Opinion
C.A. No. 98A-08-010 RRC
Submitted: June 23, 1999
Decided: September 21, 1999
UPON APPEAL FROM A DECISION OF THE INDUSTRIAL ACCIDENT BOARD. AFFIRMED.
Shakuntla L. Blaya, Esquire and Stephani J. Ballard, Esquire, Doroshow Pasquale, Wilmington, Delaware, Attorneys for Employee-below, Appellant.
Maria Paris Newill, Esquire, Heckler, Frabizzio Durnstein, Attorney for Employer-below, Appellee.
MEMORANDUM OPINION
INTRODUCTION
Employee-Appellant, Ramon C. Guions (Employee) injured his left ankle by stepping on a curb which gave way while working as a security guard for Protection Technology (Employer). Employee filed a Petition to Determine Additional Compensation Due asserting a ten percent (10%) permanent impairment to his left ankle/lower extremity. The Industrial Accident Board issued its decision denying Employee's petition. Employee has appealed the decision of the Board contending that (1) the Board erroneously applied the wrong standard in assessing a permanent impairment and (2) the decision of the Board was not supported by substantial evidence. This Court AFFIRMS the decision of the Board, holding that (1) the correct standard in assessing permanent impairment was applied and (2) that the Board decision was supported by substantial evidence.
The exact name of this business entity is unclear from the record.
FACTS AND PROCEDURAL HISTORY
On May 25, 1996, Employee injured his left ankle by stepping on a curb which gave way while working as a security guard for Employer. Employee was taken to St. Francis Hospital Emergency Room where he was diagnosed with a left ankle sprain.
On November 19, 1997, Employee filed a Petition to Determine Additional Compensation Due asserting a ten percent (10%) permanent impairment to his left ankle/lower extremity. On July 24, 1998, the Industrial Accident Board held a hearing to decide Employee's petition. The parties stipulated prior to the hearing that if any degree of permanent impairment was awarded, the appropriate compensation would be $229.35 per week. On August 5, 1998 the Board issued its decision denying Employee's petition.
Dr. Stephen L. Hershey, an orthopedic surgeon, testified by deposition at the hearing on behalf of Employee. He had reviewed various medical records and x-rays and had conducted a physical examination of Employee on September 22, 1997. He observed that Employee had some "subtle" restriction of motion of the left ankle. Based on the x-rays taken September 22, 1997, Dr. Hershey noted that there were signs of early post-traumatic arthritis and anterior and medial spur formation. Employee had complained that his ankle was weather-reactive and Dr. Hershey noted that symptom was a typical sign of post-traumatic arthritis. Dr. Hershey testified that Employee's left ankle was a little swollen but, on cross examination, conceeded that his medical report dated September 22, 1997, did not note any swelling upon physical examination. He testified that pain and stiffness were subjective complaints, but stated that swelling is an objective sign. Dr. Hershey had used x-rays, observations at the physical examination and Employee's complaints of pain to determine that Employee had a ten percent (10%) impairment to the left ankle/lower extremity. Dr. Hershey stated he reached that conclusion by using the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment (Manual). Dr. Hershey stated that Employee had reached maximum medical improvement.
Dr. Richard I. Zamarin, an orthopedic surgeon, testified by deposition on behalf of the Employer. Dr. Zamarin had reviewed various medical records, the x-rays taken by St. Francis Hospital, the x-rays taken by Dr. Hershey and examined the Employee on December 19, 1997. Dr. Zamarin noted that the x-rays taken at St. Francis on May 26, 1996 indicated no evidence of fracture, dislocation or other osseous abnormality. A July 2, 1996 functional assessment report of Employee indicated that, at that time, Employee could not do athletics or run. Everything else was normal. A July 9, 1996 report of Dr. Pagliei reflected Employee had no evidence of swelling, no pain elicited on palpation, and no pain with plantar, dorsiflexon, inversion or eversion motion of the foot or ankle. A July 16, 1996 report from Darby Medical Associates stated that Employee had a normal examination and was reporting that he was able to put in long hours of overtime and was playing basketball again.
Employee's treating physicians were Dr. Pagliei, Dr. Ebba and Darby Medical Associates.
After Dr. Zamarin concluded the physical examination of the Employee, he observed that everything was normal except for some soft tissue swelling on the anterolateral aspect of the left ankle and noted that Employee complained of tenderness. Dr. Zamarin compared the x-rays taken by St. Francis Hospital with those taken at Dr. Hershey's office and noted that both showed degenerative changes. He opined that the arthritic and degenerative changes in Employee ankle pre-dated the May 25, 1996 injury and that the Employee has not reached maximum medical improvement. Dr. Zamarin used the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA Guides) to determine that Employee suffered no permanent impairment. He based this on the fact that Employee had no loss of function, had no antalgic gait (a limp due to pain), was capable of performing every day activities and that any arthritic changes in the ankle pre-dated the injury.
In its decision on Petition to Determine Additional Compensation Due, the Board determined that Appellant did not meet his burden of proof. The Board noted that Dr. Hershey provided no detailed explanation as to how he calculated his rating of impairment, relying only a general statement that he used the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment. The Board concluded that Dr. Hershey was not credible because there were inconsistencies as to what factors were actually used to determine the degree of disability. Specifically, Dr. Hershey stated at one point that he considered Employee's pain, restricted motion and stiffness to determine the impairment. However, Dr. Hershey later stated that his determination was based on the arthritis shown on the x-rays and Employee's complaints of pain. The Board concluded that Employee had failed to establish a loss of use which is required when determining permanent impairment. The Board did not accept the testimony of Dr. Hershey but accepted the testimony of Dr. Zamarin. Appellant subsequently appealed the decision of the Board to this Court.
For the reasons stated below, the Board's decision is AFFIRMED. This Court finds that there was substantial evidence for the Board to have found that Employee had sustained no permanent impairment. This Court holds that the Board applied the correct standard in assessing permanent impairment. This Court finds the Board's acceptance of the finding of zero percent (0%) permanent impairment to the left ankle/lower extremity was based upon the lack of positive objective findings upon physical examination of the Employee, and finds that the Board's acceptance of the testimony of Dr. Zamarin that arthritic changes noted on the x-rays were preexisting and the rejection of the testimony of Employee and Dr. Hershey were supported by substantial evidence. This Court holds that the Board's determination that Dr. Zamarin's opinions were more credible than Dr. Hershey's is supported by substantial evidence.
STANDARD OF REVIEW
The Supreme Court and this Court repeatedly have emphasized the limited appellate review of factual findings of an administrative agency. The function of the reviewing Court is to determine whether substantial evidence supports the agency's decision. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. This Court, on appeal, does not weigh the evidence, determine questions of credibility, or make its own factual findings. This Court's duty is limited to determining whether substantial evidence supports the Board's findings of fact and whether errors of law exist. As the Court performs this duty, it views the facts in a light most favorable to the prevailing party below. Only where there is no satisfactory proof in support of the factual findings of the Board may Superior Court overturn it. Furthermore, this Court will give deference to the expertise of administrative agencies and must affirm the decision of an agency even if the Court might have, in the first instance, reached an opposite conclusion.
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66-67 (1965); General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960).
Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), appeal dismissed, Del. Supr. 515 A.2d 397 (1986).
Johnson at 66.
See Chudnofsky v. Edwards, Del. Supr., 208 A.2d 516, 518 (1965).
Johnson at 66.
See 29 Del. C. § 10142(d); Petty v. University of Delaware, Del. Supr, 450 A.2d 392, 396 (1982); Levitt v. Bouvier, Del. Supr., 287 A.2d 671 (1972).
DISCUSSION
I. THE BOARD'S DECISION IS AFFIRMED AS THERE IS NO ERROR OF LAW IN DENYING THE EMPLOYEE'S PETITION TO DETERMINE ADDITIONAL COMPENSATION DUE FOR PERMANENT IMPAIRMENT AS THE BOARD APPLIED THE CORRECT STANDARD TO ITS DETERMINATION OF PERMANENCY.
A. The Board Used the Correct Standard in its Analysis of Permanent Impairment.
19 Del. C. § 2326 provides the statutory formula for compensation based on permanent loss of function attributable to a compensable work accident. The Board is authorized to award proper and equitable compensation for loss or loss of use of any member or part of the body. The Board correctly articulated that the employee must demonstrate a loss of function or loss of use of a specific member of the body as a result of the work accident in order to establish the elements necessary for permanent impairment. In its decision, the Board stated that the proper test is "[c]an the patient perform this daily activity." The Board then found substantial evidence to support the conclusion that Employee could not prove that he could not perform daily activities. The Board found that based on the opinions of Drs. Zamarin, Pagliei, and Ebba that Employee had full range of motion and there was no indication that pain inhibited either anatomical functioning or activities. Furthermore, the Board specifically stated that "[employee] has not established that he actually suffers from the swelling he claims he gets or that such swelling restricts his activities in any fashion. Moreover, the Board did not limit their denial of permanent impairment to loss of anatomical function as alleged by the Employee, but specifically found no positive objective findings, no restricted range of motion or loss of anatomical function, and no restriction of activities.
Wilmington Fibre Specialty Co., v. Rynders, Del. Super., 316 A.2d 229, 231 (1974), aff'd, Del. Supr., 336 A.2d 580 (1975).
IAB Order at p. 7.
IAB Order p. 7, Tr. pp. 50-53.
IAB Order p. 7.
IAB Order p. 7.
The Board rejected the testimony of Dr. Hershey and accepted the testimony of Dr. Zamarin that the Employee suffered no permanent impairment based on the substantial evidence resulting from Dr. Zamarin's review of the medical record, including notes by Dr. Pagliei and Darby Medical Associates, review of the x-ray films of May 26, 1996 and September 22, 1997, the functional assessment report, the fact that the Employee had returned to work, and finally, based on his own examination of the Employee.
This Court finds that the Board applied the correct standard in its determination of permanent impairment.
B. The Board Correctly Found that the Employee Failed to Establish a Functional Loss of Use.
The Board correctly determined that the Employee failed to establish a functional loss of use which is required in assessing permanent impairment. The Board rejected Dr. Hershey's opinion of ten percent (10%) impairment as inconsistent and not credible. Specifically, Dr. Hershey found "subtle" restriction of motion of the left ankle in comparison to the right, while the Employee's treating physicians' examinations confirmed no positive objective findings, normal examination, and noted that the employee had returned to normal activities without difficulty. The Board accepted the testimony of Dr. Zamarin that Employee suffered no permanent impairment based on the substantial evidence resulting from Dr. Zamarin' s review of the medical record, including notes by Dr. Pagliei and Darby Medical Associates, review of the x-ray films of May 26, 1996 and September 22, 1997, the functional assessment report, the fact that the Employee had returned to work, and finally, based on his own examination of the Employee.
IAB Order pp. 6-8, Tr. p. 33.
Tr. p. 38.
Tr. p. 56.
This Court finds that the Board's determination that the Employee failed to establish a functional loss of used was supported by substantial evidence.
II. THE BOARD'S DECISION IS AFFIRMED AS IT IS FREE OF ERROR WITH REGARD TO FACT AND LAW IN DENYING THE EMPLOYEE'S PETITION TO DETERMINE ADDITIONAL COMPENSATION DUE FOR PERMANENT INJURY AS SUCH DECISION IS SUPPORTED BY SUBSTANTIAL EVIDENCE.
A. The Board's Decision to Accept the Testimony of Dr. Zamarin and Reject the Testimony of Dr. Hershey is Supported by Substantial Evidence.
The Board is free to accept or reject in whole or in part testimony offered before and to fix its verdict upon testimony accepted. Weighing of evidence, determining the credibility of witnesses, and resolving any conflicts in testimony, are functions reserved exclusively for the Board.
Debernard v. Reed, Del. Supr., 277 A.2d 684 (1971).
Downes v. State, Del. Supr., No. 25, 1993, Holland, J. (Mar. 30, 1993).
The Board accepted the medical testimony of Dr. Zamarin and found that the Employee suffered no permanent impairment. Dr. Zamarin's opinion and finding of no permanent impairment to the left ankle/lower extremity is supported by substantial evidence. Dr. Zamarin reviewed the x-rays and medical record and "confirmed that he relied upon the information contained in those records in conjunction with his own findings upon physical examination for the opinions he would express in this deposition." Dr. Zamarin concluded that the diagnosis of post traumatic arthritis made by Dr. Hershey was inaccurate as the arthritic changes were noted on the May 26, 1996 Emergency Room x-rays. The Functional Assessment report, taken ten days post accident, reports that everything was normal with only an inability to do athletics or run. Furthermore, the Employee had returned to full, unrestricted work and was putting in long hours of overtime and was playing basketball again. Dr. Zamarin used the AMA Guides to determine that Employee suffered no permanent impairment to the left ankle/lower extremity regardless of any arthritis and despite claims of swelling and pain. Dr. Zamarin determined that there was no permanent impairment since the Employee had been released to full duty, there was no functional loss, no antalgic gate and the Employee was able to perform his everyday activities without any symptoms.
Dr. Zamarin's opinions were based on his own physical examination of the Employee and the records from Fitzgerald Mercy Hospital, Dr. Ebba of Darby Medical Associates, St. Francis Hospital, Dr. Pagliei, Dr, Hershey, Occupational Therapy Consultants, x-ray films from St. Francis Hospital dated 5/22/96, x-ray films from Dr. Hershey's office dated 9/22/97 and Dr. Hershey's deposition. Tr. pp. 49-50.
Tr. Pp. 56-59.
IAB Order p. 4, Tr. pp. 50-51.
IAB Order p. 4, Tr. pp. 52-56.
IAB Order p. 5, Tr. pp. 72-76.
IAB Order p. 5, Tr. pp. 56-60, 72-76.
This Court finds that the Board's decision to accept the testimony of Dr. Zamarin and reject the testimony of Dr. Hershey was based on substantial evidence in the record.
B. The Board Rejected Dr. Hershey's Opinion Because he Provided No Detailed Explanation of How He Calculated His Rating of Impairment Not Because of His Reliance on the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment.
Employee further contends that the Board rejected Dr. Hershey's opinion because of his reliance on the Manual for Orthopaedic Surgeons in Evaluating Permanent Physical Impairment. Although this guide is no longer published and is not considered to be the proper basis for evaluating permanent impairment, the Board's Order does not state that Dr. Hershey's opinion was rejected on that basis. The Board's decision to reject the opinion of Dr. Hershey was based on the fact that he did not provide a detailed explanation of how he calculated his rating in relying on the Manual. In the Order, the Board specifically stated:
Turbitt v. Blue Hen Lines, Inc., Del. Supr., 711 A.2d 1214 (1998).
IAB Order p. 6.
Dr. Hershey provided no detailed explanation as to how he calculated his rating of impairment, relying on only a general statement that used the [Manual]. . . . Dr. Hershey stated at one point that he considered [Employee's] pain, restricted motion and stiffness in determining the impairment, but later stated that his determination was based on the arthritis shown on the x-rays and [Employee's] complaint of pain. This inconsistency as to what factors were actually used to determine the degree of permanency casts doubt on the credibility of his assessment.
It is clear the Board has satisfied its responsibility to make necessary factual findings when choosing to accept the testimony of one witness over another. The Board properly rejected the testimony of Dr. Hershey and accepted the testimony of Dr. Zamarin.
Based on the foregoing, this Court finds that the Board's decision to accept the testimony of Dr. Zamarin and reject the testimony of Dr. Hershey was not based on the use of the Manual by Dr. Hershey, but based on substantial evidence in the record.
CONCLUSION
This Court finds that there was substantial evidence for the Board to have found that Employee had sustained no permanent impairment. This Court holds that the Board applied the correct standard in assessing permanent impairment and that the Board's finding of zero percent (0%) permanent impairment to the left ankle/lower extremity was supported by substantial evidence in the record. Furthermore, this Court holds that the Board's decision to reject the testimony of Dr. Hershey and accept the testimony of Dr. Zamarin was supported by substantial evidence.
IT IS SO ORDERED.