Opinion
C.A. No. S09A-12-007.
Submitted: November 18, 2010.
Decided: November 30, 2010.
On Appeal from the Board's Decision to Deny Claimant's Petition to Determine Compensation Due: AFFIRMED.
Terrell D. Johnson, Lincoln, Delaware.
David R. Batman, Esquire, Heckler Frabizzio, Wilmington, Delaware.
Dear Counsel:
This is the Court's decision on Terrell Johnson's appeal from the decision of the Industrial Accident Board ("the Board") that denied Mr. Johnson's Petition to Determine Compensation Due ("Petition"). The Board's decision is affirmed.
STATEMENT OF THE CASE
A. Factual Procedural Background
Mr. Johnson alleges he sustained a compensable industrial injury while employed by Allen's Family Foods ("Employer") on or about February 27, 2009. Mr. Johnson claims a combination or series of events led to painful symptoms in his right hand, wrist, and arm. On April 23, 2009, Mr. Johnson filed the Petition seeking payment of medical expenses and total disability benefits. The Board held a hearing on the Petition on August 21, 2009. The Board, via a written decision mailed November 24, 2009, denied compensation. Mr. Johnson appeals that decision.
B. The Board Hearing
At the Board hearing, Andrew P. Robinson, M.D., testified via deposition for Mr. Johnson. Dr. Robinson, an orthopedist, testified he examined Mr. Johnson in March of 2009 for complaints of pain in his right wrist, elbow, and fingers. Dr. Robinson ordered an MRI of Mr. Johnson's thumb; which showed evidence of ulnar collateral injury, with the injury to the ulnar collateral ligament at its attachment to the proximal phalanx. Treatment ensued. Dr. Robinson testified he believed Mr. Johnson's injury to be work-related. Dr. Robinson admitted that his conclusion was based solely on the information provided to him by Mr. Johnson. Mr. Johnson told Dr. Robinson that his job duties varied somewhat but primarily involved taking care of and handling waste by moving garbage cans, hosing down waste into drains, and unclogging the drains when needed. Further, Mr. Johnson stated that he had been removing or installing flash covers for the conveyer belt when the pain in his thumb and wrist began or escalated. Dr. Robinson told the Board that it was "not easy" to elicit a medical history from Mr. Johnson. Dr. Robinson did not contact Employer or otherwise attempt to verify the nature of the Mr. Johnson's work duties.
Mr. Johnson also testified on his behalf at the Board hearing. Mr. Johnson started working for Employer on April 24, 2008. His duties varied as he moved from area to area in Employer's plant. He started in the marination area, moved to drain duty after a few months, and then shifted to the cut-up area. Mr. Johnson told the Board he could not really say he knew what he was doing when the pain started but he was at work. Mr. Johnson testified that he was charged with lifting flash covers, which could weigh up to 25 pounds, and he believed that this lifting caused his injury. Mr. Johnson left work that day after being unable to see Employer's nurse. Several days later, Mr. Johnson missed work because of pain in his arm. On March 11, 2009, Mr. Johnson went to the emergency room and was referred to Dr. Robinson, who began treating him for this pain. At the hearing, Mr. Johnson stated that he would rate his current pain level as a nine on a scale of one to ten. Mr. Johnson testified he is currently only taking Tylenol for his pain. Mr. Johnson is not now working and is unable to mow the lawn or wash dishes due to the pain in his wrist and thumb.
J. Douglas Patterson, M.D., testified via deposition for Employer. Dr. Patterson, an orthopedic surgeon, examined Mr. Johnson on June 19, 2009, and reviewed Mr. Johnson's medical records in conjunction with that examination. Dr. Patterson stated that Mr. Johnson was a poor historian, in that Mr. Johnson was unable to provide Dr. Patterson with any details as to how or when the pain started. Dr. Patterson concluded there was no identifiable injury on February 27, 2009, as alleged. Dr. Patterson stated that, assuming the main problem area is Mr. Johnson's thumb, most people who have a so-called "skier's thumb", or an acute injury to the ulnar collateral ligament, will remember the time of injury because it is a strong ligament when it tears, it swells up, bruises, and is quite painful. If, instead, Mr. Johnson has a so-called "gamekeeper's thumb", such an injury is the result of chronic attritional use over years — after continuous stress, the ligament eventually gives out. In sum, Dr. Patterson does not agree with Dr. Robinson and Mr. Johnson's opinion that Mr. Johnson's injury is work-related.
Finally, Robert Creamer, the Safety Coordinator for Employer, testified on behalf of Employer. Mr. Creamer testified that Mr. Johnson was hired on April 22, 2008, and was informed of his termination on April 3, 2009, due to attendance policy violations that occurred in large part prior to February 2009. Mr. Creamer is familiar with Mr. Johnson's job and described its duties for the Board. In essence, Mr. Johnson would remove the flash guards at the beginning of his shift and replace them at the end of the shift. Mr. Creamer testified that an accident report was completed in regard to Mr. Johnson's alleged work-related injury. The accident report indicates a March 13, 2009, accident date, wherein Mr. Johnson aggravated his tendonitis in his right arm while taking flash covers off the machines. The report also indicates Mr. Johnson reported having tendonitis from years of doing concrete work and that he has a previous existing medical condition. Employer tried to accommodate Mr. Johnson's light duty restrictions by giving Mr. Johnson different job responsibilities but Mr. Johnson stopped coming to work and is no longer eligible for rehire.
DISCUSSION
A. Standard of Review
The review of the Board's decision is confined to an examination of the record for errors of law and a determination of whether substantial evidence exists to support the Board's findings of fact. Histed v. E.I. Du Pont de Nemours Co., 621 A.2d 340, 342 (Del. 1993). The Supreme Court and this Court have emphasized the limited appellate review of an agency's findings of fact. The reviewing Court must determine whether the administrative decision is supported by substantial evidence. Johnson v. Chrysler Corp., 213 A.2d 64, 66-67 (Del. 1965). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994). The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. Johnson, 312 A.2d at 66. Questions of law are reviewed de novo. Delhaize America, Inc. v. Baker, 2002 WL 31667611, at *2 (Del. Super.).
B. The Merits The Board's decision to deny Mr. Johnson's Petition was not in error because it was supported by substantial and competent evidence and is free from legal error.
The Board found that Mr. Johnson had not met his burden of proof with regard to the cause of his injury. In brief, the Board found Mr. Creamer's testimony credible and supportive of Employer's argument that Mr. Johnson's job was not repetitive enough to cause a cumulative detrimental effect injury. The Board concluded that Mr. Johnson's testimony was not credible, finding his description of the symptoms "diffuse and vague". Finally, the Board concluded that Dr. Patterson's opinions were more persuasive than Dr. Robinson's opinions because Dr. Robinson relied upon Mr. Johnson's questionable subjective complaints and history in forming his opinion that the injury was work-related. Accordingly, the Board found that Mr. Johnson did not meet his burden of proof to establish he sustained an industrial accident while working for Employer.
Mr. Johnson's memorandum in support of his appeal is a two page letter that summarizes his testimony before the Board.
This Court does not retry the case below. The Board, as the trier of fact, must make certain credibility determinations and the Court shall not disturb these findings, absent extreme circumstances. "It is well-settled that issues of credibility rest solely within the Board's discretion and will not be disturbed absent a showing of unreasonable or capricious circumstances." Hart v. Columbia Vending Serv., 1998 WL 281241, at *4 (Del. Super.). The Board "is free to adopt the opinion testimony of one expert over another, and that opinion, if adopted, will constitute substantial evidence for purposes of appellate review." Bolden v. Kraft Foods, 2005 WL 3526324, at *4 (Del.); see also Jepsen v. University of Delaware — Newark, 2003 WL 22139774, at *2 (Del. Super.) ("[A]s a finder of fact, the Board is entitled to discount the testimony of any witness on the basis of credibility, provided it states specific, relevant reasons for so doing."). The Court concludes the Board stated specific reasons for judging each of the witnesses' credibility. Those reasons are supported by the testimony presented to the Board and will not be disturbed on appeal. The Board's decision is affirmed.
CONCLUSION
Based on the foregoing, the Board's decision is affirmed.
IT IS SO ORDERED.