Opinion
C.A. No. 00A-04-009 RRC
Submitted: May 2, 2001
Decided: July 31, 2001
UPON EMPLOYEE'S APPEAL FROM A DECISION OF THE INDUSTRIAL ACCIDENT BOARD. AFFIRMED. UPON EMPLOYER'S CROSS APPEAL. GRANTED.
Elwood T. Eveland, Jr., Haase Eveland, Wilmington, Delaware, Attorney for Employee below, Appellant/Cross-Appellee.
Nancy E. Chrissinger, Wilmington, Delaware, Attorney for Employer-below, Raytheon Constructors, Inc., Appellee/Cross-Appellant.
MEMORANDUM OPINION INTRODUCTION
James Joiner ("Claimant") was an employee of Raytheon Constructors and Engineers ("Employer") from 1991 through 1998. On January 11, 1998 Claimant was injured as a result of an incident which occurred at the Star Refinery in Delaware City. On March 1, 2000 the Industrial Accident Board ("Board") held a hearing on Claimant's Petition to Determine Compensation Due.
The correct name for Defendant appears differently in the record than in Defendant's Answering Brief This Court, for the purpose of clarity, will assume the correct name of Defendant is as Defendant stated in its Answering Brief "Raytheon Constructors and Engineers" as opposed to "Raytheon Constructors, Inc.".
Pursuant to 19 Del. C. § 2301B(a)(4) and by stipulation of the parties involved, this matter was heard by a Hearing Officer in place of the Board members.
The Board issued its decision on March 20, 2000 holding that there was not sufficient evidence connecting Claimant's complaints after January 19, 1998 to the January 11, 1998 accident. The Board determined that Claimant's complaints occurring after January 19, 1998, were not causally related to the January 11, 1998 accident. Thus, the Board granted Claimant's Petition to Determine Compensation Due to award medical expenses only for the period of January 11, 1998 through January 19, 1998 as well as Claimant's medical witness fees, which were taxed as costs to Employer.
FACTS AND PROCEDURAL HISTORY
Claimant had been a carpenter for Employer and was working with a crew of approximately nine workers at the Star Refinery in Delaware City on January 11, 1998. The crew was removing coke, a petroleum residue, from the walls of a petroleum unit in the refinery. Claimant was inside one of those petroleum units when he was apparently struck by a piece of falling coke. Claimant was unconscious for approximately twenty minutes. Claimant testified that the only thing that he remembered was waking up in Christiana Hospital. There were no witnesses who actually observed the coke hitting Claimant in the head. However, John Lennon, also a carpenter for Employer and a co-worker of Claimant's, testified that while he was working in the petroleum unit he heard an air horn, indicating an emergency, and then saw Claimant lying on the ground on his back. Mr. Lennon further testified that Claimant was unconscious for approximately fifteen to twenty minutes. After the hospital discharged Claimant, Claimant returned to work at the refinery that same day. Although the emergency room physician advised Claimant to go home once he was discharged, a physician for the Star Refinery requested Claimant report back to work. Claimant apparently did return to work that same day, but sat in the carpentry shop incapable of working.
Bd. Dec. at 2.
For reasons not apparent from the record, Claimant did not work from January 18, 1998 through the end of March. By April 9, 1998 (after working for ten days) Claimant had volunteered for a lay-off due to his physical condition. After the lay-off, Claimant's union sent him to two subsequent jobs. One was at a grocery store hanging signs, and the other was at K.B. Coldiron, to perform trim work and to hang pieces of drywall. Kenneth Coldiron, a supervisor with K.B. Coldiron, testified on behalf of Claimant. He stated that Claimant worked for two and a half weeks in July and August of 1998 hanging full sheets of dry wall that were four by ten feet in diameter, weighing up to one hundred pounds.
Bd. Dec. at 3.
On August 13, 1998, Claimant left his job at K.B. Coldiron early, apparently due to head, leg and back complaints, and went to Union Hospital. He did not see his physician, Dr. Hsu, until the following day. Dr. Hsu sent Claimant for further testing, referring Claimant to Dr. Lui, Dr. Frank Falco, Dr. Paul A. Melnick, and lastly, John Hopkins University. On August 13, 1998 Claimant left work and has not returned to work since that day.
In 1992 Claimant had injured his low back while working at another oil refinery. Claimant received workers' compensation benefits and medical treatment for that injury. Claimant missed no time from work for these back problems from 1994 through 1998. Moreover, on July 31, 1998 (after the January 11, 1998 accident) Claimant signed a W-4 Form that indicated he had "no physical disability."
Bd. Dec. at 4.
Id.
Dr. Paul A. Melnick, a neurologist, testified on Claimant's behalf. Dr. Melnick examined Claimant on April 26, 1999 after a referral from Dr. Hsu. This however, was not the first time Dr. Melnick had treated Claimant. He had also treated Claimant in 1992 for other back problems and diagnostic testing. After Dr. Melnick's April 26, 1999 examination of Claimant, he made a diagnosis of "lumbar spasm with evidence for abnormal EMG" and found the diagnosis consistent with an L5 radiculopathy, but did not reach any conclusions concerning Claimant's complaints of head pain and memory problems. Despite the fact Dr. Melnick did not believe Claimant was capable of returning to work in April, 1999, Dr. Melnick did not issue Claimant a disability slip. Dr. Melnick recommended physical therapy and referred Claimant to Dr. Frank Falco for nerve blocks to reduce Claimant's pain and maximize the effects of therapy.
Bd. Dec. at 5.
Id.
Frank J. Falco, M.D., also testified on Claimant's behalf Dr. Falco examined Claimant on April 30, 1999 for possible nerve block treatments. After this examination of Claimant, Dr. Falco recommended lumbar epidural steroid injections, a psychological and speech consultation, and continued use of medications. Dr. Falco did not perform any physical evaluations of Claimant's head but nevertheless recommended psychological and speech consultations. Although Dr. Falco believed Claimant was not capable of working after August 14, 1998, he did not issue a disability slip for Claimant until February 1, 2000.
Dr. Wolfram Rieger, a psychiatrist, testified on behalf of Employer. Dr. Rieger prepared two reports of Claimant, one on January 5, 2000, which was solely based upon Claimant's medical records, and one prepared after Dr. Rieger examined Claimant on February 14, 2000. Dr. Rieger administered a Minnesota Multi Phase Personality Inventory ("MMPI") test, which revealed that Claimant had an unusual number of psychological symptoms, which in turn indicated a "false claim of mental illness." Dr. Rieger made no psychiatric diagnosis of Claimant and believed Claimant did not require psychiatric treatment. Furthermore, Dr. Rieger found no basis for a post-concussive syndrome diagnosis. Dr. Rieger testified that he believed that Claimant does not suffer from clinical depression, but he wants other people to believe he does. Upon Dr. Rieger's examination, Claimant showed no signs of cognitive dysfunction and his speech was normal.
Bd. Dec. at 14.
Dr. Thomas Koval, a safety supervisor for Employer, testified on Employer's behalf. Dr. Koval investigated the January 11, 1998 incident and did not dispute that Claimant collapsed at work that day, but he could not confirm that a piece of coke had fallen on Claimant's head. Apparently, no one witnessed that happening. Mr. Koval prepared a report of the incident.
Dr. Alan J. Fink, a neurologist, also testified on behalf of Employer. Dr. Fink had examined Claimant on three separate occasions, December 7, 1998, May 19, 1999, and August 30, 1999. Dr. Fink had reviewed Claimant's medical records, which included diagnostic studies and prepared various written reports about Claimant in 1999. Dr. Fink did not find any objective abnormalities present in Claimant's neck or back, with the exception of the August 30, 1999 examination. There, Dr. Fink found decreased sensation on the right Si nerve root, but no abnormalities from a mini-mental status evaluation. Dr. Fink's diagnosis was cervical and lumbar strain with soft tissue injury.
Bd. Dec. at 10.
Dr. Fink, however, did not relate the work accident of January 11, 1998 to Claimant's low back and neck complaints. To support this conclusion, Dr. Fink noted the absence of recorded complaints and treatment for Claimant's low back between the work incident and April 6, 1998.
Bd. Dec. at 12.
The hearing officer found that Claimant had satisfied the burden of proving his initial head and neck injuries were the result of an accident that occurred on January 11, 1998. The Board noted that although no one was a witness to the accident, there was no dispute that Claimant collapsed while working that day and was temporarily unconscious before he arrived at the Christiana Hospital emergency room. The hearing officer also noted that Claimant's medical records also showed that the eight days that followed this work-related accident, Claimant was seen by a physician at the Occupational Health Services, and that Claimant was restricted to light duty work. After January 18, 1998, however, Claimant's medical records were silent as to any further complaints by Claimant, until April 6, 1998.
Bd Dec. at 17.
Id.
Id.
The Board accepted the medical opinion of Dr. Fink, who determined that "any cervical problems Claimant presently has are not related to the work accident in light of the absence of further recorded complaints or treatment after January 19, 1998." The Board also agreed with Dr. Fink that any of Claimant's present "progressed" complaints were not connected to the January 1998 accident, as there is a gap in recorded complaints and treatment after January 19, 1998.
Bd. Dec. at 18.
The Board did not find that Claimant established a causal relationship between these head, neck and back complaints (for which Claimant now seeks compensation) and work accident after January 19, 1998. Similarly, the hearing officer did not find that Claimant established a causal connection between the work accident and the period following August 14, 1998, the date from which Claimant seeks total disability benefits. Moreover, the hearing officer expressly stated that she did not find Claimant to be credible.
Bd. Dec. at 17.
In conclusion, the hearing officer granted Claimant's Petition to Determine Compensation Due for medical expenses (from January 11, 1998 through January 19, 1998) that were related to the treatment of Claimant's head and neck as a result of the January 11, 1998 accident. Claimant's medical witness fees were taxed as costs against Employer, but no attorney's fees were awarded at the time of the Board's decision.
Bd. Dec. at 24.
Bd. Dec. at 24.
The Parties' Contentions
Claimant asserts that there was no substantial, competent evidence presented to support the Board's findings of fact. Claimant further contends that the Board's findings "were not the product of an orderly and logical deductive reasoning process" and that the "hearing officer's finding that [Claimant was not credible is erroneous when [the hearing officer's] supporting argument is examined."Employer asserts two arguments on appeal. First, Employer claims that the Board, as the finder of fact, has the discretion to determine credibility of any testifying witnesses and to reject or accept that witness's testimony, that substantial evidence exists to support the Board's decision and that the Board otherwise did not commit any errors of law. Secondly, Employer asserts (as a cross-appeal against Claimant) that the Board's decision to award Claimant his medical expenses associated with Claimant's January 1998 treatment was erroneous as a matter of law. Employer supports its contention by arguing that the medical expenses were not introduced into evidence at the hearing, and that those expenses were not at issue before the Board. Employer asserts the medical expenses that Board awarded to Claimant, for the January 11, 1998 emergency room visit and the three visits to the Occupational Health Services until January 19, 1998, had already been paid by the carrier. Employer therefore asserts that the Board was incorrect as a matter of law to have awarded Claimant these medical expenses, which also resulted in Claimant's award of medical witness fees and attorney's fees.
Employer's Answering Brief at 16.
Employer's Answering Brief at 17.
With respect to Claimant's medical expenses, Claimant contends that his medical bills were correctly decided by the Board, as Dr. Falco's medical bills were attached to his deposition. Claimant also asserts that "counsel for Raytheon commented on the issue [of medical expenses] in opening argument" and that material bills had been identified as one of the issues in the Pre-Trial Stipulation. Claimant further argues that Employer should be "estopped" from making this contention since "Raytheon failed to put any evidence of payment into the record."
Appellant's Reply Brief at 5.
Id. at 6.
STANDARD OF REVIEW
The Supreme Court and this Court repeatedly have emphasized the limited appellate review of factual findings of an administrative agency. The function of the reviewing Court is to determine whether substantial evidence supports the agency's decision. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. This Court on appeal, does not weigh the evidence, determine questions of credibility, or make its own factual findings. This Court's duty is limited to determining whether substantial evidence supports the Board's findings of fact and whether errors of law exist. As the Court performs this duty, it views the facts in a light most favorable to the prevailing party below. Only where there is no satisfactory proof in support of the factual findings of the Board may Superior Court overturn it. Furthermore, this Court will give deference to the expertise of administrative agencies and must affirm the decision of an agency even if the Court might have, in the first instance, reached an opposite conclusion.DISCUSSION
I. Claimant's Appeal.The Board is free to accept or reject in whole or in part testimony offered before it and to fix its verdict upon testimony accepted. Weighing of evidence, determining credibility of witnesses, and resolving any conflicts in testimony are functions reserved exclusively for the Board. This Court has upheld Board decisions of accepting one physician's testimony over another because one physician's testimony more fully comports to the Board's understanding of an impairment based on its experience with individuals with similar symptoms.
Debernard v. Reed, Del. Super., 277 A.2d 684 (1971).
Downs v. State, Del. Super., No. 25, 1993, Holland, J. (Mar. 30, 1993) (ORDER).
Barczak v. State, Del Super, C A. No. 97A-06-011, Alford, J. (Dec.24, 1997) (Mem. Op.).
In this case, Claimant and Employer relied upon competing medical expert opinions. So long as the Board's decision is supported by substantial evidence in the record of the proceedings below, the Board is entitled to accept the medical opinions of particular physicians, in this case Dr. Fink and Dr. Rieger, over the opinions of the many other physicians such as Dr. Melnick, Dr. Falco, from whom Claimant sought treatment.
This Court will give deference to the expertise of administrative agencies and will affirm the decision of an agency that is otherwise supported by substantial evidence even if the Court might have, in the first instance, reached an opposite conclusion. In this case, the Board was free to rely upon the testimony of Dr. Fink over the testimony of the other testifying medical experts. Dr. Fink examined Claimant on three separate occasions, he reviewed Claimant's medical records, which included diagnostic studies, and he prepared "various written reports concerning Claimant in 1999." After each physical evaluation, Dr. Fink did not find objective abnormalities for Claimant's neck or back, with the exception of August 30. 1999, when Dr. Fink found decreased sensation on the right S1 nerve root. Dr. Fink did not find abnormalities from a mini-mental status evaluation, and his current diagnosis is cervical and lumbar strain and soft tissue injury. Dr. Fink does not relate any of these low back or neck problems to the January 1998 work incident as there was an absence of recorded complaints and treatment for Claimant's back from the work incident through April 6, 1998. Additionally, Claimant's present neck complaints may be the result of degenerative arthritis. Dr. Fink also noted that Claimant's most recent complaints, complaints that were consistent with a lumbar radiculopathy involving the SI nerve, were not present at Dr. Fink's first two medical evaluations. Dr. Fink does not believe that Claimant's complaints are consistent with depression or a depressive syndrome with respect to the January 1998 incident. Moreover, Dr. Fink does not believe Claimant has been totally disabled from work at anytime since the work incident, as Dr. Fink opined that if Claimant had sustained a cervical sprain or lumbar strain that developed into radiculopathy with regards to the work incident, Claimant would not have been able to work without restrictions in July 1998, as he had done. On review of the record, Dr. Fink's opinion was supported by substantial evidence.
Petty v. University of Delaware, Del. Super., 450 A.2d 392, 396 (1982); Levitt v. Bouvier, Del. Supr., 287 A.2d 671 (1972).
Bd. Dec. at 10.
Id.
Bd. Dec. at 11.
Id.
Similarly, the evidence adduced from Dr. Rieger was substantial to allow the hearing officer to rely upon his opinion. It was Dr. Rieger's opinion that Claimant presented an unusual number of psychological symptoms indicating a "false claim of mental illness." Dr. Rieger made no psychiatric diagnosis and Dr. Rieger did not believe Claimant was in need of psychiatric treatment. Dr. Rieger found no basis for a diagnosis of post-concussive syndrome or for cognitive deficits. Thus it appears to this Court that this evidence was substantial to allow the hearing officer to rely upon Dr. Rieger's opinion in making its decision.
Bd. Dec. at 14.
II. Employer's Cross Appeal.
This Court finds that it was erroneous for the hearing officer to have awarded Claimant medical fees for the Christiana Hospital emergency room visit. It was therefore also erroneous for the hearing officer to award Claimant medical witness fees and attorney's fees, since there was no award of medical expenses given to Claimant. The Delaware Supreme Court has previously held in Guy J. Johnson Transportation Company v. Dunkle , that "[i]n order for an employee to claim medical expenses incident to an award of compensation benefits [Claimant] must present evidence that (a) he has incurred medical expenses, (b) such expenses are attributable to a work-related injury and (c) the employer has not paid such expenses as required by 19 Del. C. § 2322." The Court further held that "[t]o hold otherwise would permit a double recovery or a windfall to the employee." In this case, Claimant did not present any evidence of medical expenses to the hearing officer. No documents concerning medical expenses were admitted into evidence by Claimant. Aside from Claimant's request that the Board find Claimant's treatment "reasonable, necessary and related," Claimant did not set forth any other medical bills or expenses at the hearing.
Guy J. Johnson Transportation Company v. Dunkle, Del. Supr., 541 A.2d 551, 553 (1988).
Dunkle at 553.
Id. (comparing Workmen's Comp. App. Bd v. Olivetti Corp. of America, Pa. Commw. Ct., 364 A.2d 735 (1976)).
Claimant's attorney stated at the hearing that "[o]ur petition if for wages since August 14th of 1998 and ongoing for total disability. We also seek medical bills. I have not really put together the medical bills in terms of specific bills for payment. I think what we need to do is, what we're asking the Board to find . . . in this case is that treatment was reasonable, necessary and related. Because I don't think the amount of any bills has been questioned so far. It is the relationship that is the issue and pretty much the only issue that is before the hearing officer." Bd. Hrg. Tr. at 4-5.
According the Supreme Court in Dunkle, prior to establishing anything, Claimant must first "present evidence that he has incurred medical expenses." Only after Claimant has presented evidence, may he then attempt to show that his employer has not paid such expenses as the statute requires. Here, Employer had already paid the medical expenses from the emergency room visit and the treatment obtained by Claimant at Occupational Health Services, which followed immediately subsequent to the January 11, 1998 accident. Therefore, it was as a matter of law, erroneous for the Board to have awarded Claimant medical expenses, which had already been paid by Employer.
Dunkle at 553.
Because the Claimant's medical expenses were awarded incorrectly, and Claimant was not otherwise awarded any other amount of medical expenses, the Board's decision to award attorney's fees was also in error. According to 19 Del. C. § 2127, "[a] reasonable attorney's fee . . . shall be allowed by the Board to any employee awarded compensation under this chapter and . . . [the reasonable attorney's fee shall be] taxed as costs against a party. In reversing Claimant's medical expenses award, this Court finds that the award of attorney's fees must also be reversed. The statute clearly states that an employee may only be awarded reasonable attorney's fees if that employee is awarded compensation. Here, Claimant "has not been benefitted by [this] compensation proceeding" as Claimant's medical expenses that were paid, were paid by Employer after the emergency room visit as were Claimant's medical expenses for the remainder of that week. Thus, although Claimant benefitted by having his medical expenses already paid by Employer, Claimant has not benefitted from this Petition to Determine Compensation Due. Therefore, Claimant is not entitled to have his attorney's fees paid for by Employer.
19 Del. C. § 2124.
Employer's Answering Brief at 17.
Similarly, the medical witness fees are not expenses that should be borne by Employer. As stated in Brandywine School District v. Hoskins, "if a medical witness is called by the claimant, then the claimant is entitled to medical witness fees provided that the claimant is successful and obtains an award." Since the hearing officer's determination that Claimant was entitled to medical expenses for the emergency room visit and subsequent treatment at Occupational Health Services was erroneous and revoked by this Court, Claimant was not therefore successful in obtaining any award, and thus, the medical witness fees taxed against Employer must be reversed.
492 A.2d 1247, 1252 (1985). The Hoskins Court also noted that "[n]othing said in this ruling, however, would prevent the Board from disallowing medical witness fees if an unreasonable number of medical witnesses are called and their testimony is unreasonably cumulative or redundant because of the testimony of other medical witnesses." Hoskins at 1252.
Claimant cites no cases in support of his assertion that Employer is "estopped" from arguing this issue and this Court does not otherwise find that an estoppel exists.
CONCLUSION
This Court finds that the Board's decision is supported by substantial evidence presented at the hearing. Thus, the Board did not commit any legal error for denying Employee's Petition to Determine Compensation Due. The Board's decision to award Claimant the medical expenses associated with his emergency room visit and his subsequent treatment with the Occupational Health Services was erroneous as a matter of law, as those expenses were previously paid by Employer. Thus, the hearing officer's award of medical witness fees and attorney's fees was similarly erroneous as a matter of law, as Claimant was not awarded any medical expenses, and therefore is not entitled to be awarded these fees. The Board did not otherwise commit any other errors of law.The decision of the Board is AFFIRMED.
IT IS SO ORDERED.