Opinion
C.A. No. 09A-07-003 (THG).
Date Submitted: January 8, 2010.
Date Decided: April 1, 2010.
On Board's Decision to Terminate Claimant's Total Disability Benefits: REVERSED.
Henry C. Davis, Esquire, Henry Clay Davis III, P.A., Georgetown, Delaware.
Luciana M. Gorum, Esquire, Chrissinger and Baumberger, Wilmington, Delaware.
Dear Counsel:
This is the Court's decision on Wayne Hill's appeal of the Industrial Accident Board's ("the Board") decision dated July 1, 2009, which granted Employer's Petition to Terminate Total Disability Benefits ("Petition to Terminate"). The Board's decision is reversed and the case is remanded for further proceedings consistent with this opinion.
STATEMENT OF THE CASE
A. Procedural History
While working for Kroeger's Salvage, Inc. ("Employer"), Mr. Hill injured his back in a compensable industrial accident. At the time, Mr. Hill was driving one of Employer's tractor trailers when an explosion caused the rig to turn onto its side. Mr. Hill was taken from the accident scene to the emergency room with complaints of pain in his head, lower back, and his left elbow. He was subsequently released and began follow up treatment with Dr. Harry Freedman.
Pursuant to an Agreement as to Compensation, Employer paid workers' compensation benefits to Mr. Hill based upon an average weekly wage of $875.46. On August 7, 2008, Employer filed the Petition to Terminate, which asked the Board to find Mr. Hill no longer totally disabled and asserted that Mr. Hill is able to work, at a minimum, in a sedentary capacity. A hearing was held on the matter on December 11, 2008.
By way of decision dated July 1, 2009, the Board granted Employer's Petition to Terminate, terminating Mr. Hill's total disability benefits as of the date of the filing of the Petition. Based upon a labor market survey, the Board awarded Mr. Hill compensation for partial disability at the rate of $280.99, for a period of time not to exceed 300 weeks. The Board also awarded a medical witness fee and attorney's fees to Mr. Hill.
B. The Board Hearing
At the hearing, both Dr. Freedman, an orthopedic surgeon and Mr. Hill's treating physician, and Dr. William Barish, a board-certified physiastrist and Employer's expert medical witness, testified via deposition. Mr. Hill testified live at the hearing.
Dr. Barish testified that he performed a medical evaluation of Mr. Hill on June 13, 2008. Dr. Barish testified that he took a medical history from Mr. Hill and that Mr. Hill denied any prior injuries to his neck, back, or left upper extremity. At this point in the deposition, Employer introduced what we now know to be a different Wayne Hill's medical records, including the results of a lumbar spine MRI taken in October of 2002. According to Dr. Barish, that MRI showed a small disc herniation at L5/S1 and a mild diffuse annular disc bulge at the L4/L5 level. Dr. Barish was then directed to look at Mr. Hill's July 11, 2007, MRI of the lumbar spine. Dr. Barish testified that MRI showed some abnormality at the L4/L5 level without a disc herniation. He concluded that the 2002 MRI and the 2007 MRI were "very similar". Deposition of Dr. Barish (Employer's Exhibit No. 1), at p. 8. Dr. Barish testified Mr. Hill complained of lower back pain, left arm numbness, and headaches when he saw Mr. Hill. Mr. Hill also told Dr. Barish that he had trouble walking and that he needed help with routine daily activities. Dr. Barish conducted a physical examination of Mr. Hill. That physical examination revealed that Mr. Hill was not able to walk on his heels or his toes and that his neck had a restricted range of motion. However, Dr. Barish noted that the tests were to some degree subjective and that Mr. Hill had undergone facial surgery for unrelated basal cell carcinoma that might have affected Mr. Hill's range of motion in his neck. Dr. Barish also found that Mr. Hill's upper left extremity revealed diffuse weakness. Range of motion of Mr. Hill's elbow was normal. Mr. Hill's range of motion of his lumbar spine was restricted with pain. Again, Dr. Barish noted these tests were subjective to an extent. Dr. Barish testified that he was puzzled by the treatment prescribed by Dr. Freedman because Dr. Freedman appeared to be relying on pain medication versus physical therapy. Dr. Barish opined that Mr. Hill was capable of sedentary work as of June 13, 2008. On cross examination, Dr. Barish agreed that Mr. Hill was not in a condition to be able to return to his work as a truck driver. Throughout the deposition, Employer used the 2002 medical documents to challenge Mr. Hill's credibility because he failed to disclose this alleged previous injury to Dr. Barish.
Dr. Freedman testified that he has been seeing Mr. Hill since April 23, 2007, or approximately six days after the compensable industrial accident. Dr. Freedman diagnosed Mr. Hill with post-traumatic spine pain, a moderate concussion, a contusion on the left thigh, laceration of the forehead, and a contused left elbow. Dr. Freedman testified he has had Mr. Hill under a no work order. Dr. Freedman saw Mr. Hill weekly at first and then, beginning in July of 2007, on a monthly basis. Dr. Freedman referred Mr. Hill to injection therapy but the therapy was cut off prematurely because Mr. Hill's insurance would not pay for the injections. Dr. Freedman testified he did not send Mr. Hill to physical therapy because Mr. Hill was undergoing treatment for head and neck cancer and physical therapy would have interfered with that treatment. Dr. Freedman opined he does not think physical therapy would be helpful as of the date of the deposition, since it has been more than a year since the date of the injury. Dr. Freedman continues to treat Mr. Hill with pain medication. Dr. Freedman testified Mr. Hill's overriding problem is the continuance of back spasms. Dr. Freedman believes even if Mr. Hill completes the injection therapy, however, that he will be unable to return to work because he would need two successful surgeries to do so. Dr. Freedman is of the opinion that it would be difficult to find a surgeon who would think it would make more sense to undergo two surgeries versus continuing the course of pain management. On cross, Dr. Freedman testified he gave Mr. Hill a physical examination every time he saw Mr. Hill and is not sure why his notes do not reflect that the exams took place in all instances. Employer questioned Dr. Freedman regarding the 2002 medical records that have since been discredited because they are not Mr. Hill's medical records. Needless to say, Dr. Freedman had not previously seen these records. Dr. Freedman agreed with Dr. Barish's opinion that the 2007 MRI showed degenerative disc disease at L4 and L5. Dr. Freedman reiterated that he does not think Mr. Hill is able to return to work.
Mr. Hill testified that he received only one round of injection therapy because his insurance company would not cover the injections. Mr. Hill testified that he was a tractor trailer driver for thirty-three years and that he has not had any experience as an employee for any other purpose. Mr. Hill testified he did not continue in school past the tenth grade and that he has not received a GED. Mr. Hill also testified Dr. Freedman conducted a physical exam during every office visit. Mr. Hill was able to clarify that the records regarding the 2002 MRI were not his. Mr. Hill has a different birth date, middle initial and Social Security number from the Wayne Hill whose 2002 medical records were introduced.
DISCUSSION
A. Standard of Review
The review of the Board's decision is confined to an examination of the record for errors of law and a determination of whether substantial evidence exists to support the Board's findings of fact. Histed v. E.I. Du Pont de Nemours Co., 621 A.2d 340, 342 (Del. 1993). The Supreme Court and this Court have emphasized the limited appellate review of an agency's findings of fact. The reviewing Court must determine whether the administrative decision is supported by substantial evidence. Johnson v. Chrysler Corp., 213 A.2d 64, 66-67 (Del. 1965). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994). The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. Johnson, 312 A.2d at 66. Questions of law are reviewed de novo. Delhaize America, Inc. v. Baker, 2002 WL 31667611, at *2 (Del. Super. Sept. 18, 2002).
B. The Merits A Did the Board erred as a matter of law in terminating total disability benefits as of the date of the filing of the Petition to Terminate because case law requires termination as of the date of the hearing?
Mr. Hill argues that, when a claimant risks violating his doctor's orders by returning to work, Delaware case law prohibits the Board from awarding a Petition to Terminate effective the date of the filing of the Petition to Terminate versus the date of the hearing. In response, Employer argues that case law assumes the claimant's treating physician is acting in good faith in issuing the no work order. Employer asserts that the Board found Mr. Hill's treating physician was not acting in good faith in issuing the no work order and, therefore, Mr. Hill was not entitled to rely on his doctor's orders and the Board properly exercised its discretion to terminate Mr. Hill's total disability benefits as of the date of the filing of the Petition to Terminate.
In Gilliard-Belfast v. Wendy's, Inc., the Delaware Supreme Court held, "a person who can only resume some form of employment by disobeying the orders of his or her treating physician is totally disabled, at least temporarily, regardless of his or her capabilities." 754 A.2d 251, 254 (Del. 2000).
Simply stated, if a claimant is instructed by his treating physician that he or she is not to perform any work, the claimant will be deemed to be totally disabled during the period of the doctor's order. This rule assumes that the doctor acts in good faith, and does not extend beyond the time that the Board decides whether the claimant is disabled as a matter of fact.Delhaize America, Inc. v. Baker, 2005 WL 2219227, at *1 (Del. Aug. 12, 2005). Employer attempts to characterize the case at bar as one in which the Board made a finding that Dr. Freedman, Mr. Hill's treating physician, was not acting in good faith. In support of this argument, Employer cites to the Board's finding that Dr. Freedman's testimony was "less persuasive" than Dr. Barish's testimony. See Board Opinion at 11. However, the Board did not make a finding that Dr. Freedman's issuance of a no work order was made in bad faith. That another doctor might disagree with a treating physician's decision to issue a no work order does not mean the treating physician acted in bad faith in issuing the order. Smith v. Thompson, 918 A.2d 1164, 1168 (Del. 2007).
The Court is unable to locate a case where the claimant was found not entitled to payment of benefits up until the date of the Board hearing due to a treating physician's bad faith issuance of a no work order. However, for the purpose of the Workers' Compensation Statute to be served, the Court imagines such a finding would require the bad faith to be so evident that the claimant could be charged of being aware of the bad faith and, as such, also aware that he was relying on a bad faith order not to return to work. To require less would leave a claimant in the position of not being able to rely upon his treating physician's orders, the very position the Gilliard-Belfast line of cases was designed to avoid. In any event, the Court holds there was no finding here made by the Board that Dr. Freedman acted in bad faith in issuing Mr. Hill's no work order. For this reason, at a minimum, Mr. Hill is entitled to total disability benefits until the date of a hearing where the Board concluded he was not so entitled. The Board's decision to terminate benefits as of the date of the filing of the Petition to Terminate is reversed.
One purpose of the statute is to provide an individualized analysis of each claimant's injury. See Brittingham v. St. Michael's Rectory, 788 A.2d 519, 523 (Del. 2002).
Moreover, a review of the record leads the Court to the conclusion that such a finding would not be supported by the record, in any event.
B. Did the Board err as a matter of law in relying on the content of medical records that were not claimant's, and testimony related thereto, when evaluating Mr. Hill's claim for total disability benefits?
Mr. Hill also challenges the validity of the Board's conclusion that his total disability benefits should be terminated because the Board relied upon a medical history incorrectly attributed to Mr. Hill in reaching its decision. Employer avers that the Board did not rely on any improperly admitted evidence in deciding to terminate Mr. Hill's total disability benefits. As noted above, supra, medical records relating to a Wayne Hill's 2002 MRI were introduced during the depositions of both medical experts. Mr. Hill had denied any previous back injury. In fact, the records at issue belonged to a different Wayne Hill, a Wayne Hill with a different middle initial, a different birth date and a different Social Security number.
In its "Findings of Fact and Conclusions of Law", the Board states:
The parties rely on conflicting medical testimony. The Board is free to rely on either medical expert as long as substantial evidence can be found. The Board finds Dr. Barish's testimony more persuasive. The Board accepts his belief that [Mr. Hill] can work in a sedentary capacity with an ability to change positions without being confined. Dr. Barish's opinion was based upon the lack of imaging studies or examination findings that would prohibit sedentary, non-physical work. The October 2002 MRI showed age-appropriate changes in the lumbar spine, a small disc herniation at L5-S1 and a mild diffuse annular disc bulge at L4-5. The 2007 MRI was much the same. Essentially, [Mr. Hill] had diffuse weakness at 4/5 in the left upper extremity and tenderness along the posterior aspect with decreased sensation in the elbow. He had no atrophy. [Mr. Hill] had hypersensitivity to light touch in the right lumbosacral paraspinal region. His range of motion was restricted with pain, but [Mr. Hill] had no muscle spasm. [Mr. Hill] is also not dependent on medication, as he is taking Percocet for pain only once and awhile [sic], four times a week. The Board thus cannot find that [Mr. Hill's] work-related issues are totally disabling.
Board Opinion at 10-11 (emphasis added).
The Court finds that the mention of the medical records belonging to a different patient in the Board's findings was prejudicial and, moreover, that the mention of the records taints the remainder of the Board's findings. For this reason, the case is reversed and remanded and the Board is specifically directed not to consider any portion of the doctors' testimony as it related to the 2002 medical records of a different Wayne Hill.
The Court also notes a review of the doctors' depositions confirms that the 2002 medical records played a crucial role in Employer's efforts to undermine Mr. Hill's credibility. The Court will not offer an opinion as to whether the depositions of the doctors were so tainted by the introduction of later-discovered irrelevant material but it is possible the Board may conclude the depositions will need to be conducted again in order to eliminate the prejudice to Mr. Hill that resulted from this line of questioning.
C. Did the Board err by determining the claimant was available for sedentary employment given his age, limited education, and lack of employment outside that of a truck driver?
Because the Court finds the Board's decision must be reversed for the foregoing reasons, the Court need not consider the merits of Mr. Hill's argument that the Board's finding he is capable of sedentary work was improper given his work and education background. Nevertheless, the Court observes case law exists that might be helpful to the Board in deciding whether Mr. Hill has the education, training and/or skills to qualify him for work other than that of a general laborer. See Sabo v. Pestex, Inc., 2004 WL 2735457 (Del. Super. Oct. 28, 2004) (remanding case to the Board for further elaboration of reasons why the claimant was not found to be a prima facie displaced worker).
CONCLUSION
Based on the foregoing, the Board's decision is reversed and the matter is remanded to the Board for further proceedings consistent with this opinion.IT IS SO ORDERED.