Opinion
C.A. No: 04A-11-006 RBY.
Submitted: July 15, 2005.
Decided: September 13, 2005.
Upon Appeal from Decision of the Industrial Accident Board, Affirmed.
Walt F. Schmittinger, Esquire of Schmittinger Rodriguez, P.A., Dover, Delaware for Claimant Below-Appellant.
Beth H. Christman, Esquire of Casarino, Christman Shalk, P.A., Wilmington, Delaware for Employer-Below, Appellee.
OPINION
LaRhonda Mallory ("Claimant") appeals a decision of the Industrial Accident Board ("the Board"), which awarded Claimant $3,354.60 for 6.0 percent impairment to the left upper extremity and $4,193.25 for 6.25 percent impairment. The Board also awarded Claimant medical expenses in the amount of $1,818.00 and medical witness fees. The Board declined, however, to award Claimant the full $9,201.74 she sought for medical bills.
For the following reasons, the Board's decision is AFFIRMED.
FACTS
Claimant suffered a compensable injury on August 30, 2002, while working at a group home for the Salvation Army. She was injured when a client grabbed the right side of her shirt while another individual simultaneously grabbed her left arm, twisting her neck and shoulder. The incident caused impairment to Claimant's left upper extremity and impairment to her cervical spine. Salvation Army accepted the injury as compensable, and began paying workers' compensation benefits. Claimant's primary care physician, Dr. Escaro, prescribed a course of physical therapy and medication. After her first round of physical therapy ended in late 2002, however, Claimant asserted that she still had not experienced any significant relief from the pain she suffered.
Claimant underwent a defense medical examination by Dr. Ronald Sabbagh on November 6, 2002. After examining Claimant, Dr. Sabbagh indicated that it would be appropriate for Claimant to undergo one more month of physical therapy. Dr. Sabbagh examined Claimant again on April 2, 2003. He concluded, after that visit, that there were no objective findings of any ongoing injury. Dr. Sabbagh further opined that there was no need for any further physical therapy.
Mallory v. Salvation Army, IAB Hearing No. 1218253 (Nov. 9, 2004), at 8.
Id.
After the first round of physical therapy failed, Dr. Escaro referred Claimant to Dr. Islam at CN-MRI, where Claimant began treatment in March of 2003. Dr. Islam diagnosed Claimant with left shoulder pain accompanied by spasms and left-sided neck pain. After her examination of Claimant, Dr. Islam prescribed a course of treatment which included trigger point injections, an arthrogram study, and additional medications. Dr. Islam also ordered a second round of physical therapy. Dr. Islam admitted, however, that she did not examine the notes from Claimant's first round of physical therapy before recommending a second round. Claimant subsequently underwent a second round of physical therapy at Barker Physical Therapy, incurring medical expenses totaling $7,044.00.
Tr. Mallory, IAB Hearing No. 1218253, at 9.
On April 30, 2004, Claimant filed a Petition to Determine Additional Compensation Due, seeking a 6.0 percent permanent impairment to her left upper extremity and a 14 percent permanent impairment to her cervical spine. Salvation Army agreed to a 6 percent impairment to Claimant's left upper extremity, but argued that Claimant had a 6.25 percent rather than a 14 percent impairment to her cervical spine.
On October 28, 2004, the Board held an evidentiary hearing on Claimant's Petition to Determine Additional Compensation Due. Claimant sought $9,201.74 in medical bills and an order for continuing treatment with Dr. Islam for pain management. Included in the medical bills for which Claimant sought reimbursement were bills from the second round of physical therapy in the amount of $7,044.00.
At the hearing, Dr. Islam testified by deposition that it was reasonable and necessary to treat Claimant's chronic pain and spasms with a second round of physical therapy. Dr. Rodgers, a specialist in occupational medicine, examined Claimant on December 29, 2003. Dr. Rodgers also testified that the second round of physical therapy was reasonable and necessary.
Dr. John B. Townsend, III examined Claimant at the request of Salvation Army on August 17, 2004. Dr. Townsend testified, by deposition, that he did not believe that Claimant's second round of physical therapy was necessary. He further testified that he did not believe that Claimant's arthrogram or rhomboid injection were related to her industrial injury. Dr. Townsend opined that Claimant's first round of physical therapy was adequate, and that "there would be no reason to embark on the same sort of physical therapy program at that time given that the first one hadn't been particularly successful in relieving her complaints." He stated that it would have been reasonable after the first round of physical therapy to switch to a home exercise program rather than undergo another round of physical therapy.
Id. at 77.
Id.
The Board issued a decision on November 9, 2004, awarding Claimant $3,354.60 for 6.0 percent impairment to the left upper extremity and $4,193.25 for 6.25 percent impairment to the cervical spine. The Board also awarded Claimant medical expenses in the amount of $1,818.00 in addition to medical witness fees. The Board further ruled that Claimant was entitled to see Dr. Islam three to four times a year to monitor her medication and condition.
While the Board accepted Dr. Islam's opinion that the arthrogram study and injections were reasonable and necessary, it refused to award Claimant payment for her second round of physical therapy at Barker Physical Therapy. The Board determined that there was "no reason for the second round of therapy since the first therapy program was not particularly successful at relieving the Claimant's symptoms." The Board noted that Dr. Sabbagh, after his first evaluation of Claimant, stated that one more month of physical therapy would be reasonable. After his second examination of Claimant, Dr. Sabbagh opined that additional physical therapy was not reasonable or necessary. Based also on Dr. Sabbagh's findings, the Board further concluded that "Claimant was on notice . . . that further physical therapy would be in dispute."
Mallory v. Salvation Army, IAB Hearing No. 1218253 (Nov. 9, 2004), at 12.
Id. at 8.
Id. at 12.
In this appeal, Claimant challenges only the Board's finding that she was not entitled to recover the cost of medical bills from her physical therapy treatment at Barker Physical Therapy. Claimant argues that she should not be punished for following the orders of her treating doctor, Dr. Islam, and going to a second round of physical therapy. Claimant further maintains that she was essentially required to follow her treating physician's orders because failure to do so could have resulted in further physical injury or a denial of benefits.
Claimant further argues that it is unreasonable and illogical for the Board to approve of Dr. Islam's orders for Claimant to undergo injections and arthrogram but not approve the second round of physical therapy which was also ordered by Dr. Islam. Claimant further maintains that the failure of the physical therapy to provide her with long-term relief does not render that treatment unreasonable or unnecessary.
Salvation Army responds that the Board is entitled to rely on the opinion of one medical witness over that of another. As such, Salvation Army argues, it was well within the Board's discretion to give greater weight to the opinion of Dr. Townsend over that of Dr. Rodgers and Dr. Islam.
STANDARD OF REVIEW
In reviewing an appeal from the Industrial Accident Board, the Superior Court must determine whether the Board's decision is supported by substantial evidence and is free from legal error. 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. It merely determines whether the evidence is legally adequate to support the Board's factual findings.
Histed v. E.I. duPont de Nemours Co., 621 A.2d 340, 342 (Del. 1993).
Oceanport Ind., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994) (citing Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981)).
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
DISCUSSION
A dispute over the reasonableness of medical expenses is a factual issue. Disputes over such factual questions are generally left to the discretion of the fact-finder. The Board, in its role as fact-finder, may accept the testimony of one medical witness over that of another. The Court may not question the Board's reliance on a medical expert's testimony, as long as the expert's opinion is logical and based on substantial evidence. A doctor's testimony itself may be considered substantial evidence on which the Board may base its decision. Accordingly, absent an error of law, the Court must defer to the experience and specialized competence of the Board in its assessment of the credibility of witnesses and the weight to be given to their testimony. Further, the burden rests on the Claimant to prove her demand for additional compensation due by a preponderance of the evidence.In this case, Dr. Islam testified that she had not examined the Claimant's medical records before prescribing a second round of physical therapy treatment. Dr. Rodgers did testify that the second round of treatment was necessary and reasonable. Dr. Townsend, however, who examined Claimant and reviewed her medical records, testified that it was his belief that the second round of physical therapy was not necessary, and that a home treatment program would have sufficed, given that the first round of physical therapy did not alleviate Claimant's pain.
The Court finds that it was reasonable for the Board to give greater weight to the testimony of Dr. Townsend, and to find that a second round of physical therapy was not reasonable or necessary. The Court concludes, further, that Dr. Townsend's opinion was logical and based on substantial evidence, in that he personally examined Claimant and reviewed her medical records. The Court also agrees that Claimant was on at least constructive notice after her visits to Dr. Sabbagh that any additional physical therapy treatments would be disputed.
CONCLUSION
The Court finds that the Board's determination that Claimant did not carry her burden to show she was entitled to reimbursement for her medical expenses from Barker Physical Therapy was supported by substantial evidence and contained no error of law. Therefore, the Board's decision is AFFIRMED.