malingerer or a faker. It did find his pain complaints to be non-specific and that there was no record or exams in the last year or two prior to the hearing of a physician eliciting rib/thoracic complaints as a result of the exam. Another principle is implicated. Where a doctor's opinion is based on large part on subjective pain complaints and the fact finder has reasonable grounds to question those complaints, it can reject the medical opinion on which it is based.
Sears, Roebuck Co. v. Farley, 290 A.2d 639, 641 (Del. 1972).
Dennison's argument runs aground on an additional rock. He argues from a position that he still suffers rib/thoracic pain. But he offered evidence, subjective or objective, of loss of use of function. The Board correctly conducted that pain alone, unaccompanied by loss of use of function, is insufficient to make a permanency finding. In this appeal Dennison does not challenge this principle.
See Wilmington Fibre Specialty Co. v. Rynders, 316 A.2d 229, 232 (Del.Super. 1974); aff'd sub non. 336 A.2d 580 (Del. 1975); note, however, that the facts in this case were such that considerable pain caused loss of use of function and that this is compensable, unlike Dennison's case.
The Board's decision finding that there is no or insufficient basis to make a permanency award is supported by substantial evidence and is free from legal error. Accordingly, it must be affirmed.
M.A. Hartnett, Inc. v. Coleman, 226 A.2d 910 (Del. 1967).