Opinion
C.A No. 01A-04-006
Date Submitted: January 23, 2002
January 31, 2002
R. Stokes Nolte, Esquire, Nolte, Broadway Saltz, P.A., Wilmington, DE.
John J. Schmittinger, Esquire, Schmittinger Rodriguez, P.A., Dover, De.
Dear Counsel:
This is an appeal of Nanticoke Homes, Inc. (hereinafter "Employer") of the decision of the Industrial Accident Board (hereinafter "Board") in favor of the employee Ronald Payton (hereinafter "Claimant"). This Court hereby affirms the decision of the Board.
I. FACTUAL AND PROCEDURAL STATEMENT 1. Claimant's Testimony
On August 17, 2000, Claimant filed a petition for additional compensation due for an impairment rating of 50% on the right lower extremity, which he alleged was a direct result of twisting his knee at work. The Board held a hearing on March 12, 2001. Claimant testified to the following. He was a sixty-one year old mechanic and truck driver who was employed at Nanticoke, Homes, Inc. at the time the incident occurred. He had contracted a case of polio as a child. In 1947, when he was six or seven years old, he underwent surgery to fuse his ankle bone. He had to wear a brace for a short period afterwards. During his life, he enjoyed recreations such as bowling and fishing, was an active father who played with his three children, and supported his family by working as a truck driver with manual transmissions, in the shipyard, and as a mechanic. He could also climb stairs, bend, squat, and lift heavy materials. Although he never wore a brace except for the two years immediately following his polio operation, he was able to function fully in all of these endeavors.
On March 12, 1993, while standing on steps in his required steel-toed work shoes, Claimant attempted to turn his body and twisted his right knee because his right foot could not move in the leaden shoe. He was absent from work for fifteen weeks following this injury. He was required to wear a brace that ran from his hip to below his foot, which caused weakness and atrophy in his right leg. He is now unable to perform daily activities he enjoyed prior to the accident, such as bowling, fishing, walking on the beach with his wife, climbing stairs, bending, squatting and lifting heavy materials.
2. Experts' Testimonies
Stephen Rodgers, M.D. testified on behalf of the Claimant. His testimony is summarized below.
He began to see Claimant in August of 2000 and was able to observe Claimant's X-rays at that time. Claimant had surgery in the 1940s to fuse his ankle, which was weakened by the effects of a relatively mild case of childhood polio. Claimant wore a brace temporarily after the ankle surgery in 1947 but had not worn another one until the 1993 accident. The results of the MRI Dr. Spieker ordered after the March 12 incident revealed a medial meniscle tear, a lateral meniscle tear and a tear of the anterior cruciating ligament (ACL). Dr. Rodgers believes the March 12 incident caused these tears. He testified that he felt Claimant suffered from a 50% impairment to the lower right extremity. Dr. Rodgers also noted in the record that in 1992, an orthopedic surgeon, Dr. Spieker, restricted some of Claimant's physical activities, such a driving a manual truck, but did not recommend a brace.
In rating the Claimant's impairment, Dr. Rodgers referenced the AMA Guides 5th Edition, Chapter 3, section 3.2(b) on "Gait Derangement." Dr. Rodgers utilized Table 17.5 on page 529 of the Guide, and placed Claimant's in category "e", which reads: "Requires routine use of cane, crutch, or long leg brace." That particular finding carries a Whole Person Impairment factor of 20%. After taking all of Claimant's pre-existing factors into account, he was of the opinion that Claimant carried a 20% overall impairment rating. Dr. Rodgers then converted the 20% overall impairment finding to 50% impairment to the lower right extremity.
Charles Mauriello, M.D. testified via deposition for the Employer. Dr. Mauriello testified to the following. Claimant suffered from atrophy to the right leg, a gait disturbance, and right knee laxity, and a right foot which was two sizes smaller than the left foot as a result of his childhood polio. He agreed with Dr. Rogers that Claimant's impairment to his lower right extremity was 50% after the incident on March 12, 1993, and that this converts to 20% of the whole person impairment. However, he believed that Claimant's impairment level to the lower right extremity was only 13% as a result of the March 12, 1993 incident, which means the impairment was 37% prior to the incident. Based on the Table 17.5, a lower extremity impairment of 37% required the "routing use of a short leg brace." He based his conclusion upon his opinion that although before the accident, Claimant did not wear a brace, his condition actually required a brace.
3. Findings of the Board
The Board found that Claimant had the burden of proving that the March 12, 1993 work incident caused a fifty percent impairment to his right leg. See Board's Decision at 4. The Board thereby found that Claimant met his burden of proof and awarded him the additional compensation due. Id. The Board held that:
Based on Claimant's lack of need for a brace prior to the work accident and on his loss of function due to the accident, Dr. Rodgers attributes the entire 50% rating to the work accident. The Board agrees with Dr. Rodgers and accepts his 50% rating.
But for the work accident, Claimant would not need the long brace that he now wears. Under the AMA Guides, the brace requirement is the sole basis for the 50% rating, which was agreed upon by both doctors. In addition, but for the accident, Claimant would not suffer the significant loss of function that he now endures. Claimant can no longer walk well, climb, bowl, or perform many of the activities that he could perform prior to the work accident. Although Claimant's work injury would not have been significant if he had a normal leg prior to the accident, any impairment caused by the work accident, under a "but-for" analysis, is compensable. See Reese v. Home Budget Center, Del. Super., 619 A.2d 907, 910 (1992) (holding that the "but-for" standard is used "in fixing the relationship between an acknowledged industrial accident and its aftermath.")
For these reasons, the Board finds that the 1993 work accident caused Claimant's 50% permanent impairment to the right leg. Under 19 Del. C. § 2326(a), the maximum recovery for a leg is 250 weeks. The Board will award Claimant, therefore, 125 weeks (50% of 250) of compensation at his compensation rate.
II. SUMMARY OF THE ARGUMENTS
In his Amended Opening Brief, the Employer's argument is as follows:
1. The Board's opinion ignores the uncontroverted facts and is not based on substantial evidence.
2. The Board applied the wrong legal standard in using the Reese "but-for" standard. Reese v. Home Budget Center, Del. Super., 619 A.2d 907, 910 (1992).
In the Answering-Brief of the Claimant, Claimant asserted that the Board properly determined Mr. Payton's claim for permanent partial disability benefits, and that its decision is based on substantial evidence and is free from legal error. On January 23, the Employer filed a Reply Brief in which he redefined his argument concerning the Reese "but-for" test.
In his Amended Opening Brief, the Employer originally stated that he disagreed with the Board's use of the Reese "but-for" test in order to determine whether Claimant's injury was a causal factor in his worsening impairment on his right leg. Reese, 619 A.2d at 910. He now concedes that the test is the appropriate one, but disagrees with the way the Board applied it to Claimant's case.
III. LEGAL ANALYSIS A. STANDARD OF REVIEW
The Supreme Court and this Court have repeatedly 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 Corporation, Del. Super., 213 A.2d 64, 66-67 (1965); General Motors v. Freeman, Del. Super., 164 A.2d 686, 688 (1960). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. v. Wilmington Stevedores, Del. Super., 636 A.2d 892, 899 (1994); Battisa v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), app. dism., Del. Super., 515 A.2d 397 (1986). The appellate court does not weigh the evidence, determine questions of credibility or make its own factual findings. Johnson v. Chrysler, 213 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. THIS COURT WILL NOT DISTURB THE BOARD'S FINDING ON FACTUAL ISSUES 1. The Board's Decision is Based on Substantial Evidence of the Expert-Doctor's OpinionAs Claimant correctly notes, the issue at the heart of this dispute is whether the March 12 work incident contributed to Claimant's 50% impairment of his lower right extremity. Claimant presented the fact that the Claimant functioned actively and completely without use of any brace for many years despite his history of childhood polio. The injury is the sole reason that Claimant is now wearing the full-leg brace. "In work-related claims, as in personal injury claims sounding in tort, the employer takes the employee as he finds him." Reese v. Home Budget Center, Del. Super. 619 A.2d 907, 910 (1992). Dr. Mauriello's disability assessment is based solely on his opinion that Claimant should already have been wearing a brace. The Board found otherwise and there is substantial evidence to support that finding.
Reese, 619 A.2d at 910 n. 1. The rule that the defendant takes the plaintiff as he finds him, or the "thin skull," or "eggshell skull" rule, is a longstanding principle of Delaware tort law. See Lipscomb v. Diamiani, Del.Super., 226 A.2d 914, 918 (1967).
Further, the Board chose to accept the testimony of Dr. Rodgers over that of Dr. Mauriello. The Board is free to choose between conflicting medical opinions. Id.(quoting DiSabatino Bros., Inc. v. Wortman, Del. Super., 453 A.2d 102, 105-106 (1982)). Furthermore, either opinion constitutes substantial evidence for purposes of appeal. Id. In fact, a court only may overturn a factual finding of a Board if there is no satisfactory proof in support of that factual finding. Johnson v. Chrysler Corp., Del. Super., 213 A.2d 64, 66-67 (1965). See also Spencer v. Suddard, Del. Super., C.A. No. 97A-04-007, Quillen, J. (Dec. 18, 1997).
2. Use of the Reese But-for Test in Determining Causation
In Reese, the Court noted that "if the worker had a pre-existing disposition to a certain physical or emotional 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." Reese, 619 A.2d at 910. Claimant asserts that the test should have been applied to a different aspect of the case. Specifically, he asserts that the Board should have reasoned that "but-for" the Claimant's polio and "pre-existing impairments," Claimant would have never needed a long leg brace because he could have had his injury surgically repaired. The Board, using the Reese "but-for" test, reasoned instead that if Claimant was able to function without the knee-ankle-foot brace before the incident on March 12, then the incident is the sole cause of his 50% impairment in his leg.
Thus, the Board applied the "but-for" test in exactly the same manner as the Court applied it in Reese. The Board understood correctly that the pre-existing condition which Employer alleges, a history of polio, had not "manifested" prior to the work injury because Claimant was able to function actively until he twisted his knee. In effect, he twisted his knee in the same manner someone without polio would have twisted it. The fact that his prior condition may have prevented surgical repair is of no moment; again, we take our Claimants as we find them.
This Court finds that the Employer's second argument is simply a recharacterization of his first argument: that the weakness in the right foot from the polio is a "but-for" cause of the injury. Thus, this Court finds no merit in the Employer's argument that the Board's application of the Reese "but-for" test is misplaced.
V. CONCLUSION
The decision of the Board is hereby AFFIRMED.
IT IS SO ORDERED.