Opinion
C.A. No. 05A-03-003-JOH.
Submitted: August 15, 2005.
Decided: October 6, 2005.
Upon Appeal from a Decision of the Industrial Accident Board — AFFIRMED, in part, and REVERSED and REMANDED, in part.
Eric D. Boylse, Esquire, of Chrissinger Baumberger, Wilmington, Delaware, attorney for employer-below, appellant.
Gordon L. McLaughlin, Esquire, Wilmington, Delaware, attorney for employee-below, appellee.
MEMORANDUM OPINION
Innovative Benefits Concepts, t/a Meadowood Hospital, appeals the decision from an Industrial Accident Board motion/legal hearing. After a factual hearing some months previously, the Board ordered Innovative to pay certain expenses for drugs and medical bills incurred by Howard D. Ewing.
Innovative did not appeal that earlier decision. Ewing later returned to the Board seeking reimbursement for more medications and medical expenses. Innovative opposed his request, claiming, then and here, that he basically needed to substantiate his request with expert testimony. The Board disagreed and ordered Innovative to cover expenses for psychiatric medication and for pain medication.
The Court finds that portion of the Board's order resulting from the motion hearing which covered psychiatric medication to be supported by the record. But the record from the motion hearing and the prior hearing do not support the order for Innovative to pay for pain medication. The Board's order is, therefore, affirmed in part and reversed in part.
Procedural History
On June 1, 2004, Ewing filed a Petition to Determine Compensation Due. The Board held a hearing on September 16, 2004. The Board found that Ewing developed post traumatic stress disorder (PTSD) and major depression as a result of a work related incident. It also held that, as a medication prescribed for Ewing's psychiatric problems resulted in priapism, and that there was a causal connection between the priapism and the incident. In its September 29, 2004 decision the Board awarded Ewing total disability benefits and medical expenses related to his psychiatric and priapism conditions, reasonable attorney's fees and payment of his medical witness fee. The Board, however, declined to make a permanent award at that time as it felt the request was premature.
On January 7, 2005, Ewing filed a request for a "legal" hearing on Innovative's failure to pay current and ongoing medical expenses. The Board conducted a that hearing on February 10, 2005. In its February 24, 2005 decision, the Board ordered Innovative to promptly: 1) pay for the psychiatric treatments and medications prescribed for Ewing by Dr. Seltzer and reimburse Ewing for the cost of the said psychiatric medications; 2) reimburse Ewing the amounts he paid for any and all pain medication; and 3) pay for any and all prescribed pain/narcotic medication. Innovative timely filed an appeal of the Board's decision on March 11, 2005.
Worker's Compensation Rule No. 8 states:
(F) Anytime after the employer's first report of injury has been filed with the Board, the Board's scheduling officer may be notified either by oral, telephone, or written communication of the request by a party or party's legal counsel for a legal hearing. The Board's scheduling officer will have the discretion of requiring a written argument from the parties or the parties' legal counsel on the legal issue. Should one or both of the parties fail to accept the scheduling officer's decision, the parties must reduce their respective positions to written memorandums. The memorandums will be submitted to the Board by the parties on a date chosen by the scheduling officer. The Board will review the memorandums and issue a written decision.
The Court will not treat this appeal as an appeal of the Board's September 29, 2004 decision of Ewing's Petition for Determination of Compensation Due as this appeal was filed more than 30 days after notice of that decision was mailed. 29 Del.C. § 10142(b).
Facts
The facts relating to the incident at Meadowood and Ewing's medical history are taken from the Board's September 29, 2004 decision on his Petition to Determine Compensation Due and Dr. Seltzer's August 25, 2004 deposition.
The receptionist on duty was at the front desk. Also, at the front desk was a woman bleeding profusely from both arms. Two pools of blood were one the floor. After the woman collapsed against Ewing, he eased her to the floor. He applied pressure to her right wrist to stop the bleeding while the receptionist did the same to the left wrist. Additional staff personnel responded within three to fine minutes. An ambulance came after fifteen to twenty minutes. After the ambulance removed the woman, Ewing, as janitor, removed the blood from the lobby. This job took about two hours. He was distraught and somewhat nauseous. Never had he dealt with an attempted suicide.
Over the next several days, after the lobby incident, Ewing developed increasing anxiety, a sense of foreboding, nightmares and a desire not to deal with such situations. He would eat only once a day or not at all. He also cried. Neither Meadowood nor Innovative offered counseling, nor did he request any. His symptoms worsened. Ewing began to stay in his office at work, only going to other parts of Meadowood when absolutely necessary.
Ewing telephoned his family doctor, Dr. Nicholas Biasotto, who recommended that he see a psychiatrist. On June 25, 2004, he saw Blaine Morris, a licensed clinical social worker and counselor at Christiana Counseling, for the first time. Morris sent him to see Dr. Alan M. Seltzer, a board-certified psychiatrist with Christiana Counseling, the next day. Dr. Seltzer's initial diagnosis was PTSD and an adjustment disorder with mixed emotional features, being both depressive and anxious features. Dr. Seltzer did not change the medications Ewing was taking at that time.
PTSD occurs only after a person has experienced a traumatic event, not after just seeing a traumatic event.
Ewing was taking Xanax one milligram four times per day and Vistaril 25 milligrams at bedtime prescribed by Dr. Biasotto due to sleeping problems ad prior injuries suffered.
On July 10, 2003, Dr. Seltzer determined that Ewing was suffering from an adjustment disorder with anxiety and PTSD. Because he had difficulty sleeping, Ewing spoke with a nurse who mentioned the drug Trazodone as a possible sleep aid. He asked Dr. Seltzer to prescribe Trazodone for him. Because Ambien did not help Ewing sleep, Dr. Seltzer prescribed Trazodone, even though the doctor does not usually prescribe that drug to males. Before doing so, he covered the drug's possible side effects with Ewing and what to do if a side effect should occur. One possible side effect is a priapism or a painful erection. After taking his first dose of Trazodone, Ewing awoke the morning of July 18th with a painful erection. He called Dr. Seltzer who told him to go immediately to an emergency room. Ewing did not go to any emergency room or seek further treatment at that time as the problem seemed to ease. However, the painful erection returned later that day. At that time, Ewing did go to an emergency room.
Trazodone and Trazadone are both used in the parties' briefs for the name of the drug that has priapism as a possible side effect. The Court will use Trazodone as that is the drug name used by the Board.
After waiting some additional hours, Dr. Rafi Soofi, a urologist, attempted to ease the pain by inserting a needle into Ewing's penis to break up the blood clots. When this procedure failed, Dr. Soofi performed surgery to cut off the blood vessel going to the penis. This procedure causes impotence. After the surgery, Ewing remained in the hospital for five days in great pain followed by three months recuperating on a couch. He still has pain in his penis. At times, he has difficulty urinating or is unable to do so. It is also painful. In addition, he is impotent. He is now back on narcotic medications. He last saw Dr. Soofi two weeks after the surgery and has not seen any urologist since that day.
With Dr. Seltzer's permission, Ewing stopped seeing Morris after five sessions. It was determined that reliving the incident with Morris was no longer helping Ewing. On September 23, 2003, Dr. Seltzer changed his diagnosis to that of major depression because of the incident. That day, he prescribed Lexapro, another antidepressant. Dr. Seltzer last saw Ewing on July 8, 2004. Ewing's condition had improved in that his anxiety has lessened. In Dr. Seltzer's professional opinion, Ewing cannot return to work at Meadowood as he remains anxious and unable to function. Ewing is currently taking Xanax, Vistaril, and Dispormine.
Ewing continues on disability status. He completed a FMLA leave form in June 2003 in preparation for the June detoxification program. In July 2003 he completed a disability application asserting that he suffered from PTSD. In August 2003, Innovative sent a letter to him saying that he had voluntary left work.
Ewing had been taking narcotic medications for at various occasions over the years. One period was in the 80's when he was treated for cancer. On another occasion in 2001, he suffered a severe laceration in his leg. He also underwent several medical detoxification efforts, including one just before the work incident and one just after. He resumed narcotic medication after the surgery on his penis.
The Board found that Ewing met his burden of proof by demonstrating objectively that his working conditions were actually stressful and that such condition was a substantial cause of his mental state. It held he established that his psychiatric problems were causally related to the incident. The Board continued that the priapism, resulting from the Trazodone, was clearly causally related to the work injury. Therefore, the resulting surgery was compensable. It accepted Dr. Seltzer's judgement that Ewing was, for the time being, totally disabled. After determining that Ewing's request for a permanent impairment award for the apparent loss of erectile function was premature, the Board awarded attorney's fees and his medical witness fee. The Board concluded that Ewing developed PTSD and major depression causally related to the incident and that he was totally disabled due to the incident. Innovative did appeal this first decision.
On January 7, 2005, Ewing filed a request for a hearing on Innovative's failure to pay current and ongoing medical expenses after its carrier refused to reimburse Ewing for prescriptions and other medical benefits. The Board conducted a legal hearing on February 10, 2005. In its February 24, 2005 decision, the Board ordered Innovative to promptly pay: 1) all the psychiatric treatment and medication prescribed for Ewing by Dr. Seltzer and to reimburse Ewing for the costs of the said psychiatric medications; 2) reimburse Ewing the amounts he paid for any and all pain medications; and 3) pay for any and all prescribed pain/narcotic medication. Innovative timely filed this appeal of the Board's decision.
Parties' Claims
Innovative appeals this order on the grounds that 1) the Board erred, as a matter of law and fact, in ordering that it pay Ewing's medical expenses; 2) the order ignored fundamental due process requirements and 19 Del.C. § 2345, 2346, and 2348; 3) the Board abused its discretion in granting Ewing's motion as presented without medical testimony when it was a limited motion, with no evidence or testimony and, therefore, in violation of the aforementioned statutes and its own rules; and 4) the Board committed legal error by requiring Innovative to file a petition to stop payment of certain medical expenses, a requirement that does not exist at law. It argues that the Board's decision is not supported by substantial evidence as Ewing failed to present expert medical testimony with respect to the compensability of his narcotic medications. It continues that there is need for such testimony to determine whether the prescribed narcotic medications required are due to the May 29, 2003 work-related incident or to the Hodgkin's Disease, the March 2001 home incident or his chronic back pain. It claims that such testimony is imperative as Ewing first began taking narcotic medications in the 1980s.
Ewing counters that Innovative does not dispute the priapism he developed was extremely painful and required his use of potent narcotic pain medications. He continues that it is undisputed that he was off all narcotic pain medications several weeks before the development of priapism. He claims he again became medication dependant after he developed priapism and the two resulting surgeries. He concludes that the medications were included in the packet of medications awarded by the Board in its September 29, 2004 decision.
Ewing asserts that Innovative's argument that expert testimony should have been presented at the legal hearing completely ignores Board practice and procedure as evidence of this type is rarely, if ever, presented. The hearing officer was the one who presided over the September 16, 2004 hearing. As the Board said the medications were compensable at that time, there is not reason for compensation to be denied now.
Ewing sought the hearing to enforce Innovative's obligation to pay for his prescriptions. He concludes it was completely unnecessary for the presentation of expert medical testimony as there was clearly substantial medical evidence presented at the original hearing.
Innovative protests this interpretation. It alleges that the Board ruled specifically that the medical expenses for treatment by Dr. Seltzer and the surgery to correct the priapism were to be paid. The Board did not require Innovative to pay for ongoing medications prescribed by Dr. Biasotto for conditions unrelated to the incident. In addition, it avers that there was no holding addressing whether ongoing narcotic medications were causally related to Ewing's employment.
Innovative does not dispute payment for the psychiatric therapy sessions or the antidepressant medication prescribed by Dr. Seltzer and directly related to the May 2003 incident. It does dispute reimbursement and payment for narcotic medications that Ewing still uses. It concludes, that as the Board relied on a prior decision without competent medical testimony on the issue, the Board committed legal error and its decision must be reversed.
Standard of Review
This Court's scope of review of the Board's decision is limited to whether the decision is supported by substantial evidence and free from legal error. Substantial evidence is such evidence as a reasonable person might accept as adequate to support a conclusion. The Court does not sit as a trier of fact, does not weigh the evidence, or determine the credibility of the witnesses. It does not make factual findings and conclusions. The Court is only to determine if the evidence is legally adequate to support the Board's factual findings. In reviewing the evidence, the Court is to consider the record in light most favorable to the prevailing party below. In this instance, the review is of a Board decision after a hearing where no evidence was taken, and the record of the prior hearing and decision where factual evidence was presented but which was not appealed.
Histed v. E.I. DuPont de Nemours, Co., 621 A.2d 340, 342 (Del. 1993).
Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).
Delaware Alcohol Beverage Control Commission v. Newsome, 690 A.2d 906, 910 (Del. 1996).
Johnson v. Chrysler Corporation, 213 A.2d 64, 66 (Del. 1965).
Canyon Construction v. Williams, 2003 WL 1387137 (Del.Super. 2003), at *1, citing 29 Del.C. § 10142.
Stigars v. Speakman, 1993 WL 138720 (Del.Super.), at *3; aff'd, 633 A.2d 371 (Table), 1993 WL 397603 (Del.).
Since Innovative did not appeal the original award, it is now undisputed that Ewing suffered a compensable injury while working for Innovative. After some time, Innovative's carrier ceased paying for his treatment and prescribed medications. Ewing then wrote the Board and requested an immediate legal hearing. The Board held a hearing and issued a written decision. This appeal followed.
Innovative's basic claim is that it does not know which pain or narcotic medications the Board's decision of September 29, 2004 covers. It admits that it paid compensation pursuant to the Board's order and that its carrier suspended payments without Ewing's consent or the approval of the Board. It agrees that it is to pay the medications and treatments ordered by Dr. Seltzer. However, it does not believe that the order includes the pain or narcotic medications prescribed by Dr. Biasotto for other preexisting conditions.
Innovative's first argument is that the Board erred, as a matter of fact and law, in its order that it pay Ewing's medical expenses.
Absent Ewing's consent, however, only the Board determines whether he continues to receive the compensation, not Innovative or its carrier. The Board has jurisdiction over cases concerning workers' compensation. However, the only relief the Board may grant to Ewing for the wrongful termination of the compensation payments is an order that payments be made according to law.
Natasi-White v. Futty, 1985 WL 636431 (Del.Super.), at *2.
19 Del.C. § 2301A:
(i) The Board shall have jurisdiction over cases arising under Part II of this title and shall hear disputes as to compensation to be paid under Part II of this Title. The Board may promulgate its own rules of procedure for carrying out its duties consistent with Part II of this title and the provisions of the Administrative Procedures Act. Such rules shall be for the purpose of securing the just, speedy and inexpensive determination of every petition pursuant to Part II of this Title. The rules shall not abridge, enlarge or modify any substantive right of any party and they shall preserve the rights of the parties as declared by Part II of this title.
Huffman v. C.C. Oliphant Son, Inc., 432 A.2d 1207, 1210 (Del. 1981).
The Board in its February 2004 order granted Ewing an award to cover certain expenses: submitted medical bills for $20,256.61; compensation for temporary total disability since June 26, 2003 and ongoing; treatment and medication for his psychiatric and priapism conditions ordered by Dr. Seltzer; reasonable attorney's fees in the amount of $7,857.50; and the payment of his medical witness fee. In that same award, the Board found a need to pay ongoing medical expenses and costs for psychiatric medications due to Ewing's PTSD. It also declined, however, to find his condition to be permanent. But that portion of the Board's decision in February, 2005 covering expenses is consistent with the Board's initial finding of PTSD, the award covering medication and treatment expenses and a continuing need for such. Therefore, that portion of the 2005 decision is affirmed.
If Innovative wants to terminate this liability, it will have to take affirmative action to do so.
But the Board also ordered Innovative to reimburse Ewing for any/all pain medication for which he paid as we all as any/all pain/narcotic medication prescribed for him. This part of the order is not consistent with the September 29, 2004 order. Innovative should only reimburse Ewing and make payment in the future for any and all medications prescribed only for the psychiatric and priapism conditions. Evidence exists that Ewing was prescribed pain and narcotic medications before the date of the work related incident due to earlier injuries. The earlier injuries are not work related and therefore, Innovative should not pay for relief of those conditions.
It is not clear, however, from either the hearing transcript or the February 25, 2004 order whether all medications for which Ewing seeks reimbursement and payment are related to the psychiatric and priapism conditions. At the hearing Ewing's counsel informed the Board it would be given all the prescriptions. No substantial evidence exists showing that any and all medication prescribed for Ewing relate to his psychiatric and priapism conditions. This portion of the order is reversed and remanded to the Board for a factual hearing.
During the ordered remand hearing, evidence is to be presented to the Board concerning what medications and/or treatments are in question, the physician prescribing the medications and/or treatments, the reasons the medications and/or treatments were ordered and whether they are still needed. The Board must also determine which medications and treatments are required for the work related injury, after receiving sufficient, competent evidence as to what pain and/or narcotic medications are prescribed and whether they are for the purposes of relieving his psychiatric and priapism conditions. In its new order, the Board is to clearly indicate what medication prescribed by what physician for what condition are to be covered by its new order.
Conclusion
For the reasons stated above, the decision of the Industrial Accident Board AFFIRMED in part and REVERSED in part and REMANDED for proceedings consistent herewith.