Opinion
C.A. No. 06A-08-008 RRC.
Submitted: March 12, 2007. Decided: April 26, 2007.
On Appeal from a Decision of the Industrial Accident Board.
AFFIRMED.
Jonathan B. O'Neill, Esquire Kimmel, Carter, Roman Peltz, P.A. Springside Plaza Newark, Delaware, Attorney for Employee-Below/Appellant.
Linda L. Wilson, Esquire, Wilmington, Delaware, Attorney for Employer-Below/Appellee.
Dear Counsel:
Before this Court is the appeal of Harold Nichols from a decision of the Industrial Accident Board ("Board") dated August 3, 2006. The Board denied Nichols' petition to determine compensation due that sought reimbursement for total disability from September 8, 2005 through October 22, 2005 and related medical expenses stemming from an alleged work-related injury. The issue is whether the Board's decision was supported by substantial evidence and otherwise free from legal error. For the reasons set forth below, this Court finds that it was. Thus, the decision of the Board is
AFFIRMED.
I. FACTS AND PROCEDURAL HISTORY
Tr. Nichols, IAB Hearing No. 1274969, 1274968, at 4.
Id. at 5.
Id. at 8.
Id. at 19.
Id. at 10.
Nichols testified that a second injury took place on September 6, 2005. He alleged that he was attempting to remove a prop rod that was baked on the lift gate due to the painting and baking process when he felt a pop and twist in his back. Nichols stated that he reported his injury to his coordinator the next day as soon as he arrived at work and did not work that day (September 7). When confronted on cross-examination with his time card, Nichols agreed that the card indicated he worked 8.3 hours on September 7, but stated that this was contrary to his recollection.
Id. at 10-12.
Id. at 21.
Nichols treated with Dr. Barry Bakst for his injury beginning on September 15, 2005. Dr. Bakst took a medical history of Nichols and reviewed his medical records. He also performed a physical examination. Dr. Bakst stated that the examination findings were consistent with Nichols' subjective complaints. Dr. Bakst diagnosed Nichols as having "lubosacral spine pain secondary to strain and sprain with posterior column pain as the pain generator . . . and a possible left paracentral disc herniation." He also testified that Nichols had myofascial-type pain and he did have a history of stress-related panic disorder as well as depression and hypertension. He recommended rehabilitation therapy, chiropractic care, and medication.
Bakst Dep., at 5.
Id.
Dr. Bakst testified that Nichols suffered a work injury on September 6, 2005 and that injury caused a period of total disability from September 8, 2005 through October 24, 2005. However, he also stated that if Nichols had provided an inaccurate history, that could affect his opinion on causation.
Id. at 12.
Id. at 20.
In contrast to Dr. Bakst's opinion, Dr. Samuel Matz, DaimlerChrysler's expert, testified to a reasonable degree of medical certainty that Nichols' back condition was not work related. Dr. Matz first examined Nichols on December 13, 2005. He took a personal history from Nichols which included a description of the April and September 2005 back injuries, but Nichols refused to answer questions about his depression and alcohol use. In addition, Dr. Matz reviewed Nichols' prior medical records and performed a physical examination. Dr. Matz also reviewed the results of an MRI which revealed minimal disc bulging and facet arthritis at L5-S1. He testified that these findings are indicative of a degenerative process, not a traumatic event. He further testified that Nichols did not need any restrictions on his work ability. Dr. Matz examined Nichols a second time on May 23, 2006 and his opinions remained unchanged.
Matz Dep., at 9.
Id. at 4-5, 10-11.
Id. at 6-9.
Id. at 12.
Mr. Wolfgang Vincent, the disabilities manager at DaimlerChrysler, also testified at the Board hearing. He investigated the circumstances surrounding Nichols' alleged work injury. He denied Nichols' claim after conferring with Dr. Sabo, the plant doctor, who did not believe Nichols' position caused his back injury. Vincent also testified that according to DaimlerChrysler's records, Nichols took 99 sick leaves that each lasted at least 5 days. In addition, he called out sick 172 times and took 4 leaves of absence. In fact, Nichols had just been reinstated 66 hours prior to his alleged September 6 injury.
Tr. Vincent, at 51, 54.
Id. at 61-65.
II. FINDINGS OF THE BOARD
The Board, in its August 3, 2006 decision, found that Nichols did not satisfy his burden and therefore denied his petition to determine compensation due. The Board found Nichols' testimony not credible and therefore did not accept his allegation that he suffered an injury on or about September 6, 2006. Specifically, the Board noted inconsistencies in his testimony about which day the injury occurred. In addition, the Board stated that "even if [Nichols] mistakenly confused September 6, 2005 with September 7, 2005, [he] offered no additional testimony to support his claim as to whether the injury actually occurred."
Nichols v. DaimlerChrysler, IAB Hearing No. 1274969, 1274968, at 9 (August 3, 2006).
Id. at 10.
The Board discounted the testimony of Dr. Bakst on causation because he provided "insufficient evidence to support [Nichols'] allegations." However the Board did accept the testimony of Vincent that Chrysler had no prior reports of paint sticking to the rod as Nichols had alleged and he did not believe that Nichols' position could have caused the injury.
Id. at 11.
Id.
III. CONTENTIONS OF THE PARTIES
Nichols makes four contentions in support of his position that Board's decision was not supported by substantial evidence. First, he argues that the Board should have afforded more weight to Dr. Bakst's medical opinion than that of Dr. Matz because Dr. Bakst was Nichols' treating physician. Secondly, Nichols claims that the Board's findings are incomplete because they failed to discuss Nichols' alleged April 2005 injury in its decision. Thirdly, Nichols asserts Vincent was not a credible witness and that the Board should not have relied on his testimony. Nichols' final argument is that he was a credible witness and the Board should have afforded his testimony more weight.
In response, DaimlerChrysler claims that the Board was free to disregard Dr. Bakst's opinion, particularly because his opinion was based largely on a history provided by Nichols, who was not credible according to the Board. Additionally, DaimlerChrysler asserts that as the factfinder the Board was permitted to find Vincent credible.
Furthermore, DaimlerChrysler disagrees with Nichols' contention that the Board's decision was incomplete. It asserts that Nichols was seeking compensation for a closed period of disability from September 8, 2005 to October 24, 2005 and that there was practically no evidence introduced as to the alleged April injury. Therefore, DaimlerChysler contends that the Board's decision was complete.
IV. STANDARD OF REVIEW
V. DISCUSSION
General Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del. 1960); Johnson v. Chrysler Corp., 213 A.2d 64, 66-67 (Del.Super. 1965).
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994).
Johnson, 213 A.2d at 66.
Chudnofsky v. Edwards, 208 A.2d 516, 518 (Del. 1965).
Brogan v. Value City Furniture, 2002 WL 499721, at *2 (Del.Super.).
Playtex Products, Inc., v. Leonard, 2004 WL 2419141, at * 7 (Del.Super.). See also Clements v. Diamond State Port Corp., 831 A.2d 870, 877 (Del. 2003) ("This Court has consistently held that it is the Board's function to resolve conflicts in medical testimony.").
Standard Distributing Co. v. Nally, 630 A.2d 640, 646 (Del. 1996) (finding that Board's decision was based on substantial evidence where it gave more weight to one expert even though another expert testified to the contrary).
Nichols had the burden to prove that his alleged injury occurred. Here, there was sufficient evidence from which the Board could have found that Nichols did not satisfy his burden. The Board stated that "[v]iewed in its totality, the Board finds [Nichols'] testimony not credible." In particular, the Board noted the inconsistency in the date the alleged September injury took place as well as the fact that Nichols did not provide any additional testimony to support his claim that the injury occurred. The Board also considered the fact that Nichols had a long history of missing work and in fact had just recently returned from a grievance procedure when the alleged injury took place.
Strawbridge Clothier v. Campbell, 492 A.2d 853, 854 (Del. 1985).
The issue of Nichols' credibility likewise affected the Board's view of Dr. Bakst's testimony. The Board noted that his opinion was grounded in Nichols' subjective complaints. Dr. Bakst even stated that his opinion on causation may have changed if the history Nichols provided had been inaccurate. Thus the Board did not accept his opinion on causation. However, the Board did find Vincent's testimony credible.
It was the Board's job to weigh the evidence and determine the credibility of the experts. Therefore, the Board was free to find Nichols not credible and consequently disregard the medical opinion of Dr. Baskt. Likewise, it was well within the Board's discretion to accept the testimony of Vincent. This Court will not re-determine questions of credibility or make its own factual findings.
Johnson, 213 A.2d at 66.
Nichols' other contention is that the Board only made a specific ruling as to Nichols' alleged September 2005 injury. The Board's failure to rule on the April 2005 injury, according to Nichols, constitutes reversible error. However, the only evidence that Nichols can point to in the record before the Board regarding this alleged April 2005 injury was brief testimony from Dr. Bakst that a review of Nichols' prior medical records indicated he was previously treated in for back pain in April 2005. Dr. Bakst also testified that that injury had "pretty much resolved." No one testified that Nichols was disabled due to the April 2005 injury or that any treatment he received was reasonable, necessary, or related to that injury. Additionally, no lost time, medical bills, or medical records from the employer were produced with regard to the April 2005 incident.
Bakst Dep., 7-8, 24-25.
Id. at 8.
Under 19 Del. C. § 2348 the Board is to give "full consideration to all evidence presented" and "render a written decision that succinctly and clearly states its findings of fact and conclusions of law." Given the record before the Board, the Board adequately satisfied its requirements under the statute. Therefore, after reviewing the evidence in the light most favorable to the prevailing party below, this Court finds that there was sufficient evidence to support the Board's decision and the Board did not err as a matter of law.
VI. CONCLUSION
For the above reasons, the decision of the Industrial Accident Board is
AFFIRMED.
IT IS SO ORDERED.