Opinion
C.A. No. 99A-07-002 SCD.
Submitted: April 18, 2000.
Decided: June 9, 2000.
Upon Appeal From Decision of the Industrial Accident Board
ORDER
This 7th day of June, 2000, upon consideration of the briefs filed by counsel and the record below, it appears that:
(1) This is claimant James Murphy's ("Murphy") appeal from the Industrial Accident Board ("Board"), following the Board's decision of June 15, 1999, denying him a recurrence of total disability benefits.
(2) Murphy received a compensable injury on August 23, 1994 while employed as a mixer operator at Georgia-Pacific Corporation ("Georgia-Pacific"). The injury occurred when Murphy was clearing a jam in the mixer, which aggravated a pre-existing condition in his low back. Murphy received total disability benefits from August 1994 to March 1996. Thereafter he agreed to accept partial disability, although he did not return to work. He also received sums for permanent impairment to the low back. In September 1998, Murphy filed a Petition to Determine Additional Compensation Due, seeking compensation for a recurrence of total disability.
(3) A hearing was held by the Board on June 3, 1999 to determine additional compensation due. The testimony at presented at the hearing was as follows:
James Murphy
He is sixty one years old, walks with a walker, and has a sixth grade education. He served with the military police in the army, and has had the following jobs: short-order cook, deliveryman, machine operator, cab driver and security guard. He began working for Georgia-Pacific in 1970, was laid off for a brief time, and returned to Georgia-Pacific in 1971. He was employed as a mixer operator until 1984 when he suffered a stroke. After the stroke he returned to work as a security guard, remaining in that position until laid off in 1992.
In October 1994 he was examined by Dr. Case on behalf of Georgia-Pacific. Dr. Case determined he could return to light duty work at Georgia-Pacific five days a week, eight hours a day. He returned to Georgia-Pacific in July 1994 as a mixer operator, working seven days a week, twelve hours a day. On August 23, 1994, he injured his back while clearing a jam from the mixer.
At the June 3, 1999 hearing, he testified that his back had been getting worse over the past two years. He cannot sit or stand for long periods of time, and can walk no more than a block and a half before experiencing back pain. He has not looked for a job since 1995, but does not believe he is able to work now. He suffered a second stroke in July 1997.
Jerry L. Case. M.D.
Dr. Case, who is board certified in orthopedic surgery, testified on behalf of Georgia-Pacific. He examined Murphy in October 1994 and determined that, as a result of the work accident, Murphy suffered a lumbar strain on top of preexisting degenerative disk disease. An MIRI showed bulging disks throughout the lumbar spine, but no disk herniations. He opined then that Murphy could do light duty work, avoiding repeated bending and twisting and lifting over twenty pounds. He reexamined Murphy in April 1995 and February 1996. He found no change in Murphy's low back due to the work related injury and continued to recommend light duty; however, he noted that Murphy's other unrelated medical problems, including cervical myelopathy, spasticity in the leg, and increased claudication in the legs as a result of vascular problems, had worsened. His final examination of Murphy was in November 1998. By that time, Murphy had had three vascular surgeries, and he opined that Murphy was totally disabled due to his unrelated medical problems. Considering only the low back, he testified that Murphy was still able to do light duty work without lifting over twenty pounds.
Stephen J Rodgers M.D
Dr. Rodgers, who specializes in occupational medicine, testified on behalf of Murphy. He examined Murphy in September 1994, and diagnosed Murphy with a chronic low back condition characterized by degenerative disk disease with an acute work related injury and lumbosacral neuropathy. He was aware of Murphy's unrelated medical problems. An October 1994 MIRI confirmed that Murphy had a bulging disk but no disk herniations. Murphy began complaining of increased back pain in late 1997 or early 1998. An August 1998 MRI revealed a left lateral disk protrusion, which had previously been a disk bulge. He opined that Murphy cannot return to the type of work he was doing at Georgia-Pacific, and that Murphy is unable to work at all because of the combined effect of his medical problems. Considering only the work injury, he opined that Murphy would be able to do sedentary work. He did not express an opinion as to whether or not Murphy's unrelated medical conditions rendered him totally disabled.
Shelli Palmer
Shelli Palmer, a vocational case manager, testified on behalf of Georgia-Pacific. She prepared a labor market survey and located a representative sample of twenty two available positions for someone of Murphy's age, experience, and educational background with the only medical problem being a low back injury. The survey covered the time period August 1998 through April 1999. Although she used Dr. Case's restrictions of light duty with no repetitive bending or twisting and no lifting over twenty pounds to locate the positions, twenty of the available positions were also within Dr. Rogers' sedentary restrictions.
(4) In its decision, the Board determined that Murphy was not totally disabled due to his work accident, stating
Both Dr. Case and Dr. Rodgers agree that, if one considered [Murphy's] back injury alone, [Murphy] would be able to work. Both agree that, once you factor in [Murphy's] other medical problems, [Murphy] is totally disabled. Dr. Case specifically stated that those other medical problems, by themselves without consideration of the back injury, would be totally disabling. Thus, in Dr. Cases s view, the back injury essentially does not contribute to [Murphy's] total disability. [Murphy's] total disability is solely attributable to his other extensive medical problems. Dr. Rodgers did not opine as to [Murphy's] work capability without consideration of the back injury. Therefore, Dr. Case's opinion on that point is uncontradicted. The Board accepts Dr. Case's opinion and finds that [Murphy] is not physically totally disabled as a result of his work accident.
Murphy v. Georgia-Pacific Corp., IAB Hrg. No. 1037596, Op. at 12-13, June 15, 1999. While the Board's ruling is not as sharply stated as would have been desirable, by accepting Dr. Case's testimony, the Board concluded that the compensable low back condition was not a contributing factor to claimant's total disability; that his total disability was a product entirely of his deteriorating non-compensable condition. That conclusion is supported by the record.
The Board also determined that Murphy was not aprima facie displaced worker. In making this determination. the Board considered Murphy's age, education, experience, mental capacity and restriction of light to sedentary duty resulting from the compensable work injury. The Board also considered that Murphy is capable of working jobs other than general labor, and in fact, his work experience has not been limited to general labor. The Board specifically noted Murphy was a security guard and cab driver. Further, the Board determined that Palmer's labor survey rebuts a finding of prima facie displaced worker.
(5) On appeal from a decision of the Industrial Accident Board, this Court's limited function is to determine whether or not there is substantial evidence on the record to support the Board's findings. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. If this Court finds substantial evidence and the Board has not committed an error of law, the Board's decision must be affirmed. It is the Board's duty to determine the percentage of claimant's disability based on the evidence presented. As the trier of tact, it is also the Board's duty to make credibility determinations. The Board is free to accept the testimony of one medical expert over another.
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965).
Olney v. Cooch, Del. Supr., 425 A.2d 610, 614 (1981).
Windsor v. Bell Shades and Floor Coverings, Del. Supr., 403 A.2d 1127, 1129 (1979).
Turbitt v. Blue Hen Lines, Inc., Del. Supr., 711 A.2d 1214, 1215 (1998) (citations omitted).
Breeding v. Contractors-One-Inc., Del. Supr., 549 A.2d 1102, 1106 (1988) (citing Johnson, 213 A.2d at 66).
Disabatino Brothers, Inc. v. Wortman, Del. Supr., 453 A.2d 102, 106 (1982).
(6) Murphy appeals the Board's decision denying him a recurrence of total disability. He relies on Reese v. Home Budget Center for the proposition that "[a] pre-existing 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." He states that both medical experts agree that he is totally disabled from all of his medical conditions. Murphy also argues that he is a displaced worker. He contends that his restrictions from the low back injury, in combination with his pre-existing vascular problems, effectively remove him from any known branch of the competitive labor market.
Del. Supr., 619 A.2d 907 (1992).
Id. at 910 (citations omitted).
(7) Georgia-Pacific contends that substantial evidence exists to support the Board's finding that Murphy did not establish a recurrence of total disability related to his work accident. It argues that the evidence on the record supports the Board's decision that Murphy's disability is not causally related to the work accident, and contends that the sole reason for Murphy's total disability is the multitude of unrelated medical problems. Georgia-Pacific argues that Murphy's reliance on Reese is misplaced because in this case no evidence was presented at the hearing to support any causal link between Murphy's work injury and his total disability status. Georgia-Pacific contends that the Displaced Worker Doctrine is inapplicable to this case because Murphy was unable to meet the burden of proving a recurrence of his work related injury. However, assuming that the Displaced Worker Doctrine is applicable, Georgia-Pacific contends that the unrebutted testimony of the vocational rehabilitation expert clearly demonstrates that Murphy is employable from the standpoint of his work related injury.
(8) Claimant's reliance on Reese v. Home Budget Center is misplaced. In Reese, the claimant suffered a low back injury while delivering a mattress. Five months later he began to suffer from emotional and anxiety problems for which he sought psychiatric treatment. Reese filed a petition with the Board to require payment for his psychiatric treatment. Evidence presented at the hearing was that the industrial accident provided a setting for the manifestation of his emotional problems. The Board denied Reese's claim for psychiatric expenses, finding that the work accident was not the "substantial cause" of claimant's psychiatric condition, and the Superior Court affirmed. The Supreme Court reversed, finding that the Board applied an erroneous legal standard. The Court determined that for purposes of compensability, causation is satisfied if the accident provides the "setting" or "trigger" for the injury. The Court held that "[i]t is thus unnecessary to quantify causation where there is no dispute that a specific accident contributed to the condition and `without [the accident] the [injury] would not have occurred.'" In the present case, Murphy presented no evidence that his low back injury contributed to his vascular problems or other disabling maladies. In fact, Dr. Case testified that while Murphy's back condition remained the same, his unrelated medical problems were worsening.
Supra.
Reese, 619 A.2d at 908.
Id.
Id.
Id. at 909.
Reese, 619 A.2d at 910.
Id. at 911 (citing Culver v. Bennett, Del. Supr., 588 A.2d 1094, 1097 (1991)) (emphasis- added).
The Board accepted the testimony of Dr. Case and Dr. Rodgers that, considering only Murphy's back injury, he would be able to work in either a light duty or sedentary capacity. Contrary to Murphy's argument, his back injury did not combine with his other medical problems to produce his disability. Murphy is totally disabled notwithstanding his back injury. The Board considered the appropriate factors, including age, education, experience, mental capacity, restrictions resulting from his work injury, and Palmer's labor market survey when determining that Murphy was not a displaced worker. The Board's decision is supported by substantial evidence.
For the reasons set forth, the decision of the Industrial Accident Board is AFFIRMED.
IT IS SO ORDERED.