Opinion
C.A. No. 99A-11-001-WTQ.
Submitted: May 26, 2000.
Decided: June 6, 2000.
Letter Opinion and Order on James Julian's Motion to Affirm Pursuant to Rule 72.1 — MOTION DENIED
Gentlemen:
This is the Court's Letter Opinion and Order on Employer/Appellee James Julian's Motion to Affirm a decision of the Industrial Accident Board. For the reasons stated herein, the Motion to Affirm pursuant to Superior Court Civil Rule 72.1 is DENIED.
FACTS
Claimant/Appellant Ray Roeben suffered his first compensable injury in 1997. While he was working for James Julian, he hurt his back as he was carrying two paint drums weighing approximately forty pounds each. Following the initial accident, Mr. Roeben was out of work for a period of time. Mr. Roeben received disability for this injury. Thereafter, he returned to work as an estimator for another company, but he eventually had to leave that job because of back pain. Subsequently, after seeing three separate doctors for pain treatment, Mr. Roeben underwent back surgery on August 25, 1999. That surgery, performed by Dr. Sugarman, was an interbody fusion from the L4 to the sacrum of the back. The fused area was stabilized with metal screws and rods.
Mr. Roeben then filed a petition with the Industrial Accident Board ("IAB") to determine if he was entitled to additional compensation from James Julian for his surgery. On October 13, 1999, the IAB held that the Claimant's condition in August of 1999 was a result of the 1997 work accident. The Board, however, denied compensation because it determined that the surgery undertaken to correct Mr. Roeben's condition was not reasonable or necessary. The Board was "very troubled by the fact that [the] Claimant underwent such extensive surgery without any consideration for other alternative treatment." JAB Op. No. 1114248, at 8 (Oct. 13, 1999). The Board further found the surgery was an extreme and radical measure in light of the fact that other treatment with less serious consequences was available but had not been attempted. Id. at 8-9.
Mr. Roeben now appeals the decision of the IAB to this Court, claiming that the Board's finding that his surgery was not reasonable or necessary is not supported by substantial evidence. Specifically, Mr. Roeben claims that he and Dr. Sugarman followed a reasonable process in arriving at the decision to perform the back surgery. Furthermore, Mr. Roeben claims that the case law indicates that his choice to have surgery should not be second guessed.
STANDARD OF REVIEW
Pursuant to Superior Court Civil Rule 72.1, a Motion to Affirm may be granted where it is manifest on the face of the Appellant's brief that the appeal is without merit because: (1) the issue on appeal is clearly controlled by settled Delaware law; (2) the issue on appeal to this Court is factual, and clearly there is sufficient evidence to support the jury verdict or findings of fact below; (3) the issue on appeal from a commission or board is factual, and there is substantial evidence to support the findings of fact below; or (4) the issue on appeal is one of judicial or administrative discretion and clearly there was no abuse of discretion. Super. Ct. Civ. R. 72.1; Wallace v. Alberici Construction Co., Del, Super., C.A. No. 98A-11-007, Quillen, J. (Apr. 22, 1999); Rodel, Inc. v. Johnson, Del. Super., C.A. No. 97A-04-014, Carpenter, J. (May 1, 1998). Effective July 1, 2000, Superior Court Civil Rule 72.1 is repealed and Motions to Affirm will no longer be heard.
DECISION
Mr. Roeben's appeal seems, for the most part, to be a factual one. The question appears to be simple, whether or not there is substantial evidence to support the Board's holding that Mr. Roeben failed to prove the reasonableness and necessity of the surgery. 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 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.
While Mr. Roeben may have a tough factual row to hoe in this appeal, the most prudent course of action is to let the briefing proceed and decide the case after all of the arguments are presented. Mr. Roeben indicates in his brief that he had taken conservative measures for his pain, but they did not work. He had taken oral medications for his back pain and had received injections into his spine for treatment before he decided to have surgery. The Board's holding that the "Claimant underwent . . . extensive surgery without any consideration for other alternative treatment" is in itself a little unusual given the wide discretion commonly given treating physicians. It appears that James Julian has not shown that it is manifest on the Appellant's brief that the appeal is without merit. The Court should consider Mr. Roeben's claim after full briefing. The Motion to Affirm is DENIED. IT IS SO ORDERED.