Opinion
C.A. No. 99A-07-007.
Date Submitted: October 28, 1999.
Date Decided: February 8, 2000.
UPON CLAIMANT'S APPEAL FROM THE INDUSTRIAL ACCIDENT BOARD AFFIRMED
Joseph W. Weik, Esq., Weik, Nitsche Dougherty, One Commerce Center, 3rd Floor, 1201 N. Orange Street, P.O. Box 2324, Wilmington, DE 19899. Attorney for Claimant, Below-Appellant.
Natalie S. Wolf, Esq., Young, Conaway, Stargatt Taylor, LLP, 11th Floor, Rodney Square North, P.O. Box 391, Wilmington, DE 19899. Attorney for Employer, Below-Appellee.
MEMORANDUM OPINION
This 8th day of February, 2000 having read and considered Carl Pace's ("Appellant") Opening and Reply Briefs, Century Wine Spirit's ("Employer") Answering Brief, and the record of the proceedings below, it appears that:
FACTS
It is undisputed that Appellant was injured on August 17, 1993 while working within the scope of employment. Appellant, at that time, worked for Employer as a truck driver and delivery person. Appellant and Employer agreed upon compensation due for a 5% permanent impairment to the right leg and 16.67% permanent impairment to the lower back. In addition, Employer continues to pay for Prozac to treat depression; Duragesic to treat pain; and Elvavil to treat chronic pain and depression. Employer agrees that these prescription medications are reasonable and necessary as a result of the work-related injuries.
On February 1, 1999, Appellant filed a Petition for Additional Compensation Due seeking to have additional prescription medications paid by Employer's worker's compensation insurer. Appellant argues that the onset of hypertension, diabetes, high cholesterol, and impotence is due to the work-related accident of 1993 therefore, Employer should pay the costs of the prescription medications used to treat the conditions.
A hearing was held before the Industrial Accident Board ("Board") on June 29, 1999. The Board found that Appellant failed to show by a preponderance of the evidence that the additional expenses requested are reasonable, necessary and causally related to the work accident and denied Appellant's Petition for Additional Compensation Due.
Julio Navarro, M.D. testified on behalf of Appellant via deposition. Dr. Navarro testified that he had been Appellant's family physician since April 3, 1987. When Dr. Navarro first saw Appellant he testified that he weighed 342 pounds. Dr. Navarro stated that Appellant was a "fairly active man" before the work accident who he only saw when he was sick. Dr. Navarro contended that Appellant did not exhibit any signs of diabetes prior to the accident. Dr. Navarro testified that while Appellant had some abnormal blood pressure readings before the accident he was not considered to be hypertensive. And as to the Appellant having high cholesterol before the work accident Dr. Navarro stated that he could not "comment at [that] time because [he did not] have a lab value prior to that, but according to the history, no, he did not."
Dr. Navarro first saw Appellant for the injuries incurred due to the work accident on August 17, 1993. Though Appellant's weight had gone as low as 306 pounds during the years Dr. Navarro treated him, at the time of the accident, two days later to be exact, Dr. Navarro testified that Appellant weighed 344 pounds. At some point after the work-related injury, the record is unclear as to exactly when, Dr. Navarro prescribed drugs to decrease Appellant's cholesterol. Dr. Navarro testified that because Appellant is now sedentary, due to the chronic pain from the work-related injury, he is unable to lose weight. Obesity, Dr. Navarro stated, and high lipids are related. In addition, Dr. Navarro opined that exercise reduces total cholesterol but again, because of the pain from the injury Appellant is no longer able to exercise.
Dr. Navarro testified that he prescribed various medications for Appellant due to high blood pressure. When asked how Appellant's work-related injury would have triggered high blood pressure Dr. Navarro stated that:
[T]he weight gain and the inability to lose weight after the accident has perpetuated a state in which he has maintained a weight that is much higher than what his ideal weight should be. And that has contributed to his blood pressure being elevated.
Dr. Navarro also testified that he prescribed medications for Appellant's onset of type 2 diabetes. He stated that he contributed the development of the diabetes to the work accident due to the relationship of diabetes to being overweight. Dr. Navarro opined that type 2 diabetes can be controlled with weight loss.
Overall, Dr. Navarro opined that "the accident triggered the sedentary life style that [Appellant] has and that his inability to lose weight, therefore his blood pressure contributed to all other conditions mentioned."
John Townsend, M.D., a neurologist testified for Employer via deposition. Dr. Townsend examined Appellant four times at the request of Employer's worker's compensation insurance carrier. Dr. Townsend testified that he reviewed Appellant's medical records prior to each examination. The first of the four examinations occurred on November 17, 1993, within three months of Appellant's work accident. Dr. Townsend testified that he diagnosed Appellant with a lower back strain superimposed on preexisting degenerative disease.
Dr. Townsend testified that when he examined Appellant in November of 1998 he had reviewed the additional medical report provided by Dr. Navarro. The report included Dr. Navarro's opinions regarding Appellant's medical problems, treatments and Dr. Navarro's opinions of the casual relationship of the problems to the work-related accident. Dr. Townsend testified that he did not agree with Dr. Navarro's opinion that the work accident led to increased weight; which led to increased weight; which led to inactivity; which then caused the hypertension, high cholesterol and diabetes. Dr. Townsend first noted that there was not much of a weight gain since there was only an eight pound difference in Appellant's weight from the time of the accident to the time he saw Appellant in 1998. Dr. Townsend opined that the hypertension, high blood pressure, and adult type 2 diabetes "related to [Appellant's] preexisting weight problems and his underlying dietary and genetic issues." Dr. Townsend opined that Appellant should be in an exercise program and found "no objective reason why [Appellant] could not have continued to be active as a result of his lumbar sprain." In addition, Dr. Townsend opined that Appellant's subjective complaints of pain and opinions of his physical limitations are not proportional to Dr. Townsend's objective findings and Appellant's actual physical condition. Dr. Townsend stated that he had reviewed the August 13, 1998 report regarding Appellant's diet provided by Dr. Polnerow, a nephrologist Appellant was referred to by Dr. Navarro. Dr. Polnerow's report noted in part that Appellant uses a lot of salt, eats a substantial amount of fast food and snacks, and consumes a great amount of eggs. Dr. Townsend stated that the report also notes that there is a significant family history of hypertension. Dr. Townsend concluded that Appellant's diet and family history are more likely to account for his weight, high cholesterol, diabetes, and hypertension than inactivity.
Dr. Townsend was also questioned about the cause of Appellant's impotence. Dr. Townsend opined that the impotence was likely caused by either the depression or diabetes. Dr. Townsend explained that diabetes has been known to have caused impotence because of peripheral nerve problems and blood flow problems. Dr. Townsend stated that there are diagnostic tests that could be performed to determine the cause of the impotence or could determine that he is not actually impotent but rather has psychological problems.
Appellant testified at the hearing on June 29, 1999. He testified that before the accident he would deliver between 600 and 1000 cases of beer in a day in addition to ten to twenty kegs. Appellant stated that he loaded and unloaded the beer. Appellant also testified that before the work accident he would bowl, fish, hunt, and play with his children. In addition, Appellant testified that before the accident he was in good health and only went to see Dr. Navarro for things like colds, flu, and sore throats. Appellant stated that the injury occurred when he tried to hold back a load of beer that was coming out of the truck and something happened to his back. He stated that his lifestyle changed significantly after the accident. He testified that he uses a cane now, he can no longer bowl and if he wants to go fishing a friend must go with him to cast the line for him. Appellant further testified that he had stopped eating salty and fatty foods since the accident. However, Appellant stated that the depression does make him eat. Appellant stated that he was able to lose weight when he was on the Redux but had to stop taking it when it was removed from the market. Appellant tried other weight loss programs but stated they required exercise like walking or something of the sort. He also tried the water exercises but contended they made his back hurt such that he could not walk for a few days. Although, Appellant testified, on a good day he could go shopping with his wife to the mall, farmer's market or, yard sales and walk up to one hour and forty-five minutes. Appellant stated that he feels depressed because his injury keeps him from helping his family when needed.
The Board issued its decision on July 17, 1999. The Board stated that it accepted the opinion of Dr. Townsend. The Board found that many other factors besides the work injury necessitated the need for the additional medications for hypertension, high cholesterol, and diabetes. The Board found that Appellant's preexisting obesity and diet were the cause of Appellant's onset diabetes. In addition, the Board accepted Dr. Townsend's opinion that hypertension and high cholesterol would not necessarily be caused by inactivity alone. Further, the Board adopted Dr. Townsend's opinion that Appellant's work-related injury would not prevent him from pursuing an active lifestyle. Finally, the Board found that Appellant's claim for payment of Viagra was not warranted because he had not sufficiently proved that the impotence is causally related to the work injury. The Board did acknowledge Dr. Townsend's opinion that impotence due to depression resulting from the work-related injury would warrant compensation for the Viagra, but the Board stated that it did not hear any evidence to support such finding.
The Board stated that it rejected Dr. Navarro's theory that the work accident caused Appellant's inactive lifestyle and with it the inability to lose weight resulting in high blood pressure, high cholesterol, and diabetes. Instead, the Board found that "obesity, diet and family history are significant causative factors for these conditions." Further, the Board stated that "[s]imply because [Appellant] was not being treated for these diseases prior to the work accident does not mean that these conditions manifested as a result of the accident." The Board also rejected Appellant's "but for" argument that the work accident provided the trigger for Appellant being the inactive, which is the cause of the hypertension, high cholesterol, and diabetes. Moreover, the Board found Appellant's inactivity to be a volitional act. The Board concluded that "[t]o whatever extent his post-accident inactivity contributed to the development of [Appellant's] high blood pressure, diabetes and hypertension, it was controlled by [Appellant's] lifestyle choices," and denied Appellant's Petition to Determine Additional Compensation Due.
STANDARD OF REVIEW
When reviewing a decision of the Industrial Accident Board, the Court's role is to determine whether there is substantial evidence to support the Board's decision. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The Court may only overturn the Board's decision when there is no satisfactory proof in support of its factual findings. Furthermore, because the Court does not sit as the trier of fact, it will not substitute its judgment for that of the Board's. Additionally, when there are conflicts in the medical expert's testimony, it is within the Board's discretion to accept one medical expert's testimony over another's when supported by substantial evidence.
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 65, 67 (1965); Stoltz Management Company v. Consumer Affairs Bd., Del. Supr., 616 A.2d 1205, 1208 (1992); Histed v. E.I. duPont de Nemours, Del. Supr., 621 A.2d 340, 342 (1993); Groff v. J.C. Penny Company, Inc., Del. Super., C.A. No. 98A-07-018, Toliver, J. (Jun. 18, 1999) (Order at 4).
Olney v. Cooch, Del. Supr., 425 A.2d 610, 614 (1981).
Johnson, 213 A.2d at 67.
Id. at 66.
Groff at 4 (citing Downs v. State, Del. Supr., No. 25, 1993, Holland, J. (Mar. 30, 1993) (Order at 2)).
DISCUSSION
Appellant argues that the Board failed to apply the proper standard in determining that the medications taken by Appellant for high blood pressure, high cholesterol, diabetes, and impotence were not related to the work accident. Appellant contends that the Board failed to follow the causation test set forth in Reese v. Home Budget. The Reese Court held that:
If the worker had a preexisting disposition to a certain physical or emotion injury which had not manifested itself prior to the time of the accident, an injury attributable to the accident is compensable if the injury would not have occurred but for the accident. The accident need not be the sole cause or even a substantial cause of the injury. If the accident provides the "setting" or "trigger," causation is satisfied for the purpose of compensability.
Id. at 910.
Appellant argues that he did not have any of the problems prior to the accident even though he was overweight and maintained an unhealthy diet. Therefore, Appellant contends, it is his inactivity, due to the work-related accident, "that contributed to the problem." Appellant argues that pursuant to Reese "a preexisting disease or infirmity does not disqualify a claim for workers compensation benefits if the employment aggravated, accelerated, or in combination with the infirmity, produced the condition." Further, Appellant argues that an employer must take the employee as it finds him. Appellant maintains that any preexisting disposition he had for developing these conditions does not bar his claim for compensation whereas, the accident provided the setting or trigger.
Id.
Employer argues that Appellant's "but for" argument totally disregards that "the determination of whether medical expenses are causally related to an industrial accident is a purely factual issue within the purview of the Board." Employer argues that the Board made a factual determination based on the testimony of Dr. Townsend, that to the extent Appellant is inactive, such inactivity is due to his own volitional conduct rather than the injuries sustained in the work accident. Moreover, Employer argues that Appellant, in his "but for" argument is ignoring the condition precedent of the standard established by Reese that being: "if" the work accident provided the trigger then causation is satisfied. Employer argues that the Board, by accepting the opinions of Dr. Townsend, applied the proper legal standard thus, it is free from legal error and must stand.
Bullock v. K-Mart Corp., Del. Super., C.A. No. 94A-02-002, Terry, J. (May 5, 1995) (ORDER).
The Court finds that the Board applied the proper legal standard. The Board disagreed that the accident caused Appellant's inactivity which is the crux of Appellant's argument, i.e. the "but for" standard articulated in Reese. Instead, based on the fact that Dr. Townsend did not find any physical reasons why Appellant could not exercise, the Board determined that "[t]he volitional activities of [Appellant's] lifestyle [lack of exercise] along with his genetic predisposition contributed to the development of [the] conditions." The Board further found that "[Appellant's] refusal to participate in physical activity severs the very tenuous `but for' casual connection between his present physical state and the work accident." Thus, the Board found that the work accident did not act as the "trigger" to Appellant's inactivity or high blood pressure, high cholesterol, and diabetes, i.e., the work accident did not cause these conditions.
Reese, 619 A.2d at 910.
Next, Appellant argues that the Board's finding that Appellant's volitional activities contributed to the development hypertension, high cholesterol, and diabetes is not supported by substantial evidence. In regard to Appellant's inactivity, he argues that there is no evidence that he refused to participate in physical activity. Appellant argues that chronic back pain resulting from the work-related accident caused his inability to exercise and inactivity. Moreover, Appellant argues, he did try to participate in aquatic workouts and physical therapy but those activities caused more pain. Additionally, Appellant argues that while he may have had a poor diet before the accident, he substantially changed his eating habits after the accident but the medical conditions persisted. Appellant further argues that "eating is a human necessity" and "is not the type of conduct that precludes an award of workers compensation benefits." Appellant concludes that there is no substantial evidence that his diet was the cause of his medical conditions.
Employer argues that the Board, in its discretion, decided to accept the opinions of Dr. Townsend over those of Dr. Navarro. Employer contends the Board rejected Appellant's argument that he substantially changed his diet and is as physically active as his pain allows. Employer argues that Dr. Townsend's testimony revealed that Dr. Navarro's medical records dated January 14, 1999, which Dr. Townsend reviewed, document that Appellant at the very least, has lapses in his eating habits. Also, Employer points to Appellant's own testimony that things not going right in life tend to make a person eat. Employer argues that it is for the Board to assess the credibility of the witness and here the Board rejected that Appellant had substantially changed his diet for the better. In regard to Appellant's inactivity, Employer points to Dr. Townsend's testimony that there is no objective reason why Appellant could not have continued to be active and that Appellant's pain complaints are out of proportion to Dr. Townsend's objective findings. Employer argues that Appellant's own testimony supports the contention that he is capable of doing more physical activity than he claims. Employer refers to Appellant's testimony that occasionally he walks over an hour with his wife at the mall and such. Employer argues this testimony constitutes substantial evidence which supports the Board's conclusion that Appellant is "physically capable of increased physical activity . . . when he desires to do so," and therefore should not be disturbed on appeal. Employer also argues there is substantial evidence to support Dr. Townsend's opinion that "underlying dietary" issues were a cause of Appellant's high blood pressure, high cholesterol, and diabetes. Though Dr. Townsend personally did not review Appellant's eating habits, Employer argues that Dr. Townsend reviewed the medical records provided by Dr. Navarro and based upon Dr. Navarro's notations concluded that Appellant did not maintain a healthy diet. Specifically, Dr. Townsend noted from Dr. Navarro's January, 1999 records that Appellant had volunteered that he had overeaten over the holidays. Therefore, Employer argues, there is substantial evidence to support the Board's findings.
Finally, Appellant argues that there is competent evidence in the record that his impotence is caused by the depression and/or the use of the medication he takes for treatment of his depression. Appellant points out that the Board stated that impotence caused by depression resulting from the work-related accident is compensable. Appellant argues that this is the case with him therefore the Board's decision should be reversed.
In response to Appellant's final argument concerning his impotence, Employer argues that the record contains substantial evidence that Appellant has failed to prove the impotence is caused by his depression. Employer argues that both experts discussed factors, including depression, that could cause impotence. However, the Board accepted Dr. Townsend's opinion that diagnostic testing is required to specifically determine the cause of impotence which is within its discretion to do.
The Court clearly finds there is substantial evidence in the record to support the Board's finding that Appellant's inactivity is a volitional act. As previously articulated by the Court, the Board is free to accept Dr. Townsend's testimony over Dr. Navarro's when supported by substantial evidence. The Board accepted Dr. Townsend's opinion that objectively there is no physical reason that Appellant cannot be more active. The Court finds that Appellant's own testimony supports this opinion. Appellant testified that he could walk over an hour when shopping at the mall with his wife. This is a significant amount of time. In addition, Dr. Townsend's testimony that Appellant's complaints of pain are not proportional to his objective findings provides additional evidence in support of the Board's decision. The Court finds that Appellant himself provided much of the evidence regarding poor eating habits which Dr. Townsend opined contributed to Appellant's additional medical problems. He provided Dr. Navarro with his eating habits of fast food, snack foods, and numerous egg omelets. Though Appellant testified he has "reduced" his intake of salty and fatty foods, he did not give specifics of what reduced means. The record does not show any concrete evidence of a substantial change in those eating habits after the accident. Previously the Court in Strahle v. Vlasic Foods, Inc., as cited by the Board, found that "eating is a volitional act, intentional conduct," therefore, the Employer cannot be held responsible for the consequences of such conduct. The Court finds there is substantial evidence to support the Board's finding that Appellant's underlying dietary habits and obesity, both of which preexisted the accident and continued after the accident, as well as his family history, were the cause of Appellant's high cholesterol, high blood pressure, and onset diabetes and therefore Employer is not liable for the expenses to treat these conditions.
See Groff at 4 (citing Downs v. State, Del. Supr., No. 25, 1993, Holland, J. (Mar. 30, 1993) (Order at 2)).
Strahle v. Vlasic Foods, Inc., Del. Super., C.A. No. 91A-10-003, Lee, J. (May 6, 1992) (Mem. Op.).
Id.
Further, the Court holds there is substantial evidence to support the Board's decision that Appellant's impotence is not casually related to the work accident, therefore Employer is not responsible for expenses for Viagra. As stated by the Board, the Viagra may be compensable if the impotence is found to be caused by depression related to Appellant's work accident. However, the Board determined, based on the testimony of Dr. Townsend that there is no evidence to support that this is the case with Appellant. Dr. Townsend testified that while he agreed with Dr. Navarro that diabetes, Prozac, or depression could be the cause of Appellant's impotence, the source could not be determined without diagnostic testing, which has not been done. Moreover, if the diagnostic testing is performed on Appellant, the results would have to indicate that the impotence is caused by a condition resulting from the work accident.
For the forgoing reasons the July 12, 1999 decision of the Industrial Accident Board is hereby AFFIRMED.
IT IS SO ORDERED.