Opinion
C.A. No. 99A-12-016 RRC.
Submitted: October 3, 2000.
Decided: December 27, 2000.
UPON APPEAL FROM A DECISION OF THE INDUSTRIAL ACCIDENT BOARD. AFFIRMED.
David J. Lyons, Esquire, The Lyons Law Firm, Attorney for Employee-below, Appellant.
Charles Slanina, Esquire, Tybout, Redfearn Pell, Attorney for Employer-below, Appellee.
MEMORANDUM OPINION INTRODUCTION
Employee-Appellant Mary Knott-Ellis (Claimant) asserts that she was injured in a work related accident on December 31, 1998, while employed by the State Department of Correction ("the State"). On April 21, 1999, Claimant filed a Petition to Determine Compensation Due seeking ongoing total disability from the date of injury, medical expenses, transportation expenses, medical witness fees and attorney's fees. Although the State conceded that Claimant sustained a back strain, the State denied compensation for post traumatic stress disorder ("PTSD"). The petition was heard by the Industrial Accident Board ("the Board") on October 1, 1999. The Board determined that Claimant was entitled to compensation for a lumbar sprain and strain injury but disallowed ongoing total disability benefits and payment of medical expenses related to the psychiatric claims.
Knott-Ellis v. State of Delaware, IAB No. 1143320 (Oct. 15, 1999) (hereinafter "IAB Order at _").
Id.
IAB Order at 2.
Claimant appeals that decision on the grounds that the Board incorrectly accepted and relied upon the testimony of Dr. David Raskin in support of its decision to deny Claimant total disability benefits from December 31, 1998 through the present and psychiatric medical bill reimbursement. Claimant also asserts that the Board committed errors of fact and law in "failing to award [Claimant] ongoing total or partial disability based on the Employer's refusal to re-employ [Claimant] within the restrictions offered by her treating physicians, Dr. Anthony Cucuzella and Dr. Jay G. Weisberg."
Claimant's Opening Brief at 5.
Id.
Employer contends the Board's findings and conclusions were supported by substantial evidence, after the Board weighed all the evidence, determined credibility and made its factual findings.
Employer's Answering Brief at 4.
FACTS AND PROCEDURAL HISTORY
On December 31, 1998, Claimant and a co-worker, Sgt. Wayne Wright, were involved in an altercation at Plummer Community Correctional Center. Claimant was conducting a security check when a resident of Plummer Center approached her and asked for a ginger ale. Claimant agreed to the soda but Sgt. Wright denied the request. When Claimant directed Sgt. Wright to permit the soda, Sgt. Wright became upset, slammed the door, pointed his finger at Claimant and stated, "I am sick and f___ tired of you." At some point Sgt. Wright grabbed Claimant's shoulders and shook her at which time a heated argument ensued. These facts are not in dispute and constitute the essence of Claimant's physical and psychological claims of injury.On April 21, 1999 Employee filed a Petition to Determine Compensation Due seeking transportation expenses, medical witness fees and attorney fees. On October 1, 1999 the Board heard evidence from several physicians, all of whom had examined Claimant at various points in time related to the accident. Dr. Robert Berley, Claimant's physician, examined Claimant almost immediately after the incident. Dr. Berley prescribed medication, took her out of work from January 4 through January 29. 1999, and referred her to a physical medicine specialist Dr. Anthony Cucuzella and a psychiatrist, Dr. Jay G. Weisberg.
References to the transcript of the Board hearing held October 1, 1999, will be denoted as "Hrg. Tr. at __".
Hrg. Tr. at 79.
Claimant offered the testimony of Dr. Weisberg, who had treated Claimant prior to the incident for moderate depression once a month due to the unexpected death of Claimant's husband. After the work related incident, Dr. Weisberg began seeing Claimant once a week. After treating Claimant prior to and subsequent to the work related incident, Dr. Weisberg opined that Claimant was suffering from PTSD and instructed Claimant to not report to work.
Weisberg Dep. at 18.
Claimant was also treated by Dr. Cucuzella, a specialist in physical medicine and rehabilitation, for back spasm and pain. Dr. Cucuzella testified by deposition on behalf of Claimant. He first examined Claimant on February 17, 1999 on a referral from Dr. Berley. It was Dr. Cucuzella's medical opinion that Claimant had sustained some soft tissue injury.
Dr. David Raskin testified by deposition on behalf of Employer. His evaluation included a review of the medical records of Dr. Jay G. Weisberg, Mr. Ken Stecher, Dr. Cucuzella and a Christiana Hospital emergency room visit. Dr. Raskin also reviewed Claimant's employment records as well as a fitness for duty evaluation, which included the results of a Minnesota Multiphasic Personality Inventory ("MMPI"), a highly objective and statistical psychological test. Dr. Raskin also performed an MMPI as part of his own clinical evaluation of Claimant.
Notably, Plaintiff's attorney stipulated to Dr. Raskin's credentials as an expert in Psychiatry, which included forensic psychiatry. Raskin Dep. at 5.
Ken Stecker is not a psychiatrist, but a counselor with Dr. Weisberg's practice who apparently deals with positive traumatic stress disorders. Mr. Stecher was to referred to Claimant by Dr. Weisberg after the incident. Weisberg Dep. at 14.
Raskin Dep. at 8.
Dr. Andrew Gelman, a specialist in orthopedic medicine and the State's medical expert, testified concerning Claimant's physical condition. He had examined Claimant once, on July 7, 1999. He had reviewed medical records and he had taken a history from Claimant. It was Dr. Gelman's testimony that Claimant could return to work in some capacity on a full time basis, with restrictions to avoid certain activities.
IAB Order at 12.
The medical issue before the Board that has been pursued on appeal to this Court was whether Claimant suffered from PTSD and if so, should Claimant be awarded total disability benefits from December 31, 1998 and psychiatric medical bill reimbursement and attorney fees.
Dr. Raskin testified that a PTSD diagnosis requires (1) a very specific response to the stressor, which must be a threat to one's integrity or a threat of death or serious bodily harm and (2) that the stressor must create a certain affect, such as intense fear, helplessness or horror, which are the three adjectives required for this diagnosis. Dr. Raskin's opinion was also corroborated by the DSM IV criteria for post traumatic stress disorder.
The level of stressors identified by Dr. Raskin include: serious assaults, robberies, shootings, floods, famine, war and concentration camp experiences.
IAB Order at 13.
The Diagnostic and Statistical Manual ("DSM IV"), is an American Psychiatric Association publication that classifies mental illnesses. The manual provides health practitioners with a comprehensive system for diagnosing mental illnesses based on specific ideational and behavioral symptoms. The DSM approach supplants older, less rigorous methods of diagnosis, and represents a major step forward for he field of psychiatry. PDR MEDICAL DICTIONARY 474 (1st ed. 1995).
As to the "intense fear" component, the Board found that the medical records did not support such a finding. Claimant merely testified the incident was "degrading and humiliating." Board stated that it accepted Dr. Raskin's conclusion that "Claimant [had] endorsed a number of psychological items to exaggerate her symptoms" and noted that "Dr. Raskin's MMPI findings were consistent with the return to work fitness testing administered by the State." As previously noted, Dr. Raskin's clinical evaluation included an MMPI, an objective and statistical psychological test.
IAB Order at 15-16.
IAB Order at 4.
IAB Order at 16.
It was the Board's conclusion that Claimant did not meet her burden of proof as medical certification is generally required in support of a total disability claim under 19 Del. C. § 2324. In conclusion the Board found that Claimant did not have PTSD, and Claimant was denied her petition for ongoing total disability benefits and medical bill reimbursement.
With regard to physical injury, the Board accepted Dr. Berley's certification of total disability through January 29, 1999. The State's expert, Dr. Gelman, did not examine Claimant until July 7, 1999. See IAB Order at 11-15.
The Board found there was substantial evidence presented to conclude that Claimant was capable of working regardless of the cause of her psychological condition. With regards to Claimant's physical injury, the Board found Dr. Cucuzella's opinion to be "generally unpersuasive because he was so equivocal regarding Claimant's diagnosis and he was unaware that she was [currently being] treat[ed] [by] a psychiatrist." "[T]he Board agree[d] with Dr. Raskin that Claimant did not have all the symptoms required to a make a diagnosis of PTSD." Furthermore, the Board concluded Claimant's symptoms and treatment before and after the incident were similar.
IAB Order at 16-17.
IAB Order at 15.
Id.
Claimant filed a Motion for Reargument and Clarification on October 29, 1999. The Motion was heard on November 15. 1999. On December 6, 1999 the Board granted Claimant's Motion for Reargument and Clarification with regard to medical expenses, medical witness fees and attorneys fees regarding the sprain and strain. The Board however, denied the claims for ongoing total disability based upon the psychiatric claims. On October 3, 2000 Claimant filed this appeal to the Superior Court.
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.
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66-67 (1965); General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960).
Oceanport Ind v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), appeal dismissed, Del. Supr., 515 A.2d 397 1986).
Johnson at 66.
See Chundnofsky v. Edwards, Del. Supr., 208 A.2d 516, 518 (1965).
Johnson at 66.
See 29 Del. C. § 10142 (d); Petty v. University of Delaware, Del. Supr., 450 A.2d 392, 396 (1982); Levitt v. Bouvier, Del. Supr., 287 A.2d 671 (1972).
DISCUSSION
THE BOARD'S DECISION IS AFFIRMED AS THE BOARD DID NOT COMMIT ERRORS OF FACT OR LAW IN ACCEPTING THE MEDICAL OPINION OFFERED BY DR. DAVID RASKIN. IN SO DOING, THE BOARD'S DECISION WAS OTHERWISE SUPPORTED BY SUBSTANTIAL EVIDENCE.
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, 1. (Dec. 24, 1997) (Mem. Op.).
In this case, the parties relied on competing medical expert opinions. Therefore, the Board was free to choose one medical expert's opinion over the medical opinion of another physician so long as substantial evidence supported the finding. Claimant argues it was error for the Board to rely upon "Dr. Raskin's opinion in support of its decision to deny [Claimant's] claim for ongoing total disability benefits, and in denying [Claimant's] additional claim for psychiatric bill reimbursement." Claimant specifically contends that the Board committed error because the Board found that the work related incident did not rise to the level of serious stressors identified by Dr. Raskin such as serious assault, robbery, shooting, flood, famine or a concentration camp experience.
DiSabatino Brothers, Inc. v. Wortman, Del. Supr., 453 A.2d 102, 106 (1982).
Plaintiff's opening brief at 13.
Id at 14.
Dr. Raskin, who testified on behalf of the State, stated in his deposition that Claimant did have symptoms associated with PTSD, such as the nightmares, but that a PTSD requires "much more than that." Dr. Raskin further stated that "[PTSD] . . . requires a very specific response to the stressor. The stressor, . . ., has to be a threat to one's integrity or a situation which threatened death or serious injury . . . [Claimant] did not describe this episode as involving that." Dr. Raskin went on to state that:
Raskin Dep. at 14.
Raskin Dep. at 14.
the stressor has to create a certain affect. Now the [e]ffect [the stressor] created in [Claimant] was anger. That's what she told me and that's actually what I note[d] in the medical record . . . in a report by Dr. Berley [Claimant] states that she's receiving medication for her anger, which is what this provoked, and then disappointment that she wasn't backed by the more senior person in the prison system. She did not describe the intense fear, the helplessness or horror, which are the three adjectives that are required for [a PTSD] diagnosis.
Here, the Board accepted Dr. Raskin's medical opinion. Dr. Raskin disagreed with the conclusion of Claimant's treating physician, Dr. Jay Weisberg, who diagnosed Claimant with PTSD. The Board was apparently satisfied by Dr. Raskin's testimony that Claimant did not exhibit all the symptoms required to make a correct PTSD diagnosis.
The Board noted that the event was "understandably upsetting." However, the Board found, based upon Dr. Raskin's opinion, that the incident and its results, did not rise to the level of the stressors identified by Dr. Raskin. Dr. Raskin believed that "Claimant [was] being treated for mostly pre-existing conditions such as her husband's unfortunate death and family problems that are incidental to the work problems."
IAB Order at 15.
IAB Order at 13.
Dr. Raskin's deposition was replete with testimony that Claimant did not exhibit the requisite symptoms for a PTSD diagnosis. Dr. Raskin's deposition repeatedly stressed the importance establishing a specific response to the stressor and that the stressor create a certain effect, such as "intense fear." Both of these requisite elements required for a proper diagnosis of PTSD were not present in Claimant.
As the Board correctly stated, Claimant has the burden of proof by a preponderance of the evidence on her petition. Total disability prevents an employee from obtaining employment commensurate with her qualifications and training. This Court notes that the Board had accepted Dr. Berley's certification of total disability, but only through January 29, 1999. As to Claimant's physical injury, the Board found that "[c]learly, Claimant's physical injury would not have interfered with her work capacity after February 17, 1999, when Dr. Cucuzella, the physician Claimant would have this Court rely upon, would have returned her to sedentary work."
IAB Order at 15.
MA. Hartnett, Inc. v. Coleman, Del. Supr., 226 A.2d 910, 913 (1967).
IAB Order at 15.
Even thought Claimant's treating psychiatrist, Dr. Weisberg, stated that Claimant was suffering from PTSD, the Board apparently did not accept that diagnosis based upon the evidence presented. As long as the Board's decision was based upon substantial evidence, it is not error to rely upon one physician's opinion, over another. This applies even if the physician who is relied upon is not the Claimant's treating physician or psychiatrist.
This Court finds that since Claimant did not exhibit the "intense fear" required for a diagnosis of PTSD, Claimant cannot claim total disability based on PTSD. Therefore, it was not error for the Board to find that Claimant should not be awarded disability benefits from December 31, 1998 ongoing. It was also not error for the Board to find that Claimant is not entitled to medical reimbursement. Thus, in affirming the Board's decision that Claimant did not suffer from PTSD, this Court denies Claimant's claims for reimbursement of medical bills, attorney fees and medical witness fees.
It is clear from the Board's decision that the Board relied upon Dr. Raskin's medical opinion in assessing whether or not Claimant was entitled to total disability benefits with regard to a diagnosis of PTSD.
CONCLUSION
This Court finds that there was substantial evidence for the Board to have found that Claimant did not suffer from post traumatic stress disorder and is therefore not totally disabled. Furthermore, this Court holds that the Board's decision to reject the testimony of Drs. Weisberg and Cucuzella, Claimant's treating physicians, and accept the testimony of Dr. Raskin was supported by substantial evidence. The Board did not otherwise commit any errors of law.