Opinion
C.A. No. 99A-04-006 WTQ.
Date Submitted: October 28, 1999.
Date Decided: January 13, 2000.
Letter Opinion and Order on Employer-Appellant's Appeal from the Decision of the Industrial Accident Board — AFFIRMED
Nancy E. Chrissinger, Esquire Chrissinger Baumberger 3 Mill Road Wilmington, DE 19806
Joseph W. Weik, Esquire Weik Nitsche Dougherty One Commerce Center, 3d Floor 12th and Orange Streets P.O. Box 2324 Wilmington, DE 19899
Dear Ms. Chrissinger and Mr. Weik,
This is the Court's Letter Opinion and Order on Employer-Appellant Rodel Incorporated's ("Rodel") Appeal of a decision of the Industrial Accident Board ("IAB"). For the reasons stated herein, the Decision of the IAB is AFFIRMIED.
FACTS
This case, at least for immediate purposes, concerns an award of two and one-half months of total disability. Claimant Alex Smith ("Smith") filed a claim with the IAB to recover total disability benefits from the period of August 12, 1998 through October 28, 1998 for injuries he claims that he sustained while he was working as a felt room operator with Rodel. A felt room operator takes raw polyester material and runs it through a web that makes the polyester material into rolls. (IAB Trans. at 16, hereinafter "Tr. at ___").
Smith was allegedly injured on May 26, 1998 when he was moving a roll of polyester. Smith testified that one of the rolls of polyester had "telescoped out" and it was not acceptable for the next stage of the manufacturing process. (Tr. at 20). Smith testified that he and Mr. Jeff Roberts decided to put the five or six hundred pound roll on its end to try to get the telescoped end to fall inside the roll. (Tr. at 20, 34). Smith states that after he manually pushed the roll on its end, he felt a strange and "mushy" pain in his lower back at the base of his spine. (Tr. at 21-22). Smith testified that subsequently his back began to throb. (Tr. at 22). Smith did not make a report to the company but he states that he did tell his co-worker Mr. Roberts that he pulled a muscle. (Tr. at 22).
Mr. Roberts does not recall this incident.
Smith testified that he had a dull throbbing in his back, but he assumed that he had just pulled a muscle. (Tr. at 22-23). He did not see a doctor for a couple of days and was able to perform his duties at work, at home, and even worked in the garden. (Tr. at 23). Smith did not go to the doctor until June 17, 1998, after he started having numbness in his legs. (Tr. at 24). On June 17, when Smith's family doctor, Dr. Szeto, asked him how long he was having severe back pain, he responded that he had the pain for three or four days. (Tr. at 25). Dr. Szeto initially thought that Smith was having kidney stones because he had a history of kidney stones. Said stones can cause similar back pain. Subsequently, Smith was tested for kidney stones, but the tests showed conclusively that the back problem was not related to having a stone. (Tr. at 26).
After that, Dr. Szeto recommended that Smith should make an appointment with Dr. Rudin, but he could not get an appointment until the end of August. (Tr. at 28). So from his attorney's office, Smith made an appointment to see Dr. Kutney. (Tr. at 28). After his appointment with Dr. Kutney, Smith did not return to work and Dr. Kutney forbade Smith from driving. (Kutney Dep. at 13-14). Although Smith claims that he had reported his back problems verbally to Rodel, an incident report for the May 26th injury was not filed with Rodel until after his appointment with Dr. Kutney in August. After medication and physical therapy, Smith returned to light duty work on October 28, 1998.
Smith remained working after the incident from May 26 to August 12, 1998. Smith testified that the pain in his back slowly got worse and it never went away. (Tr. at 42).
Dr. Kutney testified on behalf of Smith. Dr. Kutney related Smith's injury to the event of May 26, 1998 with "reasonable medial certainty." (Kutney Dep. at 6). Dr. Kutney stated that the MRI he ordered showed degenerative changes in Smith's back. Kutney states that Smith's back problem was so severe that it made Smith's legs numb. So numb, in fact, that Smith did not even feel a needle that was inserted into his left calf (Kutney Dep. at 10). Kutney's notes state that "[w]hile moving a heavy roll of material, he felt a strange feeling in his lower back . . . [and] in 6/98 he was involved in an on-the-job injury." (Kutney Dep. at 21). Kutney testified that Smith had degenerative changes of the lumbar spine, with disk bulging and annular radial tears located at L-3 — L-4, L4 — L5, and L5 — S1. (Kutney Dep. at 8-9).
Anthony Petrongolo and John McBride testified on behalf of Rodel and stated that they played golf with Smith for eighteen holes on July 9, 1998 at the Chantilly Country Club. (Tr. at 44-45). Each testified that they played golf with Smith one other time that summer and that Smith never had any complaints about his back or legs during the golf outings. (Tr. at 45-48). Additionally, Stephen Carroll testified that Smith was a good worker but complained of back pain and missed some time from work in June or July of 1998. (Tr. at 49, 54). Carroll, however, testified that he had played horseshoes with Smith in June or July of 1998 and he did not have any pain at that time. (Tr. at 55).
Both Petrongolo and McBride are employees of Rodel.
Mr. Kenneth Root also testified that he played golf with Smith in June or July of 1998. (Tr. at 68). Root also stated that Smith was doing his regular job through this interval. (Tr. at 69).
Apparently, the reason Smith reported that he missed time in June 1998 was for kidney stones. (Tr. at 53, 63).
Jeffrey Roberts also testified that he played horseshoes with Smith that summer.
Jeffery Roberts, who worked with Smith, testified that he did not remember attempting to set the roll of material on its end on the day that Smith claims that he was injured. (Tr. at 73). Roberts claims that he never was told by Smith in the month of May that he was injured. In fact, he claims that he did not hear about Smith's injury until August 12 when the medical slip was filed with Rodel. (Tr. at 77, 89).
While this assertion may be true, the log book for the company did indicate that Smith had back pain in June. (Tr. at 91).
Rodel offered the medical testimony of Dr. John Townsend. Dr. Townsend evaluated Mr. Smith on December 16, 1998 and February 11, 1999. Dr. Townsend testified that it was odd that Smith waited from May 26th until June 17th to seek treatment for this type of injury. (Tr. at 99). Dr. Townsend stated that the existence of a radial tear did not suggest an acute injury. (Tr. at 100). Dr. Townsend opined that the EMG performed by Dr. Kutney was not valid and he "questioned] Dr. Kutney's acumen at performing this particular study." He stated that golfing would be an unpleasant thing for a person with back pain to do. He also argued that there was nothing in the medical record that he saw that would keep a person from driving. (Tr. at 110).
Dr. Townsend stated: "[p]eople with back pain usually don't wait long to seek treatment." (Tr. at 115).
From this testimony, the IAB ruled on behalf of Smith. The IAB accepted Smith's description of the work incident. (IAB Op. at 10). The Board believed that Smith and Roberts did put the five-to six-hundred pound roll on its end to square the ends. (IAB Op. at 10). The IAB Decision makes it quite clear that the Board felt Smith was a truthful person who would not have "manufactured the mechanics of injury." (IAB Op. at 10). The IAB questioned Roberts testimony in that he did not recall any fact that might implicate his involvement in activities that violated safety activities. The Board also found it difficult to believe that Roberts was not aware of any corporate restructuring at Rodel at the time of the incident. (IAB Op. at 10).
The IAB further opined that, while no document linked the cause of injury to the work related activities until Dr. Szeto's August 1998 medical record, Smith's consideration of the kidney problem was not unreasonable in light of his past problems with kidney stones. (IAB Op. at 11). The Board also believed the Claimant's testimony that he initially thought that he pulled a muscle that would heal in a few days. The Board found it plausible that the sequence of events occurred just as Smith testified, and the fact that he played golf and horseshoes with other employees did not influence the fact that his injury was supported by diagnostic studies. (IAB Op. at 12). The Board accepted Dr. Kutney's certification that the time missed from work was from August 12 through October 28, 1998.
Rodel appealed the decision of the IAB to this Court, claiming that the IAB's factual determinations were not supported by substantial evidence. The heart of Rodel's appeal is that it does not feel that the facts presented to the IAB support the decision the IAB reached.
STANDARD OF REVIEW
The Supreme Court and this Court have repeatedly emphasized the limited review of the factual findings of an administrative agency. Carpenter v. Mattes Electric, C.A. No. 96A-07-005, Quillen, J. (Apr. 9, 1997). The function of the reviewing Court is to determine whether the agency's decision is supported by substantial evidence and free from legal error. General Motors Corp. v. Freeman, Del. Supr., 3 Storey 74, 164 A.2d 686, 688 (1960); Johnson v. Chrysler Corp., Del. Supr., 9 Storey 48, 213 A.2d 64, 66-67 (1965). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. Inc. v. Wilmington Stevedores Inc., Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), app. dism., Del. Supr., 515 A.2d 397 (1986). On appeal from the Board, the Superior Court does not sit as a trier of fact with authority to weigh the evidence, determine questions of credibility, and make its own factual findings and conclusions. Johnson, 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). If substantial evidence exists and the Board made no error of law, its decision must be affirmed. Breeding v. Contractors-One-Inc., Del. Supr., 549 A.2d 1102, 1104 (1988) (citing 29 Del. C. § 10142(d); A. Mazzetti Sons, Inc. v. Ruffin, Del. Supr., 437 A.2d 1120 (1981); M.A. Hartnett, Inc. v. Coleman, Del. Supr., 226 A.2d 910 (1967)).
DECISION
There are no questions of law to be decided in this case. This is a purely factual appeal and it is solely the province of this Court to determine if the IAB's decision was supported by substantial evidence. Rodel argues that the Board's decision was in error because the Board did not accept its version of the facts. Rodel's appeal claims that the facts fail to show that this accident occurred or that Smith's injuries are related to the alleged accident.
The Court would be less than candid if it did not say Smith's case can easily be questioned under all of the evidence. One would have expected a different reaction to an injury on May 26, 1998. But Smith would hardly be the only person who has delayed reporting to a doctor when advisable.
In light of Smith's testimony and the testimony of Dr. Kutney, the Court holds that the IAB's decision is supported by substantial evidence. The Board concluded that it was understandable under the circumstances for Smith not to see a doctor from May 26 to June 17, 1998, in light of his prior problems with kidney stones. The record does reflect that Smith did miss some time from work in June because of kidney stones. (Tr. at 53, 63). Furthermore, Dr. Kutney's version of the cause and severity of Smith's injuries was reasonable in light of the evidence and the MRI results. Kutney indicated that Smith was having muscle spasms in his back and numbness in his legs at their initial visit. He ordered an MRI, and that test showed degenerative changes in the lumbar spine and related the bulging of his disks to the accident. (Kutney Dep. at 9). Certainly Smith was injured. And while Dr. Townsend might have disputed Dr. Kutney's findings, he did note that Smith had some diminished pin prick and temperature sensation in his left leg, that there was a mild decrease in motion, and that there was some weakness displayed in the tibialis and peroneus longus muscle on the left side which "would fit with an L-5 radiculopathy." (Tr. at 106).
There is also credible evidence in the record that indicates that the industrial accident did happen. The Board saw and heard the witnesses. It was not unreasonable for the Board to question the testimony of Mr. Roberts, in light of the circumstances of the accident and the possibility that Mr. Roberts' failure to report the safety violation could result in a reprimand or a firing. And the Board could find that it is plausible that the pain in Smith's back gradually built until it became intolerable in August. It was the Board's duty to evaluate the facts and to determine the credibility of the witnesses. While this Court might have decided the issue differently in light of the facts presented, the Board relied on evidence that a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. Inc., 636 A.2d at 899. The Court cannot say the Board's factual conclusion was unreasonable as a matter of law. The decision of the IAB was supported by substantial evidence. The Decision of the IAB is AFFIRMED. IT IS SO ORDERED.
Sincerely,
William T. Quillen