Opinion
C.A. No. 99A-09-012 WCC.
Submitted: March 14, 2000.
Decided: November 6, 2000.
On Claimant's Appeal from Decision of the Industrial Accident Board. Reversed in Part; Affirmed in Part.
R. Stokes Nolte, Esquire; Nolte Brodoway, P.A., Three Mill Road, Suite 304, Wilmington, Delaware 19806. Attorney for Appellant.
Mark H. Conner, Esquire; Morgan, Shelsby Leoni, 200 Continental Drive, Suite 109, Newark, Delaware 19713. Attorney for Appellee.
ORDER
This 6th day of November, 2000, after considering Bruce Jarnigan's (the "Appellant") appeal from a decision of the Industrial Accident Board (the "Board"), it appears that:
1. On April 8, 1999, the Appellant drove a roll-off truck for BFI Systems ("BFI") and injured his low back after driving with a broken seat over a large pothole. The Appellant sought total disability from April 9, 1999 to June 9, 1999, partial disability from June 9, 1999 until July 9, 1999, and medical expenses totally $2,000. After a hearing was held on August 30, 1999, the Board found that while the injury to his low back resulted from driving the truck and hitting the pothole, it declined to award any benefits or expenses. The Appellant appeals the Board's decision.
BFI is also known as Browning Ferris Industries. It is a refuse business where trash is picked up and delivered to another location.
2. At the hearing on August 30, 1999, the Appellant testified that on April 8, 1999, he was assigned to drive a roll-off truck, which was different than the tractor-trailer that he normally drove. He stated that the injury to his low back occurred after he hit a pothole with the truck. When he returned to work the next day and told Ron Orbin, BFI's Operations Manager, that he had lower back pain, he was sent home to rest. On the following Monday, April 12, 1999 when he returned to work with no improvement, BFI sent him to a doctor at Occupational Health who told him that he could work in some capacity as long as he did not sit for more than five minutes. On April 13, 1999, the Appellant got a second opinion with Dr. Seth Ivins, who advised him that he should not return to work and provided documentation setting forth this recommendation. He stated that after presenting BFI with the note, he was told about a light duty job at Chrysler to work a compactor. But due to his pain, he never reported to Chrysler. Although he was released to work with no restrictions on May 25, 1999, he was not taken back by BFI until June 9, 1999 and only worked two to three days a week for the first month and began five-day work weeks on July 9, 1999. The Appellant only received compensation for the days that he worked, but his daily rate was the same as it was pre-injury.
A roll-off truck is commonly known as a large construction container. For example, if a roof was taken off, the container would be set at the house, filled with roof materials and then later covered and hauled away to dump it. Driving a roll-off truck is more physically challenging and requires the driver to get out of the truck more often and cover the load with a tarp before delivering it to the dump.
He further stated that because he did not initially feel any pain, he did not report the injury to anyone at BFI. It was not until later that evening that he felt lower back pain.
BFI had a contract with Chrysler to do their trash.
Maret Schultz, BFI's manager of environmental health and safety, testified slightly different to the chain of events. She stated that the Chrysler job was offered to the Appellant on Tuesday, April 13th but he never showed. In addition, she stated that a "no duty" note from Dr. Ivins was provided on Wednesday, April 14, 1999.
Dr. Seth Ivins testified by deposition and diagnosed the Appellant with myofascial sprain and strain, a soft tissue injury. Until the Appellant was released to full work duty on May 24, 1999 with no restrictions, Dr. Ivins kept him on "no duty status," meaning that he was not to perform his usual work and should restrict his activities to those that did not produce pain. But, Dr. Ivins stated that while the Appellant could perform a sedentary position where he could stand up and move about frequently, he could not drive. He explained that he did not recommend on the notes whether the Appellant was able to go back to light duty status because he was not BFI's compensation doctor, and he was not aware of what kind of light duty was available. He described the Appellant's case as "simple," "straightforward and uncomplicated."
Dr. Ivins is an internist who worked part-time and functioned as a medical director for the Occupational Health Services in Philadelphia in the 1980's.
Dr. Ivins explained that there was some kind of air shock to the seat, which was not functioning and which resulted in repeated trauma to the Appellant's body, specifically absorbed by the low back. Dr. Ivins also stated that the Appellant was notably obese, greater than 350 pounds. He explained that the Appellant's weight was significant because the momentum of bouncing up and down was dependent on weight and speed, and due to his weight, there was a greater inertia applied to the spine.
He further explained that "[the Appellant] was not capable to go back to that sort of more heavy lifting or even prolonged sitting as required by driving whatever vehicle he typically drives. So he was restricted from his usual duties." (Ivins Dep. at 6.)
As such, he told the Appellant that he should not work unless he was in a position to sit and get up at his convenience every few minutes to stretch.
(Ivins Dep. at 12.)
Ron Orbin, BFI's Operations Manger, explained that after the occupational doctor released the Appellant to light duty with restrictions as to no lifting and not sitting too long, an evening shift job at Chrysler became available, which required pushing buttons to compact trash and would not have been a decrease in pay. While it was unlikely, Mr. Orbin stated that the Appellant could potentially be required to drive a vehicle if the container became full although this seldom occurred during the evening shift. Despite the job offer, the Appellant never reported to Chrysler. Mr. Orbin also stated that when the Appellant was released fully to work, there was not enough tractor-trailer work for a five day work week so the Appellant worked part-time. And, although the Appellant was expected to drive other vehicles prior to the injury, Mr. Orbin stated that with the Appellant's acquiescence, he would only assign him to drive tractor-trailer trucks. This arrangement was based on a concern that the Appellant would get injured again and the Appellant's desire to only drive tractor-trailers. In fact, the morning after the injury, Mr. Orbin stated that the Appellant asked him to be laid off because BFI did not have enough work to do tractor-trailer work full-time. In addition, Maret Schultz, BFI's manager of environmental health and safety, similarly testified that the Appellant had expressed his dislike for his job on more than one occasion.
Trash is transferred by forklift to the containers and the operator must push buttons to compact the trash into the containers. As such, the job entails either sitting or standing.
Providing a new container was the day shift operator's job.
3. In reviewing a Board decision, the Court's role is limited to determining whether the decision 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 weigh the evidence, determine questions of credibility, or make its own factual findings.
General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960).
Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., Del. Supr. 636 A.2d 892, 899 (1994).
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965).
4. First, the Appellant argues that the Board erred in refusing to award total disability benefits. In denying total disability, the Board stated:
Claimant relied on Dr. Ivins' opinion, which was based on Claimant's statement that BFI did not have a position that would permit him [to] stand and move about frequently. Even though BFI did not have a written description of the light duty position at Chrysler and Ms. Schultz had not seen the job performed, the Board finds Orbin's description of the work meets the light duty restrictions of the Occupational Health doctor. The Board finds no reason why Claimant could not perform a job, which would permit him to sit or stand at will and which required him to push a button in trash compacting. The fact that Claimant might have to move the container by driving a truck, if it became too full, is not determinative in this instance. The likelihood that Claimant would have to do some limited driving is reduced by the fact that Claimant was assigned to the second shift, a less busy period. Claimant has cried "foul" before even attempting to do the work. BFI's doctor released Claimant to light duty and the Board is not convinced that Claimant could not perform the duty that BFI offered at the Chrysler site. Hence, the Board declines to award total disability.
(Bd. Dec. at 11.)
Total disability is not equivalent to utter helplessness. Total disability means a disability which prevents an employee from obtaining employment commensurate with his qualifications and training.
MA. Hartnett, Inc. v. Coleman, Del. Supr. 226 A.2d 910, 913 (1967).
Id.
The Court finds that the Board's decision denying total disability was not supported by the testimony. Dr. Ivins testified that the Appellant be kept on "no duty status," which meant that he was restricted from his usual work duties, such as driving. In addition, the BFI occupational doctor found that while the Appellant could perform a light duty job, he was restricted from driving. As such, both Dr. Ivins and BFI's occupational doctor testified that the Appellant could not drive, which was potentially necessary for the Chrysler job.
The essence of BFI's argument adopted by the Board is that having to drive a truck at the Chrysler site was such a remote possibility that it would not prevent the Appellant from performing this assignment. The Court would find this argument persuasive if the testimony demonstrated that BFI was willing to accommodate the Appellant's inability to drive by making alternative arrangements to perform this task if it became necessary. However, the testimony clearly suggests that if the container became full, BFI expected the Appellant to drive the truck to replace the container contrary to the instructions provided by both doctors involved in the Appellant's treatment. As such, the light duty job offered by BFI was inappropriate. This ruling is particularly difficult because the Court believes that BFI was acting in good faith in an attempt to accommodate the Appellant's injury, and the cooperation of the Appellant was at best suspect. But the fact remains that as long as driving a vehicle was a part of the duties expected of the Appellant, it was a job inconsistent with his medical treatment and the advice of both doctors. As such, the Court finds that there was not substantial evidence to support a denial of total disability benefits because the only job available was not suitable for the Appellant, and the Court finds that the "driving" factor was determinative.
5. Next, the Appellant argues that the Board's finding that the Appellant was not entitled to partial disability benefits was not supported by substantial evidence. In declining partial disability, the Board stated:
The Board declines to award partial disability because had Claimant returned to the light duty position offered by BFI, he would not have had any wage loss. While BFI only assigned him to drive tractor-trailers when he returned to work so that he would not be in a position to complain, the Board found convincing Claimant's testimony that he only wanted to drive tractor-trailers, as that is what he was hired to do. In fact, Claimant did not dispute the testimony that he complained of driving the roll-off and even asked BFI to lay him off since there were not enough jobs requiring him to drive a tractor-trailer. Moreover, the Board notes that partial disability is not tied to actual wage loss. At the time that Claimant returned to work, Dr. Ivins had released him to full duty and Claimant did not provide proof that his disability caused him a loss of earning capacity. 19 Del. C. § 2325. Section 2325 is essentially a "loss of earning power" provision. Ruddy v. ID. Grffith Co., Del. Supr., 237 A.2d 700, 703 (1968). The Board finds that Claimant was capable of working with no loss of earnings at BFI. He could do light duty and, as noted earlier, a regular light duty position was available. The mere fact that BFI complied with Claimant's personal desire to drive only tractor-trailers does not mean that the work accident caused such restriction.
(Bd. Dec. at 11-12.)
Workers' compensation for partial disability is governed by 19 Del. C. § 2325. This statute states in part that "[f]or injuries resulting in partial disability for work, . . . the compensation to be paid shall be 66 2/3 percent of the difference between the wages received by the injured employee before the injury and the earning power of the employee thereafter." "Earning power" is not synonymous with wages received and does not mean actual earnings or wages received. Instead, "earning power" is analogous with earning capacity, a person's ability to earn. It appears that the Legislature used the phrase "earning power" instead of "wages earned" to prevent a claimant from collecting partial disability payments while not fully realizing his earning potential. "Partial disability" has been defined as the "period of time which an injured employee suffers a partial loss of wages as a result of his injury."
19 Del. C. § 2325.
Ruddy v. ID. Griffith Co., Del. Supr., 237 A.2d 700, 703 (1968).
Hall v. Bell Atlantic Del., Inc., Del. Super., C.A. No. 97A-10-019, Quillen, J. (1998) (Let.Op.).
Id. at 3.
Globe Union, Inc. v. Baker, Del. Super., 310 A.2d 883, 887 (1973), aff'd, Del. Supr., 317 A.2d 26 (1974).
The Court finds that there was substantial evidence to support a denial of partial disability benefits. The Appellant sought partial disability benefits during the time after his full release when he only worked two to three days a week driving tractor-trailers. According to Mr. Orbin, BFI could have easily assigned the Appellant to drive a rolloff truck since work was available. But, as a result of a potential future injury and the Appellant's partiality to tractor-trailers, BFI only gave the Appellant work driving a tractor-trailer, which resulted in a two to three day work week. As such, BFI gave the Appellant less hours, not as a result of an inability to handle a forty-hour work week because of his injury, but as a result of a shortage of tractor-trailer work, which the Appellant had specifically requested. In addition, Mr. Orbin and Ms. Schultz both testified that the Appellant agreed to this arrangement, which was not disputed by the Appellant. While the Appellant argues that he had no choice but to accept the arrangement or otherwise lose his job, the Court finds this argument meritless in light of the testimony that the Appellant asked to be laid off because there was not enough tractor-trailer work. As such, the Appellant was not suffering a loss of wages due to his injury. He was fully released to work without restrictions. His daily rate did not change, only the number of days, and less days were not the result of his injury. The assignment of tractor-trailer work, which consequently resulted in less hours, was a combination of BFI's fear of future injury, an accommodation of the Appellant's desire to only drive tractor-trailers, which was evident in several undisputed statements, and the parties' agreement.
Mr. Orbin testified to the following in regards to why the Appellant was not working full duty upon his release:
Ron Orbin: What I meant was, the doctor, when he came back to us, he had a release to full duty. I very well could have said Bruce I need you to drive a roll off truck or a residential truck or a — I'm sorry, not residential, but a commercial rear load truck in the event we needed a driver for that position. However, my concern was I had no indication of a problem prior and it resulted in an alleged injury. And I didn't want to risk, once again, having an injury that we may have to deal with. The need for it was not there.Lydia Anderson: Did the claimant agree to this arrangement?
Ron Orbin: Yes, he did.
Lydia Anderson: and he understood that he would not get paid for the days that he was not working?Ron Orbin: That's correct.
Lydia Anderson: Thank you.
Mark Connor: I just have one follow up question to that. When you indicated that Mr. Jarnigan agreed to the arrangement, based upon him asking to be laid off on that Friday morning, was it your understanding he just did not like to drive roll off trucks?
Ron Orbin: That's correct. He did not like to do any job other than the tractor trailer job position cause he done rear load commercial as well as roll off for us.
(Tr. Bd. Hr'g at 92-93.) Lydia Anderson was a hearing officer and Mark Connor is the carrier's counsel.
Ms. Schultz stated the following:
Mark Connor: . . . Were you aware that Mr. Orbin was testifying that after being released to full duty by Dr. Ivans [sic] he essentially was not still working a full five day work week?Maret Schultz: Yes I was.
Mark Connor: Okay. And you heard Mr. Orbin indicate that was an agreement between himself and Mr. Jarnigan. Was that your understanding?
Maret Schultz: Yes. We — Bruce Jarnigan came in one day and we sat and talked about you know, him coming back to full duty work. And we were putting him back in the tractor trailer position but it would be two to three days a week.
(Tr. Bd. Hr'g at 112.)
The Court finds substantial evidence for the denial of partial disability benefits based on its reasoning set forth above. As such, the Court found substantial evidence despite the Board's basis of the light duty job available at Chrysler in denying partial disability benefit.
6. Lastly, the Appellant argues that the denial of medical expenses was not supported by substantial evidence. The Board denied such expenses because the Appellant offered no testimony supporting his entitlement to them.
Pursuant to 19 Del. C. § 2322, an employer is required to pay for medical expenses reasonably and necessarily related to an employee's work injury. In order to receive medical expenses incident to an award of compensation, an employee must show (a) he has incurred medical expenses; (b) the expenses are attributable to a work-related injury; and (c) the employer has not paid the expenses as required by 19 Del. C. § 2322. The law is clear that disputes about the reasonableness of medical expenses are factual questions for the Board to decide. In deciding such questions, the Board must assess the credibility of the medical testimony and is free to accept the testimony of one medical expert over that of another. The opinion of a medical expert will constitute substantial evidence to support the Board's finding.
19 Del. C. § 2322 (a) provides in part "[d]uring the period of disability the employer shall furnish reasonable surgical, medical, dental, optometric, chiropractic and hospital services, medicine and supplies . . ."
Johnson v. Townsend, Inc., Del. Super., C.A. No. 92A-01-002, Steele, J. (Dec. 8, 1992) (ORDER) ( citing Johnson Transp. Co. v. Dunkle, Del. Supr., 541 A.2d 551, 553 (1988)).
Kovach v. Churchman's Village/Health Care, Del. Super., C.A. No. 98A-02-018, Barron, J. (Oct. 5, 1998) (ORDER); Turnbull v. Perdue Farms, Del. Super., C.A. 98A-02-001, Lee, J. (May 18, 1998); Santiago v. Radisson Hotel, Del. Super., C.A. No. 94A-08-005, Herlihy, J. (Feb. 28, 1995).
Kovach at 2.
Id
The following cases demonstrate situations where medical expenses were properly denied. In Shortess v. New Castle County, the Court found that the Board properly denied medical expenses since the employee did not present sufficient documentary evidence to support the expenses, and they were not linked to the work injury because the employee received treatment for several other ailments. In Turnbull v. Perdue Farms, the Court found that substantial evidence supported the Board's denial of medical expenses when the Board found that reasonableness and necessity were not shown based on the claimant's lack of credibility and the doctor's testimony that the expenses were not reasonable. Further, in Johnson v. Townsend, Inc., the Court affirmed the Board's denial of medical bills because the claimant failed to submit the medical bills or offer testimony as to their reasonableness or necessity. The Board explained that it had no idea what medical bills were in dispute and that the record reflected no evidence in regard to the claim for medical expenses.
Del. Super., C.A. No. 97A-06-003, Silverman, J. (Jan. 29, 1998) (ORDER), aff'd, Del. Supr., 723 A.2d 398 (1998).
Id. at 3.
Del. Super., C.A. No. 98A-02-001, Lee, J. (May 18, 1998).
Del. Super., C.A. No. 92A-01-002, Steele, J. (Dec. 8, 1992) (ORDER).
Id. at 9.
The circumstances found in the above cases were simply not present here. The Appellant obviously incurred medical expenses, evidenced by the medical bills that were properly entered as exhibits in the record. The Appellant was questioned about the medical bills in issue, and BFI raised no objections. In addition, the Appellant's counsel mentioned the medical expenses in both his opening and closing statements, and Dr. Ivins was questioned about the physical therapy and the x-ray during his deposition. There was no evidence offered to reasonably allow the Board to question that the expenses were other than those attributable to the injury nor that they were necessary and reasonable. The Appellant created a sufficient record for entitlement to medical expenses, and BFI presented no contrary evidence.
The following is an excerpt from the hearing:
Stokes Nolte: Alright. Mr. Jarnigan, have you, as a result of medical treatment you sought, been sent medical bills associated with your treatment?
Bruce Jarnigan: Yes.
Stokes Nolte: Let me put a document in front of you and ask you if you can identify what that is.
Bruce Jarnigan: It's my medical bills.
Stokes Nolte: Okay. Go ahead and take a moment and look through them.
* * * *
Stokes Nolte: Mr. Jarnigan, there is a bill from Papastavros Associates for an xray. Was that something they sent you — Papastavros?
Bruce Jarnigan: Yeah.
Stokes Nolte: Okay. There is a bill from Dr. Ivans, a bill from Schweitzer's Therapy and a bill from Dynamic Physical Therapy. Is that correct?
Bruce Jarnigan: Yeah.
Stokes Nolte: Okay. Members of the Board I introduce as Claimant's 1, Mr. Jarnigan's medical bills that he's just reviewed. I have two additional copies for the Board.
Lydia Anderson: I'm waiting to see if you have any objection to these.
Mark Connor: I just saw them for the first time in terms of — may I have a moment? (pause) I don't have an objection as to the record. I just have an objection as to — and I'll certainly go into with Mr. Jarnigan, on the second page of the Schweitzer's Therapy rehab. There is a bill. I'm sorry I don't think he was charged for three sessions that he did not attend, is that correct to your understanding?
Stokes Nolte: That's correct.
Mark Connor: Okay. I take that back. Thank you.
(Tr. Bd. Hr'g at 22-24.)
Dr. Martin Gibbs also testified on BFI's behalf. While Dr. Gibbs found no problem relating to his injury upon his examination on July 7, 1999, he did not dispute the mechanism of injury. In addition, he did not indicate that he felt Dr. Ivins's treatment was unreasonable or unnecessary and instead stated that the Appellant was frank with him.
7. For the reasons set forth above, the Court REVERSES the Board's decision in regards to total disability benefits from April 9, 1999 to June 9, 1999, AFFIRMS the Board's decision in regards to partial disability benefits, and REVERSES the Board's decision in regards to the Appellant's medical expenses.
IT IS SO ORDERED.