Opinion
C.A. No. 01A-01-008-CG
Date Submitted: May 9, 2001
Date Decided: June 29, 2001
ON APPEAL FROM THE INDUSTRIAL ACCIDENT BOARD. AFFIRMED.
Frederick S. Freibott, Woloshin, Tenenbaum, Lynch, Natalie Freibott, P.A., Attorney for Appellant.
J. R. Julian, Wilmington, Delaware, Attorney for Appellee.
MEMORANDUM OPINION
This is an appeal by the claimant from a decision of the Industrial Accident Board dated December 21, 2000. Appellee and Claimant-below, Gail U. Pierce, injured her lower back and legs when she fell on March 2, 1995 while working for A. I. duPont Institute. Her injury was accepted as compensable by the Industrial Accident Board ("Board"), and Pierce received disability and medical benefits.
On August 9, 2000, Pierce filed a Petition to Determine Additional Compensation Due in which she alleged a recurrence of total disability. Pierce sought ongoing total disability benefits as of August 4, 2000, as well as medical benefits. The Board held a hearing on December 12, 2000 to consider Pierce's petition. On December 21, 2000, the Board granted Pierce's petition, awarding ongoing total disability benefits effective August 4, 2000 and medical benefits, along with expert witness fees and attorneys' fees. Employer below, DuPont Hospital for Children, has appealed the Board's decision to this Court pursuant to 19 Del. C. § 2350.
At the December 12, 2000 hearing, Dr. Peggy Hullinger testified on behalf of Pierce. Dr. Hullinger testified that she is a certified clinical psychologist with a PhD in psychology. Dr. Hullinger testified that she began treating Pierce in February 1999 and that her initial evaluation was that Pierce was experiencing a dysthymic disorder with a secondary diagnosis of depression due to a general medical condition. Dr. Hullinger stated that Pierce's depressive symptoms were in direct relationship to the injury she had sustained at A. I. duPont and the reports of chronic and acute pain directly related to her fall at work.
Dr. Hullinger testified, at that point, Pierce was functioning at a GAF scale level of 68, which reflected moderate intermittent symptoms that did not affect to a significant degree her function in daily life or in the occupational world.
Dr. Hullinger testified that her treatment plan for Pierce included, along with coping strategies, a psychiatric evaluation for medication to attempt to stabilize her mood because Pierce showed a reduction in symptoms from her medication, but not ameliorization. Dr. Hullinger explained that Dr. Mawn, Pierce's primary care physician at the time, prescribed her medications because referring her to a psychiatrist was not possible. Dr. Hullinger worked with Dr. Mawn in order to change Pierce's medication from Afexor to Prozac.
Dr. Hullinger testified that at the end of 1999:
[Pierce's] outside of work functioning was systematically decreasing. She was not venturing out of the house very much. And on those occasions that she would venture out, they only lasted for a relative period of time, three to four hours. At which point she would be in bed because of the intense pain that she experienced.
Dr. Hullinger also testified that Pierce's physical condition was getting worse at the end of 1999 and that her pain had become more chronic and intense more often. Pierce's depressive symptoms were also increasing in frequency and intensity. As a result, Dr. Hullinger stated, she changed her diagnosis to depressive disorder not otherwise specified, which meant that Pierce suffered from depressive symptoms but continued to function. Pierce's GAF score decreased to fifty, meaning that her functioning was decreasing and her symptoms were of a more serious nature, though cognitive processes were still intact.
Dr. Hullinger testified that in the first five or six months of 2000, Pierce's pain had intensified, her mobility had decreased, her left side was becoming more impaired, and she had more discomfort sitting. Dr. Hullinger also found that Pierce's tolerance for pain was decreasing and she was not able to do some of the physical tasks necessary for her job. By September 2000, Pierce's mood was deteriorating, with more depressive symptoms, more crying and more difficulty in concentration. Pierce's function "outside the home and work was, at best, minimal. And she was now expressing suicide ideation."
Dr. Hullinger stated she was aware that Pierce had stopped working on August 4, 2000 and that she and Dr. Mawn had discussed the situation and suggested to Pierce that stopping work might be the best thing for her. Dr. Hullinger also testified that Pierce finally received a psychiatric evaluation in March 2000 and that the psychiatrist, Dr. Pierre Ogan, chose to continue her medication.
Dr. Hullinger concluded, over Employer's objection, that as of August 4, 2000:
My clinical opinion as a result of my ongoing treatment of [Pierce] as well as the consultations with Dr. Mawn was such that her mental status had deteriorated to the point that she was unable to work any longer.
Dr. Hullinger explained, "Her mental status at that time included suicide ideation. And those thoughts of dying and dying looking good and it not being problematic for her are a serious consideration. She works in a physician's office. The availability to develop a plan based on medications that she has access to, her own feelings of helplessness and hopelessness were intensifying that her mental status and her thinking would be compromised." At the time of her testimony, Dr. Hullinger testified, Pierce's GAF score was 35, meaning serious impairment and inability to function occupationally as well as in daily functioning.
Gail Pierce testified at the hearing on her own behalf. Pierce described her work injury in 1995, which resulted from a fall when she attempted to sit in a chair. Initially, Pierce stated, she suffered from excruciating back and leg pain. Eventually, Pierce underwent surgery, which she testified made her back feel eighty percent better. However, Pierce testified that the pain in her left leg had increased over time and she had begun suffering pain in her left foot. Pierce left her work at A. I. duPont as a result of her injury.
Pierce testified that she began working as a medical secretary for Dr. Mark Amick in April 1998, where her duties included scheduling appointments and procedures, calling in prescriptions, and talking to specialists. Towards the end of 1998, Pierce stated, she began to notice that she was having problems, such as losing her patience and irritability. Pierce testified that she did not understand assignments Dr. Amick gave her.
In 1999, Pierce began to experience a deterioration of her physical symptoms. Pierce testified that her physical problems included difficulty walking, sitting and bending and that they got progressively worse. In January 1999, Dr. Falco advised Pierce to stop working. However, Pierce explained that she could not afford financially to do so and continued to go to work. However, Pierce testified that her condition continued to deteriorate and she had difficulty taking care of herself Pierce explained that she was totally exhausted after working all day. Finally, in August 2000, Pierce stopped working. Pierce explained, "I realized that my functioning capabilities were really getting to the point that I was making mistakes at work. My irritability with patients, my feeling helpless that I could not do things on my own, making mistakes with prescriptions, making mistakes talking to specialists." Pierce stated that she consulted with her husband in making her decision to stop working.
Kenneth Pierce, Gail Pierce's husband, testified on her behalf at the hearing. Mr. Pierce testified that does all the cooking and cleaning at their home although Pierce once did those things. Pierce also stopped gardening. Mr. Pierce testified that his wife had difficulty going up and down stairs and that she took medication for her pain that made her "spacey." In addition, Mr. Pierce testified that his wife's mental condition had changed over the past two years, that she cried a lot and forgot things. Mr. Pierce stated that he did not believe his wife was capable of working, based upon his observation.
Victoria Mawn, M.D., testified via deposition on behalf of Pierce. Dr. Mawn testified that she is board certified in internal medicine and that she had been Pierce's family physician for over four years in August 2000. Dr. Mawn had also worked in the same office with Pierce when Pierce worked for Dr. Amick and had observed Pierce on a daily basis until August 4, 2000. Dr. Mawn also outlined her treatment of Pierce. Dr. Mawn stated that she was in contact with Dr. Hullinger and explained that she prescribed medications and Dr. Hullinger saw Pierce for psychological counseling.
Dr. Mawn stated that she had observed a decline in Pierce's work-related physical condition from March 22, 1999 until the time of her deposition. Dr. Mawn testified that Pierce's pain and the burning sensation in her left leg had increased "to the point that she's barely functional to be able to walk around." Over time, Dr. Mawn had observed Pierce's depression increase.
In conclusion, Dr. Mawn testified she believed that, as of August 4, 2000, Pierce was no longer capable of working. Dr. Mawn stated that she had reviewed the medical claim submitted by Pierce and believed that the bills were reasonable, necessary, and causally related to the work accident.
Judith R. Peterson, M.D., testified via deposition on behalf of Pierce. Peterson stated that she is board-certified in physical medicine and rehabilitation. Dr. Peterson began treating Pierce on August 11, 2000 and stated that she had reviewed Pierce's medical records. Dr. Peterson testified that Pierce continues to have severe pain and loss of function. Dr. Peterson testified that she believes that Pierce is totally disabled and has been so since September 14, 2000 due to chronic pain, nerve injury in her left leg, leg weakness, as well as difficulty sitting, standing, and walking. Dr. Peterson stated that she believed Pierce's chronic pain had affected her psychologically.
Martin Gibbs, M.D., a neurosurgeon, testified on behalf of Employer. Dr. Gibbs testified that he had examined Pierce approximately five times and had reviewed her medical records. Dr. Gibbs stated that, from a physical standpoint and based upon his examinations and record review, he believed that Pierce is capable of working light duty, full time.
David E. Raskin, M.D., a psychiatrist, testified via deposition on behalf of Employer. Dr. Raskin testified that had examined Pierce three times and reviewed her records. Dr. Raskin testified that he agreed with Dr. Ogan that Pierce suffers from depression secondary to chronic pain. However, Dr. Raskin stated that he does not believe that Pierce's psychiatric problems, in and of themselves, are disabling. Dr. Raskin testified, "I think that what is disabling her is her physical condition and her pain. Her depression, per se, is not — I mean, it is a bad depression, but it's not bad — it's bad in the sense that it's painful for her, different from physical pain, but not bad in the sense that it's incapacitating in terms of her higher functions." Dr. Raskin testified that he believes the treatment rendered by Dr. Hullinger and Pierce's psychiatrist, Dr. Ogan. was reasonable, necessary, and causally related to the work accident.
In its written decision, the Board concluded that Pierce had met her burden to show that she is totally disabled and that her current disability is a recurrence of her workrelated condition. The Board explained:
Claimant is a credible witness. The Board accepts her testimony that her work related physical symptoms increased and that this caused an increase in mental symptoms, such as crying/forgetfulness. Drs. Hullinger, Mawn, and Peterson testified that Claimant is totally disabled. Drs. Hullinger and Mawn are Claimant's treating doctors and have had a significant amount of contact with her. Therefore, their opinions are entitled to great weight. The Board finds their opinions, and the opinion of Dr. Peterson, thoughtful and sound. Based upon the testimony of Drs. Hullinger, Mawn and Peterson, the Board finds that Claimant's work related physical condition deteriorated, that this deterioration caused a decline in Claimant's medical condition and that the combination of increased physical and mental problems has made Claimant totally disabled.
Employer raises several issues on appeal. First, Employer claims that the Board denied Employer due process because it did not afford Employer a full and fair hearing. Second, Employer argues that Pierce failed to meet her burden of proof to demonstrate a change in her condition from January 1999 to August 4, 2000. Third, Employer argues that the Board improperly accepted the testimony of Dr. Hullinger. Fourth, Employer claims that the Board erred as a matter of law and abused its discretion by accepting the testimony of Dr. Hullinger over that of Dr. Raskin. Finally, Employer argues that the Board erred as a matter of law and abused its discretion by accepting the testimony of Dr. Mawn and Dr. Peterson over the testimony of Dr. Gibbs.
The role of this Court, in reviewing a decision of the Board, is to determine whether the Board's factual findings are supported by substantial evidence. Histed v. E. I. duPont de Nemours, Del. Supr., 621 A.2d 340, 342 (1993). "Substantial evidence" has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Olney v. Cooch, Del. Supr., 425 A.2d 610, 614 (1981). It is the Board's role, rather than the Court's, to resolve conflicts in testimony and to decide which witnesses are credible. Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965). Where testimony is introduced by deposition, rather than in person, the Court may reject the Board's determinations if those findings have no satisfactory proof grounded in the underlying depositions. Walbert v. General Metalcraft, Del. Super., Terry, J., C. A. No. 97A-04-003 (Nov. 26, 1997), Mem. Op. at 9 (citing Children's Bureau v. Nissen, Del. Super., 29 A.2d 603, 609 (1942)).
Initially, Employer argues that the decision of the Board should be reversed because the Board did not afford Employer due process of law. Employer states in support of its argument that, "the Board did not overtly exclude evidence, but instead it evidenced an attitude of not wanting to spend the time necessary to fully consider the evidence offered." Employer claims that immediately prior to the hearing, Board members expressed concern at the number of witnesses who were testifying and how long the hearing would take. According to Employer, the Board instructed counsel that, "expert witness depositions had to be summarized as quickly as possible and that the testimony was not to be read verbatim to the Board." Employer acknowledges that the Board told counsel that it would read the depositions of the experts in their entirety prior to making a decision. However, Employer states that the Board erred by not putting that statement on the record.
Employer also argues that the Board "rushed" counsel to get through the hearing by enforcing a "thirty minute" rule to examine and cross-examine expert witnesses, and a "five minute" rule for summations and closing arguments. Employer argues that these time limits were not part of the Board's written rules, and are, therefore, illegal. Finally, Employer alleges that counsel witnessed the Board members leaving the hearing room at the end of the testimony and that they were not carrying any of the documents from the hearing with them. Board members also "criticized" how long the hearing was taking during the course of the hearing itself. In support of its argument, Employer attached to its opening brief the affidavit of Employer's attorney, basically setting forth the same allegations set forth in its brief.
Pierce responds that the Board conducted a hearing that lasted seven hours and included the testimony of Pierce, her husband, two experts, and the deposition testimony of three other experts. Pierce argues that the Board presided over a full and fair hearing and allowed all evidence to be admitted.
The Court can find no evidence that Employer was denied due process of law by the Board. Due process requires that a party be given a full and fair hearing before an impartial tribunal. Cook v. Oberly, Del. Ch., 459 A.2d 535, 538 (1983) (citations omitted). Due process is not a technical notion with fixed content, but rather a flexible concept that calls for such procedural protections as the situation demands. Id. (citations omitted.)
Upon careful review of the Board's decision, the 191-page transcript of the December 12, 2000 hearing, and the deposition transcripts, the Court finds that the Board gave Employer a full and fair opportunity to present its witnesses and evidence, to cross-examine Pierce's witnesses, and to present its arguments to the Board. Employer's argument is, basically, that the "overall attitude" of the Board shows that it did not wish to devote sufficient time to consider the case. Employer does not argue in its brief, or in its attached affidavit, that it did not have the opportunity to present all of the evidence or testimony it wished to present or that it was unable to cross-examine any of Pierce's witnesses. Nor did counsel object on the record before the Board that it had been prevented from presenting evidence. The only statement in the record to which Employer points to support its argument is that during closing argument, counsel for Employer stated, "You have to weigh the testimony because this has been I know a very long case. Although we condensed it significantly." Counsel also states, before beginning his direct examination Dr. Gibbs, "Doctor, we're going to try to zip through this because it's getting late." The Court cannot find that such statements are sufficient to show that Employer was prejudiced by any alleged time limits on testimony or closing arguments.
The Court acknowledges that counsel for Pierce does not deny that the Board imposed the time limits as alleged by Employer.
This Court has determined that an administrative board can prescribe the manner in which its hearings are conducted. Richardson's Market v. Covais, Del. Super., C. A. 94A-07-019, Carpenter, J. (Mar. 31, 1995), Order at 6. Richardson's Market held that the board's twenty minute time limit for each party to present its case did not, "by itself, require reversal unless `a party was denied a fair opportunity to introduce relevant evidence solely because of an arbitrary time having expired.'" Id. at 6-7 (quoting Kowolski v. Unemployment Ins. Appeal Bd., Del. Super., C. A. 88A-JL-3, Gebelein, J. (Jan. 22, 1990)). Barbour v. Chrysler Corp., Del. Super., C. A. No. 88A-MR-4, Herlihy, J. (Oct. 26, 1990), Mem. Op. found that the board's practice of limiting hearings to twenty minutes "should not work to the detriment of litigants appearing before it." Id. at 16. The Court cannot find that Employer was denied a fair opportunity to introduce relevant evidence due to the Board's alleged time limits or that those time limits worked to its detriment.
Second, Employer argues that Pierce failed to demonstrate that there was a change in her condition between January 1999 and August 2000. Employer argues that, rather, she continued to treat her physical and mental problems. No doctor told Pierce to stop working in August 2000. According to Employer, the Board ignored this evidence and found that Pierce was totally disabled. As a result, Employer claims that the Board abused its discretion and committed reversible error.
Nineteen Del. C. § 2347 allows the Board, upon application of any party in interest, to review an agreement or award for disability where the party claims that the incapacity of an injured employee has terminated, increased, diminished or recurred, or that the status of the dependent has changed. Here, Pierce filed a petition claiming recurrence of disability. Therefore, it was Pierce's burden to demonstrate by a preponderance of the evidence that her disability had recurred. Avon Products v. Lamparski, Del. Supr., 293 A.2d 559, 560 (1972) (citing C.F. Braun Co. v. Mason, Del. Supr., 168 A.2d 105, 107 (1961)).
As quoted above, the Board found that Claimant's work related physical condition had deteriorated, that this deterioration had caused a decline in Pierce's mental condition, and that the combination of increased physical and mental problems rendered Pierce totally disabled. Both Pierce and her husband testified as to the deterioration in Pierce's physical and psychological condition up until August 2000. Dr. Hullinger and Dr. Mawn also described Pierce's deterioration and opined that Pierce was totally disabled as of August 2000. Both saw Pierce on a regular basis. Finally, Employer cites no authority for its argument that Pierce was required to submit evidence that a "medical professional" instructed her in August 2000 to stop working. The Court finds that substantial evidence exists in the record below to supports the Board's determination so that the Board was within its discretion in deciding that Pierce met her burden of proof to show a recurrence of her total disability.
Employer's third argument is that the Board erred as a matter of law and abused its discretion by accepting the testimony of Dr. Hullinger because Dr. Hullinger is a psychologist rather than a medical doctor. According to Employer, because Dr. Hullinger does not have a medical degree, she is not competent to render medical opinions as to the causation of Pierce's psychological condition pursuant to D.R.E. 702 and 703. Employer cites Lee v. A.C.S., Co., Del. Super., 542 A.2d 352 (1987), and Streett v. State, Del. Supr., 669 A.2d 9 (1995), in support of its argument.
Language. both rules track the fed. rules
As noted by Pierce, counsel for Employer raised the same argument set forth above to this Court previously. See Independent Living, Inc. v. Shores, Del. Super., C. A. No. 99A-03-015, Herlihy, J. (Feb. 17, 2000), Mem. Op. at 9. Although the Court agrees with Employer that Independent Living does not represent controlling legal authority, the Court finds that its reasoning is sound. Independent Living found that the Board properly admitted the expert testimony of a psychologist. Id. The Court explained that Streett and Lee were inapposite to counsel's argument:
The Supreme Court in Lee held an epidemiologist, who was not a doctor, could not provide the necessary medical testimony linking the decedent's cancer to his asbestos exposure. This causal linkage required medical testimony. In Streett, the Court said injuries which are not open and obvious need medical testimony.
This Court agrees. Lee pointed out that, "`the epidemiologist's function does not extend to determination of the physical condition or symptoms of an individual.'" 542 A.2d at 354 (quoting Dorland's Illustrated Med. Dictionary). In contrast, 24 Del. C. § 3502(6), which defines the "practice of psychology," states that the practice of psychology includes, ". . . diagnosis and treatment of mental and emotional disorder and disability, alcoholism and substance abuse, disorders of habit or conduct, as well as the psychological aspects of physical illness, accident, injury or disability. . . ." Streett found that injuries that are not open and obvious must be established by medical testimony, as opposed to lay witness testimony. 669 A.2d at 11. In the instance case, Pierce does not rely on lay testimony. Employer does not dispute Dr. Hullinger's qualifications as a licensed psychologist.
The Court also takes guidance from other jurisdictions. Both Westinghouse Elec. Corp. v. Lawrence, Fla. Dist.Ct.App., 488 So.2d 623 (1986), and Hooper v. Industrial Comm'n of Arizona, Ariz. Ct. App., 617 P.2d 538 (1980), held that a licensed psychologist may testify as to the causal relationship between an industrial injury and a mental condition. Westinghouse, 488 So.2d at 624; Hooper, 617 P.2d at 540. Hooper noted that the employer did not argue that the mental condition of the claimant was outside the scope of the practice of a psychologist or that the psychologist would not be permitted to diagnose, treat and correct the mental condition. Id. Hooper concluded, "Since by statute psychologists are entitled to diagnose, treat and correct mental conditions within their field it follows that they are also competent to testify regarding the causes of such conditions." Id.
See also 72 ALR 5th 529, §§ 19 — 21, regarding psychologist expert testimony in personal injury actions or disability compensation proceedings.
As noted above, Employer also does not dispute Dr. Hullinger's qualifications to diagnose and treat Pierce's mental condition. Delaware, as quoted above, entitles psychologists to diagnose, treat, and correct mental conditions. As a result, this Court also holds that a licensed psychologist is competent to testify regarding the causes of such conditions where the employer does not otherwise challenge the psychologist's qualifications. Westinghouse recognized, as does this Court, that the facts in some cases will be such to suggest that a certain psychologist's training and experience are insufficient to allow him to render such an opinion. Id. at 624. This is not such a case.
Employer next argues that the Board erred as a matter of law and abused its discretion by accepting the testimony of Dr. Hullinger and not affording Dr. Raskin's testimony proper weight. In support of its argument, Employer states that Dr. Hullinger failed to base her opinion on "information and methodology generally accepted in the field in which it belongs." Also, Employer argues that the Board improperly accepted Dr. Hullinger's testimony over that of Dr. Raskin because Dr. Hullinger was Pierce's treating psychologist. By doing so, Employer argues that the Board impermissibly created a presumption in favor of Pierce's treating physician.
As set forth above, Employer's argument that Dr. Hullinger is not qualified to testify as an expert before the Board because she is not a medical doctor is without merit. Also, the Court finds that Employer failed to show that Dr. Hullinger's testimony otherwise did not rest on a reliable foundation or was irrelevant to the issue before the Board. The only argument specified by Employer was that Dr. Hullinger did not sufficiently review the records of Pierce's other doctors sufficiently. However, Dr. Hullinger testified that she treated Pierce for over three years for depression and had performed psychological testing and reviewed Pierce's medical records.
Nor can the Court find that the Board erred by accepting Dr. Hullinger's testimony over that of Dr. Raskin. The Court can find no support for Employer's allegation that, "where the Board accepts the opinion of one doctor simply because she is the treating "physician', it has erred as a matter of law" or that "a physician's testimony should never be given more weight simply because she is a treating physician." The case cited by Employer in support of these statements, DiSabatino Bros. v. Wortman, Del. Supr., 453 A.2d 102 (1982), contains no such language.
To the contrary, the Board is entitled to accept the testimony of one expert witness over the testimony of another as long as its decision is based upon substantial evidence in the record below. DiSabatino, 453 A.2d at 106 ("As we view the case, the evidence was definitely in conflict, and the substantial evidence requirement being satisfied either way, the Board was free to accept the testimony of . . . the employer's expert neurologist, over contrary opinion testimony.") (Citation omitted.)
Also, the Court cannot find that the Board did not afford Dr. Raskin's testimony sufficient weight because his testimony was submitted via deposition, whereas Dr. Hullinger testified live before the Board. Employer is correct that he Board's discretion to make credibility determinations is lessened where expert testimony is presented via deposition. Oakes v. Chrysler Corp., Del. Super., C. A. No. 98A-08-006, Barron, J. (Oct. 5, 1999), aff'd, Del. Supr., No. 120, 1999 (1999), Order at 12. However, this does not entirely quell the Board's ability to choose between the conflicting opinions of expert witnesses. Id. (citing DiSabatino, 453 A.2d at 105-106)). This Court has reversed the Board where the Board stated that it found a witness to be credible but provided no basis for its finding. See Walden v. Walden v. Georgia-Pacific Corp., Del. Super., C. A. No. 94A-03-024, Barron, J. (Aug. 19, 1994) (Mem. Op.).
In the instant case, the Board accepted the testimony of Drs. Hullinger, Mawn, and Peterson that Pierce was totally disabled over that of Dr. Raskin, who testified that Pierce's depression did not render her totally disabled. As quoted in detail above, the Board did more than state that it found Dr. Hullinger to be the more credible witness. The Court finds that the Board provided sufficient basis for its finding. Therefore, the Court finds that the Board did not err as a matter of law or otherwise abuse its discretion in accept Dr. Hullinger's testimony over that of Dr. Raskin.
Finally, Employer argues that the Board erred as a matter of law and abused its discretion by accepting the testimony of Dr. Mawn and Dr. Peterson and not affording Dr. Gibb's testimony proper weight. Again, Employer argues that Dr. Mawn and Dr. Peterson "failed to base their opinions on information and methodology generally accepted in the field in which it belongs." Employer argues that Dr. Gibbs' testimony, as that of a board certified neurologist, was entitled to more weight because Dr. Mawn and Dr. Peterson acknowledged that Pierce needed to see a neurologist. Again, Employer alleges that the Board erred as a matter of law by affording more weight to Dr. Mawn and Dr. Peterson's testimony because they were Pierce's treating physicians.
The Court finds that the Board acted within its discretion by accepting the testimony of Dr. Mawn, Dr. Peterson, and Dr. Hullinger over that of Dr. Gibbs. Employer does not dispute the credentials of either doctor. Nor can the Court find that Dr. Peterson's referral of Pierce to a neurologist was an admission that she was incompetent to otherwise evaluate Pierce.
As summarized in DiSabatino, "the Board members accepted [employer's expert witness's] testimony, as enhanced by the employer's other medical testimony and by their evaluation of the claimant's credibility. As the triers of fact, they were entitled to do just that. No further clarification is required." DiSabatino, 453 A.2d at 106. Here, the Board accepted the testimony of Dr. Mawn, Dr. Peterson, and Dr. Hullinger, as enhanced by Pierce's own testimony and their evaluation of her credibility. The Court cannot find that the Board abused its discretion or erred as a matter of law by doing so.
Therefore, for the foregoing reasons, the decision of the Board below is hereby AFFIRMED.
IT IS SO ORDERED.