Opinion
C.A. No. 01A-01-002
Date Submitted: August 17, 2001
Date Decided: November 14, 2001
Michael L. Sensor, Esquire, Law Offices of James T. Perry.
John J. Klusman, Esquire, Susan A. List, Esquire Tybout Redfearn Pell.
Dear Counsel:
Pending before the Court is an appeal from a decision of a Hearing Officer for the Industrial Accident Board of the State of Delaware which found Appellant suffered 5% additional permanent partial disability impairment to the lumbar spine. The Hearing Officer's decision is affirmed for the reasons stated below.
SUMMARY OF PROCEDURAL POSTURE
Appellant suffered an on-the-job industrial accident in either late 1996 or early 1997.
This time frame has been accepted by both parties.
Appellee's worker's compensation carrier accepted the resultant injuries as compensable, and Appellant received indemnity benefits as well as medical expense benefits, accordingly.
On June 19, 2000, Appellant filed a Petition to Determine Additional Compensation Due in which he sought 30% increased impairment to his lumbar spine as well as disfigurement benefits. The parties stipulated to have the matter decided by a Hearing Officer, and the hearing took place on December 7, 2000. On December 20, 2000, the Hearing Officer issued a decision which awarded Appellant a 5% increased permanency to his lumbar spine. Additionally, Appellant was awarded two weeks of disfigurement benefits for his right index finder. Appellant has appealed from the Hearing Officer's decision regarding the percentage of increased permanency to this Court.
FACTS
Appellee is engaged in the business of auto salvage. On January 7, 1997, Appellant sustained a compensable injury to his low back while pushing a transmission at the direction of his supervisor at Appellee's place of business. Appellant was examined for permanency by Charles A. Mauriello, D.O. (selected by Appellant), and Andrew Gelman, D.O. (selected by Appellee). The parties agreed to, and Appellant was awarded benefits consistent with, a 7% impairment to the loss of use to Appellant's lumbar spine. In the years following the accident and subsequent award, Appellant's condition worsened and he received additional medical treatment.
On June 19, 2000, Appellant filed a Petition to Determine Additional Compensation Due to Injured Employee alleging that he had sustained an additional 30% permanent partial impairment to the lumbar spine. Appellee disputed the percentage of additional permanent partial disability claimed by Appellant. The parties stipulated to having the matter decided by a Worker's Compensation Hearing Officer, in accordance with 19 Del. C. § 2301B(a)(4), and a hearing was conducted on December 7, 2000. Appellant was reexamined by both Dr. Mauriello and Dr. Gelman in connection with these proceedings.
The main issue presented to the Hearing Officer was whether Appellant's additional injury merits classification under the American Medical Association Guides to the Evaluation of Permanent Impairment ("AMA Guides") as a DRE Lumbosacral Category VI ("Category VI") injury, as Appellant argues, or as a DRE Lumbosacral Category III ("Category III") injury, as Appellee asserts.
"DRE" is an abbreviation used in the AMA Guides for "diagnosis-related estimate."
Dr. Mauriello opined Appellant's additional complications require his injury to be reclassified as one contemplated by Category VI. Dr. Mauriello testified that he reached the 30% figure by taking into account Appellant's "problems in his low back, failed surgery, problems, failed lumbar surgery, and his problems symptoms supported by objective findings on physical examination and diagnostic testing that he would fall within category 6 which was the caudaequina [sic] like symptoms." Hr'g Tr. at 39. When asked why Dr. Mauriello would categorize Appellant's injuries as those covered by Category VI, or "cauda equina like" symptoms, Dr. Mauriello cited the "saddle like" numbness Appellant suffered in his lower extremities. Dr. Mauriello interpreted "saddle like" numbness to mean "numbness which is subjective, that's you have to depend on the person telling you that." Id. at 40. In addition to this numbness, Dr. Mauriello referenced additional "objective findings to support a functional problem of both lower extremities and the objective finding which . . . included the electro-diagnostic testing being abnormal in both lower extremities plus a deterioration of the patella reflexes, a change in the achilles reflex on the right and the atrophy in the right calf." Id. Dr. Mauriello further noted that he believed Category III to encompass similar problems, but that this category was limited to the existence of such problems in only one lower extremity. Because both lower extremities were involved in Appellant's case, Dr. Mauriello testified that classification under Category VI was appropriate. Dr. Mauriello admitted that it was possible to test the subjective symptoms of numbness in and around the buttocks and the perianal and the anal area by conducting a "pin test." This test was never administered to Appellant.
Dr. Gelman examined Appellant on behalf of the Appellee on September 22, 2000, and opined that Appellant had sustained an additional 5% permanent partial impairment to the lumbar spine. Dr. Gelman was not present at the hearing but his deposition was introduced into evidence. In support of his diagnosis, Dr. Gelman relied upon his three evaluations of Claimant's condition dating back to August of 1997. Dr. Gelman observed Claimant favoring his left side and exhibiting taxed strength when assessing the lower extremities. However, Dr. Gelman noted that all reflexes responded symmetrically to tests.
Dr. Gelman's second examination of Appellant took place on August 12, 1998, and was not for the purposes of making a determination as to permanent impairment.
When asked if he noticed any significant change in Claimant's condition between his examinations of 1997, 1998 and 2000, Dr. Gelman stated, "From my perspective objectively I can only appreciate some sensory findings involving the lower extremities. I did not appreciate any change in strength or reflex assessment." Gelman Dep. at p. 10. Pursuant to an MRI Dr. Gelman ordered, Claimant actually showed overall signs of improvement as compared to an earlier study.
By decision dated December 21, 2000, the Hearing Officer accepted Dr. Gelman's opinion and found that Appellant had sustained an additional 5% permanent partial impairment to the lumbar spine. On January 9, 2001, Appellant filed an appeal from the Hearing Officer's decision. As the basis of his appeal, Appellant argues:
1. The Hearing Officer's decision was not supported by substantial evidence because the Hearing Officer misinterpreted the AMA Guides; and
2. The Hearing Officer committed errors of fact and law in rejecting the testimony of Appellant and his physician, notwithstanding evidence in the record of clear objective findings in Appellant.
DISCUSSION
In this case, the parties agreed to have a Hearing Officer preside over proceedings below. This decision does not change the nature of this Court's review on appeal: a Hearing Officer's decision has the same authority and is subject to judicial review on the same basis as a decision rendered by the Industrial Accident Board. 19 Del. C. § 2301B(a)(4). Thus, the duty of this Court when considering an appeal from a Hearing Officer is to determine whether her decision is supported by substantial evidence and is free from legal error. Johnson v. Chrysler Corp., Del. Supr. 213 A.2d 64, 66 (1965). "Substantial evidence" is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Tulou v. Raytheon Serv. Co., Del. Super., 659 A.2d 796, 802 (1995). The Superior Court, when sitting as an appellate court, does not weigh the evidence, determine questions of credibility, or make its own factual findings. Johnson, 213 A.2d at 66. It merely determines if the evidence is legally adequate to support the Hearing Officer's factual findings. 29 Del. C. § 10142(d). In reviewing the record for substantial evidence, the Court will consider the record in the light most favorable to the party prevailing below. General Motors Corp. v. Guy, Del. Super., C.A. No. 90A-JL-5, Gebelein, J. (Aug. 16, 1991). As to errors of law, the Court's review is plenary. Brooks v. Johnson, Del. Supr., 560 A.2d 1001, 1002 (1989). If substantial evidence exists and there were no errors of law, then the Court must affirm the decision below. Mooney v. Benson Mgt. Co., Del. Super. 451 A.2d 839 (1982), rev'd on other grounds, Del. Supr., 466 A.2d 1209 (1983).Appellant first argues that the Hearing Officer's decision is not supported by substantial evidence. In support of this contention, Appellant cites the Hearing Officer's "misinterpretation" of the AMA Guides. Specifically, two categories created under the AMA Guides are at issue. Category VII covers cauda equina syndrome, while Category VI covers "cauda equina-like" syndrome. Appellant argues that to categorize an injury under Category VI does not require an analysis of cauda equina syndrome. Appellee's medical expert, Dr. Gelman, disagrees, considering the two classifications interrelated.
When deciding to follow the recommendation of Appellee's expert witness, the Hearing Officer made the following findings of fact:
Dr. Gelman's latest examination revealed only slight sensory changes involving the lower extremities and there were no diagnostic studies exhibiting spinal instability. The most recent EMG also reflected slight improvement to the left lower extremity. Even if Dr. Gelman had made a finding of atrophy of the right calf, as did Dr. Mauriello, this factor alone would not require placing Claimant within a higher category. Neither the medical records nor Dr. Gelman's findings on physical examination revealed severe neurologic deficits in the lower extremities, anal sphincter laxity, or bowel or bladder dysfunction to support placement into a DRE Category VI or VII. I agree with Dr. Gelman that Claimant's subjective complaints of saddle numbness from the medical records alone do not qualify him for placement into a DRE Category VI requiring "cauda equina-like" syndrome.
Op. at 9-10.
In summary, the experts testified to their conflicting ideas of what symptoms are required to classify an injury as "cauda equina-like" syndrome. The Appellant is attempting to re-litigate his case before this Court. As previously noted, this Court will not entertain a rehearing on the merits but, absent abuse, will defer to the Hearing Officer's discretion. In this case, Dr. Mauriello testified that he did not believe any of the symptoms associated with cauda equina syndrome need be present to classify an injury as "cauda equina-like" in nature.
Dr. Gelman testified that, while all of the symptoms present in cauda equina syndrome need not be present for a Category VI classification, the presence of some would make for a more convincing case than the one Appellant presented. The Hearing Officer explicitly referenced this difference in opinion in her decision and indicated that she found Dr. Gelman's testimony more credible. The Hearing Officer has the discretion to choose between the testimony of conflicting medical experts. Scott v. Allied Security, Del. Super., C.A. No. 99A-04-002, Ridgley, J. (Nov. 24, 1999) (Order). Furthermore, it is within the purview of the Hearing Officer to weigh the credibility of witnesses and to determine whether to accept or reject medical testimony. See Oakes v. Triple C. Railcar, Del. Super., C.A. No. 93A-09-003, Toliver, J. (Oct. 14, 1994). I find no basis for the Appellant's argument that the Hearing Officer's decision was an irrational one, based upon insufficient evidence.
Secondly, Appellant argues that the Hearing Officer committed errors of fact and law in rejecting the testimony of Appellant and his physician. In support of this contention, Appellant asserts that the Hearing Officer relied on an inaccurate interpretation of Diaz v. Beneficial National Bank, Del. Super., C.A. No. 97A01-019-RSG, Gebelein, J. (Nov. 7, 1997).
The relevant portion of the Hearing Officer's opinion reads:
I find that Claimant lacks credibility for me to accept Dr. Mauriello's opinion, based in part on Claimant's subjective complaints, that he has instead sustained a 30% increase. See Diaz v. Beneficial National Bank, Del. Super., C.A. No. 97A01-019-RSG, Gebelein, J. (Nov. 7, 1997) (Order and Opinion) (Board is permitted to rely on a claimant's lack of credibility when discounting the testimony of a claimant's physician because the physician's diagnosis and medical opinion are based on the veracity of a claimant's complaints).
Op. at 9. In fact, the Hearing Officer did not rely on the rationale in Diaz when reaching her conclusion. Rather, the Hearing Officer cited Diaz for a proposition which supported the Hearing Officer's conclusion, as evidenced by the use of the signal "see" before the citation.
"Cited authority clearly supports the proposition. `See' is used instead of `[no signal]' when the proposition is not directly stated by the cited authority but obviously follows from it; there is an inferential step between the authority cited and the proposition it supports." Blue Book R. 1.2(a) (17th ed.) (emphasis added).
Furthermore, the allegation that Dr. Gelman "insisted" that a true cauda equina be present for a Category VI rating is suspect. This Court's review of the hearing transcript supports the Hearing Officer's summary of Dr. Gelman opinion: "Dr. Gelman does not believe that Claimant qualifies for a DRE Lumbosacral Category VI, as Dr. Mauriello suggests. Although he agrees that it is not necessary to have bowel or bladder symptoms, or other signs of cauda equina syndrome, for placement under that category." Op. at 8. Even if Dr. Gelman's testimony could be characterized as "insisting" that the requirements for a Category VI classification mirror the essentials for a Category VII classification, the Hearing Officer did not blindly adopt Dr. Gelman's analysis. Rather, the Hearing Officer used the testimony of both medical experts when fashioning her own opinion, as evidenced by the following excerpt:
Dr. Mauriello cites the development of problems with the right lower extremity and the numbness in the buttocks and perineum as the key physical changes supporting the 30% increase to his prior permanency assessment from 1997.
However, I agree with Dr. Gelman that the findings for the bilateral radiculopathy, including atrophy, can be accounted for under a DRE Category III classification, and that there has been no finding for loss of motion segment integrity in the diagnostic studies. While Dr. Mauriello agreed that urological testing would be necessary to conclude that Claimant has bowel or bladder problems, he believes that Claimant's complaints of saddle numbness constitutes a finding for "cauda equina-like syndrome," sufficient to place him into a DRE Category VI. However, Dr. Mauriello also agrees that the numbness in the buttocks and perineum is a subjective finding that cannot be objectively tested. Therefore, in light of Claimant's lack of credibility and the absence of other objective data or test results, I cannot agree with Dr. Mauriello that Claimant's present condition qualifies as a "cauda equina-like syndrome" according to the DRE model.
Op. at 10-11.
I conclude that the Hearing Officer made no error of law in citing Diaz in her decision and, furthermore, that the Hearing Officer's opinion is the result of logical analysis.
Based on the foregoing, no argument has been presented to warrant reconsideration of the percentage of permanent disability suffered by Appellant. The Appeal is therefore denied.
IT IS SO ORDERED.