Opinion
C.A. No. 99A-02-001.
Date Submitted: October 28, 1999.
Date Decided: February 7, 2000.
UPON CLAIMANT'S APPEAL FROM THE INDUSTRIAL ACCIDENT BOARD, AFFIRMED in Part, REVERSED and REMANDED in Part
Gary S. Nitsche, Esq., Weik, Nitsche Dougherty, One Commerce Center, 3rd Floor, 12th and Orange Streets, P.O. Box 2324, Wilmington, DE 19899. Attorney for Claimant, Below-Appellant.
Anthony M. Frabizzio, Esq., Heckler, Frabizzo Durstein, 919 Market Street, P.O. Box 128, Wilmington, DE 19899. Attorney for Employer, Below-Appellee.
MEMORANDUM OPINION
This 7th day of February 2000, having read and considered Frances Hagar's ("Appellant") Opening and Reply Briefs, Acme Market's ("Employer") Answering Brief and the record of the proceedings below, it appears that:
FACTS
Appellant, currently age 53, worked as a deli manager for 17-1/2 years for Employer. It is undisputed that appellant sustained repetitive stress injuries to her neck and shoulder as a result of her meat slicing duties. Appellant had been receiving total disability benefits at a weekly rate of $357.19. On July 10, 1998 Employer filed a Petition for Termination of Benefits. On December 11, 1998 the Industrial Accident Board ("Board") issued its decision after the November 23, 1998 hearing. The Board granted Employer's petition and denied in part Appellant's claim for medical expenses. On December 18, 1998 Appellant filed a Motion for Clarification of the Board's decision to include a claim for compensation for bilateral carpal tunnel. On January 11, 1999 Appellant's motion was granted. Appellant then filed this appeal of the Board's December 11, 1998 decision.
At the November 23, 1998 hearing Peter Bandera, M.D. testified for Appellant. Dr. Bandera first saw Appellant March 13, 1996. According to Dr. Bandera, Appellant complained of pain in her neck and right shoulder and tingling in both hands. Dr. Bandera diagnosed Appellant with the following repetitive injuries: (i) chronic rotator cuff syndrom in the right shoulder; (ii) right AC joint arthropathy; (iii) cervical neck syndrome with spondylosis; (iv) tendinitis of the right forearm; (v) dislocation of the long head of the biceps; and (iv) bilateral carpal tunnel syndrome.
Dr. Bandera, a rehabilitation specialist, testified that he saw Appellant approximately fifteen times between March of 1996 and October of 1998. Dr. Bandera testified that during that time he did not find any appreciable change in her condition. Dr. Bandera opined that Appellant is not capable of working in any capacity due to the repetitive injuries to her arm, shoulder, neck and hands. However, Dr. Bandera testified that he had ordered a functional capacity evaluation which revealed Appellant could potentially work up to three to four hours sitting with frequent breaks, stand one to two hours with frequent breaks, or walk one to two hours for short distances. In addition, Dr. Bandera later testified that he would allow Appellant to return to work if she felt she wanted to try.
Kenneth DeGroot, D.C., a chiropractic physician, also testified on behalf of Appellant. Dr. DeGroot first saw Appellant on July 12, 1995. Dr. DeGroot testified that Appellant complained of neck and right shoulder pain in addition to numbness in the arm and hand. Dr. DeGroot classified Appellant's condition as an overuse repetitious motion injury to the shoulder and bilateral carpal tunnel syndrome to the hands. Dr. DeGroot testified that he provided Appellant with a variety of chiropractic treatments. However, Dr. DeGroot admitted that Appellant had failed to have the favorable response to the treatments he hoped she would have. Nevertheless, Dr. DeGroot believed the treatment prevented Appellant's range of motion from diminishing. Based upon Appellant's subjective impression, Dr. DeGroot testified that Appellant had a 45%-50% improvement between July of 1995 and March of 1996 but has since had no further improvements. Dr. DeGroot opined that Appellant cannot work at this point but if she were to state she wanted to try to work he would allow her to with restrictions. Dr. DeGroot further opined that there is a great likelihood that she would have problems with any work because of the additional problems with her feet and lower back, that are unrelated to her work injuries.
Jerry Case, M.D. testified for Employer. Dr. Case examined Appellant twice; February 6, 1997 and September 22, 1998. Dr. Case testified that in conjunction with his examinations he reviewed the reports and files provided by Dr. DeGroot, Dr. Bandera, University of Pennsylvania, and other doctors who treated Appellant at different times. Dr. Case stated that Appellant was still receiving chiropractic treatment when he first examined Appellant on February 6, 1997. Dr. Case diagnosed Appellant with (i) a rotor cuff tear of the right shoulder with degenerative arthritis AC joint and rupture of the biceps tendon; (ii) cervical strain; and (iii) bilateral carpal tunnel syndrome. Dr. Case opined that Appellant had reached her maximum improvement as of November of 1996 and would not improve further without surgery. Dr. Case testified that chiropractic treatment was not appropriate for a rotor cuff problem nor was it for carpal tunnel syndrome. Dr. Case stated that he agreed with the medical report provided by the University of Pennsylvania, which included that of Dr. Schlitman, that recommended that chiropractic treatment be discontinued as of February 12, 1996. Dr. Case stated that as of his first examination of Appellant on February 6, 1997, Appellant was capable of working with restrictions such as avoiding repeated reaching with the right shoulder, overhead work, lifting over ten pounds, repetitive grasping, and use of a vibratory tool.
Tracy Kallos, a vocational rehabilitation specialist, also testified on behalf of Employer. Ms. Kallos testified that in September of 1998 she identified eleven positions within the restrictions set by Dr. Case after she conducted a labor market survey. Ms. Kallos testified that none of the positions identified would require repetitive use of the hands, however some use of the hands would be necessary. Ms. Kallos stated that she contacted each prospective employer and got a description of the job to confirm it complied with the restrictions set by Dr. Case. In addition, Ms. Kallos stated that she personally viewed the jobs to confirm they would be within the work restrictions.
Dr. Bandera testified that he had reviewed the labor market survey prepared by Ms. Kallos. Dr. Bandera opined that Appellant is incapable of performing any of the jobs identified by Ms. Kallos because they all involved repetitive use of the hands. Dr. DeGroot also reviewed the labor market survey. He also opined that Appellant could not perform the work required by the listed positions because of the repetitive use of hands. In contrast, Dr. Case testified that he had reviewed the labor market survey and opined that Appellant has been able to physically perform the jobs identified as of at least July 10, 1998.
Appellant testified that she had worked for Employer since October of 1978 and had always worked in the deli. Appellant stated that the job consisted of slicing meat all day. Appellant stated that she first sought medical treatment when she started having sharp pains in her neck in January of 1995. In addition, Appellant stated, she had problems with her right shoulder, hands and elbows. Appellant stated that she knew the cause of her repetitive injury was the slicing of deli meat with her right hand. Appellant testified that she refused to have surgery on her shoulder or hands because she was not given a guarantee that she would not still have pain or that she would not lose any range of motion. Appellant testified that her treatments with Dr. DeGroot have reduced the inflammation and as a result reduced the amount of pain she had to a tolerable level. Appellant further testified that if she does not have the treatments the pain increases. Additionally, Appellant testified that Dr. DeGroot's treatments temporarily relieve the pain in her hands to a tolerable level. Appellant also has braces that she wears on both hands. In addition to the pain in Appellant's neck, shoulders, arms and hands, Appellant testified that she has headaches at the base of her head.
Appellant does not believe she can work in any capacity. The reasons she stated are that she has too much pain and too many headaches. Additionally, she stated that she cannot sit or stand very long. She stated that standing for long periods bothered her back, feet, shoulders and neck. Appellant testified that she cannot do her own housework and cannot cook. Any cooking she does, she stated, she uses the microwave.
STANDARD OF REVIEW
This Court's role, when reviewing a decision of the Industrial Accident Board that is being appealed, is to determine whether there is substantial evidence to support the Board's decision. In Delaware, substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." "Only where there is no satisfactory proof in support of a factual finding of the Board may the Superior Court, or [the Supreme] Court for that matter, overturn it." In addition, because the Court does not sit as a trier of fact, it will not substitute its judgment for that of the Board's. In regard to any conflicts in medical testimony, it is within the Board's discretion to accept one medical expert's testimony over another when supported by substantial evidence.
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 65, 67 (1965); Stoltz Management Company v. Consumer Affairs Bd., Del. Supr., 616 A.2d 1205, 1208 (1992); Histed v. E.I. duPont de Nemours, Del. Supr., 621 A.2d 340, 342 (1993); Groff v. J.C. Penny Company, Inc., Del. Super., C.A. No. 98A-07-018, Toliver, J. (Jun. 18, 1999) (Order at 4).
Olney v. Cooch, Del. Supr., 425 A.2d 610, 614 (1981); See also Street v. State, Del. Supr., 669 A.2d 9, 11 (1995).
Johnson, 213 A.2d at 67.
Id. At 66.
Groff at 4 (citing Downs v. State, Del. Supr., No. 25, 1993, Holland, J. (Mar. 30, 1993) (Order at 2)).
DISCUSSION
Appellant first argues that the Board's decision to decline to award payment of chiropractic bills after February 6, 1996 is arbitrary and not supported by the evidence. Appellant argues that Employer's own expert, Dr. Case testified that the appropriate date to discontinue such treatment should have been February 6, 1997. Appellant speculates that the Board relied on a sentence in a medical report provided by Dr. Schlitman from the University of Pennsylvania but argues that since the report was not presented as evidence and the Employer's expert, Dr. Case, "never testified that he relied upon the report," the February 6, 1996 date is not supported by the evidence. Thus, Appellant argues the decision must be reversed. Appellant contends that the testimony of Drs. Bandera and DeGroot support her position that the chiropractic treatment provided her with ongoing relief from her injuries. Appellant argues that because the Board failed to properly state factual findings that dispute the legitimacy of her treatment, the Board's decision must be reversed. Further, Appellant argues that the Board's failure to address the cross-examination of Dr. Case is reversible error.Employer argues that the evidence supports the Board's decision that the chiropractic bills should not be paid after February 6, 1996. Employer counters Appellant argument that it's expert Dr. Case did not rely on the reports provided by Dr. Schlitman from the University of Pennsylvania. On the contrary, Employer argues, the transcript reveals that when specifically asked if he had reviewed the report of Dr. Schlitman, Dr. Case not only confirmed that he had but also stated that he agreed with Dr. Schlitman's opinion that chiropractic treatment should have been discontinued as of February 12, 1996. Employer explains the discrepancy of the Board's finding of February 6, 1996 as the date to cut off payment for chiropractic treatment and February 12, 1996 stated by Dr. Case as a clerical error. Furthermore, Employer argues, regardless of the date, based on Dr. Case's testimony, chiropractic treatment was inappropriate for any shoulder/rotor cuff problems or carpal tunnel symptoms. Employer contends that the Board accepted the testimony and opinions of Dr. Case over those of Appellant's experts and was completely within its bounds to do so. Moreover, Employer argues that the testimony from Appellant's experts confirmed that the chiropractic treatment, at least that beyond six months, failed to provide the goals hoped for since no further improvement was found after that point. Employer disputes Appellant's argument that the Board failed to utilize the testimony elicited from Dr. Case on cross-examination. Employer contends that it is clear the Board considered such testimony.
The Court finds there is substantial evidence to support the finding of the Board that chiropractic treatment should have been discontinued as of February of 1996, thereby extinguishing Employer's duty to pay expenses for such treatment. The Court agrees that the discrepancy in dates is either a clerical error or and oversight of the Board. Based upon the testimony as evidenced by the transcript, the Court will set the date at February 12, 1996. The Court finds that the Board did articulate a factual basis for its findings. Though it was brief, it established the rationale for all of its findings. In addition to the acceptance of Dr. Case's testimony, the Board stated that "the evidence showed that [Appellant] received no chiropractic treatment except for one visit from July 27, 1997 until September 1998, and there was no evidence presented that [Appellant's] condition deteriorated during this time." The Court finds that the testimony of Drs. Bandera and DeGroot support this finding. Neither testified that there was a substantial change in Appellant's conditions after Appellant's substantial break from chiropractic treatment, due to a temporary move to Florida. The Court finds this is additional evidence as to the reasonableness of the chiropractic treatment. Therefore, the Court upholds the decision of the Board to deny payment of the expenses for chiropractic treatment after February 12, 1996.
Appellant also argues that the evidence does not support the Board's decision that Appellant is not totally disabled. Appellant contends that the Board's failure to summarize Dr. Case's cross-examination testimony "is a per se reversible error in the Board's decision," though she fails to offer any case support for this argument. In addition, Appellant argues that though not dispositive, the award of Social Security disability benefits to Appellant in 1996 is relevant and important but the Board failed to mention this in its decision. Appellant further contends that all of the jobs identified in the labor market survey do not conform to the restrictions set by all experts and most, pursuant to the testimony of Drs. Bandera and DeGroot, require repetitive use of the hands. Appellant further argues that the Board inappropriately considered Appellant's ability to sit through the hearing in determining total disability. And lastly, Appellant argues that the results of the functional capacity evaluation is evidence that Appellant is not capable of working in a full-time capacity yet the Board ignored this conclusion.
The Board found that Appellant is not totally disabled and that Appellant did not argue nor did the evidence support, that Appellant is a displaced worker. The Court agrees with Appellant that her ability to sit through the hearing cannot be used as a determining factor with regard to Appellant's disability. However, the Board stated that it accepted the testimony of Dr. Case and "[i]t is entirely proper and appropriate for the Board to accept the medical testimony of one expert witness over that of another." Therefore, it was within the Board's discretion to accept Dr. Case's testimony regarding the extent of Appellant's injuries and not contrary to law. The Board stated that it rejected the opinions of Drs. Bandera and DeGroot because the results of the functional capacity evaluation of Appellant, which was ordered by Dr. Bandera, "casts doubt on the conclusions of both Dr. Bandera and Dr. DeGroot, and bolsters the opinion of Dr. Case." The Board gave a specific reason why it did not accept the testimony and opinions of Appellant's experts. Because all experts testified at the hearing rather than by deposition, the Court will give its usual deference to the Board's credibility determinations. The Court finds the Board's decision that Appellant is not totally disabled and capable of light-duty work, i.e. working with the restrictions enunciated by Dr. Case is supported by substantial evidence and its consideration of Appellant's ability to sit through the hearing is not reversible error. However, it is not clear to the Court that Dr. Case's testimony provides support for the Board's conclusion that Appellant is capable of "full-time light duty work," as opposed to part-time light duty work. (emphasis added).
Simmons v. Delaware State Hosp., Del. Supr., 660 A.2d 384, 388 (1995) (citing General Motors Corp. v. Veasey, Del. Supr., 371 A.2d 1102, 1106 (1988) [ 371 A.2d 1074] (1977)); Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1106 (1988).
Simmons, 660 A.2d at 388.
See Lindsay v. Chrysler Corp., Del. Super., C.A. No. 94A-04-005, Barron, J. (Dec. 7 (1994) (Mem. Op.).
The Court finds that the record does not provide substantial evidence indicating that Employer has sustained its burden of proof that there is work available within the restrictions and capabilities proscribed by Dr. Case. Based upon the testimony of Ms. Kallos, it is unclear as to whether the jobs identified are within Appellant's restricted capabilities identified by all the experts, whether Appellant's or Employer's. For example, Ms. Kallos testified that the job at Wawa is a manager trainee position that would not require Appellant to run a deli slicer but rather oversee the employees who would. However, Ms. Kallos admitted that the turnover rate at Wawa is high and people often call in sick. Logic dictates that at an establishment such as Wawa Appellant would be called upon to do a variety of tasks other than mere supervision. The Court finds similar problems with the other positions identified as described by Ms. Kallos such as cleaning cars, customer service representative and other manager trainee positions. The record does not clearly indicate that the positions identified are within Appellant's capabilities; meaning Appellant would not be required to perform the very movements it is agreed she is restricted from. The Court takes note of the fact that the record is devoid of any attempt of Employer, a larger and more diverse organization than many suggested, to demand that Appellant return to "light-duty" work within Appellant's capabilities at its establishment. Descriptions such as "she would not have to use it consistently" and "performed on an infrequent basis," are vague and provide very little information on how often Appellant would be called upon to perform a given task; how many breaks she would have; whether she would be able to sit, stand, walk, etc. within her stated limitations. The Court finds that the better determination as to whether Appellant is capable of performing the jobs is to actually arrange interviews with the prospective employers in order to make a determination as to whether there is actual availability of jobs within Appellant's stated capabilities.
See generally Jenning v. University of Delaware, Del. Super., C.A. No. 85A-MY-4, Taylor, J. (Feb. 27, 1986) (ORDER) (for a discussion of the burden of proof required by an employer that suitable employment is available within the employee's capabilities).
The Court finds no merit to Appellant's arguments that the Board's decision should be reversed because it failed to summarize Dr. Case's cross-examination testimony and failed to discuss the relevance of Appellant's Social Security Disability benefits. First, the Court finds that there is no case support for Appellant's proposition that the Board must summarize all testimony, even though the testimony may be relevant. True, the Court advocates a well-articulated decision that presents factual support, but the suggestion that it must include a summary of the opposing party's cross-examination testimony has no merit. Nor does the Court agree that the Board's failure to address the Social Security disability benefits received by Appellant constitutes reversible error. Appellant argues that Jarman v. Willow Grove Meats requires the Board to "make a finding on the Social Security admissibility question before rejecting it." The Court finds the Jarman decision makes no such requirement. Rather, the Jarman Court held that the Board did not commit legal error by excluding the Social Security disability benefit evidence as irrelevant and prejudicial because it was within its discretion.
Jarman v. Willow Grove Meats, Del. Super., C.A. No. 93A-01-001, Steel, J. (Mar. 30, 1994) (Mem. Op.).
Id.
Though the Board denied payment of the outstanding medical bills of Dr. DeGroot in the amount of $12,495 because it found the treatment not to be reasonable and necessary, it granted the payment of $100 for treatment provided by Dr. Bandera. Neither party disputes the $100 award therefore it will stand. In addition, the Board awarded partial disability benefits in the amount of $135.67 per week because it found that Appellant is capable of working full-time but with restrictions. The Board is to resubmit this award with any adjustments warranted due to its further findings on the availability of employment within Appellant's capabilities.
In summary, the Court holds that there is substantial evidence for the Board's finding that Appellant's chiropractic treatments were not reasonable and necessary after February 12, 1996. As previously discussed, the Court amended the date to reflect the date evidenced by the record. The Court holds that there is substantial evidence for the Board's finding that Appellant is not totally disabled but rather is partially disabled and capable of returning to light duty work. However, the record is unclear as to whether she is capable of returning to full-time employment. The Court further finds that substantial evidence does not exist to support the Board's finding that employment is available within Appellant's capabilities.
For the forgoing reasons the decision of the Industrial Accident Board is hereby AFFIRMED as to it's award of $100 for medical expenses and its finding that Appellant is no longer totally disabled but is partially disabled and REVERSED and REMANDED as to Appellant's capabilities and the availability of employment within Appellant's capabilities and restrictions.
IT IS SO ORDERED.