Opinion
C.A. No. 99A-03-015-JOH.
Submitted: November 15, 1999.
Decided: February 17, 2000.
Upon Appeal from a Decision of the Industrial Accident Board AFFIRMED in part, REMANDED in part
J.R. Julian, Esq., of J.R. Julian, P.A., attorney for employer, appellant
Gary S. Nitsche, Esq., of Weik, Nitsche Dougherty, attorney for claimant-below, appellee
MEMORANDUM OPINION
Independent Living, Inc., appeals the decision of the Industrial Accident Board awarding temporary total and partial disability benefits to Alan A. Shores. The award was for post traumatic stress disorder [PTSD] which the Board found resulted from a robbery during which Shores' "throat was cut.
Shores returned to work on the first work day after the robbery, but about a week later, was terminated for cause, unrelated to the injury. In determining Shores suffered from PTSD, the Board accepted the testimony of a psychologist over a psychiatrist.
Independent Living contends the Board erred in accepting a non-medical witness' testimony over that of a medical expert. It also argues that there was not substantial evidence to support the Board's conclusion that Shores was on an employment errand and not a personal errand when he was attacked. In its appeal, Independent Living raises for the first time, albeit obliquely, that Shores violated various of its policies by being where he was when assaulted and that this removed him from acting in the scope of his employment. In addition, although not argued to the Board and raised belatedly, and again obliquely now, Independent Living contends Shores' termination for cause disqualifies him from benefits.
The Court concludes the Board properly accepted the psychologist's testimony. Also, the Court finds there is substantial evidence supporting the Board's decision that Shores was on employer-related business, not a personal errand, when attacked. But, the Board was not given the opportunity to rule on whether Shores' alleged violations of Independent Living's policies on the night of the attack disqualify him from benefits. Nor did the Board rule on the role of Shores' termination and eligibility or ineligibility for benefits. As to those two issues, the matter must be remanded.
FACTUAL BACKGROUND
Independent Living operates a community options program which offers case management services for adults with various disabilities such as physical and mental handicaps. In April of 1997, Shores was hired as a case manager with this program. The case managers work with clients and assist them with everyday living tasks such as cooking, cleaning, baking and paying bills. Shores' normal shift was from 12:00 p.m. to 8:00 p.m. At the time of the work-related injury, he was earning $19,000 per year at Independent Living and $10,000 per year at a part-time job with Easter Seals.
Shores is a 37-year-old man with an associates degree in health and human services. On May 16, 1997, he was on-call and received a page around 9:00 p.m. that he thought was from a client with whom he had been working for several weeks and who had been having trouble with a former roommate. Concerned because of the late hour of the page and some prior problems of violence by the roommate, he decided to drive to the client's house and take care of the situation. As he was getting out of his car, he was grabbed from behind by an African-American man who stole the money he had and slit his throat with a knife. Shores drove himself to the emergency room at Wilmington Hospital where he received 167 stitches in his neck. The emergency room report states the time of the injury was 11:55 p.m., although Shores testified that the assault occurred at approximately 9:30 p.m. The money stolen from Shores belonged to a client whose paycheck he had cashed. This act was against company regulations. He reported the assault to his supervisor on May 17th. Shores returned to work, however, on the Monday following this Friday-night assault.
Several days after the assault, as he was leaving work, Shores discovered a flat tire around 9:00 p.m. After a supervisor declined to loan him money, he accepted $20 from a client to have the tire fixed. Shores knew that borrowing money from a client was a direct violation of company policy. That client complained to Independent Living and an investigation ensued. It terminated him on May 23, 1997. Shortly before the assault occurred, Shores had asked the executive director of Independent Living for a loan because he was having money problems. The director suggested that Shores seek a loan from the credit union.
Soon after his termination from Independent Living, Shores resigned his position at Easter Seals due to stress and fear of the clients, which, he said, developed after the assault. He filed his petition for workers' compensation on June 3, 1997. Around this time, he resumed taking illegal drugs, something he had not done since he was in his 20's. He checked himself into a detoxification program in the summer of 1997. After getting out, he tried several jobs but found he could not do them due to stress. In April 1998, he obtained part-time employment as a bus driver for a senior center, working about 20-25 hours per week.
Dr. Renee Murch, a licensed clinical psychologist, testified on behalf of Shores. She works with children, adolescents and adults and specializes in treating mood disorders, anxiety disorders and panic disorders. She testified that her training experience and education allowed her to form an opinion with respect to PTSD. Dr. Murch began treating Shores soon after the assault. She testified that Shores has PTSD and was totally disabled from June 1, 1997 through March 31, 1998. Social work would have been impossible for Shores during his period of disability because the work involved working with people who are mentally retarded and whose behavior could become aggressive. She also observed that Shores has difficulty with jobs that involve crowds or exposure to African-Americans. Dr. Murch believes that Shores is currently capable of employment but continues to require ongoing treatment for approximately one more year.
Dr. Wolfram Rieger, a psychiatrist who testified on behalf of Independent Living, examined Shores on March 3, 1998. Dr. Rieger agreed that Shores suffers from PTSD of mild to moderate severity as a result of the assault, but said it was in remission at the time of his examination. He did not believe that Shores was ever totally disabled, but he did not treat Shores during the time of the disability. Also, Dr. Rieger determined that further medical treatment would not be necessary because Shores had reached maximum therapy benefits. Dr. Rieger agreed that Shores could not do work dealing with African-Americans because the assault was committed by an African-American. Otherwise, Dr. Rieger believes that Shores could return to his prior job or any other type of employment.
Lynn Clayton, who was Shores' supervisor at the time of the assault, testified for Independent Living. She confirmed that Shores was on call at the time of the assault and testified to Independent Living's policies. One is that if a client has an emergency, after-hours call, the client is to telephone into an answering service, which then pages the case manager on call. When the case manager calls into the service, it plays a recording of the message to the case manager. When a page is received after 9:00 p.m., the case manager decides whether to call 911 or wait until the next day to take care of the problem. It is a violation of policy for the case manager to go to the client's home. Clayton checked with Independent Living's service and there was no record of a call from this particular client on the night of the assault. She admitted that the page could have been received on Shores' personal beeper. But, she said, it is a violation of policy for a case worker to give his or her personal beeper number to a client. She also said Shores violated policy by cashing a client's check. That was the money taken in the robbery. Clayton's investigation of the assault consisted only of Shores' story of the attack, the information from the answering service and a copy of the police report. She does not remember if she talked to the client who paged Shores, but no evidence of such a conversation was reported to the Board.
The Board chose to accept the testimony of Dr. Murch rather than that of Dr. Rieger. In doing so, it said Dr. Murch was in a better position to assess Shores' condition because she started treating him soon after the assault and had been seeing him regularly ever since. Whereas, the Board noted, Dr. Rieger saw Shores only once. The Board found Shores totally disabled from June 1, 1997 to March 31, 1998. Because he had resumed working, but only part-time, it found him partially disabled from April 1, 1998 forward. It awarded benefits accordingly.
The Board's opinion states, "[t]he dispute centers on whether this [injury] occurred within [Shores'] scope of employment with Independent [Living]. The Board finds that [Shores'] injury occurred during the scope of his employment." The Board's reasoning was that Shores was on-call and that he believed he was responding to a page from a client who was in danger.
Board Decision (March 5, 1999) at 7.
In awarding benefits to Shores, the Board calculated the benefits based on his Independent Living wage and Easter Seal salary. Shores has conceded this was error and that only his Independent Living wage should have been the basis of the award.
STANDARD OF REVIEW
The duty of this Court on an appeal from the Board is to determine whether the Board's decision is supported by substantial evidence and is free from legal error. The Board's decision must be affirmed, if it is supported by substantial evidence. Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The Court does not sit as a trier of fact with authority to weigh the evidence, determine questions of credibility and make its own factual findings and conclusions. It is immaterial whether the reviewing court would have reached a contrary conclusion from the same evidence. However, if the record clearly indicates that the administrative agency made its decision on improper or inadequate grounds, discretion has been abused and reversal upon judicial review is required.
General Motors Corp. v. Freeman, Del.Supr., 164 A.2d 686, 688 (1960); Johnson v. Chrysler Corp., Del.Supr., 213 A.2d 64, 66-67 (1965); see also General Motors v. Jarrell, Del.Super., 493 A.2d 978, 980 (1985); Talmo v. New Castle County, Del.Super., 444 A.2d 298 (1982), aff'd., Del.Supr., 454 A.2d 758 (1982).
Freeman, 164 A.2d at 689.
Breeding v. Contractors-One-Inc., Del.Supr., 549 A.2d 1102, 1104 (1988).
Johnson, 213 A.2d at 66.
Stewart v. Del. Liquor Comm., Del.Gen.Sess., 74 A.2d 472, 473 (1950).
Kreshtool v. Delmarva Power and Light Co., Del.Super., 310 A.2d 649, 652 (1973).
DISCUSSION A
As noted earlier, the Court is remanding this case to the Board for consideration of two issues. Despite the remand on those issues, the contention about the Board's acceptance of psychological evidence over psychiatric evidence can be resolved on this appeal. That resolution now will prevent the unnecessary relitigation of that contention on remand.In concluding that Shores suffered PTSD, the Board accepted the testimony of Shores' psychologist. It rejected the testimony of Independent Living's psychiatrist. In doing so, Independent Living contends the Board erred in two respects. Citing Wilmington Board of Public Education v. DiGiacomo, the first contention is that the Board's basis for accepting the psychologist created an impermissible presumption in favor of a treating health care provider. The other claim of error is that the Board must have medical evidence on which to base its conclusion and a psychologist cannot provide that evidence.
Del.Super., C.A. No. 84A-JA-13, Martin, J. (September 25, 1985).
In choosing Dr. Murch's testimony over that of Dr. Rieger, the Board stated, "The Board finds Dr. Murch is in a better position to assess [Shores'] current mental status. Dr. Murch began treating [Shores] within days of the work accident and has followed his treatment on a weekly basis since then. Dr. Rieger examined [Shores] only once on March 3, 1998, almost one year ago."
Board Decision (March 5, 1999) at 9.
The Board's acceptance of Dr. Murch over Dr. Rieger did not create an impermissible presumption in favor of the treating health care provider. Because she had started to treat Shores for his mental disorder in early June 1997, which was soon after the assault, and saw him weekly, the Board thought that was more credible in this case than one visit with Dr. Rieger. The nature of PTSD and its treatment make the basis for the Board's acceptance appropriate. It is free to accept the testimony of one expert over another. That it chose the person who was treating a mental illness over a period of time versus a doctor who saw Shores but once did not create an impermissible presumption. After all, the disagreement was not whether Shores had PTSD, since both experts said he did. The issue was whether and to what extent he was disabled.
Reese v. Home Budget Center, Del.Supr., 619 A.2d 907, 910 (1992).
In accepting Dr. Murch, as treating physician, over Dr. Rieger, the Board did not commit error. Accepting her testimony provided substantial evidence for the Board to conclude that Shores was totally disabled due to PTSD for a while but later only partially so.
Petrea and Son Oil Co. v. Moore, Del.Supr., 442 A.2d 75, 77 (1982).
It is, however, the Board's acceptance of a non-medical person over a doctor which is the gravamen of Independent Living's claim of error. It cites Lee v. ACS, Co. Inc. and Streett v. State in support of that argument. These two cases are inapposite. The Supreme Court in Lee held an epidemiologist, who was not a doctor, could not provide the necessary medical testimony linking the decedent's cancer to his asbestos exposure. This causal linkage required medical testimony. In Streett, the Court said injuries which are not open and obvious need medical testimony. While Dr. Murch could testify about Shores' PTSD, his case fails, it contends, for lack of medical testimony.
Del.Supr., 542 A.2d 352, 354 (1987).
Del.Supr., 669 A.2d 9 (1995).
In this case, that argument goes too far. There is no challenge to Dr. Murch's credentials. She treats patients who have PTSD. Dr. Rieger even said that Shores suffered from PTSD, though is not disabled from it. In the past, this Court has found that the Board's choice of a psychologist's testimony over that of a psychiatrist properly formed substantial evidence. The Board's acceptance, therefore, of Dr. Murch's testimony over Dr. Rieger's was proper and not error.
Doemling v. Capitol Bakers, Inc., Del.Super., C.A. No. 84A-JN-16, Ridgely, J. (June 4, 1985).
B
The first of the two arguments raised on appeal which must be remanded revolves around whether Shores suffered a work-related injury. Closer analysis of that issue, the parties' arguments and the record reveal two distinct, but overlapping, subissues. The presentation and argument to the Board about these subissues was muddled and ambiguous. The parties' arguments on appeal are not clearly directed to these subissues. Most importantly, the Board did not specifically address any of them thereby enabling review.
The two subissues are whether, as Independent Living implies, Shores was doing anything job-related when he was assaulted. The Board addressed this subissue and the Court finds there is substantial evidence to support it. The other subissue was, assuming Shores was on his way to visit a client, whether his violation of several employer policies meant he was acting outside the scope of his employment. The Board, however, did not address this second subissue.
Independent Living's opening and closing arguments to the Board explain, in part, why the Board's decision is incomplete as to this second subissue. The thrust of its argument was directed more to suggesting Shores was not on its business when assaulted.
Shores was assaulted in the area of Ninth and Monroe Streets in Wilmington. That much is agreed: Independent Living points to the emergency room record stating he was attacked at 11:55 p.m. to further infer that Shores was in a dangerous area when attacked and not on his way to help a client. It also argued to the Board, and argues here, that the discrepancy between that time and Shore's testimony that the attack occurred at 9:30 p.m. (1) undermines his credibility and (2) shows he as on personal business. These circumstances, coupled with the alleged breaches of company policies, were used to contend that the underlying assault incident was outside any job-related reason for Shores to be where he was when assaulted.
Shores, of course, presented testimony about his reasons for being where he was when assaulted. In its findings of fact, the Board accepted his evidence over the innuendos of Independent Living that Shores' reasons for being in the area of Ninth and Monroe were unrelated to his job. In part, that rejection was based on Independent Living not contacting the client when Shores said he paged him. Independent Living seeks to explain that inaction on the basis of federal privacy regulations. Apparently, the Board was not satisfied with this explanation, nor is this Court.
42 C.F.R. § 2.1, 2.2 and 2.4.
Those regulations did not prevent Independent Living from divulging to the Board the name of and talking to the client who loaned Shores the $20 to get his tire fixed. Further, Independent Living argued to the Board that Shores violated several of its policies in responding to the client's page. The cumulative impact of those regulations and their alleged violation seems far more serious than the one-time violation of one regulation prompting Shores' termination.
In some respects, the Board's decision does not, however, clearly reflect that it was being asked to chose, in this instance, between whether Shores was in the Ninth and Monroe Streets area for any job-related reason or for personal business. For instance, it did not expressly address the discrepancy in Shores' testimony that the attack occurred around 9:30 p.m. but that the Wilmington Hospital records said it happened around 11:55 p.m. Despite that, on balance, the Board's stated reasoning and conclusion that Shores was on a job-related errand when assaulted is clearly-enough stated to be reviewed, and it is supported by substantial evidence.
The Board determines witness credibility, not this Court. Once it found Shores credible, his testimony provided substantial evidence. He was on call, he had been working with a client who had been having trouble with a roommate, he believed the late call indicated possible trouble and he was on his way to the client's house to help out when he was attacked. All of this is reflected in the Board's determination that Shores was on a job-related, not personal, errand when attacked. Insomuch as the Board did address that aspect of the parties' evidence and contentions, its decision is affirmed.
Lemmon v. Northwood Construction, Del.Supr., 690 A.2d 912, 914 (1996).
But, there is another fundamental discreet, subissue which the Board did not address. This subissue arises after and necessarily follows the resolution of whether Shores was on a job-related or personal errand when attacked. Once finding he was on a job-related errand, the issue then became whether his alleged violation of Independent Living's policies removed him from the scope or course of his employment and disqualifies him from benefits.
The Board cannot be blamed for not addressing this issue. The thrust of Independent Living's legal argument and factual presentation before the Board was that Shores was on a personal errand. The evidence of violation of its policies was directed more to buttressing that argument rather that focusing on disqualification due to these policy violations. In these circumstances, it is easy to understand why this issue was missed.
Independent Living did allude to this disqualification issue before the Board, albeit briefly and somewhat vaguely. In its opening, it stated:
We expect the evidence that we will present today to demonstrate that irrespective of what [Shores] was doing, or thought he was doing, or was intending to do, that whatever it was, was not part of his employment.
Board Transcript (February 25, 1999) at 4.
In closing argument, Independent Living stated:
We're not depreciating the incident, or making fun of him, it's just that it's is not related in our view it's not related to the employment.
* * *
It's the employer's position that whatever happened to him on the night of the 16th or 17th of May, whatever that Friday was, was not related to his employment.
Id at 179, 181.
Again, these arguments address the personal errand versus company business contentions more than a claim of disqualification due to violation of policies. Only in its reply brief in this Court did Independent Living first more than hint at this disqualification argument. The argument was again only briefly stated. It would have been better, of course, had this argument been clearly presented to the Board and ruled upon, which would enable this Court to review that ruling and the evidence supporting it.
The issue of whether Shores is disqualified because of his alleged violation of company policies is important. Employees are entitled to worker's compensation for personal injury or death "by accident arising out of and in the course of employment." These terms are not synonymous. The principle of potential forfeiture of benefits has been explained in this way:
19 Del. C. § 2304.
Dravo Corp. v. Strosnider, Del.Super., 45 A.2d 542, 543 (1945).
Just as an employer is only liable for injuries arising out of or in the course of the employment, so such an employer may, by proper rules, clearly and unequivocally brought to the employee, so limit the scope or sphere of employment that a violation of such rules may put an employee beyond the range or scope of the employment, so that any resulting injury may not be said to have arisen out of or in the course of the employment, and therefore not be compensable. On the other hand, if the rule be merely for the regulation of the employee within the scope or sphere of his proper employment, then the violation of such rule, in the absence of wilful misconduct or some other independent principle, does not remove the resultant injury from the compensable class. This is for the reason that the action of the employee, notwithstanding the violation of the rule, is still within the scope or sphere of the employment, and the injury is one arising "out of and in course of his employment." The violation of the rule may involve negligence on the part of the employee, contributory negligence, assumption of risk, or some other similar principle, but these are not to be considered in view of the nature and purpose of the Workmen's Compensation statute.
Id. at 546.
To a limited degree, the principle of disqualification/forfeiture is embodied in statutory form. The question of whether an employee's injury arose out of or in the course of employment is essentially a factual one.
19 Del. C. § 2353(b); see also Anthony v. Carter, Del.Super., C.A. No. 86A-DE-12, Gebelein, J. (April 26, 1988) (wilful violation can cause forfeiture).
Davis v. University of Delaware, Del.Supr., 240 A.2d 583 (1968).
The Board has already rejected Independent Living's contention that Shores was on a personal errand when attacked. Having made that determination, for which this Court finds substantial evidence, the Board must now address (1) whether there were policies violated and (2) if there were, whether the violations meant Shores' injuries did not arise out of employment. It is possible, of course, that Independent Living "soft peddled" this contention because Shores was fired because he borrowed $20 from a client but was not fired for the accumulation of alleged violations on the night of the assault, an accumulation which appears more serious than the reason he was fired. The Board can weigh that, too, on remand.
C
There remains another issue which, unfortunately, compels remand. That issue is whether Shores' termination one week after he returned to work disqualifies him from worker's compensation. Again, only in its reply brief did Independent Living sufficiently articulate its argument about this issue. Based on the vague nature of this argument in its opening brief, Shores' answering brief did not address the issue. More importantly, though, is that Independent Living did not raise this issue before the Board. The Board, therefore, could not be expected to address it.
The Board did know, however, that Shores was terminated about a week after returning to work. The claim was that he was fired because he violated company policy by borrowing the $20 from a client. Shores filed his petition for compensation a little over a week later and Dr. Murch places the start of his post-traumatic stress disorder disability from about that date. The Board's award of temporary total disability from June 1, 1997 conforms to her testimony.
While many of the predicate factual issues were known, they were not litigated to conclusion. The legal import of the termination, vis-a-vis, the disability was not discussed, argued or decided. That relationship is an essential element of this case.
In Singletary v. Townsends, Inc., this Court affirmed the Board's decision that the claimant was discharged for legitimate disciplinary reasons. Such a discharge disqualified the claimant from benefits. The issue of termination was litigated before the Board and argued on appeal. There was an additional and important fact in Singletary. He had sought unemployment benefits but the Unemployment Insurance Appeals Board found he was fired for cause. That decision had been affirmed on appeal.
Del.Super., C.A. No. 94A-09-005, Graves, J. (May 30, 1995).
The same issue arose again in Fields v. Johnson Controls. Termination for cause could result in forfeiture of benefits, but there are, as the Court noted in Fields, no blanket rules. There are several important factual distinctions between Fields and this case. One was that Fields disobeyed a directive to see the employer's doctor about the injury for which he was seeking compensation.
Del.Super., C.A. No. 96A-07-019, Silverman, J. (September 30, 1997).
Singletary and Fields make it evident that there are factual and legal issues deserving of Board consideration. Part of that consideration involves the relevance, if any, of the nature of Shores' injury. The physical injuries suffered in Singletary and Fields are not the same as Shores' injury. Shores suffered an initial physical injury but that is not per se the injury for which he sought compensation. Whether, again, in the total scheme of things, this means anything, is to be determined. The Court cannot say if further evidence on these issues is needed, but that would be permissible, with the Board's approval. As Larson puts it:
If the record shows no more than that the employee, having resumed regular employment after the injury, was fired for misconduct, with the impairment playing no part in the discharge, it will not support a finding of compensable disability. But if to this record there is added evidence that the claimant has been hampered by the impairment in obtaining or holding other employment, the question is not quite so one-sided.
Arthur Larson, Larson's Workmen's Compensation § 84.04[1] (1999).
CONCLUSION
For the reasons stated here, the decision of the Industrial Accident Board is AFFIRMED in all respects except for the unresolved issues noted herein, which are REMANDED for further proceedings consistent with this decision.IT IS SO ORDERED.
HERLIHY, J.