Opinion
C.A. No. 01A-05-006 JRS
Submitted: September 25, 2001.
Decided: December 14, 2001.
On Appeal From a Decision of the Industrial Accident Board — AFFIRMED.
ORDER
This 14th day of December, 2001, upon consideration of the appeal of Layton Homes, Inc. ("Layton") from the decision of the Industrial Accident Board ("the Board") granting Pamela V. Miller's ("Ms. Miller") Petition to Determine Additional Compensation Due, and the parties' briefs, it appears to the Court that:
1. Ms. Miller was injured in a job-related accident on August 14, 1992, while employed by Layton. As a result of the accident, Ms. Miller received total disability benefits. In 1993, Ms. Miller underwent a microdiscectomy. In 1997, she underwent a resection (revision) of a prior laminectomy and a discectomy. The surgeries were unsuccessful in treating her injuries.
2. On February 4, 2000, the Board granted Layton's Petition for Termination of Benefits. It found that Ms. Miller did not suffer from a loss of earning capacity as a result of her work accident. Approximately one year later, on February 27, 2001, Ms. Miller filed a Petition to Determine Additional Compensation Due. In her Petition, Ms. Miller sought benefits for a recurrence of total disability effective October 11, 2000 and ongoing thereafter, in addition to the payment of outstanding medical expenses.
3. On April 12, 2001, the Board heard Ms. Miller's Petition to Determine Additional Compensation Due. During that hearing, Ms. Miller argued that her condition had worsened and she asked the Board for total disability benefits commencing October 11, 2000.
4. In its decision dated April 24, 2001, the Board granted Ms. Miller's petition. In this appeal, Layton challenges the Board's finding that Ms. Miller is totally disabled. Layton also argues that the Board erred in not finding that Ms. Miller forfeited her right to benefits by her refusal to accept reasonable medical treatment.
5. In reviewing a decision of the Board, the Court must determine whether it is supported by substantial evidence and free from legal error. "`Substantial evidence' means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." It is not this Court's function to weigh evidence, determine credibility, or make its own factual findings. The Court must consider the record in the light most favorable to the party who prevailed below. The Court will defer to the expertise of the administrative agencies and may affirm the decision of the agency even if the Court might have, in the first instance, reached an opposite conclusion.
Brittingham v. St. Michael's Rectory, Del. Super., C.A. No. 99A-11-001, Bradley, J. (July 25, 2000) (Mem. Op.) (citing Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965)).
Id. (citations omitted).
Id. (citing Johnson, 213 A.2d at 66).
Walden v. Georgia-Pacific Corp., Del. Super., C.A. No. 98A-02-027, Cooch, J. (Mar. 8, 1999) (Mem. Op.)( aff'd, Walden v. Georgia-Pacific Corp., Del. Supr., No. 236, 1999, 1999 WL 801437, (Sept. 22, 1999) (ORDER) (citing Chudnofsky v. Edwards, Del. Supr., 208 A.2d 516, 518 (1965)).
Id. (citations omitted).
6. When medical experts disagree, the determination of whether a person is totally disabled must be made by the Board by considering the competing expert opinions in addition to "the employee's age, education, general background, occupational and general experience, emotional stability, the nature of the work performable under the physical impairment, and the availability of such work." These factors all must be measured against the claimant's burden of proof. In this case, Ms. Miller argues that she has suffered a "recurrence" of total diasability. "A `recurrence' is the `return of an impairment without the intervention of a new or independent accident.'"
Steele v. Animal Health Sales, Inc., Del. Super., No. 00A-12-001, Witham, J. (Oct. 19, 2001) (ORDER).
Id.
Walden, at *3.
7. Layton argues that Ms. Miller has failed to prove that her condition has deteriorated since the January 2000 hearing such that she is no longer capable of sedentary work. In addition, Layton argues that the Board committed legal error when it did not allow its vocational rehabilitation expert to testify.
In its decision dated February 4, 2000, the Board terminated Ms. Miller's benefits and found that she was not a displaced worker. At that time, it was undisputed that Ms. Miller was capable of performing sedentary work. Layton alleges that Ms. Miller "failed to establish that her condition worsened to such a degree that her status changed form being capable of sedentary work, to totally disabled." Reply Br. at 3.
Layton proffered that its vocational rehabilitation expert "was prepared to testify to a list of available jobs for [Ms.] Miller that were within sedentary restrictions." The issue before the Board and this Court is the extent of Ms. Miller's disability, not the availability of sedentary employment. The Court agrees with the Board that Mr. Stackhouse's testimony was not, and is not relevant to the issue at hand.
8. The Court is satisfied that the Board's finding that Ms. Miller is totally disabled is supported by substantial evidence. The Board relied on Ms. Miller's testimony regarding her current condition and its observations of Ms. Miller throughout the hearing. The Board found Ms. Miller to be a credible witness. In addition, the Board relied on the clinical findings of Dr. Andrew Nash, Ms. Miller's treating physician, and Dr. Jack Wapner, Layton's evaluating physician. Dr. Nash took over the care of Ms. Miller in mid-October 2000. He opined that Ms. Miller has been incapable of working and totally disabled since he began treating her in October 2000. Dr. Wapner evaluated her most recently in February 2001. The evidence showed that Ms. Miller suffered from a ligamentous muscular injury when Dr. Wapner evaluated Ms. Miller in December 1998, but that she currently suffers from cervical radiculopathy, a more serious condition. Ms. Miller currently suffers from bilateral leg pain and groin pain, both of which also are new symptoms. Dr. Wapner's most recent examination of Ms. Miller showed spasms in her low back, a decrease in her range of motion, a positive straight leg raise result, and diminished reflexes in both legs.
Wapner Depo. at 34 (April 5, 2001).
Id. at 11.
Id. at 28-9.
9. Although the Board relied in part upon Dr. Wapner's clinical findings, it disagreed with his ultimate conclusion that, despite her worsening condition, Ms. Miller still can perform sedentary work. Instead, the Board found Dr. Nash's conclusion more credible, i.e., that Ms. Miller is unable to work in any capacity. The Board, as the finder of fact, must resolve the conflict when medical testimony conflicts. As long as substantial evidence exists, the Board may accept the testimony of one expert over another. The Board accepted Dr. Nash's conclusion that Ms. Miller is unable to work, even in a sedentary position. The conclusion is supported by substantial evidence.
See General Motors Corp. v. McNemar, Del. Supr., 202 A.2d 803, 807 (1964).
Standard Distributing Co. v. Nally, Del. Supr., 630 A.2d 640, 646 (1993).
10. The Court likewise is satisfied that the Board's finding that Ms. Miller has not forfeited her right to benefits under 19 Del. C. § 23531 ("Section 2353") is supported by substantial evidence. Section 2353 requires that the Board make at least three factual findings before determining that a claimant has forfeited his or her right to compensation. First, the board must find that there was a refusal of service; second, that the refusal caused an injury or increase in incapacity; and third, that the services offered were reasonable. "`Reasonable medical treatment' is to be interpreted objectively based on the treatment, not subjectively based on the claimant."
19 Del. C. § 2353(a) states in pertinent part: "If the employee refuses reasonable surgical, medical and hospital services, medicines and supplies tendered to the employee by the claimant's employer, the claimant shall forfeit all right to compensation for any injury or any increase in the claimant's incapacity shown to have resulted from such refusal."
Brittingham v. St. Michael's Rectory, Del. Super., C.A. No. 99A-11-001, Bradley, J. (July 25, 2000) (Mem. Op.).
Id.
General Motors Corp. v. Vannicola, Del. Super., C.A. No. 91A-02-5, Gebelein, J. (Aug. 14, 1992) (Mem. Op. at 5).
11. The Board found that there was no evidence that Layton requested Ms. Miller to undergo an anterior posterior lumbar decompression fusion. Hence, there was no formal refusal of treatment by Ms. Miller. After carefully reviewing the record sub judice, the Court agrees with the Board that Ms. Miller has not forfeited her right to receive compensation.
12. It does not appear from the evidence that Dr. Wapner, Layton's evaluating physician, or any other physician, made a specific request that Ms. Miller undergo fusion surgery. Dr. Wapner testified that when he examined Ms. Miller in September 2000, he discussed the fusion surgery with her. He testified that Ms. Miller "was told that she ought to have surgery" by one doctor and that "two other doctors told her they wouldn't." Dr. Wapner is of the opinion that the fusion surgery would be beneficial to Ms. Miller and would improve her condition, if successful. During the hearing, Dr. Nash, Ms. Miller's treating physician, testified that he feels that the fusion surgery recommended by Dr. Wapner "would be worth it." It appears from the record that Dr. Nash had not discussed the possibility of fusion surgery with Ms. Miller as of the date of the hearing. Theses general discussions about surgery do not constitute an offer of service under Section 2353.
Wapner Depo. at 16 (April 5, 2001).
Id. at 11-12.
Id. at 15-16.
IAB Tr. at 46-47 (April 12, 2001).
13. Layton argues that Ms. Miller evidenced her refusal to undergo fusion surgery by her statement to Dr. Wapner that "she was afraid of having any operations." The Court cannot find that Ms. Miller's fear of another surgery is tantamount to a refusal to undergo surgery. Ms. Miller never stated that she would not undergo an operation; she merely expressed fear. Further, because the Court agrees with the Board that fusion surgery was not tendered to Ms. Miller, Ms. Miller could not have refused the surgery.
Wapner Depo. at 5 (April 5, 2001).
14. Moreover, no evidence was presented regarding the likelihood of the surgery's success in Ms. Miller's case. In fact, some of Ms. Miller's physicians have advised Ms. Miller against having another operation. Accordingly, the Board could not determine that an anterior posterior lumbar decompression fusion constitutes reasonable medical care in Ms. Miller's case, and the preponderance of the evidence presented before the Board would support no such conclusion.
See Brittingham, supra at 13-14 (the proposed treatment's success rate is a factor in determining the reasonableness of the procedure).
IAB Tr. at 64, 78, 46 (April 12, 2001); Wapner Depo. at 11-12 (April 5, 2001).
15. The Court is satisfied that the Board's finding that Ms. Miller is totally disabled is supported by substantial evidence. The Court also is satisfied that Layton has not met its burden of proving that Ms. Miller forfeited her right to receive compensation by refusing reasonable medical treatment. Accordingly, the decision of the Board is AFFIRMED IT IS SO ORDERED.