Opinion
C.A. No. S10A-12-003.
Submitted: April 21, 2011.
Decided: June 14, 2011.
On Appeal from the Board's Decision to Deny Claimant's Petition to Determine Compensation Due: AFFIRMED.
Lawrance Spiller Kimmel, Esquire, Kimmel, Carter, Roman Peltz, P.A., Newark, Delaware.
Amy M. Taylor, Esquire, Heckler Frabizzio, Wilmington, Delaware.
Dear Counsel:
This is the Court's decision on Clifford Paynter's appeal from the decision of the Industrial Accident Board ("the Board") that denied Mr. Paynter's Petition to Determine Compensation Due ("Petition"). The Board's decision is affirmed for the reasons set forth below.
STATEMENT OF THE CASE
A. Factual Procedural Background
Mr. Paynter alleges he sustained a compensable industrial injury while employed by Allen's Family Foods, Inc. ("Employer") on or about January 30, 2009. On May 21, 2010, Mr. Paynter filed the Petition, seeking payment of total disability benefits from August 29, 2009, through March 19, 2010; ongoing partial disability benefits from March 20, 2010; permanent impairment benefits for fifteen percent impairment to the lumbar spine; and medical expenses. The Board held a hearing on the Petition on November 9, 2010. The Board, via a written decision mailed November 19, 2010, denied the Petition. Mr. Paynter appeals that decision.
B. The Board Hearing
The Court will summarize the evidence presented at the Board hearing. Mr. Paynter testified on his own behalf. Mr. Paynter stated he was transferring meat from one area of Employer's chicken plant to another when he slipped and fell, injuring his lower back. Mr. Paynter reported the injury immediately and saw Employer's physician, Dr. Joseph Green, for treatment. Dr. Green released told Mr. Paynter he had pulled a muscle and released Mr. Paynter to work. Subsequently, Mr. Paynter saw Dr. Ganesh Balu upon a recommendation from a friend. Dr. Balu prescribed Mr. Paynter pain medication and scheduled physical therapy. On February 6, 2009, Employer terminated Mr. Paynter due to workplace violence. Prior to receiving further treatment from Dr. Balu, Mr. Paynter was incarcerated for violating the terms of his probation. Mr. Paynter was in prison for eight months, between February of 2009 and August of 2009. During his imprisonment, Mr. Paynter testified he was unable to receive medical treatment for his back pain because the prison guards believed his injury was a "hoax" and that Mr. Paynter just wished to be excused from his duties on the road gang. Mr. Paynter was released from prison on August 29, 2009. In October of 2009, Mr. Paynter returned to Dr. Balu for treatment of back pain. At that time, Dr. Balu recommended Mr. Paynter receive injections and undergo an MRI. Mr. Paynter testified that he continues to suffer from low back pain and accompanying radiating pain down his legs. As a result, Mr. Paynter has difficulty lifting his grandchildren. He is unable to walk his dog, play flag football or drag race. Mr. Paynter takes Aleve and Motrin on a regular basis to deal with the pain because he cannot afford the medication prescribed to him. Mr. Paynter had no history of back pain prior to the workplace injury of January 30, 2009. At the time of the injury, Mr. Paynter was making $9.05 per hour and worked forty hours per week.
Mr. Paynter does not challenge his termination and admits he threw a piece of meat at another employee and hit the employee in the arm.
On cross examination, Mr. Paynter testified he has been looking for work but has not documented the search. Mr. Paynter stated he went out with the road gang maybe twice during the period of his incarceration. During his time with the road gang, Mr. Paynter did not actually perform the work required; that is, bending at the waist and picking up garbage. Instead, Mr. Paynter testified he let the other prisoners do the work while he stood back and watched. Although Mr. Paynter did not receive treatment for his back while incarcerated, he has been treated in prison for various other conditions and is aware that medical treatment is available in prison. When Dr. Balu saw Mr. Paynter in February of 2009, he excused Mr. Paynter from work on February 2nd and 3rd and returned him to light-duty work starting on February 4, 2009. Mr. Paynter has not seen Dr. Balu in approximately six months. He does not know if he is now able to work full time as he has never tried.
Under questioning by Board members, Mr. Paynter stated that he is not undergoing physical therapy at this time because it hurts. The injections helped but he cannot afford more of them. Mr. Paynter said he has looked for work with an estimated twenty potential employers but has not provided information about his job search to his legal counsel.
Peter Bandera, a physician board-certified in the field of physical medication and rehabilitation, testified by way of deposition on behalf of Mr. Paynter. Dr. Bandera examined Mr. Paynter on April 19, 2010. At that time, Mr. Paynter's complaints included low back pain and positive numbness in the lower extremities. An MRI dated October 22, 2009, identified multilevel disk problems; specifically, at L4-5 a broad-based protrusion of herniation with a positive tear, and at L5-S1 a disk protrusion/herniation with a positive tear. Dr. Bandera made positive objective findings of spasm and muscle guarding in the low back region, a limited range of motion and positive pain on facet loading of the lower lumbar spine. Dr. Bandera agreed with Dr. Balu that Mr. Paynter should be out of work from August 29, 2009, through March 19, 2010. In reaching this conclusion, Dr. Bandera put great weight on Dr. Balu's assessment. Dr. Bandera stated that Dr. Balu's order dated March 20, 2010, releasing Mr. Paynter to light-duty work was reasonable and should continue to the time of Dr. Bandera's deposition, or October 28, 2010. Dr. Bandera diagnosed Mr. Paynter with traumatic lumbar syndrome with strain and sprain, multilevel disk herniations with annular tear with radiculopathy features. Based on this diagnosis and Mr. Paynter's lack of a prior history of low back pain, and using the Fifth Edition of the American Medical Association Guide to Permanent Impairment, Dr. Bandera placed Mr. Paynter's injury in Diagnosis Related Estimate ("DRE") category III and gave him a permanency rating of fifteen percent. Dr. Bandera believes all of the treatment that Mr. Paynter has received with regard to his low back has been reasonable, necessary and related to his January 30, 2009, work injury. Dr. Bandera also opines that all the bills for the medical treatment were reasonable, necessary and the costs were customary in Delaware.
Scott Rushton, a board-certified physician in orthopaedic surgery, testified via deposition on behalf of Employer. Dr. Rushton examined Mr. Paynter on January 22, 2010. At this time, Dr. Rushton noted Mr. Paynter had diffuse complaints and that diffuse pain in the lower extremities would be inconsistent with a radiculopathy. Dr. Rushton's physical examination revealed a slow gait but no evidence of muscle spasm, tenderness or pain. Mr. Paynter refused to perform some tests for Dr. Rushton but Mr. Paynter was able to walk on his toes and perform the single leg stance. Dr. Rushton was curious as to why Mr. Paynter refused to perform some tests because these tests would not implicate any issues in the lumbar spine. In sum, Dr. Rushton concluded, "all of the provocative tests for lumbar radiculopathy that we commonly use in the examination were unremarkable". Dr. Rushton agreed with the diagnosis of lumbar strain and sprain.
Dr. Rushton testified that the February 5, 2009, CT scan of the lumbar spine was consistent with early multilevel mil d degenerative changes in the spine; i.e., conditions that would not have developed in the five days between the date of the work place injury and the date of the CT scan. Diagnostic tests support a strain/sprain injury versus an "architectural injury". The results of the MRI dated October 22, 2009, enhanced Dr. Rushton's opinion: there was no evidence in the diagnostic studies of radiculopathy. While Dr. Rushton believes at this point Mr. Paynter needs to be eased into work by starting with light duty, this opinion is based upon Mr. Paynter's absence from the work force. Dr. Rushton noted Dr. Green's reports dated January 30, 2009, and February 2, 2009, released Mr. Paynter to full-time work with limitations on standing, walking and driving and observed that the first indication of total disability was not until Dr. Balu's evaluation of October 16, 2009. Dr. Rushton believes the initial treatment of Mr. Paynter's injury was reasonable. However, Dr. Rushton believes the injections were excessive due to the post-injury interval. Moreover, Dr. Rushton found a lack of objective findings of an injury that would respond to injections as well as a lack of correlation abnormalities on the imaging studies. Dr. Rushton also views Mr. Paynter's October 2009 visit to a chiropractor as unnecessary. In sum, Dr. Rushton opined that Mr. Paynter's history in terms of presentation of pain one week after the accident, in addition to the MRI abnormalities, are consistent with a preexisting condition.
Finally, William Sommers, a board-certified neurologist, testified via deposition on behalf of Employer. Dr. Sommers examined Mr. Paynter on October 20, 2010. Dr. Sommers found no positive objective findings of any nerve root injury, also known as radiculopathy. That is, Mr. Paynter had documented normal strength, normal sensation, normal reflexes, and no evidence of muscle atrophy. Dr. Sommers also observed that Mr. Paynter's responses to the physical examination appeared to be exaggerated or disproportionate to the pressure used during the examination. Dr. Sommers testified that he did not believe total disability from August 29, 2009, through March 19, 2010, could be justified. However, Dr. Sommers stated he believed disability for up to six weeks after the accident could be justified. Dr. Sommers stated the CT scan and the MRI showed evidence of preexisting chronic changes not related to the work accident. Dr. Sommers classified Mr. Paynter's injury as DRE category II and, accordingly, gave Mr. Paynter a ten percent permanent impairment rating. In so doing, Dr. Sommers testified he gave credibility to Mr. Paynter's subjective complaints because there was no objective clinical evidence for radiculopathy. Dr. Sommers further stated that, if he discounted Mr. Paynter's credibility, he would place Mr. Paynter in category I, which is not associated with any degree of permanent impairment.
Dr. Sommers testified that, in his view, chiropractic treatment is effective therapy if it is given within the first few weeks after an acute injury; after that time frame, the treatment has a limited role. Dr. Sommers did not note anything in Dr. Balu's records that would indicate a significant change in Mr. Paynter's condition between February of 2009 and October of 2009. Dr. Sommers did not defer to Dr. Balu's finding of radiculopathy because Dr. Balu's opinion was based upon a recitation of Mr. Paynter's complaints and Dr. Balu did not document any objective findings that would validate those complaints. Although Dr. Sommers filled out a physical capacities evaluation that indicated Mr. Paynter would have work restrictions following his period of incarceration, which ended in August 2009, Dr. Sommers testified he believed Mr. Paynter's incarceration interfered with his recovery and necessitated the restrictions.
DISCUSSION
A. Standard of Review
The review of the Board's decision is confined to an examination of the record for errors of law and a determination of whether substantial evidence exists to support the Board's findings of fact. The Supreme Court and this Court have emphasized the limited appellate review of an agency's findings of fact. The reviewing Court must determine whether the administrative decision is supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. Questions of law are reviewed de novo.B. The Merits
The underlying issue in this case is credibility. This Court does not retry the case below. The Board, as the trier of fact, must make certain credibility determinations and the Court shall not disturb these findings, absent extreme circumstances. "It is well-settled that issues of credibility rest solely within the Board's discretion and will not be disturbed absent a showing of unreasonable or capricious circumstances." The Board "is free to adopt the opinion testimony of one expert over another, and that opinion, if adopted, will constitute substantial evidence for purposes of appellate review." With this framework in mind, the Court turns to Mr. Paynter's specific arguments.(i) The Board's decision to deny permanent partial impairment benefits is supported by substantial evidence.
The Board rejected Mr. Paynter's request that he be awarded permanent partial impairment benefits. The Board found the opinions of Drs. Rushton and Sommers to be more persuasive than that of Dr. Bandera and made the following finding, "The Board accepts Dr. Sommers' opinion that [Mr. Paynter] falls into DRE Category I with a zero percent impairment rating since the Board does not believe [Mr. Paynter's] subjective complaints and there were no objective findings related to the industrial accident." Mr. Paynter argues that the Board improperly relied upon Dr. Sommers' answer to a hypothetical question posed by counsel in concluding that Mr. Paynter is not entitled to permanent partial impairment benefits. The Board is, as previously noted, not only free to determine a witness's credibility but charged with the responsibility of doing so. In this case, Dr. Sommers testified that, if he were to give zero credibility to Mr. Paynter's subjective complaints, Mr. Paynter would fall into DRE Category I with a zero percent impairment rating. The Board found Mr. Paynter was not credible. In support of this finding, the Board observed,
Mr. Paynter's treating physician, Dr. Balu, did not testify.
There were inconsistencies throughout this case. Claimant was not placed on total disability status initially following the industrial accident; Drs. Green and Balu placed Claimant on light duty status. It was not until Claimant was incarcerated for six months and then released from prison for almost two months when he sought treatment again with Dr. Balu and that is when Dr. Balu first issued total disability notes for Claimant. Furthermore, Claimant was on the "road gang" while in prison and was required to pick up and bag trash on the side of the road. Claimant testified that he did not actually do the work, but rather just stood outside and let the other prisoners do the work. The Board does not find this testimony to be credible and does not believe that the guards, or even the other prisoners, would allow Claimant to get away with not doing any of the work. Also, Drs. Sommers and Rushton noted that Claimant was magnifying his symptoms, which is another problem with his credibility.
The record substantially supports the Board's conclusion with regard to credibility and this conclusion undermines the permanency evaluation, as noted by Dr. Sommers. The Board's decision is affirmed in this regard.
(ii) The Board's decision that Mr. Paynter's medical bills are not compensable is supported by substantial evidence.
Mr. Paynter argues the Board's decision not to compensate him for his medical bills is not supported by substantial evidence. The Board found, "Claimant was injured on January 30, 2009, and sought medical treatment for which [Employer] has paid. However, the Board finds that Claimant recovered from the lumbar strain within six weeks of the injury, which was while he was incarcerated, and he was never totally disabled and he did not require additional medical treatment related to the industrial accident. . . ." Mr. Paynter contends Drs. Bandera and Sommers stated that the ongoing medical treatment had been reasonable and necessary. Mr. Paynter also asserts Dr. Rushton did not review some of the specific medical records from the treatment in dispute and, therefore, he lacks knowledge fundamental to this issue and his opinion cannot be relied upon.
As previously noted, the Board accepted the opinions of Drs. Rushton and Sommers over that of Dr. Bandera. Dr. Sommers testified that treatment up to six weeks after the injury could be justified. Dr. Sommers opined that Mr. Paynter's period of incarceration interfered with his recovery, thereby necessitating additional treatment. In other words, the additional treatment was reasonable in light of the delay in recovery, the delay having been caused by Mr. Paynter's incarceration. The Court does not find it unreasonable that the Board concluded Employer need not be responsible for a delay in recovery due to Mr. Paynter's incarceration and failure to seek medical treatment in prison. In addition, Dr. Sommers testified there was evidence of a degenerative condition. Employer does not carry the burden for the cost of treatment due to a degenerative condition unrelated to the workplace injury.
Dr. Rushton admitted to having not seen Mr. Paynter's medical records for the early period of 2010, which related to ongoing physical therapy, chiropractic treatment and injections. Nevertheless, Dr. Rushton clearly testified that physical therapy, chiropractic treatment and injections were all methods of treatment that were not reasonable or necessary in light of Mr. Paynter's claimed injuries. The Board properly relied upon Dr. Rushton's opinion in determining that treatment for the workplace injury outside the six week period immediately following the January 2009 injury was neither reasonable nor necessary.
(iii) The Board's decision not to award temporary disability benefits is supported by substantial evidence.
Mr. Paynter argues that the Board improperly failed to award temporary disability benefits. In support of this argument, Mr. Paynter argues that all three medical experts testified Mr. Paynter would have had some degree of work restrictions imposed when he returns to the workforce. The Board observed that Dr. Rushton testified that Mr. Paynter was able to work with light duty restrictions if his subjective complaints were to be believed; if the complaints were not to be believed, Dr. Rushton testified that Mr. Paynter should be able to work in a full-duty capacity. As previously discussed, the Board found Mr. Paynter's subjective complaints were not to be believed. This credibility determination is one that may only be made by the trier of fact. The Court also observes that any light-duty restrictions suggested by the medical experts were due to Mr. Paynter's one-year absence from the workforce. The Board properly considered the testimony of the medical experts and weighed their testimony in conjunction with its finding that Mr. Paynter's subjective complaints lacked credibility, and concluded that there was not substantial evidence for a finding of temporary disability.
In addition, Mr. Paynter failed to produce any evidence of a job search and therefore failed to meet his burden of proving he is entitled to partial disability benefits. (iv) The Board did not err in refusing to award attorney's fees, medical expert fees, and transcript fees.
Finally, Mr. Paynter contends the Board erred in not awarding medical expert fees, attorney's fees, and transcript fees because Mr. Paynter should have prevailed on the issues of permanency, temporary disability wage benefits, and medical bills. The Court has already discussed and rejected Mr. Paynter's arguments to this end.
In the alternative, Mr. Paynter argues that he "won" at the Board hearing because Employer had not previously recognized or accepted the claim as a compensable work injury. This argument also fails because Mr. Paynter did not receive a benefit from this determination; that is, Employer had already paid for the cost of the treatment the Board found compensable; that is, the treatment received within the first six weeks post-workplace injury.
CONCLUSION
Based on the foregoing, the Board's decision is affirmed.
IT IS SO ORDERED.