Summary
In McDonalds v. Fountain, 2007 WL 1806163, at *2 (Del. Super. 2007), the Court held that administrative agencies "operate less formally than courts of law and, as such, rules of evidence do not strictly apply.
Summary of this case from Hellstern v. Culinary Servs. Grp.Opinion
C.A. No. 06A-08-003 WLW.
Submitted: February 7, 2007.
Decided: May 30, 2007.
Upon Appeal from a Decision of the Industrial Accident Board. Affirmed.
Eric D. Boyle, Esquire of Chrissinger Baumberger, Wilmington, Delaware; attorneys for Employer Below/Appellant.
Edward C. Gill, Esquire of the Law Office of Edward C. Gill, P.A., Georgetown, Delaware; attorneys for the Employee Below/Appellee.
ORDER
The Employer below, McDonalds ("Employer"), appeals a decision from the Industrial Accident Board ("Board") in favor of Employee-Claimant, Victoria Fountain ("Claimant").
FACTS
On August 12, 2001, Claimant injured her back when she slipped and fell on ice while working at McDonalds. Employer accepted the injury as compensable and paid Claimant benefits for total and partial disability, as well as some medical expenses. On October 12, 2005, Claimant filed a Petition to Determine Additional Compensation Due (hereinafter "Petition"), seeking payment of outstanding medical expenses. The parties agreed that Claimant's medical expenses were reasonable and necessary in light of the her substantial back problems; however, Employer disputed the causal connection between Claimant's medical expenses and her August, 2001 industrial accident.
The hearing on Claimant's Petition took place on March 27, 2006. On April 13, 2006, Employer filed a Motion to Re-Open or for Clarification (hereinafter "Employer's Motion") based upon evidentiary rulings made by the Board during the March, 2006 hearing. The Board issued its decision on August 1, 2006. In its decision, the Board clarified and affirmed its evidentiary rulings and found for Claimant on the merits. Employer filed a timely appeal to this Court.
Fountain v. McDonalds, IAB Hearing No. 1211735 (August 1, 2006).
STANDARD OF REVIEW
The scope of review for an appeal of a Board decision is limited to examining the record for errors of law and determining whether substantial evidence is present on the record to support the Board's findings of fact and conclusions of law. "Substantial Evidence" is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. On appeal, the court does not "weigh the evidence, determine questions of credibility, or make its own factual findings." The court is simply reviewing the case to determine if the evidence is legally sufficient to support the agency's factual findings. Questions of law are reviewed de novo.
Histed v. E.I. DuPont de Nemours Co., 621 A.2d 340, 342 (Del. 1993); Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
Johnson, 213 A.2d at 66.
ILC of Dover, Inc. v. Kelley, 1999 Del. Super. LEXIS 573 at *3.
Porter v. Insignia Mgmt. Group, 2003 Del. Super. LEXIS 360 at *8.
DISCUSSION On appeal, Employer contends the Board erred as a matter of law in excluding Dr. Gabriel Somori's ("Dr. Somori") letter report from evidence and the Board's decision is not supported by substantial evidence.
I. The Board did not err as a matter of law in excluding Dr. Somori's letter report from evidence.
At the hearing, Employer attempted to introduce into evidence a letter report authored by Dr. Somori. Dr. Somori did not testify at the hearing, nor was deposed in the matter. Claimant objected to the introduction of the report on the grounds that it was inadmissible hearsay evidence and further, that Claimant did not have an opportunity to cross-examine Dr. Somori on the opinions contained in the report. The Board sustained Claimant's objection and the report was excluded from evidence. During its closing argument, Employer attempted to comment on Dr. Somori's report. Again, Claimant objected. The Board sustained the objection and limited Employer's comment on the report to the extent that the report was discussed by the parties' expert medical witnesses during their depositions.
The letter report, dated November 17, 2003, is one page in length and contains a summary of Dr. Somori's opinion. That opinion m irr ors Emp loyer's medical ex pert's opinion . Specific all y, that Claimant's pain is related to her childhood scoliosis and not causally connected to her industrial accident.
First, Employer argues that the Board erred in excluding Dr. Somori's report, because Claimant waived the right to object to its admission. The Court disagrees.
Both parties had one medical witness testify via deposition at the Board hearing. Dr. Ganesh Balu ("Dr. Balu") testified on behalf of Claimant and Dr. David Sopa ("Dr. Sopa") testified on behalf of Employer. During Dr. Balu's February 22, 2006 deposition, Employer read a portion of Dr. Somori's opinion so that the doctor could comment. Employer now claims that because Claimant failed to object to the reading of Dr. Somori's opinion at Dr. Balu's deposition, Claimant waived the right to object to the introduction of Dr. Somori's report at the hearing. Employer's contention is without merit. Although Dr. Balu was asked to opine on Dr. Somori's opinion, Employer did not attempt to introduce the report into evidence until Dr. Sopa's March 8, 2006 deposition. Claimant objected to its admission at that time. Additionally, Claimant objected to the admission of the report at the March 27, 2006 hearing; therefore, Claimant objected to the evidence's admission in a timely fashion.
Claimant began treating with Dr. Balu's office on May 23, 2005. Dr. Balu is board certified in pain management, and physical medicine and rehabilitation.
In his capacity as a medical defense witness, Dr. Sopa evaluated Claimant twice, July 21, 2003 an d February 15, 200 6. Dr. Sopa's medical specialty is orthopedic surge ry.
Next, Employer contends that Claimant's objection was unwarranted because it is customary for medical doctors to testify from other doctor's opinions at Board hearings. The Court acknowledges that the Board regularly considers evidence relating to the records/reports of other physicians through the testimony of medical experts who have reviewed those records. Indeed, that is exactly what occurred in this case. The Board considered both Dr. Balu and Dr. Sopa's deposition testimony regarding Dr. Somori's report. Despite Employer's contention, the report itself is not per se admissible merely because the parties' experts reviewed and testified with regard to the report at the hearing.
Whitehouse Sons, Construction v. Stanford, 2000 Del. Super. LEXIS 281. See D.R.E. 703.
Finally, Employer contends that the report should have been admitted due to the Board's relaxed evidentiary standards. Essentially, Employer is arguing that the Board erred in excluding hearsay evidence. `It is well known that administrative agencies operate less formally than courts of law and, as such, rules of evidence do not strictly apply.' Nonetheless, `a hearing before the Board is an adversarial proceeding where the rules of evidence apply insofar as practicable.'
At no time has Employer argued that the report was not hearsay evidence.
Conley v. Capital Homes, Inc., 2006 Del. Super. LEXIS 420 at *19.
Standard Distributing, Inc. v. Hall, 897 A.2d 155, 157 (Del. 2006); See Industrial Accident Board Rule No. 14(B) (The rules of evidence applicable to the Superior Court of the State of Delaware shall be followed insofar as practicable; however, that evidence will be considered by the Board, which in its opinion, possesses any probative value commonly accepted by reasonably prudent men in the conduct of their affairs. The Board may, in its discretion, disregard any customary rules of evidence and legal procedures so long as such a disregard does not amount to an abuse of its discretion.).
In light of Claimant's inability to cross-examine Dr. Somori regarding the opinions expressed in his report, the Board concluded that the prejudicial effect of the report outweighed its probative value. The Board considered the probative value of the report minimal, as the Board was already substantially aware of the substance of the report. Specifically, the Board considered the deposition testimony of both parties' expert witnesses regarding the report and moreover, Dr. Sopa testified that the causation opinion expressed in Dr. Somori's report was consistent with his own.
Although the Board has discretion in admitting otherwise inadmissible hearsay testimony, it is not required to do so. The Board did not err as a matter of law or abuse its discretion in excluding Dr. Somori's report from evidence.
II. The Board's decision was based on substantial evidence.
Before the Board, it was Claimant's burden to show that the medical expenses sought were reasonable, necessary and causally connected to her August 12, 2001 accident. The parties agree that Claimant's treatment was reasonable and necessary in light of her significant back problems. The parties dispute, however, the causal connection between Claimant's back injuries and her August, 2001 industrial accident.
Turnbull v. Perdue Farms, 1998 Del. Super. LEXIS 163 at *5-6.
The Board's decision contains an extensive recitation of the facts which are supported by the record. For the purposes of this appeal, a summary of those facts will suffice.
To support their positions, both parties had one medical witness testify via deposition at the Board hearing. Dr. Balu testified on behalf of Claimant and Dr. Sopa on behalf of Employer. In summary, Dr. Balu opined that Claimant is suffering from lumbar facet syndrome, lumbar radiculopathy and post-traumatic spondyloisthesis, all of which are causally related to Claimant's industrial accident. Dr. Sopa, on the other hand, believes that Claimant is suffering from degenerative changes, secondary to her scoliosis and fusion surgery in 1975, which became symptomatic over time. Dr. Sopa opined that Claimant's August, 2001 work accident resulted in a contusion to her sacrum area; however, that condition had resolved to the point of maximum medical improvement by July 21, 2003. Dr. Sopa also testified that in his opinion, the industrial accident did not trigger an earlier progression of Claimant's degenerative problems.
In 1975, at the age of fifteen, Claimant underwent spondylosthesis fusion surgery to treat idiopathic scoliosis, a degenerative spinal disease.
In rendering their opinions, both Dr. Balu and Dr. Sopa relied on a myriad of other physicians' reports and records. Those records indicate that Claimant was treating for back pain prior to her August 12, 2001 accident. Claimant agreed that when she saw Dr. Richard Sternberg, an orthopedic surgeon, in June of 2001, she reported back pain at a level of 7 out of 10 (with 10 being the highest level of pain). She stated that her pain had been getting worse and therapy was increasing her pain. Claimant further agreed that when she saw Dr. Luis Cabral, a rheumatologist, on August 9, 2001, three days before the accident, she reported a "killing type" of pain in her back. However, Claimant testified that prior to the accident her pain level was usually around 3 out of 10. After the accident, Claimant maintains that her pain level is 8 or 9 out 10.
Additionally, Claimant testified that for approximately 25 years following her fusion surgery she led a "fairly normal life." Prior to her slip-and-fall, Claimant was working full-time at McDonalds. Her position at McDonalds required her to be on her feet all day and lift heavy items, including 40 pound boxes of hamburgers. Claimant testified that she is no longer capable of working and gets assistance from her children to complete everyday activities. Further, Claimant testified that she did not take medication for her back pain on a regular basis prior to her industrial accident, but that after, she is required to take pain medication and muscle relaxers on a daily basis.
The Board, in its August 1, 2006 decision, found that Claimant had satisfied her burden and therefore granted her Petition. Based on the totality of evidence presented, the Board held that Claimant's industrial accident aggravated, accelerated or in combination with her degenerative disease, produced Claimant's current condition. In rending its decision, the Board gave great weight to Dr. Balu's opinion and Claimant's hearing testimony.
See Reese v. Home Budget Center, 619 A.2d 907, 910 (Del. 1992) (A preexisting disease or infirmity, whether overt or latent, does not disqualify a claim for workers' compensation if the employment aggravated, accelerated, or in combination with the infirmity produced the disability.")
DiSabatino Bros., Inc. v. Wortman, 453 A.2d 102, 106 (Del. 1982) (The Board is free to accept one expert's opinion over another.); Clements v. Diamond State Port Corp., 831 A.2d 870, 877 (Del. 2003) ("The Court has consistently held that it is the Board's function to resolve conflicting medical testimony.").
Playtex Products, Inc. v. Leonard, 2002 Del. Super. LEXIS 433 at *22 (It is solely the Board's function to resolve conflicts in the evidence and weigh witness credibility.).
The Court's review of the Board's decision is limited to determining whether substantial evidence is present on the record to support the Board's findings of fact and conclusions of law. After reviewing the record, the Court finds that there is sufficient evidence to support the Board's decision and the Board did not err as a matter of law.
Histed, 621 A.2d at 342.
CONCLUSION
For the above reasons, the Court finds that the Board did not err as matter of law or abuse its discretion in excluding Dr. Somori's report from evidence. Furthermore, the Board's decision is supported by sufficient evidence and free from Consequently, the decision of the Industrial Accident Board is affirmed.
IT IS SO ORDERED.