Opinion
Civil Action No. 99A-06-001.
Date Submitted: October 14, 1999.
Date Decided: January 31, 2000.
Appeal from decision of Industrial Accident Board — Affirmed
Bayard Marin, Esquire, Wilmington, Delaware, Attorney for the Employee/Appellant.
John J. Klusman, Jr., Esquire, Tybout, Redfern Pell, Wilmington, Delaware, Attorney for the Employer/Appellee.
MEMORANDUM OPINION
This matter is presently before the Court on appeal from the decision of the Industrial Accident Board ("Board") denying Margaret Gehr's ("Claimant") application for worker's compensation benefits for disabling injuries allegedly caused by an accident while working at the State of Delaware's Stockley Center ("Employer").
SUMMARY OF THE ARGUMENTS
The Claimant, on appeal, argues that the Board committed the following errors in denying her claim for worker's compensation benefits:
1. The Board improperly disregarded the findings of Dr. Venkataramana as to causation and instead based its decision on inadmissible hearsay evidence found in the medical records of a physician who was not a witness;
2. The Board was not justified in finding the Claimant's version of the accident less credible than that of a co-worker;
3. The Board erred in finding that the injury was not work-related when there was no evidence introduced of an alternate theory of causation; and
4. The Board erred by taking judicial notice of other symptoms the Claimant reported to the doctors that were distinct from the arm injury.
The Employer, in its Motion to Affirm, argues that the Board committed no error in reaching its decision to deny the claim. First, under established Delaware law, the Board was free to disregard the doctor's opinion where that opinion was based on the patient's history as relayed by the patient and the Board did not find the patient's version of the history credible. Second, the Employer asserts that the Board is charged with the responsibility of weighing the credibility of the witnesses as the trier of fact. Third, the Employer points out that the Board did not need an alternate theory of causation. Its actions will be judged by whether there was substantial evidence that the injury was or was not work-related. Finally, the Employer argues that the Board took "judicial notice" of nothing. The other maladies of which the Claimant complained were offered as evidence through the testimony of the doctors. For these reasons, the Employer seeks the affirmation of the Board's decision.
After careful consideration of the facts of this appeal and the law that applies, for the reasons stated below, this Court affirms the decision of the IAB.
STATEMENT OF FACTS
The Board held a hearing on this matter on May 24, 1999. At the hearing, the board heard from the following witnesses:
1. The Claimant, Margaret Gehr;
2. Dr. Venkataramana (by deposition);
3. Co-worker Angela Jones;
4. Claimant's supervisor Melissa Hopkins; and
5. Dr. Archer (by deposition).
Their testimony is summarized below.
The Claimant worked as a direct care facilitator for the Employer. The Employer, the Stockley Center, is a home operated by the State of Delaware for mentally disabled individuals. As a direct care facilitator, the Claimant assisted clients in their daily activities. These duties varied and could change depending on the individual client's needs.
On October 6, 1998, the Claimant was helping a client in the bathroom. According to the Claimant, she and the client got into a "scuffling match" as she helped her off the commode. The Claimant testified that the client pulled and twisted the Claimant's left arm and pushed on her, causing her to fall back into the client's wheelchair with the client falling on top of her. The Claimant called out for help to a co-worker, who was also in the bathroom. The co-worker was in the next "stall" and was separated from the Claimant by only a curtain. The Claimant testified that the co-worker helped her get the client off of her and into the chair. The co-worker, however, testified that she did not remember the Claimant being in the client's wheelchair and did not hear a struggle through the curtain.
In the encounter, the Claimant's left hand was scratched on the knuckle causing it to bleed and leaving a small, permanent scar. The Claimant testified that her arm was sore after the incident but she finished working her shift that day. She also completed an accident or injury report for the employer describing the incident and resulting injury. The only injury listed on the report was the scratch on the hand. There was no mention of any bruising or soreness in the left arm.
The day after the episode at work, the Claimant went to the hospital because she was anxious and "felt like she was going to explode." She did not mention the incident at work the prior day, and the treating physician felt that the problems were stress-related and suggested counseling.
Sometime between her visit to the hospital and October 16, 1998, the Claimant's left arm began to "tingle." She testified that it was light at first but progressively worsened until it became a "shooting pain" throughout her arm. She decided to have these symptoms investigated when one day her left hand would not pick up a cup of coffee she had poured for herself.
The Claimant called several times to get an appointment with her doctor, Dr. Garcia-Zaragoza. At first, she was not able to get an appointment. Her father suggested that her symptoms could be indicative of a heart attack and advised the Claimant to try again to get an appointment to see the doctor. She was able to see the doctor on October 16, 1998. After evaluating the Claimant's condition, Dr. Garcia-Zaragoza ruled out heart problems and gave her a brace and some pills. She placed the Claimant on temporary total disability and referred her to a specialist.
On October 30, 1998, the Claimant saw the specialist, Dr. Venkataramana. She told the doctor her arm tingled and that she had difficulty holding things in her left hand. She also described to the doctor the encounter she had with the patient at work. His initial diagnosis was an injury to her left ulnar nerve caused by the episode at work. He ordered additional tests including an EMG, x-rays of the neck, and an MRI of the cervical spine. The EMG suggested an injury to the nerve, but the x-rays and MRI revealed nothing regarding the ulnar nerve. The doctor accepted the Claimant's version of how she was injured and thus opined that the encounter on October 6, 1998, caused the Claimant's injury. The doctor released the Claimant to work with light duty restrictions. The Claimant returned to the Employer but was told it had no light-duty positions available. The Claimant then applied for worker's compensation benefits.
Prior to the hearing before the Board, the Claimant was evaluated by an independent medical examiner, Dr. Archer. Dr. Archer saw the Claimant on March 9, 1999 and reviewed the records and diagnosis of the other treating physicians. He concurred with Dr. Venkataramana's diagnosis of the injury based upon the history provided by the Claimant.
On June 4, 1999, the Board issued its decision denying the Claimant's application for worker's compensation benefits. The Board did so because it did not find the Claimant had met her burden of showing the injury was work-related. The Board did not find the Claimant's version of the injury-causing events credible and thus chose to disregard the Doctors' findings as to causation since those findings were dependent on the history as relayed to them by the Claimant. The Board also found the other witnesses to be more credible than the Claimant. Thus, it declined her application for benefits.
The Claimant has appealed the Board's decision and that appeal is presently before this Court for decision.
STANDARD OF REVIEW
A motion to affirm may be granted if the issue on appeal is clearly controlled by settled Delaware law and/or the issue on appeal is factual and clearly there is substantial evidence to support the findings of fact below. Superior Court Civil Rule 72.1(c)(1) and (3).
The duty of this Court when acting 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. Johnson v. Crysler Corp., Del. Supr., 213 A.2d 64, 66 (1965); Devine v. Advanced Power Control, Inc., Del. Super., 663 A.2d 1205, 1209 (1995) (citing General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960)); General Motors v. Jarrell, Del. Super., 493 A.2d 978, 980 (1985). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986). 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 v. Crysler Corp., 213 A.2d at 66. It merely determines if the evidence is legally adequate to support the agency'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. (August 16, 1991). As to errors of law, the Court's review is plenary. Brooks v. Johnson, Del. Supr., 560 A.2d 1001, 1002 (1989).
ANALYSIS
Board's Alleged Reliance on Inadmissable Evidence . The Claimant argues that the Board erred as a matter of law by ignoring the findings of Doctors Venkataramana and Archer on the issue of causation and instead based its decision on inadmissable statements found in Dr. Garcia-Zaragoza's medical records for the Claimant.
The Claimant is correct in asserting that the Board chose to ignore the findings of Doctors Venkataramana and Archer. In rejecting the Doctors' findings on causation, the Board, in its decision stated:
In reaching their conclusions regarding causation, both Dr. Venkataramana and Dr. Archer relied on Claimant's version of the mechanism of injury. However, when viewing the facts of this case, in their totality, the Board finds that Claimant's version of the work accident is not credible and, therefore, rejects the doctors' findings regarding causation.Gehr v. State of Del., Indus. Accident Bd., Hearing No. 1137110 (June 4, 1999) Decision at 7.
Such an action was entirely within the province of the Board, for under Delaware law, "[w]hen an expert's opinion of causality is based in large part upon the patient's recital of subjective complaints and the trier of fact finds the underlying facts to be different, the trier is free to reject the expert's conclusion."Breeding v. Contractors-One, Inc., Del. Supr., 549 A.2d 1102, 1104 (1988).
Considering the whole record, substantial evidence supports the Board's findings that the Doctors' findings on causation were dependent on the Claimant's statement of the history of the injury, and that the Claimant's version of the cause of the injury was not credible. In the depositions of both doctors, the Employer's attorney asked the doctors if their findings as to the cause of the injury were based on their understanding of the events surrounding the injury as recited to them by the Claimant. Both doctors stated that their findings were so limited and that, while their diagnosis of the actual type of injury would remain the same and such injury was consistent with the circumstances as they understood them, a different version of the facts could cause them to change their opinion as to the cause of the injury. As is examined more thoroughly later, the record contains substantial evidence upon which the Board could find that the underlying facts were different, and thus, the Claimant's version of the facts was not credible. The Board committed no error in disregarding the opinions of Doctors Venkataramana and Archer.
The second part of the Claimant's allegation of error concerns the Employer's reference to, and the Board's alleged adoption of, certain statements in the medical records of a doctor who was not presented as a witness by deposition or otherwise. The statement most objected to was a notation in the medical records that Dr. Garcia-Zaragoza did not attribute the injury to work-related causes.
It is well-settled law in Delaware that the Board, in conducting its hearings, is not strictly bound by the Delaware Rules of Evidence. See Torres v. Allen Family Foods, Del. Supr., 672 A.2d 26, 31 (1995); Neal v. Caldwell Temp. Serv., Del. Super., C.A. No. 92A-0810, Cooch, J. (July 27, 1993) Memorandum Opinion at 9. Pursuant to its rule-making authority under 19 Del. C. § 2121 (a), the Board has adopted Rule 14(B) which states:
The rules of evidence applicable to the Superior Court of the State of Delaware shall be followed insofar as practicable; however, that evidence will be considered by the Board which, in its opinion, possesses any probative value commonly accepted by reasonably prudent men in the conduct of their affairs. The Board may, in its discretion, disregard any customary rules of evidence and legal procedures so long as such a disregard does not amount to an abuse of discretion.
Industrial Accident Board, Workers Compensation Rules, Rule 14(B).
One type of generally inadmissible evidence that is nevertheless often admitted in Board hearings is hearsay. Torres at 31. "This allowance is consistent with the purpose of the rule against hearsay, which is to keep from an untrained trier of fact material whose reliability is untrustworthy." Id. Hearsay evidence may not, however, form the Board's sole basis for its decision. There must be other competent and probative evidence to support the Board's findings. Larkin v. Gettier Assoc., Del. Super., C.A. No. 97A-03-016-CG, Goldstein, J. (November 14, 1997) Order at 7 (citing Geegan v. Unemployment Compensation Comm'n, Del. Supr., 76 A.2d 116 (1950)); Neal, supra, at 9. Moreover, the Board may not relax rules designed to ensure the fairness of the procedure. Torres at 31. For instance:
While the nature of the proceedings and the spirit of the Compensation Law justify some relaxation of the technical rules of evidence, nevertheless, it is fundamental that the right to confront witnesses, to cross-examine them, to refute them, and to have a record of their testimony must be accorded unless waived. These rules, such as the right to cross-examine, are designed to guarantee the substantial rights of the parties and are based on fundamental notions of fairness. Nothing is more repugnant to our traditions of justice than to be at the mercy of witnesses one cannot see or challenge, or to have one's rights stand or fall on the basis of unrevealed facts that perhaps could be explained or refuted.Torres at 31-32 (citations omitted).
One particular type of hearsay evidence often presented to the Board in worker's compensation cases are the medical records of treating physicians or institutions who do not, in turn, testify either at a deposition or the hearing before the Board. Several cases have discussed how to handle precisely this type of evidence. See Watts v. Delaware Coach Co., Del. Super., 58 A.2d 689 (1948) and A.H. Angerstein, Inc. v. Jankowski, Del. Super., 187 A.2d 81 (1962). Both of these cases analyzed this evidence against the backdrop of the Delaware Uniform Business Records Law which was repealed in 1981. See 10 Del. C. § 4309 (1998 Supp.). That law provided an exception to the hearsay rules for business records. This exception is now found in D.R.E., Rule 803 (6).
D.R.E., Rule 803(6) Records of regularly conducted activity.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
. . .
(6) A memorandum, report, record or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of the information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation and calling of every kind, whether or not conducted for profit.
In Watts, the earlier of the two cases, the Defendant moved for a new trial alleging that certain statements the plaintiff made to the treating physician and included in the doctor's records were improperly excluded. The Court granted a new trial after finding that the business records exception, while encompassing medical records, does not necessarily validate every statement included in those records. The Court, in its opinion, discusses at length a number of cases from other jurisdictions that have addressed this issue.
One case was heard by the United States Court of Appeals, District of Columbia, where the Court stated:
Hospital records are no different from other kinds of records kept in the regular course of business. They must be subjected to the same tests as to subject matter. Regularly recorded facts as to the patient's condition or treatment on which the observations of competent physicians would not differ are of the same character as records of sales or payrolls. Thus, a routine examination of a patient on admission to a hospital stating that he had no external injuries is admissible. An observation that there was a deviation of the nasal septum is admissible. Likewise, an observation that the patient was well under the influence of alcohol. But the records before us are not of that character. The diagnosis of a psychoneurotic state involves conjecture and opinion. It must, therefore, be subjected to the safeguard of cross-examination of the physician who makes it.Watts at 693 (quoting from New York Life Ins. Co. v. Taylor, D.C. Cir., 147 F.2d 297, 303 (1945)).
In a Pennsylvania case, where the medical record contained a statement by the deceased that he was shot by a white man, the Court excluded the statement stating:
Certainly every 'act, condition or event' which some hospital physician places in a hospital record does not ipso facto become competent when later an issue is being judicially tried to which such fact would be relevant if proved by competent testimony. The Act of 1939 obviously means that the 'act, condition or event' recorded in the hospital must be germane to the physical or mental condition which caused the patient to come to the hospital for treatment. The color (or identity) of the man who shot this patient had no medical or surgical relationship whatsoever to the patient's physical condition at the time. It was really none of the physician's professional 'business' who shot the patient.
. . .
The record as to the color of the man who shot the patient was merely a bit of gratuitous reporting on the part of the physician. It is not 'made in the regular course of the physician's business.Watts at 694 (quoting from Commonwealth v. Harris, Pa. Supr., 41 A.2d 688, 691 (1945)).
The second Delaware case dealing with this issue of the admissibility of statements found in medical records was the later Angerstein case. This case is factually and procedurally quite similar to the case presently before this Court. InAngerstein, the claimant was seeking worker's compensation benefits after he was allegedly shocked by a piece of welding equipment. The only evidence tending to show that the injury was caused by a shock from the welding equipment of his employer was a statement in the medical records of causation of the injury. There was evidence that the doctor received a call from an unknown source relaying how the claimant was injured. The Industrial Accident Board awarded benefits to the claimant and the employer appealed. The Superior Court reversed, finding the statement as to causation in the medical records was inadmissible hearsay despite the business records exception. The Court stated that "[a]ssuming the admissibility of hospital records for certain purposes, they are not admissible for all purposes and under all circumstances. . . ." Angerstein at 88 (citations omitted).
In the case presently before this Court, the Employer, at various points in the hearing, referred to statements in the medical records of Dr. Garcia-Zaragoza. These statements were used primarily by the Employer on cross-examination and were not offered as affirmative evidence of the cause of the Claimant's injury.
The following exchanges during the hearing before the Board are indicative of the statement and how it was used. The Employer first introduced the statement in the medical records while cross-examining the Claimant asking: "Q: Okay. Let me show you another document. Ma'am, are you aware that Dr. Zaragoza does not believe your injury is work related?" Hearing Transcript p. 45. Claimant's counsel promptly objected to the question and the objection was sustained.
Employer also introduced the statement in the medical records when offering as its cross-examination of Dr. Venkataramana certain portions of his previously taken deposition testimony. The following exchange occurred:
Q: Doctor, would you agree with me that your opinions today are based entirely on the — your opinions as to the causal relationship of the injury are based entirely upon the history that's been reported to you by the claimant?
A: That's right.
Q: And if that history that's being reported to you is inaccurate, then your opinions may very well be subject to change; is that right?
INTERRUPTION
A: What exactly caused the damage to the nerve, I had to depend on what the patient tells me, yes. To answer your question, to say what caused the injury, I had to depend on what the patient tells me.
Q: And my question, Doctor, was: If that history of injury that's being reported to you is inaccurate, then your opinions would possibly be inaccurate as well; is that correct?
A: Opinion as regarded to the causation would be inaccurate, right.
Q: Okay. Doctor, if Mr. Main has the records of Dr. Zaragoza with him, I'd ask him to show you this. I'm going to represent to you that there's a record dated 11/4/98. It's a Delaware Health and Social Services form that was completed and signed by Dr. Zaragoza. And it says: "This is to certify that Margaret Gehr was under my care from 10/16/98 for a diagnosis" — and its written in — "left wrist parethesia [sic], which, in my opinion was not work related." Have you ever seen that record?
A: No, I haven't.
Deposition Transcript of Dr. Venkataramana at pp. 16-18.
The Employer also introduced the following deposition testimony as further cross-examination of Dr. Venkataramana:
Finally, Members of the Board, on the bottom of page 31, over to the top of page 32, it says: "Given what we reviewed today, the fact that Dr. Zaragoza has stated in two different reports that this is not a work related injury. Given the fact that the claimant and her supervisor apparently filled out forms that says [sic] this was a scratch on the hand, and then taking that information in conjunction with the history of injury reported by the claimant to you, would you agree with me that you're not able to state, within reasonable medical probability that the ulnar nerve problems are related to anything that happened at work given the conflicting evidence?" And, again, he says, at line 12, I have to go by what the patient told me on October 30, because I don't know what exactly she told other people at other times.
Hearing Transcript at 63.
A similar line of questioning occurred when the Employer was taking the Deposition testimony of Dr. Archer, which the employer later introduced as evidence in the hearing before the Board. Employer's counsel laid the groundwork by asking if the Doctor's opinion as to causation was dependent on the history of the injury as relayed to him by the patient. Like Dr. Venkataramana, he answered that it was. Deposition Transcript of Dr. Archer at 15. Several questions later, the Employer begins to ask about the objectionable statements in Dr. Garcia-Zaragoza's records.
Q: I also showed you a note from Dr. Zaragoza which appears to be dated 11/4/98, and it's the Delaware Health and Social Services form, and it says, "This is to certify that Margaret Gehr was under my care from 10/16/98 for left wrist parethesias [sic], which in my opinion was not work related."
A: I did see that; yes.
Q: Do you recall seeing that?
A: Yes.
Q: Do those records — without trying to get into the head of Dr. Zaragoza, do those records seem to indicate that the patient did not report to Dr. Zaragoza the same history of injury that she reported to you?
A: Yes.
Deposition Transcript of Dr. Archer at pp. 17-18.
After thoroughly reviewing how the Employer used the statements in the medical records and then how the Board subsequently used the evidence, I find that any error that may have occurred was harmless and would not change the outcome. As noted above, the rules of evidence are somewhat relaxed in the setting of an IAB hearing. Moreover, hearsay may be admissible if it does not provide the sole basis for the Board's findings.
There is some question here whether the evidence would qualify as hearsay evidence. Hearsay is an out-of-court statement being offered to prove the truth of the matter asserted. D.R.E. Rule 801(c). The statement in these medical records was made out-of-court. The problem, however, is whether it is being introduced to prove the truth of the matter asserted. Is the statement being used as direct evidence that the injury was not work related? I think not. Here, the Employer used the evidence on cross-examination to shake the underpinnings of the testifying Doctors' opinions as to the cause of the injury. Thus, I the statements were used for a non-hearsay purpose and were properly before the Board.
However, even if the statements were improperly admitted, any error the Board committed in doing so was harmless. The Board's decision shows that it found, even without the reference to the medical records, that the Claimant's version of the injury-causing events was not credible. The only reference to the statements in the Board's decision is where it lists as a reason the Claimant is not credible the fact that "according to Dr. Archer, a November 1998 note from Dr. Garcia-Zaragoza, which indicated that she did not believe the injury was work related, suggested to him that Claimant provided a different history of injury to Dr. Garcia-Zaragoza than she provided to him." Bd. Dec. at 7 (June 4, 1999). From this, it is clear the Board was persuaded that the Claimant was not credible because Dr. Archer thought that her story may have been inconsistent. The Board did not evaluate and accept the statement in the medical records as it might an expert's opinion as to causation and thus committed no error.
Board's Evaluation of the Credibility of Witnesses . The Claimant argues that the Board erred as a matter of law when it used the testimony of a co-worker as one basis for finding that the Claimant's version of the accident was not credible. Because the "Board, sitting as the trier of fact, is permitted to pass on the credibility of witnesses and to accord their testimony the appropriate weight," the Board committed no error. Lemmon v. Northwood Construction, Del. Supr., 690 A.2d 912, 913 (1996) (citing Venture Milling Co. v. Bennett, Del. Super., C.A. No. 95A-08-002, Graves, J. (Jan. 11, 1996)). See also, Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965).
Moreover, the record shows that the Board's finding that the Claimant was not credible is supported by substantial evidence. The Board's decision lists the following facts as the basis for finding her testimony incredible:
1. The Claimant stated that she "scuffled" with the client, yet a co-worker who was separated from the Claimant only by a curtain testified that she recalled nothing that would suggest such a struggle was occurring on the other side of the curtain.
The Claimant, in her brief, attacks the credibility of this witness on several different grounds. First, she asserts the witness arrived only after the events giving rise to the injury occurred. Second, she argues that the witness, through her answers to questions about the events, evinces an imperfect memory of what occurred in the bathroom that day. Claimant's Brief at 12 — 13. These attacks fail because the Board is charged with the responsibility of determining the credibility of this witness.
2. The Claimant testified that she fell back into the client's wheelchair, but the co-worker testified that she never saw the Claimant in the wheelchair. The Board also found, as a matter of fact, that based on the evidence, the Claimant could not have gotten out of the wheelchair by the time the co-worker came around the curtain.
3. The Claimant testified that she suffered bruising to her left arm, but while she showed the scratch on her hand to co-workers, she displayed no signs of bruising.
4. The statement by Dr. Garcia-Zaragoza in the medical records that the injury was not work related suggested to Dr. Archer that the Claimant had told Dr. Garcia-Zaragoza a different version of the injury-causing events.
5. The Claimant delayed reporting an injury to her arm and it was not mentioned in an accident report completed for the Employer. She also did not list an arm injury among her list of complaints when she visited the hospital the day after the accident.
6. Less than four weeks after the accident, the Claimant reported soreness and numbness in other parts of her body suggesting to the Board that something else, other than the accident, caused her injuries.
These facts, relied on by the Board, constitute substantial evidence to support the Board's findings on the issue of credibility.
Claimant's other symptoms . The Claimant's final two arguments for reversal center around the Board's final finding of fact that the Claimant's complaint of soreness and numbness in other parts of her body shortly after the accident indicated to it that something other than the work accident was causing her injuries. First, the Claimant urges that the Board acted beyond its authority by making such a finding when no evidence of another cause was presented. Second, the Claimant argues that the Board erred as a matter of law by taking judicial notice of the other symptoms of the Claimant.
I think the Claimant is mischaracterizing the Board's findings. The Board did not sua sponte attribute the Claimant's injuries to another cause. Rather, it merely suggested that the evidence indicated that the injury was not work related without speculating as to what that other cause may be. Finally, the Board did not take judicial notice of these other symptoms. The evidence that led to the mention of the other symptoms was from the testimony of the Claimant's doctor, Dr. Venkataramana.
Moreover, no other cause for the injury to the arm must be shown. While the EMG indicated to the doctors that the Claimant had suffered some injury to the arm, the Claimant has the burden of proving that the injury is work-related. Thus, the Board's finding that these other symptoms indicated to it some other unidentified cause for the injury indicates that the Claimant has not met her burden.
CONCLUSION
The Board's decision is affirmed. There is substantial evidence to support the Board's findings of fact and conclusions of law. The Board did not err as a matter of law in admitting the statements in Dr. Garcia-Zaragoza's medical records. The statements were used for a non-hearsay purpose and were admissible. The Board also did not err in believing the testimony of the co-worker over that of the Claimant. The Board, as the trier of fact, is charged with the responsibility for weighing the credibility of the witnesses and the Superior Court will not overrule such a determination so long as it is supported by substantial evidence. Finally, the Board did not err in finding that the evidence suggested a cause for the Claimant's injury that was not work related. This was not an error, this was its responsibility.
IT IS SO ORDERED.