Opinion
Civil Action No. 05A-05-012-JOH.
Submitted: January 20, 2006.
Decided: March 13, 2006.
Upon Appeal from a Decision of the Industrial Accident Board — AFFIRMED.
Matthew M. Bartkowski, Esquire, of Kimmel, Carter, Roman, Peltz, P.A., Bear, Delaware, attorney for employee-below, appellant.
Scott L. Silar, Esquire, of Marshall, Dennehey, Warner, Coleman, Goggin, Wilmington, Delaware, attorney for employer-below, appellee.
MEMORANDUM OPINION
Currently before this Court is an appeal from a decision of the Industrial Accident Board denying Harold Munyan's petition for additional compensation due. Upon consideration of the pleadings before this Court and the record below the Board's ruling is AFFIRMED.
Procedural History
On October 25, 2004, Munyan filed a Petition to Determine Additional Compensation Due seeking a award of permanent impairment benefits. He sought an award of ten percent (10%) permanent impairment to his lower right extremity (RLE) as a result of an earlier job-related injury. DaimlerChrysler, Munyan's employer, contended that he suffered no permanent impairment and, thus, was not entitled to any award for permanency from the Board.On April 20, 2005, an Industrial Accident Board hearing was held before a hearing officer. As a result of the earlier injury, Munyan and Chrysler acknowledged a compensation rate of $491.57 per week. In its May 2, 2005 decision, the Board denied Munyan's Petition finding that he had not met his burden to prove a permanent loss of use requiring an award of benefits. This timely appeal followed.
19 Del.C. § 2301B:
(a) There is hereby created within the Department of Labor the full-time position of hearing office. With respect to cases arising under Part II of this title, the hearing officers shall have:
(4) The power, with consent of the parties, to conduct hearings, including any evidentiary hearings required by Part II of this title, and to issue a final decision determining the outcome of such hearings. In such circumstances, the hearing officer's decision has the same authority as a decision of the Board and is subject to judicial review on the same basis as a decision of the Board.
Facts
Munyan is a Level II technician at DaimlerChrysler ("Chrysler"). On May 19, 2003, about 15 minutes into his 3 p.m. shift at the Chrysler Newark plant, Munyan was at his station. A flat bed truck struck Munyan's station, driving a supply rack into his right thigh and knocking him to the floor. After being treated at the plant, Munyan was taken to Christiana Hospital's Emergency Room. There he was placed in a soft cast, given crutches and pain medication and referred to his family physician, Dr. Eribeck.
No first name given in the record. The Industrial Accident Board is requested that at least once in the record any person's full name be given, particularly in the case of doctors. Counsel have a responsibility to ensure that this is done.
Dr. Eribeck ordered an MRI, removed the cast and sent Munyan to physical therapy. After being out of work 2 to 3 weeks, Munyan returned to his former employment position.
Munyan testified that the physical therapy helped him. However, once he returned to work, his leg would start to tighten up during the day and later in the evening. On resuming normal activities, he still had pain and a burning sensation in his thigh. Munyan returned several times to see both his family physician and the plant doctor as well as having additional physical therapy treatments.
At the time of the hearing Munyan had a limp that bothered him. He takes anti-inflammatory medication as needed. His symptoms appear often when the weather changes, during cold periods and during long extended work hours. The symptoms also appear if he mows the lawn or walks for an extended period. He said he is unable to play sports. Munyan denies any injuries to his RLE before the May 2003 incident.
Dr. John Hocutt, Jr., Munyan's expert witness, testified by deposition. He reviewed various medical records, as well as a June 11, 2003 MRI and the report of Chrysler's physician witness, Dr. Elliott Letiman. Dr. Hocutt examined Munyan on August 31, 2004. He found that Munyan was tender in the mid-right quadriceps muscle group and exhibited hardness of that muscle group in the mid anterior region. The doctor noticed a defect to palpation proximately in the quadriceps. As Munyan was a full 30 centimeters off full extension on the right quads and almost 20 centimeters off the left quads, he said there has been a significant loss of knee flexion. The injury and defect noted on the MRI account for the loss of flexion in the right knee, according to Dr. Hocutt. When examined, Munyan could walk and move his leg with a little resistance beyond gravity. Dr. Hocutt opined that there was wear and tear on the hip joint, possibly causing bursitis which Munyan seemed to suffering the day he was examined. Dr. Hocutt stated that these findings were consistent with the type of injury suffered by Munyan and his complaints. The doctor's diagnosis was that Munyan had a chronic right thigh contusion of his vastus medialis muscle with a muscle tear in the quads. He considered the injuries to be permanent as the symptoms have persisted and Munyan is pretty stable.
Dr. Hocutt had Munyan undergo testing to get independent documentation or confirmation. In its functional evaluation, Iso-Diagnostic in Pennsylvania (to which Dr. Hocutt had referred Munyan) found that Munyan's right side flexion was 63 percent of normal of the quads. He referred to Table 17-10, page 537 of the Fifth Edition of the AMA Guides. The 63 percent corresponded to a 10 percent permanent and partial impairment for the RLE according to that table. He added that for the strength deficit, another table is to be used. He thought that table corresponded to a 12 percent permanent and partial impairment, consistent with the loss of range; but believed that was a higher rating than justified.
Referring to Dr. Leitman's report, Dr. Hocutt says there is documentation in the report that Munyan is injured and has deficits. Dr. Leitman reported there was a 4 out of 5 strength, a 12 percent disability using Table 17-8, page 532 of the Fifth Edition of the AMA Guides.
Under cross-examination, Dr. Hocutt stated that he was not present when Iso-Diagnostic performed its evaluation, but he had seen some of their exams. He insisted the exams be according to the AMA Guides and he double-checked what they did. Dr. Hocutt agreed that, using the range of motion method, Munyan was not permanently impaired. He concluded that it would be better if Munyan continued with physical therapy but he did not think that was practical.
Chrysler's expert, Dr. Leitman, also testified by deposition. He saw Munyan on February 16, 2005. On examination, he found that Munyan has some very minor thigh pain on deep palpation, very little atrophy and demonstrated essentially full range of motion of his knee without significant weakness. After some manual muscle testing, Dr. Leitman found 4 out of 5 on the right and 5 out of 5 on the left.
Upon reviewing the MRI, Dr. Leitman found a little bit of signal in the mid-portion of Munyan's quadriceps which may have been some calcification. His diagnosis was a contusion of the quadriceps tendon and some tightness of the thigh muscles. He considered Munyan as 98 percent of normal or very slightly abnormal. He thought that Munyan should work on some stretches on his own and then should be fine in a few more weeks. Using the same criteria outlines in the AMA guideline, Dr. Leitman said there would be no definition of permanency for this injury. The difference, he testified, in the quadriceps strength between the right and left was not considered to be significantly abnormal. He failed to find any significant atrophy. He found Munyan's range of motion to be normal. Dr. Leitman did not find there was any loss of range of motion present in the knee when he examined Munyan but found full extension and full flexion. He concluded there was no permanent injury to the RLE.
On cross-examination, Dr. Leitman agreed that Munyan had a very slight antalgic gait when he arose from a seated position, but, he said, the more Munyan walked around, the better it got. The doctor noted he had some pain referable to his groin in the extremes on flexion, extension and internal rotation. There was also a very minimal defect in the area of the vastus medius as well as some point tenderness to palpation in the third proximal medial third of his thigh. He also admitted there was a very slight tenderness to palpation in the proximal medial quadriceps. Munyan only had full active extension with resisted testing of knee extension. There was a very slight asymmetry, not of significance, with regard to Munyan's strength. The doctor noted that there was tightness in the thigh muscle when Munyan was examined in the prone position. Dr. Leitman also found a significance for bilateral quadriceps tightness who opined that Munyan should have a brief therapy session to instruct him in some home quadriceps and a hip-strengthening program. He also recommended that Munyan get an x-ray of the right thigh to determine whether there was any calcification of the quadriceps muscle.
Dr Leitman concluded saying there were some minimal defects in some muscle areas and some tenderness. However, he did not find these sufficient to give Munyan permanency. He stated that he referred to the AMA Guides, Table 17-10, range of motion, to determine if there was any permanency.
The Board chose to accept the testimony of Dr. Leitman over that of Dr. Hocutt. While both doctors noted, Munyan's subjective complaints, the Board was impressed by Dr. Leitman's exam as being closer to the hearing, two months prior versus about eight months prior. The Board found Dr. Leitman's examination presented a more accurate and complete picture. Some of Dr. Leitman's findings, Dr. Hocutt even testified, would mean there was no permanency.
The Board found the results of Dr. Leitman's exam of Munyan to be consistent with the AMA Guidelines. Those findings were no loss of range of motion, weakness or atrophy. The conclusion, the Board said was that, while Munyan may have pain, but pain without a loss of use is not compensable. The Board found no loss of use. Munyan performs the same job as before and was unpersuaded by his testimony about things he could not do.
Since Dr. Hocutt had relied upon an independent agency to determine any loss of range of motion, the Board discounted the findings of that agency. No one from that agency testified. In the end, the Board was convinced Munyan had improved by the time he saw Dr. Leitman.
Parties' Claims
Munyan argues that the Board's decision is not supported by substantial evidence. He contends both medical experts found deficits and continuing pain. The applicable AMA Guides, he contends, used by both doctors should result in a permanency award.
Chrysler, of course, contends the Board's award is supported by substantial evidence. Dr. Leitman, whom the Board chose to accept, opined that there was no permanency because whatever deficits he found were insignificant and do not justify under AMA Guides such an award.
Standard of Review
On an appeal from the Board, this Court's limited role is to determine whether the Board's conclusions are supported by substantial evidence and are free from legal error. This Court does not weigh the evidence, determine questions of witness credibility or make its own factual findings and conclusions. The Court is to consider the record in the light most favorable to the party prevailing below. Absent an abuse of discretion, this Court must uphold the Board's decision.
Morgan v. Anchor Motor Freight, Inc., 506 A.2d 185, 188 (Del.Super. 1986).
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
General Motors Corp. v. Guy, 1991 WL 190491 (Del.Super.), at *3.
Simmons v. Delaware State Hospital, 660 A.2d 384, 388 (Del. 1995).
Discussion A.
Munyan and Chrysler agree that Munyan was injured while at work and that the injury was the result of an accident that took place in the course of his employment. They disagree over whether Munyan is permanently partially disabled as a result of that May 19 injury and, therefore, would be eligible to receive permanent impairment benefits. Munyan, as claimant, bears the burden of proof.In this case, the Board's decision narrowed down to which of the two medical expert's testimony was to be given greater weight.
The function of the Board is to determine the credibility of expert witnesses. Also, it ascertains the appropriate weight to give each expert's opinion. The Board is free to rely on any expert's opinion over that of another. Such reliance will be deemed substantial evidence of purposes of the Board's decision. Substantial evidence is such relevant evidence that a reasonable person can accept as adequate to support a conclusion. "It is also more than a scintilla but less than preponderance. . . ." Where there is substantial evidence, the Board's decision must be affirmed.
Breeding v. Contractor-One-Inc., 549 A.2d 1102, 1106 (Del. 1988).
Clements v. Diamond State Port Corp., 831 A.2d 870, 877 (Del. 2003).
Simmons v. Delaware State Hospital, 660 A.2d at 388; Delaware Tire Center v. Fox, 401 A.2d 97, 100 (Del.Super. 1979), aff'd 411 A.2d 606 (Del. 1980).
DiSabatino Bros. v. Wortman, 453 A.2d 102, 105 (Del. 1982).
Breeding, 549 A.2d at 1104.
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981), quoting Cross v. Califano, 475 F.Supp. 896, 898 (D.Fla. 1979).
M.A. Hartnett, Inc. v. Coleman, 226 A.2d 910, 911-2 (Del. 1967).
B. The Board's Findings
The AMA Guides require either a loss or loss of use of the RLE to recover permanent impairment benefits. The Board believed that Dr. Leitman's opinion was correct in that Munyan did not warrant an award of permanent impairment benefits. The Board cited the established principle that "[p]ain which is not associated with loss of use is not compensable under Work[ers'] Compensation Law." However, the Board did not continue with the quote. The Rynders Court also said "[h]owever, pain of movement may constitute an inhibitory force which prevents movement or use."Munyan does not claim, however, that the pain he feels prevents movement, merely that he feels pain after he moves. Thus, he is not prevented from moving. He maintains the job he had prior to the injury. The Board heard him testify about things he could not do but was unpersuaded. It heard that testimony and, on this record, it would be inappropriate for the Court to second guess that conclusion. There is no reason for Munyan to receive permanent impairment befits due to the pain he experiences.
IAB Hr'g Tr. of 4/20/05, at 8.
The Board also decided not to accept Dr. Hocutt's opinion stating that he did not administer his own range of motion evaluation; instead that he relied on the values from an independent functional capacity evaluation (FCE). The Board is not correct in saying that Dr. Hocutt did not administer his own range of motion evaluation. It also stated that Dr. Hocutt did not rely on those findings as a basis for his opinion. Nowhere in his deposition does Dr. Hocutt say that he relied only upon the Iso-Diagnostics values.
IAB decision at 7.
According to his testimony, Dr. Hocutt performed a physical examination noting the strength testing. He measured in centimeters and did not convert to degrees as he knew Munyan would be getting an FCE. Dr. Hocutt stated he asked Munyan to get a functional evaluation by a third party to get extra independent documentation of Munyan's condition. He then compared his results with those of Iso-Diagnostics. That is not relying on those values. He asserted that the FCE findings were consistent with Munyan's complaints as well as his own findings.
Hocutt Deposition at 5.
Id. at 8.
Id. at 9.
The Board's criticism of Dr. Hocutt's use of the outside testing agency is overbroad. Experts are permitted to rely on and testify about such opinions in forming their own opinions. Physicians rely upon diagnostic testing by others to help them formulate their own opinions every day. While the Board's discounting of the use of the results from the outside agency that Dr. Hocutt may have been in error, it does not change the conclusion that the Board's decision is supported by substantial evidence.
The Board found Dr. Leitman's testimony more persuasive. In choosing between the experts, the Board stated that Dr. Leitman's examination of Munyan occurred closer in time to the hearing than that of Dr. Hocutt. It believed that the later examination portrayed a more accurate and complete picture of Munyan's present condition. It also found that Dr. Hocutt admitted that Munyan would not receive a rating on permanent impairment had he found the same measurement as those found by Dr. Leitman. Munyan, of course, argues the reverse, that Dr. Leitman's findings when viewed in conjunction with the AMA Guides establish a permanency. The trouble with that argument is that Dr. Leitman did not find anything justifying a permanency rating.
Q: Now, would you agree with the fact that if you look at Dr. Leitman's report, Dr. Leitman found that this gentleman had I believe — let me make sure I'm correct here. He said full symmetric range of motion of both hips and knees which would mean that there was full flexion, which if Dr. Leitman found full flexion, then using the table you used it would be appropriate to give a zero degree permanency rating; correct?
A: If he had used the range of motion method. Yes.
IAB Hr'g Tr. Hocutt Deposition of 4/12/05, at 15.
C.
It is the proper function of the Board to resolve any conflicts in the factual and opinion evidence presented to it. It chose to resolve the conflict in the expert testimony provided in favor of Dr. Leitman. The Board relied upon substantial evidence in concluding that Munyan did not sustain any permanent impairment causally connected to the work accident. In addition, this Court finds no legal error in the Board's ruling.
Conclusion
For the reasons stated herein, the decision of the Unemployment Insurance Appeal Board is AFFIRMED.