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noting that "[t]he claimant's argument that the previous finding of a 5% permanent disability requires a finding in her favor under the doctrine of res judicata must also be rejected," and stating that "[t]he fact that a person is once found to have a 5% permanent disability to the low back does not mean that all future complaints of low back pain or proposed treatment for the low back are related to the 5% permanent disability"
Summary of this case from Sheppard v. Allen Family FoodsOpinion
C.A. No. 03A-08-004 JTV.
Submitted: March 8, 2004.
Decided: June 15, 2004.
Upon Consideration of Appellant's Appeal From Decision of Industrial Accident Board.
AFFIRMED.
Walt F. Schmittinger, Esq., Schmittinger Rodriguez, Dover, Delaware. Attorney for Appellant.
John J. Klusman, Esq., Tybout, Redfearn Pell, Wilmington, Delaware. Attorney for Appellee.
ORDER
Upon consideration of the parties' briefs and the record of the case, it appears that:
1. The claimant, Eula DeShields, appeals from a decision of the Industrial Accident Board (" the Board") denying her claim for $1,834.83 in medical expenses and authorization to continue treatment. The Board found that the medical expenses and proposed treatment were not causally related to her industrial accident. I affirm the Board's decision.
2. A brief summary of the facts is as follows: The claimant injured her low back while at work on or about December 14, 1996. She felt pain while loading and unloading a dishwasher in the kitchen at the Delaware Home for the Chronically Ill. She was treated for her injury by Dr. Varipapa. The injury was described as low back pain with numbness and stiffness in her legs. The treatment consisted of trigger blocks, medication and physical therapy. In November 1998 she was released from further, formal medical care and in August 1999 Dr. Varipapa indicated that she was able to work without restrictions. The claimant was paid workers' compensation for periods of lost wages for partial disability through September 1999, and, also, compensation for 5% permanent disability.
3. After the injury in December 1996 the claimant was apparently unable to return to her employment at the Delaware Home and Hospital. She testified that she has suffered low back pain with numbness and stiffness in her legs intermittently since the work accident. She attempted to perform other jobs from 1996 to 2002, including housekeeping at a nursing home, in-home care, and food service at the Delaware State College and Polytech High School. She testified that she was forced to quit each of these because of her back pain. At the time of her hearing before the Board, she was not permanently employed.
4. In 2000 she returned to Dr. Varipapa, complaining of occasional stiffness. He referred her to Dr. Herman who prescribed physical therapy and medication. Apparently, however, treatment by Dr. Herman at that point was quite brief due to insurance coverage being denied. The claimant did not seek further treatment until November of 2002, believing that she did not have worker's compensation coverage. She testified that by November 2002 she could no longer stand the pain, so she went back to Dr. Varipapa. Dr. Varipapa again referred the claimant to Dr. Herman, who practices with Dr. Varipapa. Dr. Herman began treating claimant January 8, 2003, for chronic low back pain.
5. Dr. Herman expressed the opinion that the treatment which he recommended is reasonable and medically necessary and "could" be causally related to her industrial accident. He also testified that he discovered that the claimant has a leg length discrepancy, which is that her left leg is shorter than her right. He diagnosed claimant with chronic low back pain secondary to sacroilitis and recommended physical therapy and medication. It is this treatment for which compensation is sought.
6. Dr. Fink testified on behalf of the State. He examined the claimant five times, including twice before the work accident and three times after. He also reviewed her medical records. His opinion is that the claimant's treatment after February 1999 is unrelated to the 1996 industrial injury. He testified that claimant's current complaint likely arises from degenerative disc disease or arthritis and that the physical therapy prescribed by Dr. Herman is unrelated to the 1996 injury.
7. The Board determined that the claimant did not meet her burden of proving that the medical expenses and treatment involved are reasonable, necessary, and causally related to the 1996 industrial injury. It found that Dr. Herman's testimony that the low back condition in 2003 "could" have been caused by the 1996 work accident was insufficient to establish causation and that there was no other credible evidence which supported the claimant's argument that her current condition was caused by the 1996 accident. It accepted the opinion of Dr. Fink that the claimant's current symptoms and condition are not related to the 1996 accident. It noted that by November 2002 the claimant had been released to a full duty work capacity for three years, had not taken any medication for four years, and had not sought any treatment for two and a half years. It found that the claimant's explanation as to why she had not sought treatment sooner than November 2002 was not credible. It noted that Dr. Fink's examinations dating back to 1998 found the claimant to be normal, as did diagnostic studies, and were consistent with Dr. Varipapa's findings. It found that the claimant's subjective complaints were out of proportion to the clinical findings.
8. The claimant contends that the Board committed legal error by applying an incorrect rule of causation. She also contends that the Board's decision is not supported by substantial evidence. The claimant argues that there was not substantial evidence to support the Board's decision to accept Dr. Fink's testimony over that of Dr. Herman. She contends that the evidence establishes that she has a 5% permanent back injury as previously determined, that the permanent back injury has not resolved itself as indicated by her and Dr. Herman's testimony, and that her current complaints are causally related to the 1996 industrial injury. The claimant emphasizes that the employer must take the claimant as it finds him or her; that the leg length discrepancy is a complication rather than a cause of the current complaint; and that the Board appears to have mistakenly relied on a medical causation standard rather than legal causation in making its findings. The claimant also argues that the prior award for a 5% permanent disability forecloses the Board from determining that the claimant's current complaints are not causally related to the 1996 industrial injury under the principle of res judicata, and that the Board's acceptance of Dr. Fink's testimony that the claimant's current back injuries are caused by degenerative disc disease or arthritis constitutes plain error. The State contends that the Board's decision is free of legal error and is supported by substantial evidence.
9. The scope of review for appeal of a board decision is limited to examining the record for errors of law and determining whether substantial evidence is present in the record to support the Board's findings of fact and conclusions of law. "Substantial evidence" is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. On appeal, the court does not "weigh the evidence, determine questions of credibility, or make its own factual findings." The court is simply reviewing the case to determine if the evidence is legally adequate to support the agency's factual findings. The court must give "due account of the experience and specialized competence of the Board and of the purposes of our workers' compensation law." When reviewing the Board's findings, the reviewing court should accept those findings, even if acting independently, the reviewing court would reach contrary conclusions. Absent an error of law, the standard of review is abuse of discretion. An abuse of discretion arises only where the Board's decision has "exceeded the bounds of reason in view of the circumstances." Only where no satisfactory proof exists to support the factual finding of the Board, may the Superior Court overturn it.
Robinson v. Metal Masters, Inc., 2000 Del. Super. LEXIS 264, Histed v. E.I. DuPont de Nemours Co., 621 A.2d 340, 342 (Del. 1993); Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981); Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).
Johnson, 213 A.2d at 66.
ILC of Dover, Inc. v. Kelley, 1999 Del. Super. LEXIS 573, at *3.
Histed, 621 A.2d at 342.
HH Poultry v. Whaley, 408 A.2d 289, 291 (Del. 1979).
Digiacomo v. Board of Public Education, 507 A.2d 542, 546 (Del. 1986).
Floundiotis v. State, 726 A.2d 1196, 1202 (Del. 1999); Lilly v. State, 649 A.2d 1055, 1059 (Del. 1994).
Johnson, 213 A.2d at 64.
10. The claimant argues that the Board applied an incorrect legal rule of causation by finding that Dr. Herman's use of the word "could" is insufficient to establish legal causation. It relies upon authorities such as General Motors Corp. v. Freeman for the principle that the mere fact that a medical expert uses such expressions as "might," "could," "possibly," or "may have" does not preclude a finding of causation provided there are other circumstances in support of a finding that causation exists.
157 A.2d 889 (Del.Super. 1960).
11. While the claimant's argument is true as a general principle, it does not render the use of the word "could" sufficient to establish causation in all cases. Here, there was little, if any, credible evidence, as determined by the Board, to connect the proposed treatment in 2003 to the work accident in 1996. In addition, the Board was clearly within its discretion in accepting the opinion of Dr. Fink that the claimant's current symptoms and conditions are not related to the 1996 accident. It is well established that the Board has the discretion to accept the testimony of one expert over that of another expert when evidence is in conflict and the opinion relied upon is supported by substantial evidence.
Resse v. Home Budget Center, 619 A.2d 907, 910 (Del. 1992); DiSabatino v. Wortman, 453 A.2d 102, 106 (Del. 1982); General Motors Corp. v. Veasey, 371 A.2d 1074, 1076 (Del. 1977) (rev'd on other grounds by Duvall v. Charles Connell Roofing, 564 A.2d 1132 (Del. 1989)); Butler v. Ryder M.L.S., 1999 Del. Super. LEXIS 29, at *5-6 (Del.Super. 1999).
12. The claimant's argument that the previous finding of a 5% permanent disability requires a finding in her favor under the doctrine of res judicata must also be rejected. The fact that a person is once found to have a 5% permanent disability to the low back does not mean that all future complaints of low back pain or proposed treatment for the low back are related to the 5% permanent disability. Dr. Fink's testimony that the claimant's current symptoms and condition are unrelated to the 1996 accident was relevant and admissible and provided an adequate basis, along with the attendant facts and circumstances, for finding that the 1996 accident did not cause the current complaints.
13. The claimant also argues that her current symptoms and condition are the natural result of her work injury and that no independent, intervening cause exists to break the chain of causation. Dr. Fink's opinion, however, provides substantial evidence to support the Board's decision that the claimant's current condition and symptoms are the product of other causes and are not the natural result of her work injury.
Hudson v. DuPont, 245 A.2d 805 (Del.Super. 1985); Barkley v. Johnson Controls 2003 Del. Super. LEXIS 21 (Del.Super. 2003).
11. The decision of the IAB is affirmed.