Opinion
C.A. No. 09A-10-004.
Submitted: October 18, 2010.
Decided: December 13, 2010.
On Appeal from a Decision of the Industrial Accident Board. Affirmed.
Gary S. Nitsche, Esquire, Michael B. Galbraith, Esquire, Weik, Nitsche Dougherty, P.A., Wilmington, Delaware, Attorneys for Appellant Charles Hann.
Eric D. Boyle, Esquire, Chrissinger Baumberger, Wilmington, Delaware, Attorney for Appellee MacDermid, Inc.
Dear Counsel:
INTRODUCTION
This appeal requires the determination of two related issues: 1) whether the Industrial Accident Board's (the "Board") determination that Employee returned to his baseline condition as of a certain date is supported by substantial evidence; and 2) whether the Board's decision to terminate Employee's total disability benefits is supported by substantial evidence. Employee contends that the Board's decisions were not supported by substantial evidence and, further, that the Board misapplied the standard of causation by allegedly requiring Employee to prove that his preexisting degenerative disease was caused by the instant accident.
This Court holds that the Board properly considered and decided all issues presented by factual and medical evidence, including the resolution of conflicting medical expert opinions. The Board possesses broad discretion in weighing evidence and reaching conclusions, and this Court may not disturb the findings of the Board absent an abuse of such discretion. The facts of this case disclose that the Board's factual findings represent a proper exercise, and not abuse, of its discretion. Accordingly, the decision of the Industrial Accident Board is AFFIRMED.
FACTS AND PROCEDURAL HISTORY
This case arises from a May 1, 2008 work accident which occurred while Employee was manipulating rolls of film to place them onto a cart; the rolls ranged in weight from 25 to 750 pounds. A September 22, 2009 decision of the Industrial Accident Board terminated Employee's total disability benefits as of December 4, 2008.Employee claims that he was injured while working as a machine operator when he "reached up to keep a roll of material from falling." Employee experienced pain in his lower back secondary to this incident, but this issue is complicated by the fact that Employee's lower back problems apparently began no later than 2001, including a laminectomy at L4-5, performed September 12, 2001, to treat severe disc bulging. Employee was apparently evaluated in June 2007 for severe back and right leg pain; an MRI was performed, and Employee's treating physician at that time, orthopedic surgeon Dr. J. Hamilton Easter, stated that Employee was afflicted with "probably one of the worst degenerative spines that [Dr. Easter] has ever seen. . . ."
Id. at 4.
Id. at 3. Indeed, there was also testimony from Employee's expert, Dr. George Chovannes, suggesting that, in 2001, Employee reported that his first incident of significant back pain occurred as early as 1986, when Employee "was bending over his bird cage and felt his legs go out and experienced excruciating pain." Appendix to Appellant's Opening Br. Ex. D at 31.
Appendix to Appellee's Answ. Br. Ex. A at 4.
Employee underwent a surgical procedure on November 17, 2008; this procedure was similar to his September 2001 surgery, except that it was performed on L2-3 and L3-4. Notably, the compensability of this surgical procedure was not at issue in the Board's decision.
Id. at 11.
See, e.g., id. at 12 n. 2.
Employer's expert, orthopedic surgeon Dr. Andrew J. Gelman, testified that Employee's significant history of lumbar spine issues, including Dr. Easter's observations in 2007, confirm that Employee's lumbar spine was significantly symptomatic prior to the instant work accident, notwithstanding Employee's representation that he was "wonderful" from the September 2001 surgery until the instant accident. Dr. Gelman concluded that there was "no doubt" that Employee was capable of working in September 2008. Dr. Gelman noted that Employee should be placed on occupational light duty, with restrictions on squatting, climbing, kneeling, and crawling. Significantly, however, Dr. Gelman stated that, given Employee's chronic spine history and condition, he "would probably have maintained" these restrictions prior to the May 2008 work accident. Dr. Gelman further opined that the instant work injury did not trigger the need for the November 2008 surgery, but that the timing of the surgery was the result of "Mr. Hann's voluntary decision-making"
Id. at 3-4.
Appendix to Appellant's Opening Br. Ex. B at 14.
Id. at 15.
Id.
Id.
Conversely, Employee's expert, neurosurgeon Dr. George Chovannes, testified that Employee was not capable of returning to work in September 2008 due to the instant injury, and the November 2008 surgery was reasonable, necessary, and related to the instant work accident. Dr. Chovannes testified that Employee was afflicted with nerve irritation in his lumbar spine, and that this was causally related to the instant injury. He reached this opinion because Employee "had apparently been doing well up until that point" and "[t]he incident produced his symptoms once again and, therefore, they were directly related historically."
Id. Ex. D at 21-23.
Id. at 14.
Id. at 22.
In its decision, the Board found that "[Employee's] testimony was somewhat inconsistent and just not persuasive to the Board. . . .[Employee's] testimony is contradictory and simply not believable to the Board." According to the Board's decision, it was undisputed that Employee sustained a lower back strain from the instant accident. On the other hand, the Board found it to be "undeniable that objective testing reflects that Claimant has severe degenerative disc disease, including bulges and stenosis at several levels, of both the thoracic and lumbar spine, which has been present both before and after the work accident." Thus, the operative issue to be decided was whether the instant accident "resulted in any lasting injury which causes Claimant to continue to be totally incapacitated for the purpose of working."
Appendix to Appellee's Answ. Br. Ex. A at 15.
Id. at 14.
Id.
Further, the Board noted that Employee "has made no attempt at a reasonable job search to establish actual displacement" and "presented no evidence suggesting that his mental capacity, education, training and/or age, in conjunction with his physical impairment render him unemployable in any well-known branch of the labor market." Consequently, the Board found that Employee was not a displaced worker and was no longer totally disabled. The Board specifically held as follows:
Id. at 18.
Appendix to Appellant's Opening Br. Ex. B at 14.
[T]his case is also different than the usual termination decision because Claimant's expert testifies that Claimant was totally disabled as late as January 2009, subsequent to a surgical procedure which took place in November of 2008 that has not been deemed causally related to the work accident. So as well as having no documentation in the chart to reflect a current "no work" status, Dr. Chovannes bases his opinion that Claimant is totally disabled in part on a surgery that has not been deemed compensable by the Board. In other words, while Claimant may be totally disabled in his opinion, it is because of the November 2008 surgery, not the work accident. . . .Based on Dr. Gelman's testimony Claimant's condition had returned to baseline at least by September 17, 2008, and most certainly by the date of the filing of this petition, December 4, 2008. Thus, Claimant's total disability status officially ends on that date.
Appendix to Appellee's Answ. Br. Ex. A at 19.
STANDARD OF REVIEW
This Court's review of an Industrial Accident Board decision is defined by statute. Pursuant to 7 Del. C. § 6009(b), this Court may affirm, reverse, or modify the Board's decision, but the Board's factual findings "shall not be set aside unless the Court determines that the records contain no substantial evidence that would reasonably support the findings." Accordingly, the scope of this Court's review is limited to determining whether the Board's decision was supported by substantial evidence and free from legal error. The record must be reviewed in the light most favorable to the prevailing party. Alleged errors of law are reviewed de novo, but in the absence of legal error, the Board's decisions are reviewed for an abuse of discretion. This Court will find an abuse of discretion only when an administrative board's decision "exceeds the bounds of reason given the circumstances, or where rules of law or practice have been ignored so as to produce injustice."In conducting its appellate review of an Industrial Accident Board decision, this Court must "take due account of the experience and specialized competence of the agency and of the purposes of the basic law under which the agency has acted." Consequently, when reviewing an appeal from a Board decision, this Court "does not weigh the evidence, determine questions of credibility, or make its own factual findings." Rather, this Court "merely determines if the evidence is legally adequate to support the Board's factual findings." Thus, even if this Court might have reached a different conclusion than the Board in the first instance, a decision of the Board must be affirmed if it is supported by substantial evidence and is free from legal error.
Holowka, 2003 WL 21001026 at *3; see also Johnson v. Chrysler Corp., 59 Del. 48, 51 (Del. 1965) ("[T]he sole function of the Superior Court, as is the function of this Court on appeal, is to determine whether or not there was substantial competent evidence to support the finding of the Board, and, if it finds such in the record, to affirm the findings of the Board.") (citation omitted).
Devine v. Advanced Power Control, Inc., 663 A.2d 1205, 1209 (Del. Super. 1995) (citation omitted).
Brogan v. Value City Furniture, 2002 WL 499721, *2 (Del. Super. 2002).
Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In cases where medical evidence is in conflict, the Board must resolve the conflict; if the Board adopts one medical opinion over another, the opinion adopted by the Board is substantial evidence for the purpose of appellate review. Although the Board is guided by medical evidence and testimony, "it is the function of the Board, and not that of a physician, to determine a claimant's disability-subject to the requirement that the Board's findings be based on substantial competent evidence."
Testerman, 740 A.2d at 519 (citations omitted).
Munyan v. Daimler Chrysler Corp., 909 A.2d 133, 136 (Del. 2006).
Poor Richard Inn v. Lister, 420 A.2d 178, 180 (Del. 1980) (citation omitted).
DISCUSSION
A. The Board's Decision That Employee Returned to His Baseline Condition as of September 2008 is Supported by Substantial Evidence.Employee contends that there is no substantial evidence to support the Board's conclusion that any continued injury after September 2008 is due to his degenerative disc disease, rather than the instant accident. According to Employee, the Board "misapplied the standard for causation because its holding required the Claimant to establish that his underlying degenerative disc disease was caused by the May 1, 2008 work injury." Further, Employee argues that the Board "failed to consider the fact that Claimant did not seek any low back treatment from September 2007 up to the May 2008 work injury." This Court disagrees.
Appellant's Opening Br. at 12.
Id.
Appellant's Reply Br. at 3.
Contrary to Employee's allegations, the Board carefully considered the totality of Employee's medical history in reaching its decision. Indeed, the Board set forth its reasoning in detail:
. . . it is undeniable that objective testing reflects that Claimant ahs severe degenerative disc disease, including bulges and stenosis at several levels, of both the thoracic and lumbar spine, which has been present both before and after the work accident. It is also undisputed that Claimant sustained a lower back strain on the date of the work accident. The issue, though, is whether the work incident resulted in any lasting injury which causes Claimant to continue to be totally incapacitated for the purpose of working. The Board finds that it did not.
Importantly, although Claimant testified that his lumbar spine was "wonderful" after his spine surgery in 2001 up until the work accident, the medical records do not bear that out. To the contrary, they reflect a different history and show that Claimant had continued problems, including June of 2007 when Claimant presented to an emergency room with complaints of severe back pain and right let pain. These are the exact complaints which he now alleges are attributable to the work accident.
Appendix to Appellee's Answ. Br. Ex. A at 14.
Moreover, the Board specifically stated its rationale for accepting Dr. Gelman's testimony. As found by the Board, "[b]y the time Claimant saw Dr. Gelman in September 2008, his complaints were the same or similar to his complaints in 2007." Also, the Board accepted Dr. Gelman's testimony that Employee's pre-accident MRI results, from June 2007, were "essentially the same" as his MRI results from July 2008, secondary to the instant accident. In turn, the Board found as follows:
Id. at 15.
Id.
Claimant's spinal stenosis was not caused by the work accident. It is clear that there was no difference between Claimant's MRI results before and after the work accident. Rather, the work accident merely caused a lumbar spine strain on top of Claimant's preexisting condition. The Board agrees with Dr. Gelman that, in no sense of the term, can the work accident be said to have caused Claimant's current condition since it is essentially the same now as it was prior to the work accident. Rather, as Dr. Gelman indicated, the present exacerbation is related to the presence of degenerative disc disease all along Claimant's spine, including his thoracic spine. Claimant's degenerative disc disease is progressing and causing him problems, but Employer is not responsible for that.
Id. at 17.
The Board's acceptance of Dr. Gelman's testimony and opinions must be juxtaposed with its findings regarding Employee's credibility. As noted by the Board:
Claimant's testimony overall was somewhat inconsistent and just not persuasive to the Board. For example, Claimant initially stated that after the work accident he was able to endure the pain and that later the pain progressed and became worse. But then he told Dr. Smith that the pain was very severe beginning at the time of the incident. Claimant conceded on cross-examination that what he told Dr. Smith was probably true, and he just decided not to tell Employer about it until May 20, 2008. The fact is that, Claimant continued to work the day of the incident and never told anyone at work about it until three weeks later. He did not seek immediate medical treatment, which lends itself to the conclusion that the pain was not all that bad right after the incident. Either way, Claimant's testimony is contradictory and simply not believable to the Board.
Id.
Accordingly, Employee's contention that "[t]he Board failed to point to any substantial evidence to support its finding that Claimant's low back condition returned to the same level it had been prior the injury" is without merit. Indeed, the Board unequivocally expressed its acceptance of Dr. Gelman's opinion that Employee was appreciably symptomatic prior to the instant accident, that Employee could return to work in September 2008, and that Employee should have been acting under virtually the same physical restrictions both before and after the accident. The necessary conclusion from these opinions is that Employee was not totally disabled due to the accident, but had in fact returned to his baseline, or pre-accident, level of symptoms and functionality.
Id. at 13.
Id. at 13-15.
Of course, the Board's acceptance of Dr. Gelman's testimony necessitates its rejection of Dr. Chovannes's testimony and Employee's testimony. The medical testimony offered by Drs. Gelman and Chovannes was conflicting, but it is the province of the Board to resolve such conflict; the Board's acceptance of Dr. Gelman's opinion over Dr. Chovannes's opinion is substantial evidence for the purpose of appellate review. Further, to the extent that Employee's credibility, or lack thereof, influenced the finding of the Board, this is precisely the type of factual determination that is within the "experience and specialized competence" of the Board. Indeed, it is for this reason that factual findings and issues of credibility are "reserved exclusively for the Board."
Munyan v. Daimler Chrysler Corp., 909 A.2d 133, 136 (Del. 2006).
Day Zimmerman Sec. v. Simmons, 965 A.2d 652, 656 (Del. 2008).
In this case, the Board resolved the conflicting medical opinions, factual issues, and credibility issues against Employee. The record discloses that the Board fully considered Employee's full medical history, the credibility of his testimony, and opinions of the respective medical experts prior to rendering its decision. Although Employee may disagree with the Board's conclusions, this is, by definition, substantial evidence for the purpose of appellate review.
B. The Termination of Employee's Disability Benefits was Supported by Substantial Evidence.
Employee contends that the Board committed legal error by terminating disability benefits because Employer "failed to present any evidence regarding the availability of jobs in the open labor market within Claimant's restrictions." According to Employee, the decision was flawed in two respects: 1) the Board's decision that Employee "is fully capable of returning to full time work in a light duty capacity" is irreconcilable with the conclusion that Employee had returned to his baseline condition, given that he had been working at fully duty capacity prior to the accident; and 2) the Employer did not present a market survey demonstrating job availability; therefore, it did not carry its burden of establishing the availability of jobs.
Appellant's Opening Br. at 16.
Id.
As a threshold matter, Employee's first contention somewhat mischaracterizes the Board's decision. In full context, the Board stated as follows:
From the overall evidence presented, the Board is satisfied that Claimant is fully capable of returning to full-time work in a light duty capacity. As Dr. Gelman testified, the Board finds that as of September of 2008 Claimant could work at the same level in which he was working prior to the accident. Compensability for the laminectomy surgery performed in November of 2008 is not at issue in this decision, however, the Board finds that Claimant's lumbar spine condition after September of 2008 is not causally related to the work accident, rather it is as a result of his progressive degenerative disc disease. Therefore, his request for total disability benefits is denied.
Appendix to Appellee's Answ. Br. Ex. A at 17.
Although Dr. Gelman opined that Employee should be placed on occupational light duty and avoid squatting, climbing, kneeling, and crawling, he also stated that Employee should have been subject to these restrictions prior to the May 2008 work accident, given his spine history and condition. Thus, the Board's holding reflects its finding that the Claimant could return to light duty work, and that Employee should have been limited to the same light duty work prior the accident, notwithstanding the absence of such restrictions prior to the accident. Implicit in this holding is the conclusion that Employee's baseline condition requires light duty restrictions, and Employee had returned to this condition by September 2008. Accordingly, the Board's holding is not contradictory.
Appendix to Appellant's Opening Br. Ex. B at 15.
With respect to Employee's displaced worker argument, Employee has misstated the applicable burden of proof before the Board. According to Employee, the Employer "did not present evidence of job availability in the open labor market in the form of a labor market survey, and was therefore unable to meet its burden of establishing the availability of jobs in the open labor market within Claimant's light duty restrictions." However, once Employer demonstrated that Employee was not totally disabled, the burden shifted to Employee to show that he is a displaced worker. A displaced worker is a worker who, "while not completely incapacitated for work, is so handicapped by a compensable injury that he will no longer be employed regularly in any well known branch of the competitive labor market and will require a specially-created job if he is to be steadily employed." Employee may satisfy this burden via a prima facie showing, in which his "physical impairment, coupled with other factors such as the injured employee's mental capacity, education, training, or age" sufficiently proves his inability to be regularly employed in the competitive labor market. Alternatively, Employee may establish total disability upon proof that he "has made reasonable efforts to secure suitable employment which have been unsuccessful because of the injury."
Appellant's Opening Br. at 16.
See, e.g., Torres v. Allen Family Foods, 672 A.2d 26, 30 (Del. 2005) ("After filing a petition to terminate an employee's total disability benefits, a former employer bears the initial burden of demonstrating that the employee is no longer totally incapacitated for the purpose of working. If the employer satisfies that burden, the employee must show that she is a `displaced worker.'") (citation omitted).
Ham v. Chrysler Corp., 231 A.2d 258, 261 (Del. 1967).
Torres, 672 A.2d at 30.
Id.
As stated in the Board's decision, Employee "presented no evidence suggesting that his mental capacity, education, training and/or age, in conjunction with his physical impairment render him unemployable in any well-known branch of the competitive labor market." Likewise, the Board found that Employee "has made no attempt at a reasonable job search to establish actual displacement." Thus, the Board properly concluded Employee has not met his burden of proving that he is a displaced worker.
Appendix to Appellee's Answ. Br. Ex. A at 18.
Id.
To the extent that Employee claims the Board's decision was "prejudic[ial]" on his prospective claims of compensability for the November 2008 surgical procedure, this Court holds that the Board's decision was not legally erroneous. Rather, the Board was confronted with and resolved the specific question of whether Employee was disabled as a result of the May 2008 accident. In accepting Dr. Gelman's opinion and holding that Employee was not disabled and returned to his baseline condition by September 2008, the Board may have implicitly touched upon the compensability of a November 2008 surgery, but the Board explicitly stated that the compensability of the surgery was not at issue in its decision:
Appellant's Opening Br. at 15 ("The Board's premature determination severely prejudiced Claimant's ability to seek future compensation because Claimant was not on notice that the relatedness of the surgery was being contested at the hearing and constitutes reversible error.")
Compensability for the laminectomy surgery performed in November of 2008 is not at issue in this decision, however, the Board finds that Claimant's lumbar spine condition after September of 2008 is not causally related to the work accident, rather it is as a result of his progressive degenerative disc disease.
Id. at 17. Indeed, in addition to stating this in the body of its decision, the Board noted this in two separate footnotes. Id. at 5 n. 1; Id. at 12 n. 2.
Although the Board's holding necessarily implies that the November 2008 surgery is not compensable, this is an inherent consequence of the relevant timeline of events, rather than a prejudicial finding on the issue of compensability. In short, the Board's decision does not in any way foreclose Employee from pursuing a claim for the surgery, if he so chooses.
Moreover, subsequent language in the Board's decision clarified its holding: "[b]ased on Dr. Gelman's testimony Claimant's condition had returned to baseline at least by September 17, 2008, and most certainly by the date of the filing of this petition, December 4, 2008." Thus, the language used in the Board's decision discloses that the Board only spoke definitively as to December 4, 2008. The Board's acceptance of Dr. Gelman's testimony may be suggestive of a September 2008 resolution of the instant injury and return to baseline condition, but Employee remains free to bring a claim for the November 2008 surgery.
Id. at 19.
CONCLUSION
The medical, factual, and credibility issues in this case are "reserved exclusively for the Board." The Board's acceptance of Dr. Gelman's opinion over Dr. Chovannes's opinion and its factual findings regarding Employee's credibility constitute substantial evidence for purposes of appellate review. Similarly, there is no evidence to suggest that the "rules of law or practice have been ignored so as to produce injustice." Consequently, the Board's decision was both supported by substantial evidence and free from legal error and must be affirmed.
Day Zimmerman Sec. v. Simmons, 965 A.2d 652, 656 (Del. 2008).
Munyan, 909 A.2d at 136 (Del. 2006).
Bolden v. Kraft Foods, 2005 WL 3526324, at *3 (Del. 2005).
Holowka, 2003 WL at *3.
Accordingly, for all the reasons stated above, the decision of the Industrial Accident Board is AFFIRMED.