Opinion
Civil Action No. 06A-09-004-JOH.
Submitted: March 5, 2007.
Decided: May 24, 2007.
Appeal from a Decision of the Industrial Accident Board — AFFIRMED .
John J. Klusman, Jr., Esquire, of Tybout Redfearn Pell, attorneys for employer-below, appellant.
Timothy E. Lengkeek, Esquire, of Young Conaway Stargatt Taylor, attorney for employee-below, appellee.
MEMORANDUM OPINION
Home Paramount Pest Control asks this Court to reverse a decision of the Industrial Accident Board granting benefits to Germaine Gibbs. It also asks this Court to reverse a decision of the Board refusing to vacate the benefits award and recuse based on alleged conflicts identified after the award opinion had been issued.
A single hearing officer sat as the Board. 19 Del. C. § 2301B.
The issues as to the benefits award revolve around Gibbs' credibility and conflicting medical expert testimony. Since it is the Board's role, and not this Court's, to determine credibility and there was medical testimony to relate the injury to the employment, the benefits award is AFFIRMED. Further, this Court sees no basis for the hearing officer to have recused herself. The denial of the motion to recuse and vacate is AFFIRMED.
Factual Background
On January 11, 2006, Gibbs filed a petition for compensation. The petition states there was an accident on June 6, 2005. It also states "CDE of BCTS due to repetitive use of a power drill on job sites."The petition was seeking compensation for medical expenses involving bilateral carpal tunnel syndrome (CTS) including two surgeries, a month apart, in September and October 2005, with a month recovery period into November. Gibbs also, of course, sought disability benefits for this period of time. He is fully recovered from the CTS and surgeries, but he says he is unable to resume work due to a back condition.
Gibbs started work for Home as a termite technician in March, 2005. For the first week he used a drill to make holes in dirt for the insertion of treatment chemicals. After that week, he used a drill weighing six to seven pounds, to drill holes in concrete also for insertion of treatment chemicals. He did this for five or six hours a day, six days per week.
On June 6, 2005, he was driving a truck for Home when he was struck by another vehicle. Other than the role of that accident, if any, with his CTS, the job relatedness or any non-CTS injuries as a result are not matters involved in this appeal. He ceased working as a result of this traffic accident.
Gibbs treated with Dr. Barry Bakst for the auto accident injuries. When a history was taken, he mentioned that he had started sensing tingling and numbness in his hands sometime during April. Home was not told this in April. Gibbs also reported to Dr. Bakst's office that he had family history of CTS. In addition, Gibbs informed Dr. Bakst that he had numbness and tingling while working for Cott Beverage, a prior employer. There is some indication in Dr. Bakst's records that Gibbs said he sought treatment for this but through his own health insurance carrier. This was the only evidence; there were no medical or insurance records placed before the Board. While Dr. Bakst ordered an EMG, he never further treated Gibbs for the numbness and tingling complaints.
Gibbs began treatment with Dr. Richard Zamarin, an orthopaedic surgeon, on August 4, 2005. He complained then to the doctor about pain in both hands and numbness in his palms. On that occasion, Gibbs said these symptoms began in June that year and associated the onset with his drilling work for Home. Dr. Zamarin diagnosed bilateral CTS.
As a result and because the initial conservative treatment made no improvement, the doctor performed surgery on each hand, one on September 13th and the other on October 11th. Dr. Zamarin disabled Gibbs from work until November 11th. Gibbs is fully recovered from the effects of CTS and, as far as that condition is concerned, he no longer has a disability. That was as of December 28, 2005.
Dr. Zamarin had been, until deposed, unaware of any CTS-like symptoms while Gibbs worked at Cott. Nor was he aware, until deposed, of a family history of CTS that Gibbs had. He was questioned about Gibbs' report to Errol Ger, who had examined the medical records and performed a physical exam for Home. In Dr. Ger's records, it is noted Gibbs said the numbness and tingling started in April 2005. This would be about a month after Gibbs began his work at Home and about two months before the June auto accident. Dr. Zamarin was asked about other doctors' records indicating Gibbs had a family history of CTS.
Dr. Ger and Dr. Zamarin testified by deposition.
Despite this mix of CTS history information, or lack of it, Dr. Zamarin offered the opinion that either the repetitive use of the drill or the work-related motor vehicle accident in June were within reasonable medical probability the cause of Gibbs' CTS. He assigned a greater causal probability to the repetitive use of the drill.
Gibbs did not tell Dr. Ger about the family history of CTS or of the existence of symptoms prior to working at Home. Dr. Ger, when questioned about this range of histories, could not say which — the family history, the work at Cott, the auto accident, or the repetitive drilling — caused the CTS.
Board's Finding
The Board did not label Gibbs' four different descriptions to varying medical personnel and/or doctors as "four histories." Further, there was no evidence of treatment for CTS or time off work while Gibbs worked at Cott. The possible onset of symptoms from the motor vehicle accident might, Dr. Ger had said, been due to holding onto the steering wheel and maybe an aggravation of the symptoms that had started as a result of the drilling work for Home.
In conclusion, reconciling the conflicting evidence, the Board found Gibbs had met his burden of showing his drilling work for Home was a substantial cause of the CTS. The Board was unconvinced that, due to Gibbs family history of CTS, the symptoms had spontaneously arisen. Disability benefits were awarded from September 13th to November 26, 2005, along with medical expenses, expert fees and attorney's fees.
The Board held its hearing on January 11, 2006. The decision is dated June 28, 2006, and was mailed June 29, 2006. On July 7, 2006, Home filed a motion to vacate the decision. There were two essential grounds presented. The first was to recite the inconsistencies of what Gibbs had stated to different medical providers about his family history, work at Cott, and date of onset.
The second ground was a claim based on the Board's — one hearing officer — alleged conflicts of interest:
1. The hearing officer, while employed for the State, had filed for worker's compensation in 2004 because of CTS.
2. Gibbs' attorney is in the same law firm as another attorney who had represented the hearing officer in her case.
3. The officer's claim was denied.
4. The State, the defending party in that claim, was represented by an attorney who is in the same firm as counsel for Home in the Gibbs case.
5. The State's medical expert and Home's medical expert are partners in the same practice.
In an opinion dated September 14, 2006, the "Board" denied Home's motion to vacate and for recusal. The hearing officer pointed out that Home's counsel did not specify when he learned of the above noted conflicts. This is important because the hearing officer was confronted with the above allegations only after her decision was rendered.
The hearing officer stated she was "sandbagged" when, after receipt of her decision, Home's counsel filed a motion to vacate, instead of filing a motion to recuse under IAB Rule 21 (A) or (B), giving her time to respond. After quoting Canon 3 of the Delaware Judges' Code of Judicial Conduct, the hearing officer noted she 1) does not have a personal bias or prejudice concerning either party, 2) does not have personal knowledge of any disputed evidentiary fact, 3) has not served as a lawyer or material witness in the case, 4) while in private practice in the preceding year, was not associated with the law firm or lawyer of either party. She continued that neither she nor any family member residing in her household 1) had a financial interest in the subject of the proceeding, 2) was an officer, director or trustee of either party, 3) acted as a lawyer, 4) was known to have interest that could be substantially affect by the outcome of the proceeding, 5) or was a material witness. She added by stating she was no history of governmental employment where she participated as counsel, advisor or material witness concerning the proceeding or expressed an opinion concerning the merits of the case. She denied the motion to recuse.
Rule 21. Further hearing, reopening or rehearing
(A) Applications for (1) further hearing in a proceeding after the closing of testimony and before final submission on oral argument or brief, or for (2) reopening a proceeding after final submission and before decision, or for (3) rehearing or reargument after decision, must be made by petition, duly verified, within ten (10) days after the date of such closing of testimony, final submission or decision, as the case may be. Such petition shall state specifically the grounds relied upon, and shall be filed with the Department and a copy served by the petitioner upon each adverse party, or his or her attorney, who appeared at the hearing, or oral argument, if any, or on brief.
A copy of each decision will be mailed by certified mail, return receipt requested to all interested parties. The ten days will commence upon receipt of the certified mail decision. A properly submitted application for rehearing or reargument within 10 days of a parties' receipt of a Board decision will toll the Statute of Limitations under 19 Del. C. § 2349. The time under § 2349 will begin anew when the published decision of the rehearing or reargument is received by the parties.
(B) If the application be for further hearing before final submission, or for reopening the proceeding to take further evidence after submission and before decision, the nature and purpose of the evidence to be adduced must be briefly stated, and it must appear not to be merely cumulative.
(C) If the application be for rehearing or reargument after decision, the matter claimed to have been erroneously decided must be specified and the alleged errors stated. If thereby any order of the Board is sought to be vacated, repealed, enlarged, or modified, the matter so relied upon must be fully set forth in the petition.
(D) The non-moving party shall file an answer within ten (10) days and serve a copy upon each adverse party, or his attorney, who appears at the hearing, or oral argument, if any, or on the brief.
C. Disqualification.
(1) A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
(a) The judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) The judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it, or the judge was associated in the practice of law within the preceding year with a law firm or lawyer acting as counsel in the proceeding;
(c) The judge knows that, individually or as a fiduciary, the judge or the judge's spouse or minor child residing in the judge's household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(d) The judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge's knowledge likely to be a material witness in the proceedings.
(e) The judge has served in governmental employment and in such capacity participated as counsel, advisor, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy.
(2) A judge should keep informed about the judge's personal and fiduciary financial interests, and make a reasonable effort to keep informed about the personal financial interests of the judge's spouse and minor children residing in the judge's household.
(3) For the purposes of this section:
(a) The degree of relationship is calculated according to the civil law system;
(b) "Fiduciary" includes such relationships as executor, administrator, trustee and guardian;
As to her claim for workers' compensation, the hearing officer states it occurred six years before these proceedings, with different attorneys and physicians. In addition, she contends she was not aware of the circumstances set forth by Home until receipt of the motion to recuse.
The hearing officer then reviewed her earlier decision in this case. She reiterated that Gibbs performed the kind of repetitive activities at Home that could lead to CTS and, based on Dr. Zamarin's opinion, that but for those repetitive activities, Gibbs would not have developed CTS. She concluded that, as there was no reason for her to disqualify herself and, upon review, there was no error in her June 28, 2006 decision, she denied Home's motion to vacate.
Parties' Claims
Home maintains that, as substantial evidence does not to support the Board's decision awarding Gibbs benefits, the decision must be reversed. It also asserts the failure of the Hearing Officer to recuse herself or, at least, to notify the parties of any potential conflict requires the decision to be vacated and remanded for a re-hearing before another Hearing Officer.
Gibbs responds there was no bias on the part of the Hearing Officer such that would required this Court to vacate her decision and remand the dispute for a new hearing. In addition, he argues there is substantial evidence in the record to support the granting of his petition for benefits.
Standard of Review
On an appeal from the Board, this Court's role is to ascertain whether there is substantial evidence supporting the Board's holding and there was no error of law. Substantial evidence is such relevant evidence that a reasonable person can accept as adequate to support a conclusion. "It is also more than a scintilla but less than preponderance. . . ." The Board's decision must be the product of an orderly and logical deduction process. This Court does not weigh the evidence, determine questions of witness credibility or make its own factual findings and conclusions. The Court examines the record for any errors of law in applying the Worker's Compensation Act. The Court is to consider the record in the light most favorable to the party prevailing below. Absent an abuse of discretion, this Court must uphold the Board's decision. Even though the Court may have reached a different result, if the Board's decision is based on substantial evidence, this Court cannot substitute its judgment for that of the Board.
Canyon Construction v. Williams, 2003 WL 1387137, at *1 (Del.Super. 2003).
Breeding v. Contractors-One-Inc, 549 A.2d 1102, 1104 (Del. 1998).
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981), quoting Cross v. Califano, 475 F.Supp. 896, 898 (D.Fla., 1979).
Levitt v. Bouvier, 287 A.2d 671, 673 (Del. 1972).
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
19 Del.C. § 2301 et seq.
General Motors v. Guy, 1991 WL 190491 (Del.Super.), at *3.
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994).
Delaware Alcoholic Bev Control. Comm. v. Alfred I. DuPont School Dist., 385 A.2d 1123, 1125 (Del. 1978).
Discussion
There are two distinct, yet interrelated issues in this appeal. The first is whether the hearing officer should have recused herself from this case. Several factual observations are in order. The "Statement Facts" contained in Gibbs' petition which was forwarded to this Court as part of the record, mentions "CDF of BCTS due to repetitive use of a drill." From what has been presented to the Court, the provenance of the hearing officer's CTS had nothing to do with drilling. The alleged conflicts were not brought out until about five months after a decision was rendered and not beforehand or during the five months interval.The standard to be employed in evaluating motion for recusal of administrative hearing officer is an objective one, not hearing officer's subjective view of his or her fairness and impartiality. There is a presumption of honesty and integrity that must be overcome before this Court can find the hearing officer was biased against Home.
Quaker Hill Place v. Saville, 523 A.2d 947, 966 (Del.Super. 1987).
Blinder, Robinson Co., Inc. v. Bruton, 552 A.2d 466, 473 (Del. 1989), quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975).
The hearing officer reviewed her conduct under Canon 3C(1) of the Delaware Judges' Code of Judicial Conduct after Home's claim of bias. She applied the two part test set forth in Los v. Los. Here, as there is an appeal of the hearing officer's recusal decision. This Court must be satisfied that the hearing officer engaged in the subjective test as well review the merits of the objective test. As with any appeal from a Board decision, this decision is reviewed under the abuse of discretion standard.
Los v. Los, 595 A.2d 381, 384-85 (Del. 1991) states: When faced with a claim of personal bias or prejudice under Canon 3 C(1) the judge is required to engage in a two-part analysis. First, he must, as a matter of subjective belief, be satisfied that he can proceed to hear the cause free of bias or prejudice concerning that party. Second, even if the judge believes that he has no bias, situations may arise where, actual bias aside, there is the appearance of bias sufficient to cause doubt as to the judge's impartiality.
Id., at 385.
Weber v. State, 547 A.2d 948, 952 (Del. 1988).
When it reviewed Canon 3C, the Court finds that none of the listed instances in which a judge is to disqualify himself or herself apply here. The hearing officer filed a CTS workers' compensation claim which was denied. The same law firms were involved, but not the same attorneys. The claim was six years ago. Home has not met its burden of overcoming of the hearing officer's honesty and integrity.
The hearing officer stated she was not aware of the circumstances until she received Home's motion to vacate. It might have been better if the hearing officer mentioned at the hearing she had once submitted a claim similar to the one then before her. Then she could asked the parties if they thought there was a conflict or if there was one perceived, whether they waived that conflict. That could have avoid the appearance of any impropriety or a possible conflict.
Delaware Judges' Code of Judicial Conduct, Canon 2.
The next issue is whether there is substantial evidence to support the award of benefits.
This Court does not completely concur with the hearing officer's characterization that Gibbs' varying versions of the onset of or the cause of CTS did not raise issues of credibility. The Board is required to give reasons for its credibility decisions. While not finding several of the four different histories did not raise credibility issues, the Board, nevertheless, reconciled them. For instance, in informing Dr. Bakst's office of the family history of CTS, Gibbs was responding to a specific question posed by an office person and not the doctor. Even though Gibbs mentioned CTS type symptoms while working for an employer prior to Home, there was no evidence of treatment or lost work. In a sense, therefore, the Board stated that these "two" (of four) histories were not prior inconsistent statements.
Turbitt v. Blue Hen Lines, Inc., 711 A.2d 1214, 1216 (Del. 1998).
The Court has some difficulty in agreeing about the latter. Why would Gibbs say these things? In any event, when the Court sifts through the underlying basis for the decision, there is substantial evidence to support it.
First, however, the Board recognized there were some credibility issues and it did resolve them as is its, not the Court's, function is to do. Dr. Zamarin's opinion was that the June motor vehicle accident could have caused Gibbs' CTS. More likely, however, the cause was the repetitive drilling. Even when confronted with Gibbs varying histories and what he said or did not say to him or others, Dr. Zamarin did not waiver in his opinion about the causation.
Since the testimony of one physician, even if contradicted by another physician is enough to meet the substantial evidence burden, the Board's reliance on Dr. Zamarin satisfies the review of standard utilized by this Court. The Board's decision granting Gibbs' decision is AFFIRMED.
Reese v. Home Budget Center, 619 A.2d 907, 910 (Del. 1992).