Opinion
C.A. No. 02A-09-003-RFS.
Submitted: July 25, 2003.
Decided: September 29, 2003.
Eric D. Boyle, Esquire, Chrissinger Baumberger
John J., Schmittinger, Esquire, Schmittinger Rodriguez, P.A.
Dear Counsel:
This is my decision on Nanticoke Home's ("Employer") appeal of the Industrial Accident Board's ("Board") decision awarding additional benefits to Curtis Miller ("Claimant"). The Board's decision is affirmed for the reasons set forth herein.
STATEMENT OF FACTS
On December 17, 2001, Claimant filed a Petition to Determine Additional Compensation Due for injuries incurred in a March 17, 1988 compensable work accident. Following the accident, Claimant received an award of 22.5% permanent impairment to his back. Claimant initially injured his back while working for another Employer in 1983. Claimant received an award of 17% permanent partial disability to his back for that injury. Thereafter, Claimant was involved in an automobile accident but his injuries were confined to his neck and upper extremities. He was involved in another automobile accident in 1991. Over the years, Claimant has been treated by a number of physicians, undergone multiple back surgeries, received chemical injections and taken a number of medications to treat his back injury. More recently, Claimant suffered a flair-up of his back injury in 2001 resulting in a period of total disability.
In the present Petition, Claimant sought an additional 18% permanent partial disability for his back, unpaid prescriptions and a 10% permanent partial disability for his leg. The Board held a hearing on the Petition on August 13, 2002 at which it considered the testimony of two physicians, Dr. Rodgers and Dr. Townsend, who evaluated Claimant for permanent impairment.
Dr. Rodgers examined Claimant, reviewed his medical records and considered past permanency findings by a variety of doctors. Dr. Rodgers found that Claimant suffered from a 35% impairment to his back and placed Claimant into a Diagnosis Related Estimates ("DRE") Category V, based on the DRE contained in the American Medical Associations' Guide to The Evaluation of Permanent Impairment ("AMA Guide"). Dr. Rodgers indicated that the impairment to the lower leg would be included in this rating under the DRE method. Dr. Rodgers testified that this method should be used if the 1988 injury was a new injury. Dr. Rodgers found that under the Range of Motion method, Claimant suffers from a 31% impairment to the back and a 10% leg impairment. Dr. Rodgers testified that this method should be used if the 1988 injury was a recurrence or aggravation of the initial 1983 injury.
Dr. Townsend found that under the Range of Motion method, Claimant suffered from an 18% permanent impairment to the back and a 5% permanent impairment to his leg. Dr. Townsend testified that the Range of Motion test should be used because Claimant suffered from multiple injuries to the same area. Dr. Townsend apportioned 2/3 to the 1988 accident and 1/3 to the 1983 accident. Dr. Townsend found that Claimant would be placed in DRE Category IV, under the DRE method. Dr. Townsend testified that the leg impairment would be included in the permanency rating under the DRE method.
The Board awarded Claimant a 35% permanent impairment to his back, a 5% permanent impairment to his left leg, medical expenses sought, attorney fees and medical witness fees. The Board relied on the DRE method permanency rating of Dr. Rodgers in finding that Claimant suffered from a 35% impairment to his back. The Board relied on the Range of Motion permanency rating of Dr. Townsend in finding that Claimant suffered from a 5% impairment to his leg. Employer appeals this decision with the exception of the medical expenses.
ISSUES PRESENTED
1 Is the Board's decision that Claimant suffers from a 35% permanent impairment to the low back supported by substantial evidence and free from legal error?
2. Is the Board's decision that Claimant suffers from a permanent partial disability to the lower left extremity supported by substantial evidence and free from legal error?
3. Did the Board err in failing to assess a credit to Employer for the permanent partial disability benefits Claimant had previously received pursuant to 19 Del. C. § 2326?
4. Did the Board err as a matter of law by awarding attorney fees and medical witness fees in this case?
DISCUSSION
A. Standard of ReviewThe Supreme Court and this Court repeatedly have emphasized the 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. Johnson v. Chrysler Corp., 312 A.2d 64, 66-67 (Del. 1965); General Motors v. Freeman, 164 A.2d 686, 688 (Del. 1960), and to review questions of law de novo, In re Beattie, 180 A.2d 741, 744 (Del.Super. 1962). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battista v. Chrysler Corp., 517 A.2d 295, 297 (Del.), app. dism., 515 A.2d 397 (Del. 1986). The appellate court does not weight the evidence, determine questions of credibility, or make its own factual findings. Johnson v. Chrysler Corp., 312 A.2d at 66. It merely determines if the evidence is legally adequate to support the agency's factual findings. 29 Del. C. § 10142(d).
B. Permanency Rating of Back
The Board's finding a 35% permanent impairment to Claimant's back is supported by substantial evidence and free from legal error. The Board has statutory authority to review an award "on the ground that the incapacity of the injured employee has subsequently terminated, increased, diminished or recurred." 19 Del. C. § 2347. Plaintiff has the burden of proving an increase in the capacity of the injured employee has subsequently terminated, increased, diminished or recurred." 19 Del. C. § 2347. Plaintiff has the burden of proving an increase in the incapacity by a preponderance of the evidence. Lawson v. Chrysler Corp., 199 A.2d 749, 751 (Del.Super. 1964). The Claimant's disability is determined by the Board, not by the physician. Poor Richard Inn v. Lister, 420 A.2d 178, 180 (Del. 1980). The Board fixes the percentage of Claimant's disability based on the evidence presented. Turbitt v. Blue Hen Lines, Inc., 711 A.2d 1214, 1215 (Del. 1998).
Moreover, "weighing evidence, determining the credibility of witnesses, and resolving any conflicts in testimony are functions reserved exclusively for the IAB." Klenk v. Med. Ctr. of Delaware, 702 A.2d 926 (Del. 1997). In resolving conflicts in testimony, it is not an `all or nothing' rule; the Board may accept a physician's testimony in whole or in part. Lewis v. Formosa Plastics Corp., Del. Super., C.A. No. 98A-06-002, Carpenter, J. (July 8, 1999) (ORDER). However, if the Board chooses to discount the testimony of a witness based on credibility, "it must provide specific relevant reasons for doing so." Turbitt v. Blue Hen Lines, Inc., supra. The Board's credibility determination of an expert witness will be upheld so long as its "findings are supported by satisfactory proof in the underlying depositions." Syed v. Hercules, Inc., Del. Super., C.A. No. O1A-01-013, Goldstein, J. (Aug. 23, 2001) (Mem.Op.).
Here, Claimant was previously found to have suffered a 22.5% impairment as a result of his 1988 work accident. The Board considered Claimant's testimony and the expert testimony of two physicians. The Board concurred with Dr. Rodgers that Claimant suffers from a 35% permanent impairment to his lower back. The Board was free to accept the testimony of one physician over another. Klenk, 702 A.2d at 926. The Board specifically found that Claimant is experiencing an acceleration of degeneration in his back as a result of the 1988 accident and its aftermath including the fusion surgery. Thus, the Board found that Claimant had met his burden of establishing an increase in the permanency rating. There is substantial evidence in the record to support the Board's conclusion.
C. Permanent Partial Disability of Leg
Here, Employer challenges the Board's finding of a 5% impairment to Claimant's leg. Employer argues that the Board could not adopt Dr. Rodgers' permanency findings for Claimant's back based on the DRE method and then adopt Dr. Townsend's permanency findings for Claimant's leg based on the Range of Motion method. Employer asserts that under the DRE method, the 35% permanency rating includes Claimant's leg injuries. Employer argues that by awarding a separate 5% permanency rating for Claimant's leg, the Board permitted a double recovery.
Employer also argues that the Board should not have considered Claimant's alleged impairment to the leg as the issue was not presented in a timely fashion pursuant to Board rules. The Superior Court does not consider on appeal matters outside of the record below. See Super. Ct. Civ. R. 72(g); 19 Del. C. § 2350(b). The Court will not consider evidence or issues not properly raised below. Oakes v. Chrysler Corp., Del. Super., C.A. No. 98A-08-006, Barron, J. (Jan. 11, 1999) (Letter Op.). Thus, an issue is waived if it was not raised below. Potts Welding Boiler Repair Co. v. Zakrewski, Del. Super., C.A. No. O1A-04-001, Herlihy, J. (Jan. 11, 2002) (Mem. Op.). Board Rule 9(E) states that modifications to pretrial memorandum must be made at least thirty days prior to the hearing.
Here, Claimant did not seek compensation for a permanent disability to the leg in the initial petition filed with the Board. Nor did Claimant raise this claim in the pretrial memorandum. While Claimant's actions violate IAB Rule 9, the alleged impairment to the leg was later fairly presented to the Board at the hearing. Thus, the issue was raised below and had not been waived. Potts Welding Boiler Repair Co. v. Zakrewski, supra. Since the issue is part of the record, the Court will consider the issue on appeal. See Super. Ct. Civ. R. 72(g); 19 Del. C. § 2350(b).
Credibility determinations are within the province of the Board. See Unemployment Ins. Appeal Bd. v. Div. of Unemployment Ins., 803 A.2d 931 (Del. 2002). This Court cannot assume a fact finding role or usurp the Board's function. Id. The Board may credit the medical testimony of one doctor over another. Scott v. First USA Bank, Del. Super., C.A. No. O1A-10-003, Alford, J. (April 30, 2002) (Mem.Op.) (accepting the medical opinion of one doctor over another). In considering the medical testimony of a physician, the Board may accept the testimony in whole or in part. Hart v. Columbia Vending Serv., Del. Super., C.A. 97A-01-002, Graves, J. (May 1, 1998) (ORDER) (discrediting the physician's testimony regarding the permanency rating of the leg while accepting the rating of the back).
There are two methods recognized by the AMA Guide to compute a permanent disability rating. Verdijo v. Skyline Painting, Del. Super., C.A. No. 99A-05-003, Del Pesco, J. (Jan. 28, 2000) (Mem.Op.). The first method, the DRE model is useful to evaluate "patients who have sustained traumatic injuries." Id. The second method is the Range of Motion model "which was used in previous editions of the Guide." Id. Depending on the type and nature of the injury, the AMA Guidelines may be applied differently. Collins v. Giant Food, Inc., Del. Super., C.A. No. 98A-11-002, Cooch, J. (Oct. 13, 1999) (Mem.Op.).
The AMA Guide elaborates on this point: [a]ll persons evaluating impairments according to Guides criteria are cautioned that either one or the other approach should be used in making the final impairment estimate. If one component were used according to the Guides recommendations, then a final impairment estimate using the other component usually would not be pertinent or germane. However, if disagreement exists about the category of the Injury Model in which a patient's impairment belongs, then the Range of Motion Model may be applied to provide evidence on the question. Id.
Contrary to Employer's assertion of a double recovery, a Claimant may recover separately for an impairment to the lower back and an impairment to the leg. Cross v. State, Del. Super., C.A. No. 99A-09-005, Herlihy, J. (Oct. 17, 2000) (Mem.Op.), aff'd Cross v. State, 782 A.2d 263 (Del. 2001). Thus, although the DRE method is used to find a lower back impairment, the Claimant may also recover separately for a leg impairment under the Range of Motion model. Id. Here, both physicians testified that Claimant suffered from a permanent impairment to the leg, but disagreed as to the permanency rating. While it is certainly true that Dr. Rodgers considered Claimant's injury to his leg in determining the permanency rating to the lower back, Dr. Rodgers' lower back permanency findings do not preclude a separate recovery for Claimant's impairment to the leg. The Board agreed with Dr. Townsend in finding that Claimant suffered from a 5% permanent impairment to the leg. The Board is free to accept the testimony of physicians in whole or in part. Hart v. Columbia Vending Serv., Del. Super., C.A. No. 97C-01-002, Graves, J. (May 1, 1998) (ORDER). Accordingly, there is substantial evidence in the record to support the Board's finding of a 5% permanent impairment to the leg and such a finding will not be disturbed on appeal.
D. Credit for Past Partial Disability Payments
The Board is not required to provide a credit for past partial disability payments in determining whether Claimant has suffered an increase in permanent impairment. The Board's authority under Section 2347 to increase disability benefits is not "circumscribed by, or directly related to, a prior impairment finding or settlement." Poor Richard Inn v. Lister, 420 A.2d at 180. The Board makes an award based on the "disability attributable to the accident then under consideration, as shown by the evidence in the record." Brandywine School Dist. v. Hoskins, 492 A.2d 1247, 1251 (Del. 1985). The Court will not order an offset for previous benefits received unless statutorily required. State v. Calhoun, 634 A.2d 335, 337 (Del. 1993).
Although Claimant received an award from a prior compensable industrial accident in 1983, that award is not currently under consideration and is not relevant to the present determination. The present petition is to determine additional compensation due for the 1988 industrial accident. In making this determination, the Board is not required to offset an award by the prior impairment finding. Poor Richard Inn v. Lister, 420 A.2d at 180. Accordingly, the Board did not err in failing to award Employer a credit for past partial disability payments made to Claimant.
E. Attorney's Fees and Medical Witness Fees
The Board properly awarded medical witness fees to Claimant. In the event that the employee receives an award, the fees for medical witnesses testifying before the Board are assessed against the Employer. 19 Del. C. § 2322(e). The Employer is assessed these fees for medical witnesses even if the Board denies some of the other claims presented, so long as the Claimant receives an award. Wade v. Chrysler Corp., 533 A.2d 1254 (Del. 1987). "[T]he Board may not consider whether the Claimant's witness was the basis for the award as a factor in deciding whether or not to award medical witness fees." Keeler v. Metal Masters, Inc., Del. Super., C.A. No. 97A-06-002, Terry, J. (Dec. 31, 1997) (Mem.Op.). The Board may only deny medical witness fees "if it determines that a Claimant has called an unreasonable number of medical witnesses whose testimony is unreasonably cumulative or redundant." Adams v. Shore Disposal, Inc., Del. Super., C.A. No. 96A-10-001, Lee, J. (July 29, 1997) (Mem.Op.).
Section 2322(e) provides: "The fees of medical witnesses testifying before the Industrial Accident Board on behalf of an injured employee shall be taxed as a cost to the Employer or the Employer's insurance carrier in the event the injured employee receives an award." 19 Del. C. § 2322(e).
Here, Claimant received an award. The Board did not find that Claimant had called an unreasonable number of medical witnesses whose testimony was cumulative or redundant. Thus, Claimant was entitled to medical witness fees pursuant to 19 Del. C. § 2322(e).
An Employer must also pay all the necessary and reasonable medical expenses related to an employee's work injury. 19 Del C. § 2322(a). "Disputes over the reasonableness of medical expenses are factual questions for the Board to decide" Adams v. Shore Disposal, Inc., supra. Here, Employer did not appeal the Board's award of a reimbursement of outstanding prescription expenses. Accordingly, this portion of the Board's decision will not be reviewed on appeal.
Employer argues that Claimant should not be permitted to rely on the award of prescription expenses to justify the award of medical witness fees. However, Employer did not appeal the award of prescription expenses and Claimant would be entitled to medical witness fees based on this award alone.
The Board's award of attorney's fees to Claimant was proper. The Employer must also pay the employee's reasonable attorney's fees if the employee is awarded compensation. 19 Del. C. § 2320(10(a). Here, Claimant received an award. Accordingly, Claimant is entitled to attorney's fees.
Section 2320(10(a) provides: "Attorney's fee. a. A reasonable attorney's fee in an amount not to exceed 30 percent of the award or 10 times the average weekly wage in Delaware as announced by the Secretary of Labor at the time of the award, whichever is smaller, shall be allowed by the Board to any employee awarded compensation under Part II of this title and taxed as costs against a party." 19 Del. C. § 2320(10)(a).
CONCLUSION
For the foregoing reasons, the decision of the Board is affirmed.
IT IS SO ORDERED.