Opinion
C.A. No: 02A-11-002 RSG.
Submitted: May 15, 2003.
Decided: August 15, 2003.
Upon Appeal from a Decision of the Industrial Accident Board.
AFFIRMED.
William C. Flax, pro se, Wilmington, Delaware, Appellant.
David C. Culley, Esquire, Tybout, Redfern Pell, Wilmington, Delaware, for Appellee.
Jennifer S. Naylor, Esquire, Tybout, Redfern Pell, Wilmington, Delaware, for Appellee.
ORDER
William C. Flax ("Appellant" or "Claimant") is appealing a decision of the Industrial Accident Board ("IAB" or "Board") in which the Board denied Appellant's Petition to Determine Additional Compensation Due. The Board did, however, award Appellant payment of his outstanding medical bill in the amount of $649.70. Upon review of the parties submissions and the record below, the Court concludes that the Board's decision must be affirmed.
PROCEDURAL POSTURE
1. While employed by the State of Delaware, Claimant was injured in a work-related motor vehicle accident. The State has acknowledged the injury as compensable. At the time of the injury, Claimant's average weekly wage was $644.87 and resulted in a compensation rate of $429.91 for total disability. Claimant received PIP benefits until September 10, 2001 when he reached the $25,000 policy limit. On May 31, 2002, Claimant filed a Petition to Determine Additional Compensation Due with the IAB seeking compensation for total disability from September 10, 2001 through the end of March 2002. Appellant also sought payment in the amount of $649.70 for an outstanding medical expenses. The State disagreed that Claimant was totally disabled during the period for which compensation is sought. A hearing was held before the Board on October 7, 2002. Claimant was awarded payment of his outstanding medical bill; however, his petition for total disability compensation was denied. The Board granted Claimant the payment of a reasonable attorney fees in the amount of thirty percent of the award and payment of his medical witness fees, in accordance with section 2322(e). Appellant filed a timely notice of appeal from the Board's decision on November 1, 2002. Briefing by the parties is complete.
See DEL. CODE ANN. tit. 19 Del. C. § 2320 (Supp. 2002).
See DEL. CODE ANN. tit. 19 Del. C. § 2322(e) (1995).
STATEMENT OF FACTS
2. In February 2001, Claimant was employed by the State of Delaware ("State") as a master family services specialist. On February 22, 2001, while returning from a field visit to New Jersey in a State owned vehicle, he was involved in motor vehicle accident. Claimant lost control of the vehicle in inclement weather and skidded into a guardrail on an exit ramp after crossing the Commodore Barry Bridge. Prior to the instant accident, Claimant had been released back to work on March 10, 2000 with a restriction to not lift over twenty-five pounds. There is no dispute between the parties as to the factual nature of the evidence presented. Accordingly, the Court adopts the following summary of the evidence presented as set forth by the Board.
3. After the accident, Dr. Esham, Claimant's primary care physician, placed Claimant out of work and referred him to Dr. Steinberg's physical therapy program. Dr. Steinberg, the physiatrist who treated Claimant with respect to his February 2001 motor vehicle accident, testified by deposition on behalf of Claimant. During his initial appointment on March 9, 2001, Claimant detailed the motor vehicle accident and indicated that he felt immediate pain in area of his neck. Dr. Steinberg diagnosed Claimant as having neck pain with cervical strain and sprain, and low back pain and lumbosacral strain both secondary to a new work-related motor vehicle accident. Claimant continued to see Dr. Steinberg approximately every six weeks, and throughout 2001 had only slight improvement due to his prior disk problem in his low back. Due to Claimant's pain level and discomfort, he was unable to perform any significant sitting, standing or walking. As a result, Dr. Steinberg testified that it would have been difficult for Claimant to perform the driving function of his job over a full day. Claimant was placed on disability from all types of work from the time after the collision up until April 2002. Admittedly, Dr. Steinberg never reviewed Claimant's job description or discussed his medical condition with his employer. He also was not aware that Claimant had been involved in three previous car accidents, in February of 1994, January of 1995, and September of 1999, that all resulted in injury to his lower back. Dr. Sternberg testified that he was aware that Claimant had been involved in prior motor vehicle accidents in January and April of 2000, which resulted in injury to his neck and mid to low back. When Dr. Sternberg first saw Claimant in September of 2000, prior to this accident, Claimant's main complaint was low back pain. A March 2000 MRI showed multilevel discogenic and facet spondylosis and that Claimant may have had two fragmented disks. Dr. Steinberg's outstanding bill covered charges since July of 2001.
4. Claimant testified on his own behalf at the hearing before the Board. He indicated that he was fifty-nine years old and that he worked as a master family services specialist for the State in February 2001. Claimant testified that he spent about three-quarters of his work time in the field because his job required him to conduct home visits to families, interview adults and children, transport children to therapist appointments, and other related activities. As a result of the accident on February 22, 2001, he injured his chest, neck and back as a result of hitting the steering wheel. Claimant agreed that he had prior problems with his back, but had been able to continue working up until this accident. Claimant acknowledged the prior accidents referenced in Dr. Sternberg's deposition and indicated that he had been receiving continuous treatment for low back pain since 1994. During his appointment with Dr. Sternberg on December 20, 2000, Claimant noted increased pain including shooting pains at times in his left leg. At that time Claimant was taking Vioxx, Tylenol 3 and, on occasion Endocet which is a narcotic. Twenty days before the work related accident, Claimant was still taking Vioxx on a daily basis in addition to the sleep aid, Zanaflex. Claimant testified that he was still taking pain medication just prior to the accident, as a prescription for Percocet was ordered by Dr. Esham on February 21, 2001. Based upon Dr. Sternberg's order, Claimant was out of work from the date of the accident through September 10, 2001 when he lost his wage benefits through the State's automobile insurance carrier.
5. On August 22, 2001, the State had Claimant examined by their medical expert, Dr. Kamali. Claimant acknowledged that he received a letter from the State in October of 2001 stating that Dr. Kamali's report indicated that he was able to return to work on a full time basis with the restriction of lifting no more than fifteen pounds. The letter advised Claimant that a job was available to meet Dr. Kamali's restriction and instructed him to return to work or to provide additional information regarding why he would be unable to do so. Upon contacting the State, Claimant was advised that he would be returning to his former position with the same duties. While Dr. Kamali's restrictions made no mention of Claimant's ability to drive, returning to his former position was contrary to the restrictions imposed by Dr. Sternberg. In July 2002, Claimant was finally offered a non-driving office job. He worked six hours per day from July 9, 2002 through September 9, 2002 with records and statistics. This temporary position was made available to Claimant to allow him to complete five years of state service to qualify him as eligible for disability pension. Claimant has applied for a disability pension, but has not yet been notified of his status.
6. Dr. Kamali, an orthopedic surgeon, testified by deposition on behalf of Employer. Dr. Kamali was aware of Claimant's history of multiple motor vehicle accidents prior to February 21, 2001. He reviewed Claimant's course of treatment, which included epidural injections and physical therapy. During his initial appointment with Dr. Kamali on August 20, 2001, Claimant complained of neck and low back pain and denied that a recent nerve block had been helpful. He was able to toe and heel walk, and there was no muscle spasm despite Claimant's complaint of pain on palpation. Claimant displayed a decreased active range of neck and lumbar motions. There was no evidence of weakness or muscle atrophy, and his reflexes were symmetrical. Dr. Kamali evaluated the MRI performed after the accident and noted that it showed only pre-existing degenerative changes. In August 2001, Dr. Kamali felt that no further physical therapy or other treatment modalities were needed with respect to Claimant's work accident. In his opinion, the work accident aggravated Claimant's pre-existing neck and low back problems. Dr. Kamali thought that Claimant was capable of working a full-time light duty job with a restriction of no lifting over fifteen pounds as of August 22, 2001. While the doctor acknowledged that Claimant was taking prescription narcotic medication, Claimant did not mention that he was experiencing any side effects. Claimant also made no indication to Dr. Kamali that he had any difficulty driving and no restriction was placed on Claimant's ability to sit. Claimant was examined by Dr. Kamali again on September 6, 2002. Claimant was taking Celebrex and complained of persistent low back pain. A TENS unit was used for pain relief and on occasions Claimant was also taking Endocet. On examination, Claimant's neck was normal and his low back displayed some restricted motion despite the absence of muscle spasm, atrophy, weakness or sensory deficit. Dr. Kamali did not note any neurological abnormalities, and unlike the prior examination, Claimant did not exhibit signs of symptom exaggeration. In his opinion, Claimant was still able to work on a full-time basis with the restriction of lifting no more than 15 pounds. Dr. Kamali felt that use of TENS unit should continue for another three months, but no other treatment except for anti-inflammatories would be necessary.
Dr. Kamali was deposed twice: October 8, 2001 and September 16, 2002. The information he provided at both depositions is combined in this summary.
7. Ms. Roberts testified is a regional administrator for the State's Division of Family Services and testified on behalf of Employer. She acknowledged writing the October 2001 letter to Claimant advising him that a position was available to him. Ms. Roberts testified that it was basically the same job that he had been performing, but with a fifteen-pound weight restriction meaning that Claimant would be given a caseload with older children. She testified that she explained to Claimant that similar accommodations had been made for other staff members who had restrictions related to lifting. The job still involved substantial driving and Claimant responded by providing a note from Dr. Sternberg stating that he could not work. The State was unable to accommodate Claimant in March of 2002 when Dr. Sternberg released him with restrictions such as no driving and being able lay down when needed. Two or three weeks later, Claimant returned with a new note from Dr. Sternberg that permitted him to drive for fifteen minutes at a time. The State was still unable to accommodate him, however, Claimant did finally return to work on a temporary basis on July 9, 2002.
8. The Board found that Claimant failed to meet his burden of showing by a preponderance of the evidence that he was totally disabled from any and all work from September 10, 2001 through March 31, 2002. The Board accepted the opinion of Dr. Kamali over that of Dr. Sternberg. It was noted that Dr. Sternberg did not dispute the fact that Claimant could have worked in some capacity during the time in question and indicated that he would have reviewed a job description to see if it was within Claimant's capabilities if one had been presented to him. In addition, the Board found that Dr. Sternberg's testimony fell short of the standard for total disability which is not disability from a particular job but from any job for which a reasonably stable market exists. The Board disagreed with Claimant's argument that the issue in this case is whether or not he could preform the job offered to him by the State in October of 2001. Because this is Claimant's petition for compensation, the Board indicated that the State is not required to prove that jobs are available to Claimant. Rather, Clamant must show that there is no work available to him within his restrictions. The Board relied upon the holding in Hoey v. Chrysler Motors Corp. in which the Supreme Court stated that, while both the employer and employee have a mutual duty to obtain employment for the employee, the primary burden remains on the employee to show that reasonable efforts were made to secure suitable employment. Upon being offered a position that Claimant maintained was not within his restrictions, the Board indicated that he had the primary burden of seeking other employment. He failed to provide any evidence that there was no other work available within his capabilities. Accordingly, the Board denied Claimant's petition for total disability compensation.
Hoey v. Chrysler Motors Corp., Del. Supr., No. 85, 1994, Hartnett, J. (Dec. 28, 1994).
ISSUES ON APPEAL
9. Appellant filed a timely notice for appeal raising one general issue for review by this Court. Appellant claims that the decision by the Board is not supported by substantial competent evidence. In support of his argument, Appellant asserts that the Board erred as a matter of law by determining that he was not totally disabled from employment from September 10, 2001 through March 31, 2002. Appellant claims that the Board improperly applied the principles of the Hoey decision. In addition, Appellant contends that the Board failed to consider his age, education, employment background, training and previous applications that were on file with his employer that would have not required him to drive. Claimant relies upon the decisions in MA. Hartnett, Inc. v. Coleman and Malcolm v. Chrysler Corp., which he indicates developed the theory that a worker can be totally disabled regardless of his or her actual physical capabilities if the worker can only resume employment by disobeying a doctor's orders. In furtherance of his argument, Appellant sets forth the holding of Gilliard-Belfast v. Wendy's Inc. in which the Supreme Court found the Board's ruling that the claimant was capable of working during the time in question resulting in a denial of his entitlement to benefits would "place workers in an untenable position."
Id.
MA. Hartnett, Inc. v. Coleman, 226 A.2d 910, 913 (Del. 1976).
Malcolm v. Chrysler Corp., 255 A.2d 709 (Del.Super.Ct. 1969).
Gilliard-Belfast v. Wendy's Inc., 754 A.2d 251 (Del. 2000).
10. In response, Employer argues that the Board properly exercised its authority in applying the facts to the law and that the decision was supported by substantial evidence. Based upon the evidence presented at the Board hearing, Employer claims that Appellant failed to meet his burden of proving by a preponderance that he was totally disabled from any and all work from September 10, 2001 through March 31, 2002. Employer asserts that a worker's compensation claimant bears the burden to prove that he is "unable to perform any services "other than those which are so limited in quality, dependability, or quantity that a reasonably stable market does not exist for them.'" According to the Joynes decision, Employer argues that total disability encompasses both economic and physical disability. Economic disability is determined under the displaced worker doctrine, which sets forth two methods to establish displacement. First, Employer claims that Claimant may establish that he is a prima facie displaced worker by showing that because of the degree of obvious physical impairment, combined with such factors as age, training, education, and mental capacity, that he is placed in a situation in which he could not ordinarily sell his services in any well-known branch of the labor market. Second, Appellant can show displacement by showing that he has been unsuccessful in securing suitable employment because of his injury, despite making reasonable efforts. In further support of its argument, Employer cites to Chrysler Corp. v. Duff which states that where a claimant's back injury results in only lifting and bending restrictions, the claimant is not a prima facie displaced worker.
See Lawson v. Chrysler Corp., 199 A.2d 749, 751 (Del. 1964); Joynes v. Penninsula Oil Co., 2001 WL 392242 (Del.Super.).
Joynes, 2001 WL 392242, at *2 See also Lawson, 199 A.2d at 751.
Id.
Id. at *3 See also Franklin Fabricators v. Irwin, 306 A.2d 734, 737 (Del. 1973) (citing 2 Larson, workmen's Compensation Law § 57.61, pp. 88.16-88.19 (stating that the determination of whether a worker is displaced is based on "the degree of obvious physical impairment, couples with the other factors such as the injured employee's mental capacity, education, training, or age."))
Id.
Chrysler Corp. v. Duff 314 A.2d 915, 917 (Del. 1973).
STANDARD OF REVIEW
11. The function of the reviewing Court is to determine whether the agency's deeision is supported by substantial evidence. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence requires "more than a scintilla but less than a preponderance" to support the finding. The appellate 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. If the record below contains substantial evidence to support the findings of the Board, then that decision will not be disturbed.DISCUSSION
12. Total disability, under the Worker's Compensation Act, has been well-defined through the common law and refers to both complete physical and economic disability. Specifically, total disability "means such disability that the employee is unable to perform any services "other than those which are so limited in quality, dependability, or quantity that a reasonable stable market does not exist for them.'" Under the displaced worker doctrine, when an injured employee is able to work but only in a limited capacity, "[b]oth the employer and the employee share a mutual duty to obtain employment for the employee . . ." However, if the evidence of degree of physical impairment, coupled with other factors such as the injured employee's mental capacity, education, training, or age does not obviously place the employee prima facie in the "odd-lot" category, as defined by Hartnett and Ham, the primary burden is upon the employee to show that he has made reasonable efforts to secure suitable employment which have been unsuccessful because of the injury. Notably, in Chrysler Corp. v. Duff the Delaware Supreme Court found that an employee who incurred a back injury resulting in lifting and bending restrictions did not justify placing him prima facie in the "odd-lot" category. Pursuant to Delaware law, Claimant bears the burden to prove his demand by a preponderance of the evidence.13. Appellant argues that he was totally economically disabled from September 10, 2001 through March 2002. He claims that the Board failed to consider specific factors including his age, education, employment background, training, and his previous applications that were on file with his employer. Claimant is not a prima facie displaced worker pursuant to the definitions set forth by Ham and Hartnett. He is also not a prima facie displaced worker because Appellant is not handicapped to the extent that a job would have to be specially created in order for him to maintain steady employment considering his injuries, age, experience and training. At the time of the hearing, Claimant was a fifty-nine year old professional who was capable of maintaining a position of extraordinary responsibility. The Board properly determined that the primary burden of proof to seek alternative employment remained with Claimant. His obligation was to perform a reasonable job search that proved to be unsuccessful in light of his injury. In Appellant's opening brief, he indicates that he completed a job search as a requirement of the Department of Labor, however, there is no indication that he thoroughly explored job opportunities with other employers. Appellant argues that the Board failed to consider his previous applications with the State for positions within his office that would not require lifting or driving. The applications were placed with his employer prior to his car accident and were for promotional positions. As such, they were not submitted in connection with the required reasonable job search. Claimant was, however, obviously a well-qualified, capable individual because he was placed on the certification list for the promotional positions. The record supports the Board's decision that Appellant did not present sufficient evidence that other work was unavailable within his capabilities, thereby failing to meet his burden of proof by a preponderance.
Ham v. Chrysler Corp., 231 A.2d 258, 261 (Del. 1967). See also Joynes v. Peninsula Oil Co., 2001 WL 392242 (Del.Super.).
14. Appellant's argument that he is totally physically disabled is based upon the Supreme Court's holding in Gilliard-Belfast v. Wendy's. In Gilliard, the Court held "that a person who can only resume some form of employment by disobeying the orders of his or her treating physician is totally disabled, at least temporarily, regardless of his or her capabilities." In Gillard, the employee was instructed by her doctor not to work while awaiting knee surgery. It was the unanimous opinion of all of the medical experts that the knee surgery was necessary and reasonable. Under Delaware law, in cases where there is no agreement between the parties, total disability is more than a medical determination. The Board, not a physician, must determine a claimant's disability, subject to the requirement that the Board's decision is based on substantial competent evidence. "When confronted with conflicting evidence, it is the function of the Board to evaluate the evidence as a matter of credibility and accept the testimony of one physician over the other." When qualified experts give conflicting medical testimony, it is within the Board's discretion to rely on either opinion and it will be deemed as substantial evidence for purposes of the Board's decision. Dr. Kamali indicated that Claimant was able to return to work as of August 22, 2001 with the restriction that he not lift more than fifteen pounds. Dr. Sternberg indicated that Claimant's condition warranted a restriction on driving which was in connection with his back injury. However, Dr. Sternberg admitted that if he had been presented with a job description, he would have considered returning Claimant to sedentary or restricted duty including a position that complied with Dr. Kamali's suggested lifting restriction on a full-time basis. In addition, Dr. Sternberg indicated that his certification of Claimant's disability from work was largely based upon his subjective complaints.
Gilliard-Belfast v. Wendy's, Inc., 754 A.2d 251 (Del. 2000).
Id. at 254.
Id. at 253.
Steele v. Animal Health Sales, Inc., 2001 WL 1355134 (Del.Super.).
Poor Richard Inn v. Lister, 420 A.2d 178, 180 (Del. 1980) (citing Asplundh Tree Expert Co. v. Clark 369 A.2d 1084 (Del. 1975)).
Vasquez v. Abex, Del. Supr., No. 49, 1992, Horsey, J. (Nov. 5, 1992) (ORD ER) (citing Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1106 (Del. 1988)). See also Reese v. Home Budget Center, 619 A.2d 907, 910 (Del. 1992).
DiSabatino Bros. v. Wortman, 453 A.2d 102, 106 (Del. 1982); see also Hendrickson v. Capriotti's, 1999 WL 743954 (Del.Super.) (citing Downes v. State, Del. Supr., No. 20, 1993, Holland, J. (March 30, 1993) (Order) at 2.
15. Under Gilliard-Belfast, Claimant further argues that his pain medications posed a risk for him if driving was a routine requirement. He asserts that he would be placed in a no-win situation because: (1) he would run the risk of violating his physician's orders by not taking his prescribed medication, or (2) he would be unable to perform on the job if he took the prescribed medication. Neither doctor expressed concern with Claimant's ability to drive because he was taking prescription medication. By Claimant's own admission, he was taking prescription pain medication on a regular basis prior to the accident. For the aforementioned reasons, Gilliard-Belfast is inapplicable to the facts surrounding this case.
Based on the foregoing reasons, the Board's ultimate conclusion that Claimant was not totally physically disabled was based upon substantial evidence. Therefore, the Board's decision denying Claimant total disability benefits is AFFIRMED.
IT IS SO ORDERED.