Opinion
C.A. No. 98A-11-006
Submitted: March 19, 1999
Decided: May 27, 1999
Upon Appeal from a Decision of the Industrial Accident Board — AFFIRMED.
Eric L. Grayson, Esq., of Wilmington, Delaware, attorney for Claimant/Appellant.
Michael R. Ippoliti, Esq., of Wilmington, Delaware, attorney for Employer/Appellee.
MEMORANDUM OPINION
This is the Court's decision on Appellee Clarence Lucas ("Employee")'s appeal of the Industrial Accident Board ("Board")'s decision on remand of October 14, 1998, concluding that Lucas is not a prima facie displaced worker and is not entitled to benefits. For the following reasons, the decision of the Board is AFFIRMED.
I.
Employee is a 67 year old man who was formerly employed as a commercial motorcar carrier driver with Leaseway Motor Freight ("Leaseway"). He earned $1234 weekly, or approximately $64,000 annually, as a Leaseway driver.
On November 7, 1995, Employee was stuck in the eye by the antenna of an automobile that he was unloading from his truck. The antenna caused significant trauma to Employee's eye, including a retinal tear and hemorrhaging of the vitreous, or jelly, of the eye. The central contested issue throughout this case has been the existence and/or severity of the remaining effects of the injury and its impact on his ability to obtain certain types of employment.
Employee formally retired from Leaseway on May 1, 1996. In November of that year, one of his physicians formally discharged him from medical care. Employee obtained a job as a maintenance clerk with B.J.'s Wholesale Club where he is paid on an hourly basis, earning roughly 15% of what he earned with Leaseway. In May, 1996, began receiving a monthly pension from the Teamsters union and began receiving monthly Social Security benefits later that year.
Leaseway's petition to have Employee's worker's compensation benefits terminated was heard by the Board on May 30, 1997. The Board found that Employee was medically able to work because: (1) he was not a prima facie displaced worker; (2) that whatever medical restrictions he might have were not so prohibitive so as to restrict him from finding work in the general labor market; and (3) that he had, in fact, returned to work.
In addition, the Board found that Employee could not show that he either made a reasonable job search or that such a search was unsuccessful due solely to his industrial injury. Instead, the Board found that he exaggerated his medical symptoms on the visual tests and concluded that his vision would meet the standards required for driving a commercial vehicle. The Board also found that Employee was not motivated, for financial reasons, to return to his work as a driver. Ultimately, the Board concluded that Employee sustained no lost earning capacity as a result of the industrial accident and that his benefits would be terminated.
In July, 1997, as a result of B.J.'s cutting Claimant's hours, Employee began working two jobs, both for paving companies as a general laborer, averaging about 35 hours per week and earning $60.00 per day.
On April 29, 1998, this Court issued a decision remanding the case back to the Board, stating "[i]t is unclear from the record whether the Board accurately interpreted the regulation's `each eye' language" when considering testimony that Employee "had a field of vision of at least 70 degrees in the horizontal meridian in both eyes. . . . [t]he Board needs to know what Employee [Lucas] is physically capable of doing before deciding if his job search has been reasonable under the circumstances."
Lucas v. Leaseway Motorcar Transp., C.A. No. 97A-07-005, Gebelein, J. (April 29, 1998); 49 C.F.R. § 391.41(b)(10)(3).
This Court further stated "[t]he Board must clearly apply the vision requirements of the Department of Transportation to determine the extent of his medical qualifications as a commercial driver to accurately determine whether he is a prima facie displaced worker. . . . On remand, the Board must determine whether Employee has a field of vision at least 70 degrees in the horizontal meridian in each eye, consistent with the plain meaning of § 391.41(b)(10) of the federal regulation qualifying commercial vehicle drivers. The Board must correctly apply the Department of Transportation's vision requirements to accurately assess whether Employee is a prima facie displaced worker."
Id.
The Board held a hearing on remand on October 14, 1998. The parties presented the Board with additional testimony from Employee and with arguments of counsel. The Board determined, based on the medical evidence, that Employee has a field of vision at least 70 degrees in the horizontal meridian in each eye, consistent with the plain meaning of § 391.41(b)(10) of the federal regulation qualifying commercial vehicle drivers. As a result, the Board determined that Employee was fully capable of returning to work as a commercial truck driver. The Board then concluded that Employee was neither prima facie displaced nor partially disabled.
Lucas v. Leaseway Motorcar Transp., Board Opinion on Order following Remand, Hrg. No. 1070178 (Oct. 14, 1998).
Employee appealed the Board's decision to this Court, contending that the Board erred in not finding him to be prima facie displaced and in not finding him to be partially disabled. Briefing complete, this is the Court's decision on appeal.
II.
The courts of this state have repeatedly emphasized their limited appellate review of the factual findings of an administrative agency. The function of the reviewing Court is to determine whether the agency's decision is supported by substantial evidence. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings.
Johnson v. Chrysler Corporation, Del. Supr., 213 A.2d 64, 66-67 (1965); General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960).
Oceanport Industries, Inc.. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), app. dism., Del. Supr., 515 A.2d 397 (1986).
Johnson v. Chrysler, 213 A.2d at 66.
In terms of an appeal from a decision of the Industrial Accident Board, this Court is limited to determining whether there is substantial, competent evidence of record in support of the decision rendered, and whether it is free from legal error. The Court does not sit as the trier of fact, nor should the Court substitute its judgment for that rendered by the Board. It is the exclusive function of the Board to evaluate the credibility of witnesses before it.
General Motors Corp. v. Jarrell, Del. Super., 493 A.2d 978, 980 (1985).
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965).
Vasquez v. Abex Corp., Del. Supr., No. 49, Horsey, J. (Nov. 5, 1992)(ORDER).
In addition, when reviewing questions of fact, the Court shall give deference to the experience and specialized competence of the agency and its review shall be limited to a determination of whether the agency's decision was supported by substantial evidence. The Court determines if the evidence is legally adequate to support the agency's factual findings. Application of this standard of review "requires the reviewing court to search the entire record to determine whether, on the basis of all the testimony and exhibits before the agency, it could fairly and reasonably reach the conclusion that it did." "In reviewing the record for substantial evidence, the Court will consider the record in the light most favorable to the party prevailing below."
National Cash Register v. Riner, Del. Super., 424 A.2d 669, 674-75 (1980).
General Motors Corp. v. Guy, Del. Super, C.A. No. 90A-JL-5, Gebelein, J. (Aug. 16, 1991).
III.
A. Employee is Not a Displaced Worker.Under Torres v. Allen Family Foods, when an employer files a petition to terminate an employee's total disability benefits, that employer bears the burden of showing that the employee is no longer totally incapacitated for purposes of working. If an employer shows that the employee is no longer totally incapacitated, the employee has to show that he or she is a `displaced worker.' A worker is `displaced' if, because of their injury, they are no longer employable on a regular basis and in a well-known branch of the labor market. An employee who makes this showing has also been referred to as an `odd lot' employee who would be steadily employable only if a job were specially created for them. A prima facie showing of general un-employability and `displaced' status takes into account not only the employee's physical impairment, but also his or her age, education or training, and mental capacity. An employee may also be displaced and `totally disabled', however, if he has made reasonable efforts to secure suitable employment, but has been unsuccessful because of the injury. `Totally disabled' does not mean utter helplessness, but neither has it been so broadly interpreted as to merely mean the inability to return to the exact same employment. Some courts have held that the relevant inquiry is not whether a person can do the same job, but rather is whether that person can do that which is required. The displaced worker doctrine, as a whole, generally applies only to unskilled workers who, due to their injuries, cannot return to heavy labor jobs and do not have the training or education for any comparable employment. A worker may also be `totally disabled' economically, and thus displaced, even if he is only partially disabled physically. If, by any of the above means, an employee can show that they are `displaced,' the burden then shifts back to the employer to show the availability of work within the employee's capabilities.
Del. Supr., 672 A.2d 26, 30 (1995), citing, Governor Bacon Health Ctr. v. Noll, Del.Super., 315 A.2d 601 (1974); Franklin Fabricators v. Irwin, Del.Supr., 306 A.2d 734 (1973); Ham v. Chrysler Corp., Del.Supr., 231 A.2d 258 (1967); 19 Del. C. § 2101-2397.
Ham, 231 A.2d at 261., citing M.A. Hartnett, Inc. v. Coleman, Del. Supr., 226 A.2d 910 (1967).
Oakwood Mobile Homes v. Mosely, Del. Supr., 608 A.2d 729 (1992).
Whaley v. Purnell, Del. Super., CA. No. 94A-04-003, Graves, J. (Nov. 30, 1994).
Ham, 231 A.2d at 261.
If the Court cannot infer from the Board's findings that the Board proceeded on a correct theory of law to begin with, an order of remand to enter subordinate findings of fact is not just allowed, but is required. There is no meritorious argument that the Board's decision in this case proceeded on an incorrect theory of law. As such, Employee is not entitled to disability benefits because Employee is not totally incapacitated from working. Rather, he is working, having obtained employment as a maintenance clerk at B.J.'s Wholesale Club and then as a general laborer for a paving company. These jobs provide regular employment in a well-known branch of the labor market, and Lucas is thereby not an `odd-lot' employee who requires that a job be specially created for him.
Zdziech v. Delaware Auth. for Specialized Transp., Del. Super., C.A. No. 87A-AU-10, Gebelein, J. (Oct. 13, 1988).
B. The Medical Testimony Supports the Board's Findings.
The question then becomes whether the Board's decision that Lucas is not displaced is supported by the evidence that the Board used in making that decision. Conflicting expert testimony at the Board hearing may properly lead the Board to infer its own conclusions. And while this Court cannot weigh evidence or determine questions of credibility, it can point to any lack of deductive reasoning in the Board's decision making process. The Board, in finding that a claimant is not a prima facie `displaced worker,' must explain the factors upon which its conclusion is based in an understandable and coherent manner. When an expert's opinion of causation is based on a patient's subjective complaints, and the Board then finds that the underlying facts are different, the Board is free to reject that expert's conclusion. And it is within a Board's discretion to disbelieve a claimant's testimony based on the both the record and that claimants demeanor.
Breeding v. Contractors-One-Inc., Del. Supr., 549 A.2d 1102, 1104 (1988), citing, Whaley v. Shellady, Inc., Del. Supr., 161 A.2d 422, 424 (1960) (Board may infer conclusions such as lack of causation).
Breeding, 549 A.2d at 1104, citing Levitt v. Bouvier, Del. Supr., 287 A.2d 671 (1972).
Breeding, 549 A.2d at 1104, citing Chrysler Corp. v. Duff, Del. Supr., 314 A.2d 915, 917 (1973).
See Breeding, 549 A.2d at 1104 (finding Board's decision that claimant's injury was not work related was supported by substantial evidence when claimant's testimony was inconsistent). See also Buchler v. State, Del. Super., C.A. No. 89A-JN-6, Gebelein, J. (May 23, 1990).
DeHoyos v. General Motors Corp., Del.Super., CA. No. 89A-JN-8, Gebelein, J. (Feb. 28, 1990), citing Breeding, 549 A.2d at 1102.
In this case, the evidence regarding Employee's line of vision is somewhat in conflict insofar as the objective findings and the subjective complaints are not in harmony. Nevertheless, if there is substantial evidence to support the expert evidence either way, then the Board is free to accept the testimony of either Dr. Sherry or Dr. Deglin, and the Court could not disturb the Board's decision. Dr. Deglin's testimony, supported by substantial evidence, constitutes substantial support for the Board's decision.
This Court will not assess the credibility of expert witnesses and the weight to be given to their opinions, and this Court will not substitute its judgment for that of the Board. Where substantial evidence exists to support conflicting expert opinions, the Board is free to choose one expert testimony over that of another. In making such a determination, the Board has the power to weigh medical testimony. Indeed, the Delaware Supreme Court has clearly held that "it is the role of the Board, not this Court, to resolve conflicts in testimony and issues of credibility and to decide what weight is to be given to the evidence presented." This Court cannot substitute its judgment for that of the Board as to credibility. Thus, the opportunity to view the witnesses is important.
Sears Roebuck and Co. v. Farley, Del. Supr., 290 A.2d 639, 641 (1972), citing, DeBernard v. Reed, Del. Supr., 277 A.2d 684, 686 (1971); Diaz v. Beneficial Nat'l Bank, Del. Super., CA. No. 97A01-019, Gebelein, J. (Nov. 6, 1997); Canteen Corp. v. DiPietrantonio, Del. Super., No. 95A-02-006, Gebelein, J. (Aug. 17, 1995); Deborah Butler v. Speakman Co., Del. Supr., No. 200, 1992, Walsh, J. (Sept. 18, 1992); Drew Beyer v. Nanticoke Homes, Inc., Del. Super., C.A. No. 91A-01-002, Ridgely, J. (Jan. 10, 1992); Stanley McDowell v. State, Del. Super., No. 88A-JN-3, Steele, J. (March 14, 1991).
Downes v. State, Del. Supr., No. 25, 1993, Walsh, J. (Mar. 30, 1993); Butler v. Speakman Co., Del. Supr., No. 200, 1992, Walsh, J. (Sept. 18, 1992); Boyd v. Chrysler Corp., Del. Supr., No. 406, 1988, Holland, J. (Feb. 16, 1989).
McDowell v. State, Del. Super., No. 88A-JN-3, Steele, J. (Mar. 14, 1991).
Air Mod Corp. v. Newton, Del. Supr., 215 A.2d 434 (1965); Mooney v. Benson Mgt. Co., Del. Super., 451 A.2d 839, 841 (1982), rev. on other grounds, Del.Supr., 466 A.2d 1209 (1983).
Air Mod, 215 A.2d at 438.
Speakman, Del.Supr., No. 200, 1992, Walsh, J. (Sept. 18, 1992).
The Board received deposition or affidavit testimony from at least two of Employee's treating physicians, Drs. Sherry and Deglin, which was, at times, inconsistent and conflicting. Nevertheless, the record presented to the Board and to this Court supports the Board's findings. The Board accepted the findings of Dr. Deglin that Lucas had recovered to a level of visual acuity necessary to meet statutory requirements for driving a commercial vehicle. When asked, "[biased on your review of the claimant's medical file, including the record of Dr. Sherry, as well as your review of the particular vision requirements of the claimant's job at Leaseway, do you have an opinion regarding the claimant's ability to return to his regular duty job at Leaseway?", Dr. Deglin replied, "Yes, he can do that." As such, Dr. Deglin, based on his own examinations as well as the reports of Dr. Sherry, concluded that Employee was capable of seeing at least 70 degrees peripherally out of the right eye on the horizontal meridian.
Deglin Deposition at 20.
Deglin Deposition at 19 (stating 70 degrees in the horizontal median is required by 49 C.F.R. Ch. III § 391.41(b)(10)).
The Board also adopted Dr. Deglin's findings that Employee's vision problems may not have been as severe as Employee alleged. When asked, "is it fair to say that based upon his objective examination, Dr. Sherry did not believe the claimant's visual disability was nearly as poor as the claimant alleged it to be?", Dr. Deglin replied, "[t]hat's what he found when he tested." More pointedly, Dr. Deglin was asked, "[y]ou were satisfied that, in your own mind, that the claimant was engaged in exaggerating the nature and extent of his disability, visual disability?" to which he replied, "[y]es."
Id. at 12.
Id. at 15.
Moreover, the affidavit of Dr. Sherry, upon which the Board did not heavily rely, states in part:
[b]ased upon my physical examinations of Mr. Lucas, and taking into account both objective testing as well as subjective findings, it is my opinion based upon reasonable medical probability that Mr. Lucas' visual filed is nearly normal in the left eye; the testing showed only a 3 to 5 degree central remnant in the right eye with total obscuration of the peripheral vision . . . the visual field testing itself was found to be of limited reliability and it would appear that a portion of Mr. Lucas' visual impairment is nonphysiologic as it is based upon subjective input from the patient. There was [sic] some inconsistencies between the objective findings recorded and the subjective response . . . I suspect there are indeed defects in his field of vision, but I do not think they are accurately reflected by any formal tests. Nevertheless, based upon the regulatory criteria for evaluation . . . `whether an individual has a field of vision of at least 70 degrees in the horizontal meridian in each eye', it is my opinion that Mr. Lucas' impaired vision in his right eye would not qualify under that requirement and, therefore, I would be unable to certify his medical condition eligibility to drive a commercial vehicle under these circumstances. Based on the objective test results, it is difficult to state the basis, within a reasonable medical probability, why the visual field is less than 70 degrees. [sic]
Affidavit of Dr. Richard L. Sherry. [emphasis added]
Dr. Sherry based his opinion testimony on Employee's subjective input, but conceded that the results were not wholly reliable. As such, both Dr. Deglin and Dr. Sherry determined that Employee's repeat testing yielded results which were internally inconsistent so as to indicate that the test results were unreliable. Because it was clear that the subjective and objective test results were diametrically opposed, the Board gave credence to Dr. Deglin's approach of disregarding the subjective input in favor of relying solely on the objective findings. Such objective findings demonstrated that Employee had peripheral vision greater than 70 degrees in the right eye. Accordingly, Dr. Deglin concluded that Employee was capable of returning to his position with Leaseway.
On the other hand, Employee's argument that he was advised medically that he would no longer be capable of driving a commercial vehicle appears to be based, at least in part, on the hearing testimony of Employee himself. It is not for this Court to substitute its judgment for that of the Board regarding the credibility of his testimony. But it is this Court's duty to determine whether there is substantial, competent evidence of record in support of the decision rendered. Here, there is such evidence.
Opening Brief for Appellant at 4, Lucas v. Leaseway Motorcar Transp., 98A-11-006 RSG.
Appendix to Opening Brief for Appellant at A-28, Lucas v. Leaseway Motorcar Transp., 97A-07-005 RSG (Q: "Talk to us about what Dr. Deglin and Dr. Sherry talked to you about?" A: "Well the same Dr. Deglin told me the same thing, that I would never be able to drive another commercial vehicle. He said I probably could drive a car, bus as far as a commercial vehicle, he said that was out. He said I better find another field of, you know, work to do.")
C. The Board Complied with this Court's Remand Order.
Finally, Employee continually emphasizes that the Board made its decision on remand without hearing new and additional medical testimony from Leaseway, and that the Board failed to follow this Court's mandate on remand. On the contrary, this Court did not intend for the parties to have to present additional evidence. Rather, this Court required the Board to accurately interpret the regulation's "each eye" language in determining Employee's return-to-work ability. It is clear that the Board had before it ample evidence from Drs. Deglin and Sherry regarding Employee's peripheral vision, and that the Board accurately interpreted the "each eye" language in determining that Employee was able to return to work. The Board complied with this Court's Order to carefully consider the medical testimony and to focus its findings accordingly.
IV.
This Court finds that the testimony and affidavits presented to the Board allowed it to reasonably reach the conclusion that Employee's vision would meet the requirements necessary to drive a commercial vehicle and that he is able to return to his previous position with Leaseway, and cannot, therefore, be a prima facie displaced worker. The Board was free to weigh the testimony of Dr. Deglin more heavily than Dr. Sherry, and there appears to be no lack of deductive reasoning on the Board's part either in making that choice, or in drawing its conclusions from it. Accordingly, the decision of the Board is AFFIRMED.
IT IS SO ORDERED.