Opinion
C.A. No. 05A-01-007-JOH.
Submitted: June 17, 2005.
Decided: August 26, 2005.
Appeal from a Decision of the Industrial Accident Board — AFFIRMED.
Michael D. Bednash, Esquire, of Kimmel, Carter, Roman Peltz, Bear, Delaware, attorney for claimant-below, appellant.
David R. Batman, Esquire, of Heckler Frabizzio, Wilmington, Delaware, attorney for employer-below, appellee.
MEMORANDUM OPINION
Cornelia Kuligowski has appealed an Industrial Accident Board decision granting benefits to her of seven percent for a knee injury rather than the fifty-nine percent she had sought. She injured her knee while working for Acme Markets. She and Acme presented testimony and records of examining or treating doctors.
The Board's decision reflects its choice of the testimony of Acme's doctor over that of Kuligowski's doctor. Each doctor, of course, referred to medical records generated by other health care providers to which there was reference in their testimony.
Since it is within the Board's powers to chose the testimony of one expert over another and there being no abuse of discretion in that choice, the Board's decision is AFFIRMED.
Facts
On September 7, 2001, Kuligowski injured her knee at work while working for Acme. While she was pushing a column of shopping carts in the parking lot, her left knee collapsed casing her severe pain. She testified that she had previously suffered from occasional left knee pain, but said that there was no known cause. Through medical documents produced at the hearing, the Board learned that she had actually had an accident in which an automobile ran over her left leg and dragged her some distance in October 1999. In April of 2000, the claimant had surgery on her left knee though she still insisted that the knee pain, from which she suffered prior to the 2001 work-related accident, had no known cause. She also told the Board and a doctor who testified for her that she had been, asymptomatic for over a year prior to the Acme incident.Kuligowski had two surgeries after the 2001 accident, one in December of 2001 and another in May of 2002. Neither of these surgeries improved her symptoms and she continued to complain of severe pain. On July 22, 2003, her expert, Dr. John Hocutt, examined her knee. He testified that he found only minimal swelling and no erythema or redness. However, upon palpation of various parts of the knee, she said she was experiencing severe pain. Dr. Hocutt also noted what he said was significant atrophy of the left leg. He then referred her to a physical therapist for a functional evaluation of the left knee, which occurred on August 7, 2003. The results of the tests performed by the therapist revealed, according to Dr. Hocutt, an overall impairment of fifty-nine percent. Dr. Hocutt testified that he based the causal relation of her pain to the work-related accident on her history, although he had not reviewed the operative report from any prior surgery. His July 2003 exam was his only examination of Kuligowski.
Acme's testifying expert, Dr. Richard Schmidt, examined Kuligowski on six different occasions, the last being around a month before the Board's hearing. He also reviewed a complete copy of all of her medical records including the surgery for the previous knee injury which Dr. Hocutt, her own physician, had not reviewed. Dr. Schmidt's tests and personal observations on all six occasions indicated that the patient was exaggerating her symptoms and putting forth submaximal effort into the strength and range of motion tests that he had her perform.
His physical examination of the claimant on January 14, 2004 found no swelling or fluid in the knee, and no sign of atrophy of the left calf or thigh. Dr. Schmidt testified that although the range of motion test that the physical therapist performed was technically an objective test, its validity might be compromised by a patient's lack of effort and cooperation. He also had significant inconsistencies in her complaints during flexion extension and other tests and the way she walked in his office or was positioned on the examining table. None of the objective tests, such as two MRIs taken after the 2001 surgery found any abnormalities except some expected screws from a post-incident operation. There was nothing in those negative tests to support the complaints of extreme pain.
Dr. Schmidt concluded that based on the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition, Kuligowski had a seven percent permanent impairment to the left lower extremity. Because of her symptom magnification and lack of objective findings, he rejected the range of motion tests results as unreliable.
Board's Decision
The Board rejected Dr. Hocutt's opinions for several reasons. One, he had not reviewed or been given the full medical history as Dr. Schmidt had. Two, he examined her only once and that was sometime after the injury was sustained. Three, to a very large extent he relied upon Kuligowski's expressions of pain on palpation or flexion/extension tests. Even some of his own tests came up normal. Four, the Board had significant problems with Kuligowski's credibility. Despite her testimony of no pain for over a year before the Acme incident there were medical records of knee pain complaints during the time she told others, including Dr. Hocutt, that there had been none. Also, she minimized the early left leg injury, and none of her ongoing post-incident treatment was reducing her pain.
Based on more numerous visits, a more complete grasp of the full medical history, lack of conformity of objective tests to claimed pain and the above, the Board accepted Dr. Schmidt's testimony and awarded the seven percent disability
Parties' Claims
Kuligowski contends that the Board's decision was not based on substantial evidence. She argues that the Board ignored evidence of a significant decrease in range of motion found in the tests administered by the physical therapist. Dr. Hocutt testified that the range of motion tests, properly administered, were next to impossible to fake. The functional evaluation test examines a patient's consistency regarding range of motion through multiple tests in varying order. Thus, Dr. Hocutt testified, that it is almost impossible to limit one's range of motion consistently throughout the testing regimen. The results of such a test, she contends, are substantial evidence that the Board should have properly considered. Kuligowski argues that had the Board properly considered this testimony, it would have awarded her compensation based on a fifty-nine percent permanent impairment. In short, she is asserting there is substantial evidence to support her fifty-nine percent claim.
Acme, on the other hand, argues that the seven percent decision was based on substantial evidence. It asserts that the Board simply chose to accept the testimony of one medical expert over another due, in part, to the reasons the Board gave for rejecting his testimony. Since Dr. Hocutt's opinion was based in large part on Kuligowski's subjective complaints and she lacked credibility, his opinion could be minimized or disregarded. Acme points to areas where her credibility was highly suspect including, for example, the fact that the claimant had a previous operation on her left knee, probably the result of the 1999 auto accident. But testified that she did not know the source of the discomfort she felt prior to the 2001 work-related accident, and also said the pain from that injury had gone away when medical records said otherwise. The Board, made a determination based on its assessment of the witnesses before it, and since it relied on one medical expert over another its decision was based on substantial evidence, namely, Dr. Schmidt's expert medical testimony.
Standard of Review
On an appeal from the Industrial Accident Board. The Court's function is to determine whether the Board's decision is supported by substantial evidence and free from legal error. Substantial evidence means such evidence as a reasonable mind might accept to support a conclusion. This Court does not sit as a trier of fact with authority to weigh the evidence, determine questions of credibility and make its own factual findings and conclusions.
The "Board" in this case was one hearing officer to whom the parties stipulated would be the "Board." 19 Del.C. § 2301B(a)(4).
Breeding v. Contractors One, 549 A.2d 1102, 1104 (Del. 1988).
Boulevard Electric Sales v. Webb, 428 A.2d 11, 13 (Del. 1981).
Discussion
Kuligowski's argument is essentially that this was substantial evidence to support her claim for a fifty-nine percent disability of her lower left extremity. But that argument turns the posture of her claim, the Board's decision and this Court's appellate review on its head. There is no claim of error of law. Therefore, the issue is whether the Board's decision to reject Dr. Hocutt's testimony and to accept, instead, Dr. Schmidt's is supported by substantial evidence.The Board, not this Court, is entitled to accept the testimony of one doctor over another. The Board is required also to state reasons for its credibility determinations. The Board in this case in some detail did just that. It explained why it had significant problems with Kuligowski's credibility. Those do not require repeating. When an expert's opinion is based on large part on a patient's recitation of subjective complaints about which there are significant disparities, the Board is within its discretion to reject that doctor's opinion.
Delaware Tire Center v. Fox, 401 A.2d 97, 100 (Del. 1979).
Tarbilt v. Blue Hen Lanes, Inc., 711 A.2d 1214, 1215 (Del. 1998).
Clements v. Diamond State Port Corp., 831 A.2d 870, 878 (Del. 2003). It should be noted, however, that several times during his testimony, Dr. Hocutt made clear he was relying on Kuligowski's statements and hedged a bit, accordingly.
But the Board rejected Dr. Hocutt's opinions for additional reasons: (1) he saw her only once and it was nearly a year and a half before the hearing, (2) he had not seen pertinent medical records, (3) some of his own clinical tests were normal, and (4) he relied in part on tests done by a physical therapist. These are articulated reasons supported by the record. While there may have been some particular reason for disputing that portion of Dr. Hocutt's opinion based on an exam by another healthcare provider, such reliance is not unusual in a medical context. Such rejection, therefore, should be treated with utmost care. After all Dr. Schmidt disagreed with another expert about a given test, which could, in another context, form a basis of rejecting his opinion.
The testimony of Dr. Schmidt, as amplified by medical records and other evidence is sufficient competent evidence to constitute substantial evidence. Since there is substantial evidence to support the Board's decision, it must be affirmed.
Petrea and Son Oil Co. v. Moore, 442 A.2d 75, 77 (Del. 1982).
General Motors Corp. v. Freeman, 164 A.2d 686, 689 (Del. 1960).