Opinion
C.A. No. 02A-04-001 HDR
Submitted: August 22, 2002
Decided: November 14, 2002
J. R. Julian, Esq. of J. R. Julian, P.A., Wilmington, Delaware, for Employer Below-Appellant.
Andrea G. Green, Esq. of Doroshow, Pasquale, Krawitz, Siegel Bhaya, Dover, Delaware, for Claimant Below-Appellee.
This is an appeal by an employer from a decision of the Industrial Accident Board ("Board") which awarded temporary total disability benefits to a claimant for an injury which the employer disputed as being work related. Because the decision is supported by substantial evidence and is free of legal error, it must be affirmed.
I. BACKGROUND
Linda Leonard is employed by Playtex Products, Inc. as a barrel maker operator and works twelve-hour shifts, alternating between three days and four days per week. Her work with Playtex consists of loading rolls of paper into a machine approximately fourteen to sixteen times during each twelve-hour shift. There are two types of paper on the rolls that she must lift, those being base paper and laminate paper. The rolls of base paper weigh approximately forty to forty-five pounds each and the rolls of laminate paper weigh approximately twenty to twenty-five pounds each.
Approximately November 16, 2000, Leonard was working within the scope of her duties as a barrel maker for Playtex when she had to "wrestle" with some paper that was stuck. At that time, she began to feel tingling, numbness, and pain in her left arm. Upon feeling these symptoms, she told her supervisor, Rick Delduco, about her symptoms. Delduco asked her if she was having chest pains. When she responded that she was not having chest pains, Delduco apparently made his own determination that her injury was not serious and did not fill out an injury report or advise Leonard to take any further actions with regard to her symptoms. Leonard finished her shift despite her pain.
That date was disputed and the Industrial Accident Board determined that Leonard was confused about the date of her injury and that it most likely occurred on November 14, 2000.
The following day, Leonard called her family physician, Dr. Jose Austria, but could not get an appointment for three or four days. When Leonard did see Dr. Austria, he was unable to resolve her symptoms and he referred her to Dr. Stephen Penny, a neurologist.
Leonard saw Dr. Penny on December 28, 2000. In the interim, she continued to work, but was in pain. Dr. Penny ordered an MRI and performed a physical examination. Dr. Penny determined that Leonard had slipped discs at C5 and C6. At that time, Dr. Penny advised Leonard to try physical therapy before deciding to have surgery performed. Dr. Penny restricted Leonard to no lifting over ten pounds and gave her a note stating the restriction. She provided that note to Mary Ann Dashiell, an insurance analyst for Playtex. At that time, Dashiell gave Leonard short-term disability forms to complete.
The forms that were provided to Leonard were filled out by her husband on her behalf because she is left-handed and could not write with her left hand as a result of her injury. Her husband checked a box on the form that indicated that her injury was not work-related. He also wrote that she first noticed the symptoms on December 22, 2000.
The physical therapy made Leonard's symptoms worse. When she returned to see Dr. Penny he determined that she would need surgery and she was referred to Dr. Yakov Koyfman.
Dr. Koyfman performed surgery on April 23, 2001. After that time, Leonard did not return to her job because Dr. Koyfman ordered her to stay out of work. In April 2001, Leonard applied for long-term disability benefits. Leonard thought that she would be able to return to work in August of 2001. At that time, she was given lifting restrictions of no more than twenty pounds.
In August of 2001, Leonard went to Playtex to check on jobs that would be within her restrictions. Dashiell provided a capacity form to Leonard for documentation of her restrictions.
Playtex has a policy of offering sedentary or light duty work only to employees with work-related injuries. At that time, Playtex apparently did not understand that Leonard's injuries were work-related, so it did not offer her a sedentary or light duty position. However, this was not communicated to Leonard as the reason she was denied sedentary or light duty work nor was she ever told by anyone at Playtex that she would need to seek such a position elsewhere.
At the Industrial Accident Board hearing, Dr. Stephen Rodgers testified on behalf of Leonard. Dr. Rodgers examined her on December 27, 2001, took a history from her at that time, and reviewed her medical records in conjunction with the examination. Dr. Rodgers testified that the mechanism of twisting force on the cervical spine as described by Leonard was competent to cause her injury, especially in light of her small stature and the weight of the rolls of paper that she was moving. Dr. Rodgers also made a determination that Leonard's treatment had been reasonable, necessary and causally related to her work-related injury.
Dr. Jerry Case testified by deposition on behalf of Playtex. Dr. Case had examined Leonard on January 8, 2002 and reviewed medical records and reports in conjunction with that examination. Based on the medical records and reports and the physical examination, Dr. Case concluded that Leonard's treatment was reasonable, necessary and related to her industrial accident if her history of the accident was accepted as accurate.
Dashiell testified that Leonard's injury could not have occurred as stated on November 16, 2000 because her crew was not working on that date.
II. FINDINGS OF THE INDUSTRIAL ACCIDENT BOARD
The Industrial Accident Board granted Leonard's Petition to Determine Compensation Due and total disability benefits from December 28, 2000 through January 2, 2002.
The Board determined that it was reasonable for Dr. Penny to place a work restriction as of January 2, 2001 and that the post-surgery light duty restrictions placed on Leonard by Dr. Koyfman were reasonable. It was noted in the medical records that Leonard had called Dr. Koyfman on August 16, 2001 to ask to be released to full duty work as of that date, but that her request was denied by Dr. Koyfman. Dr. Case agreed that it was reasonable for Dr. Koyfman to deny that request and also that Leonard could not have returned to her regular job prior to January of 2002.
The Board went on to find that it was reasonable for Leonard's total disability status to continue after August of 2001 since Playtex did not make sedentary or light duty work available to her in light of her work-related injury.
The Board noted that Leonard had completed the long-term disability insurance form first, and then Dashiell completed her section of the form before mailing it to the insurance company. In paragraph nine of that form, it was indicated that Leonard's injury did occur "at work," but this "did not mean anything to [Dashiell and] she did not ask [Leonard] what happened or where it happened."
Board Decision at *6.
The Board found that Leonard's testimony was credible as to the cause and place of her injury and that she was simply confused as to the date of her injury. Her testimony was consistent with Dr. Austria's records of November 21, 2000 that indicated that he saw her about one week after her accident. Furthermore, the Board found no evidence to indicate that Leonard could have been injured in any other manner or location. Dr. Rodgers opined that she suffered herniated discs in her cervical spine as a result of her industrial accident. Dr. Case's opinion was qualified in that he believed that her condition was related to an industrial accident if Leonard's history were accepted. The Board found Leonard's testimony to be credible and accepted her history. The Board, therefore, set the date of injury to be "on or about" November 16, 2000, and concluded that her injury was the result of a work-related accident.
Apparently, the Board concluded that she was injured at work on November 14, 2000, as suggested by Dr. Rodgers in his testimony before the Board based on Dr. Austria's record.
The Board found that Leonard was totally disabled from December 28, 2000 through January 2, 2002 and that it was reasonable for her to remain out of work during that time period. Even when she was able to work in a restricted capacity, she was not capable of performing her regular job. Playtex did not offer sedentary or light duty work to Leonard, despite the fact that such positions did exist within the company. The Board determined that she was not required to find work elsewhere because Playtex neither terminated her employment nor did it offer her sedentary or light duty work during her disability period.
III. STANDARD OF REVIEW FOR APPEALS FROM THE INDUSTRIAL ACCIDENT BOARD
When reviewing a decision on appeal from the Industrial Accident Board, this Court determines whether the Board's factual findings are supported by substantial evidence and are free from legal error. Substantial evidence is defined to mean such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. It is "more than a scintilla of evidence, but less than a preponderance." When factual determinations are at issue, the Court shall take due account of the experience and specialized competence of the agency and of the purposes of the basic law under which the agency has acted. The Court does not stand as the trier of fact and will not weigh witness credibility, therefore it cannot substitute its own opinion for that of the Board's if there is sufficient evidence to support the Board's decision, and the Board's ruling will stand if it is supported by substantial evidence. The only function of the reviewing court is to determine if there is substantial evidence to support the Board's decision and only where there is legal error can the decision of the Board be overturned.
Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998); Talmo v. New Castle County, 444 A.2d 298, 299 (Del. 1982).
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
Olney, 425 A.2d at 614.
Olney, 425 A.2d at 613; Johnson v. Chrysler Corp., 213 A.2d 64 (Del. 1965).
Anchor Motor Freight, 716 A.2d at 156.
Johnson v. Chrysler Corp., 213 A.2d 64, 66-67 (Del. 1965).
IV. DISCUSSION
Playtex asserts that the Board's decision should be reversed because it was not supported by substantial evidence, the Board's ruling demonstrates bias and a disregard of due process, Leonard failed to give timely notice, and Leonard failed to conduct a reasonable job search.Playtex claims that because Leonard was not at work on November 16, 2000, her injury was not work-related. November 16, 2000 was the date that Leonard had suggested as her date of injury and evidence was presented to the Board to indicate that she was not at work on that day. However, the record indicates that the Board accepted Dr. Rodgers' interpretation of the medical records of Dr. Austria, which was that her injury likely occurred on November 14, 2000. This was based on Dr. Rodgers' testimony that Leonard had seen Dr. Austria on November 21, 2000, and his notes indicated that she had a history of numbness in her left arm and fingers for one week, thereby back dating to November 14, 2000. This led the Board to decide that Leonard "was injured on or about November 16, 2000." This was a finding of fact by the Board based on its determination of credibility of the testimony and evidence offered before it. The Board is free to more readily accept or give greater weight to the credibility of one witness over another, if it is supported by substantial evidence in the record. The Board also may make reasonable inferences from the testimony. The Board was obligated to weigh the conflicting evidence and make a determination; it did so based on the evidence presented. The Board's finding of fact as to the date of injury is supported by substantial evidence as that term has been defined.
Board Decision at *7.
Playtex v. Lewis, 2000 WL 33115725 (Del.), *2.
Playtex next argues that Leonard did not report her injury in a timely manner, thereby making her claim of a work-related injury not credible. The evidence offered to the Board indicated that Leonard told her supervisor of her symptoms at the time of her injury. Playtex contends that "Leonard's testimony about her `reporting' her injury to her supervisor sounds as if she was merely complaining about some aches and pains, and was not seriously reporting an injury." Although Playtex considered this to "sound as if" a minor complaint and not a report of a work-related injury, that is a question of fact, which is properly determined by the Board. The Board made a factual determination that such reporting was sufficient notice to Playtex to satisfy the notice requirement and to make Leonard's testimony credible as to the place and cause of her injury. This decision was based on substantial evidence of which the Board is free to weigh and deliberate upon in reaching its conclusion. Furthermore, determination of credibility is clearly left to the Board's discretion.
Sufficiency of the manner of reporting is a factual question to be determined by the facts of the particular case. As such, the facts of prior cases are helpful, but not determinative. Cf. Branum v. Franklin, 1993 WL 489383 (Del.Super.Ct.). Although the Board should be guided by principles of its prior decisions, it should rely on the facts of the particular case in reaching its conclusions.
Playtex next argues that Leonard's injury was not traceable to her job. The Board determined that Leonard's injury was traceable to her job "on or about November 16, 2000." The Board based its decision on all of the evidence before it and its determination that:
Claimant was credible and that she simply had her dates mixed up. Claimant's testimony is consistent with Dr. Austria's records of November 21, 2000, that indicate that he saw Claimant about one week after she suffered an accident. There was no evidence that Claimant was injured in any other manner or location.
Board Decision at *7.
The Board also found Dr. Rodgers credible regarding his testimony that the injury was substantially related to Leonard's work activities in that the twisting and lifting involved in Leonard's job would place considerable stress and strain on her spine, especially given her short stature, and that this would be competent to cause her particular injuries. The Board also found it significant that Dr. Case, Playtex's expert witness, did not disagree with Dr. Rodgers' opinion, but merely qualified his opinion that he agreed with Dr. Rodgers if Leonard's history were accepted.
Playtex asserts:
Because the Board had substantial evidence that Leonard's injury did not occur while she was working, it should have disregarded Dr. Rodgers' opinion that Leonard's injury was work related. Cf. Gehr v. State, *1 (Board was free to disregard the doctor's opinion where that opinion was based on the patient's history as relayed by the patient and the Board did not find the patient's version of the history credible).
Playtex's Opening Brief at *15.
From the record, it appears that the Board had evidence to support either party's position in the present case. "An indispensable prerequisite to recovery by a claimant in a workmen's compensation case . . . is proof of a causal connection between the accident occurring within the course and arising out of employment and the injury and disability allegedly resulting therefrom." In this case, the Board did find a causal connection based on the testimony and evidence before it. The fact that the Board determined that Leonard had her dates mixed up explains why the date of November 16, 2000 was previously given. The record indicates that the Board considered that the employer's records showed that Leonard was not working on November 16, 2000. The Board did not expressly state in its Decision that it found November 14, 2000 to be the date of injury, but that approximate date was inferred by the Board's statement that "Claimant's testimony is consistent with Dr. Austria's records of November 21, 2000, that indicate that he saw Claimant about one week after she suffered an accident." The record also reflects that that date was mentioned by Dr. Rodgers at the hearing as the probable date of injury.
Wade v. Chrysler, 1986 WL 2830, *1 (Del.Super.Ct.).
Board Decision at *7.
The Board, sitting as the trier of fact, is permitted to pass on the credibility of witnesses and to accord their testimony the appropriate weight. I am satisfied that the Board's determination that Leonard had met her burden to show that her injury was traceable to a definite time, place and cause was based on substantial evidence.
Gehr v. State of Delaware, 2000 WL 305495, *9 (Del.Super.Ct.).
Playtex next argues that the Board was biased. It is not only essential for the Board to be impartial, it is also important for it to appear impartial, so that there can be no reasonable belief that an unfavorable ruling results from personal bias. Even so, it is well within the province of the Board to ask clarifying questions of any witness that appears before it. These questions should be neutral and detached and must not reflect bias toward either party, but the Board members are given "reasonable latitude to ask their questions." Here, the Board questioned all witnesses rather extensively, including those of Playtex. It appears that this questioning was done to clarify testimony given by each witness and the questions posed were not skewed or leading. The Board merely asked questions for the witnesses to expand upon and clarify that which they had already testified to.
Logue v. Seaford Machine Works, 1983 WL 473062, at *5 (Del.Super.Ct.).
Playtex v. Lewis at *2.
Id.
Playtex argues that "If the Board truly was unbiased, it would have seen the inconsistencies in [Dr. Rodgers'] testimony and the flawed factual basis of his `diagnosis'." Playtex goes on to allege bias of the Board because the Board stated that it was "very familiar with Dr. Rodgers." The function of resolving conflicts in, and reconciling, inconsistent testimony and evidence is exclusively reserved for the Board. It is exclusively the Board's role to resolve conflicts in the testimony and to weigh the credibility of each witness. These allegations do not prove bias.
Playtex's Reply Brief at *11.
Lewis v. Scotti Muffler, 2001 WL 1752561, at *5 (Del.Super.Ct.).
Id.
Playtex next argues there was not timely notice of a work-related injury. 19 Del. C. § 2341 states:
Unless the employer has actual knowledge of the occurrence of the injury or unless the employee, or someone on the employee's behalf, or some of the dependents, or someone on their behalf, gives notice thereof to the employer within 90 days after the accident, no compensation shall be due until such notice is given or knowledge obtained.
In this case, the Board concluded that Leonard told her supervisor that she was feeling severe pain and tingling running down her left arm on the day of her injury, "but he did not think much of it and he did not fill out an accident report," instruct Leonard to do so, or in any way follow through to make, or have made, a formal report of Leonard's complaint. The Board found that Leonard's report to her supervisor was sufficient to put Playtex on notice that she had sustained a work-related injury. The sufficiency of notice is a question of fact, which is to be determined by the Board. The record contains substantial evidence to support the Board's conclusion and, therefore, this Court will not disturb the Board's ruling as to the sufficiency of notice for the purposes of satisfying 19 Del. C. § 2341.
Board Decision at *2.
As to the "work-related injury" component of 19 Del. C. § 2341, in order to be compensable for worker's compensation purposes, the injury must be traceable to a definite time, place and cause. There was substantial evidence in the record to support the Board's finding that Leonard's injury occurred at work. Dr. Rodgers examined Leonard and took a history from her as well as reviewed her other medical records in conjunction with the examination. Dr. Rodgers concluded, and the Board accepted, that the mechanism of twisting force on the cervical spine, as described by Leonard, is competent to have caused Leonard's injury, especially in light of her stature and the weight of the rolls of paper that she had to move.
Angerstein v. Jankowski, 187 A.2d 81 (Del.Super.Ct. 1962).
Board Decision at *4.
Dr. Case had also examined Leonard and reviewed her medical records and reports. Based on the medical records and reports and the physical examination, Dr. Case also concluded that Leonard's treatment was reasonable, necessary and related to her industrial accident, if her history was accepted. The Board did accept Leonard's history and the record provides substantial evidence to support the Board's finding.
Id. at *5, *7.
Causation is an issue where medical evidence may be supplemented by other credible evidence. Lay testimony can bolster uncertain medical evidence on the issue of causation. The Board could consider the Claimant's testimony as evidence of causation if it found, as it did here, that her testimony was credible and consistent.
Lewis v. Scotti Muffler at *5.
Id.
Id.; Board Decision at *7.
The function of resolving conflicts in, and reconciling, inconsistent testimony and evidence is exclusively reserved for the Board. It is exclusively the board's role to resolve conflicts in the testimony and to weigh the credibility of each witness. The Board's decision may not be disturbed by the Court absent an abuse of discretion and this court will not weigh the evidence or determine the credibility of witnesses. As in Playtex v. Lewis, a plausible explanation was offered to reconcile the apparent differences in the evidence and the Board was entitled to resolve this issue as it did. Substantial competent medical and non-medical evidence exists in the record to support the Board's finding that Leonard's work was a substantial factor in causing her injuries. Therefore, there was no abuse of discretion by the Board and its decision is affirmed as satisfying 19 Del. C. § 2341.
Lewis v. Scotti Muffler at *5.
Id.
Id.
Playtex v. Lewis at *3.
Playtex next challenges the Board's decision that Leonard was not required to find sedentary or light duty work elsewhere. A claimant has the burden of undertaking a reasonable job search once released to work in any capacity. In Greene, the claimant, Greene, knew unequivocally that the employer, Kraft, had no light duty work available and that light duty work would not be made available in the future to Greene. In that case, despite knowing that no light duty work would be made available to her, Greene did not undertake a reasonable job search. This Court affirmed the Industrial Accident Board's decision denying total disability benefits to Greene for the periods of time during which she was released for light duty work by her physician, but did not conduct a reasonable job search despite knowing that Kraft would not make light duty work available to her.
Greene v. Kraft, 1998 WL 960758 (Del.Super.Ct.).
In Hoey, the claimant, Hoey, suffered a compensable industrial accident while employed with Chrysler. During her period of disability, Hoey was periodically evaluated for fitness for a light duty position. During that period, Hoey continued to be listed by Chrysler as an employee and, therefore, continued to be eligible for substantial employee benefits. Furthermore, Chrysler did not notify Hoey whether it could provide her with a light duty position. In Hoey, the Delaware Supreme Court found:
Id. at *2; Hoey v. Chrysler, 655 A.2d 307 (Del. 1994).
Hoey at *1.
Id.
Under the facts and circumstances of Hoey's case, Chrysler had a duty to advise her that it intended to discharge her if it did not intend to provide her with light-duty work. It was unreasonable for Chrysler to withhold this information from Hoey and then expect her to seek employment with a new employer for what would likely be a greatly reduced wage, without the significant Chrysler employee benefits that she had accrued. It was reasonable for Hoey to believe that Chrysler intended to place her in a light duty position and she, therefore, was under no duty to seek employment elsewhere until Chrysler advised her that she would not be given a light-duty position.
Hoey at *2.
Greene was not a case where Kraft led Greene to believe that a light duty job would be made available as was the case in Hoey. Under the Hoey scenario, a worker who reasonably expects to be given a light duty job soon, is not to be expected to look for work elsewhere during the interim. In Greene, though, the Board had substantial evidence before it that Greene knew that Kraft had no light duty jobs available and Kraft did nothing to foster a belief in Greene that one would be made available to her. A displaced employee who does not know or have reason to know that she is a displaced employee cannot be expected to seek new employment.
Greene at *2.
Id.
Id.
Hoey at *2.
In this case, the record shows that Leonard thought that she would be allowed to work in August of 2001, but she was given lifting restrictions of no more than twenty pounds and Playtex did not have any light duty work available for her. Playtex did not offer a light duty position to Leonard because Playtex has a policy of only offering such positions to employees injured at work and Playtex did not believe that Leonard's injury was work-related at that time. The Board concluded that Leonard was never discharged nor told by anyone at Playtex that she would need to seek work elsewhere within her restrictions. The Board found that, since Playtex did not make sedentary or light duty work available, although those positions do exist within the company, it was reasonable for Claimant's total disability status to continue and she was not required to find work elsewhere. It is the opinion of this Court that the facts of this case are closer to those of Hoey than to Greene. When Leonard was released by Dr. Penny to work with light duty restrictions, she went to Playtex and told Dashiell that she might be able to return to restricted work. At that time, Dashiell gave her a capacities form to indicate what her restrictions would be. There is nothing in the record to show that Leonard knew that a light duty position had not been offered to her because of Playtex's policy and, therefore, that no light duty position would be offered to her at any time in the future. In fact, Leonard believed that her injury was work-related. This, taken with the fact that a capacities form was given to Leonard to complete, provides substantial evidence to support the Board's finding that Leonard was not required to seek work elsewhere within her restrictions. Therefore, as in Hoey, Playtex had a duty to advise Leonard of its intention that it would not offer a light duty position to her. Because the record does not show that Playtex did so, Leonard reasonably did not know or have reason to know that her employer expected her to seek other employment.
V. CONCLUSION
This is a case which turns on the weight to be given disputed evidence. When the Board accepted claimant's testimony as to what happened the medical evidence was unrefuted. There is substantial evidence in the record to support the Board's decision which is free of legal error. Therefore, the Board's decision regarding the awarding of total disability benefits for the period of December 28, 2000 through January 2, 2002 is AFFIRMED.
IT IS SO ORDERED.