Opinion
C.A. No. 04A-10-009 (CHT).
Submitted: November 29, 2005.
Decided: March 9, 2006.
On The Employee's Appeal from the Decision of the Industrial Accident Board.
Michael I. Silverman, Esquire, Lynn A. Iannone, Esquire, SILVERMAN, McDONALD FRIEDMAN, Wilmington, Delaware, Attorney for the Employee-Below/Appellant.
Timothy A. Casey, Esquire, MARSHALL, DENNEHEY, WARNER, COLEMAN GOGGIN, Wilmington, Delaware, Attorney for the Employer-Below/Appellee.
OPINION AND ORDER
This is the Court's opinion on appeal from a decision of the Industrial Accident Board. The appellant, Sylvia Griffith claims she is entitled to a finding that she suffered periods of total disability resulting from a work place injury that left her with a seventeen percent permanent impairment to her low back. The appellee, Wachovia Corporation contends that the Industrial Accident Board correctly decided that Ms. Griffith was simply not credible and failed to prove that she was totally disabled for any period which might entitle her to additional compensation pursuant to 19 Del. C. § 2326 (hereinafter referred to by section only).
STATEMENT OF FACTS AND NATURE OF THE PROCEEDINGS
Ms. Griffith, an employee of Wachovia on March 11, 2001, sustained a low back injury while picking up a box during work. According to Ms. Griffith, she felt a cracking sensation in her back. Following the accident she continued with complaints of low back and leg pain which became more acute over time.
On January 2, 2002, a sneeze triggered an apparent recurrence of acute pain to the same area of her low back. At that time she was treating with Dr. Yakof Koyfman, a neurosurgeon. An MRI taken of Ms. Griffith's lumbar region on May 24, 2002, revealed a large herniated disc at L5-S1. Dr. Koyfman recommended surgery based on the MRI coupled with her continued complaints of "excruciating pain." A lumbar discectomy was performed on June 3, 2002.
A lumbar discectomy is a surgical procedure in which an extravasated segment of the intervertebral disc in the low back, which is causing pain by stressing the spinal cord or radiating nerves, is dissected.
Ms. Griffith continued to suffer with acute pain in her low back and leg in the months following surgery. It was Dr. Koyfman's medical opinion that a recurrent discherniation produced those continued episodes of pain. A second surgery was performed on her lumbar spine in November 2002.
Ms. Griffith filed a petition on February 24, 2004, asking the Board to find a seventeen percent permanent impairment to her low back and that she was totally disabled from all forms of work since January 2, 2002. Wachovia acknowledged that Ms. Griffith sustained sixteen percent impairment to her low back but denied that she was totally disabled. The petition was heard by the Board on September 20, 2004. In an opinion dated March 15, 2005, the Board agreed that she suffered seventeen percent impairment to her low back. However, the Board denied her request for total disability benefits.
Dr. Peter Bandera, a physiatrist, testifying on behalf of Ms. Griffith by deposition, opined that Ms. Griffith sustained a permanent impairment to her low back which he estimated to be between thirteen and seventeen percent. His opinion was based upon one interview/examination of Ms. Griffith which took place in November 2003 and a review of her medical history. Several months after that exam, in April 2004, the doctor retroactively declared that Ms. Griffith was totally disabled and that her disability began in November 2002.
A physiatrist is a doctor specializing in physical medicine or rehabilitation.
Dr. Bandera referenced table 15-3 on page 384 of the Fifth Edition of the AMA Guides to the Evaluation of Permanent Impairment when assessing Ms. Griffith's degree of impairment. He placed Ms. Griffith in DRE Category III with evidence of radiculopathy. Radiculopathy refers to disease of the spinal nerve roots producing pain, numbness, or weakness radiating from the spine.
Dr. Bandera was aware that Dr. Koyfman never found Ms. Griffith to be disabled, and in fact, proposed she enter a work hardening program. He was also aware the she had been discharged from physical therapy in January 2003 and had been engaged in a physical fitness program and computer activities at the time that he provided the disability note. However, Dr. Bandera was unaware until he was deposed that Wachovia was in possession of surveillance footage which showed Ms. Griffith carrying buckets full of water and bending at the waist.
Work Hardening is a highly structured goal-oriented, individualized treatment program designed to return a person to work.
Ms. Griffith described the intensity of the low back and right leg pain which followed the second surgery. In spite of her complaints, she admitted that she was able to walk two miles daily and that she could exercise as well engage in work of an unspecified nature. She had not worked since November 2001. She also acknowledged that she had been receiving unemployment benefits since February 2002. Finally, Ms. Griffith testified that though the back pain had improved since the second surgery, she continued to suffer back and leg pain, and was functionally limited as a result.
Dr. Steven Friedman, an orthopedist, testified by deposition on behalf of Wachovia. He examined Ms. Griffith on two occasions in October 2003 and July 2004. Upon a review of all medical records, Ms. Griffith's complaints of acute pain, and negatives tests for sciatic nerve irritation, the doctor opined that Ms. Griffith was "exaggerating her symptoms." Dr. Friedman also did not find any sensory or motor deficit during the exams. He opined that Ms. Griffith likely suffered a minor muscle strain in connection with the March 2001 accident and could have returned to work with restrictions.
Dr. Friedman also reviewed the surveillance footage acquired by Wachovia depicting Ms. Griffith performing various physical activities. The information obtained during his examination of Ms. Griffith coupled with the activities depicted in the surveillance film led Dr. Friedman to conclude that Ms. Griffith was at least capable of sedentary work. He went on to opine that she was disabled no more than six weeks following each surgery.
Lastly, based on the same AMA Guides used by Dr. Bandera, Dr. Friedman opined that Ms. Griffith sustained a sixteen percent permanent impairment to her lumbar spine. He so rated Ms. Griffith due to her decreased spine mobility and evidence of radiculopathy. He agreed that she may require a body cast or further surgical evaluation to resolve her symptoms.
The Board concluded that it was Ms. Griffith's burden to demonstrate her total disability and she failed to make the requisite showing. It is apparent that the Board's conclusion was in substantial part based upon its view of Ms. Griffith's credibility. The Board noted that she testified to being in excruciating pain while at the same time she admitted performing substantial physical activity and collecting unemployment benefits. According to the Board, that activity and the collection of benefits by their very nature suggest employability.
Griffith v. Wachovia Corp., IAB hearing No. 1190802 (September 20, 2004), at 5.
The Board also questioned the testimony of both medical experts. Dr. Bandera's opinions were given little weight because he saw Ms. Griffith in November 2003 and did not issue a disability certificate until April 2004 without having examined Ms. Griffith again. Those opinions were called into question additionally because Dr. Bandera put Ms. Griffith on total disability even though Dr. Koyfman, her neurosurgeon, did not make a similar finding. The Board discounted Dr. Friedman's opinion because he declared Ms. Griffith disabled while examining her for the first time over one and a half years after the disability is alleged to have commenced.
Ms. Griffith contends that the Board's decision should be reversed because it is not supported by any evidence. Her argument is that the uncontroverted medical testimony establishing that there was some period of total disability was totally ignored. She contends that once the aforementioned material evidence was rejected by the Board, the record is devoid of any substantial evidence upon which to base the Board's findings and it must be overturned.
Wachovia replies that it is within the Board's discretion to weigh the evidence and determine the credibility of all witnesses. It is not required to accept the testimony of any of the medical experts if the testimony is deemed too "irrelevant or too weak." Wachovia represents that the Board conveyed legally sound reasons for rejecting the experts' opinions and concluding that Ms. Griffith's testimony was not believable. Hence, the Board's decision should stand. Ms. Griffith filed a timely appeal of the Board's decision on October 4, 2004.
Appelee Answ. Br., D.I. 11, at 7.
DISCUSSION
Standard of Review
This Court is bound by the Board's findings if they are supported by substantial evidence and absent abuse of discretion or error of law. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The Court does not sit as a trier of fact which means it does not weigh evidence, determine questions of credibility, or make its own factual findings. Simply put, the Court's role in this regard is limited to determining whether the evidence adequately supports the Board's findings and that there are no errors of law. Nor can the Court substitute its own judgment for that of the Board. The Court is restricted to reviewing the record in a light most favorable to the prevailing party to insure that any conclusion was fairly and reasonably reached.
Ohrt v. Kentmere Home, 1996 WL 527213, at *3 (Del.Super.).
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battista v. Chrysler Corp., 517 A.2d 295, 297 (Del. 1986), appeal dismissed., 515 A.2d 397 (Del. 1986).
Johnson v. Chrysler Corp., 213 A.2d 64 (Del. 1965).
Id.
Johnson, 213 A.2d at 66.
General Motors, Corp. v. Guy, Del. Super., C.A. No. 90A-JL-5, Gebelein, J. (August 19, 1991) (Mem. Op.).
National Cash Register v. Riner, 424 A.2d 669, 674-75 (Del.Super. 1980).
Total Disability
As stated above, when a claimant petitions the Board pursuant to § 2326 for additional compensation, he or she has the burden of proving the percentage of permanent impairment. Likewise, as in the instant case, where the employee claims she is entitled to benefits for periods of total disability via § 2324, she is charged with proving that claim to the Board's satisfaction.
Favors v. The Medical Ctr. of Delaware, Inc., 1996 Del. Super. LEXIS 183, at *5-6.
The instant record presents an uncommon concurrence of opinion of adverse medical experts. There is substantial agreement as to the degree of permanent impairment i.e., sixteen percent versus seventeen percent, and that there was at least twelve weeks of totally disability. Ms. Griffith contends as a result that she is entitled to total disability payments for at least the twelve week post-surgery period using the experts' agreement as a basis.
In support of her position, Ms. Griffith cites Maier v. Santucci and Amalfitano v. Baker. These cases stand for the proposition that unrebutted evidence should, absent unusual circumstances, be considered conclusive. The instant facts are even more compelling she suggests, because the experts are in actual agreement that at least some period of total disability existed and because the Board cannot substitute its own judgment in place of that testimony. That argument is not persuasive. Though she may disagree with the Board's reasoning and its conclusions, the record clearly reflects that the Board considered the evidence before it and based its conclusions upon that review.
697 A.2d 747 (Del. 1997).
794 A.2d 575 (Del. 2001).
Id. at 578.
First, the Board considered that Dr. Bandera found that Ms. Griffith was totally disabled though the treating neurosurgeon opined differently. The Board also noted that Dr. Bandera retroactively declared Ms. Griffith to be disabled back to November 2002 without stating the basis for that decision. Lastly, the Board considered Dr. Friedman's opinion which was based on examinations performed one and a half years after the injury.
Griffith, IAB hearing No. 1190802, at 5-6.
Second, it is apparent that the surveillance film of Ms. Griffith and her testimony before the Board played a significant factor in the Board's decision. As previously stated, the film displayed Ms. Griffith performing physical functions which both doctors were unaware of when they examined her. Further, Ms. Griffith testified that she suffered from chronic pain though she was actively engaging in exercise programs and could walk for two miles. There was a basis, as a result, upon which the Board could challenge Ms. Griffith's credibility.
Third, the Board considered the fact that Ms. Griffith had been collecting unemployment benefits since February 2002. Pursuant to 19 Del. C. § 3315(3) individuals are entitled to unemployment compensation benefits if they are available for work and actively seeking employment opportunities. The Board obviously concluded that collection of the unemployment benefits in and of itself exhibits that Ms. Griffith was not totally disabled. Rather, it was reasonable for the Board to conclude that she held herself out as being capable of returning to some form of employment.
However it is viewed, the Board's decision represents a legitimate exercise of its authority under the Worker's Compensation Act. The Board did consider and rely upon the expert medical testimony in determining the extent of permanent injury to Ms. Griffith's low back. That testimony was supported by and based upon objective standards and evidence. Where the issue of the extent to which she was totally disabled, if any, was concerned, it is apparent that the Board considered the testimony of the doctors but found it unpersuasive in light of Ms. Griffith's actions. The doctors were not told of the actual extent of her physical status as depicted in the surveillance film. Nor were they informed that Ms. Griffith affirmatively vouched that she was capable of and actively seeking work through her receipt of unemployment compensation benefits. Since the medical testimony was based in large part on what Ms. Griffith told them, that testimony was substantially undermined and the Board treated it accordingly.
Griffith, IAB hearing No. 1190802, at 5.
This Court may only review whether there is substantial support in the record for the Board's decision and that it was free of legal error. The Board's decision is supported by substantial evidence in the record and free of legal error. The decision therefore must stand.
CONCLUSION
Based on the foregoing, the Court must conclude that the decision of the Industrial Accident Board is supported by substantial evidence in the record and is free from legal error. That decision must be, and hereby is, AFFIRMED.