Opinion
C.A. No. 02A-12-002-FSS.
Submitted: May 15, 2003.
Decided: September 24, 2003.
Upon Appeal from the Industrial Accident Board.
AFFIRMEDSheldon S. Saints, Esquire, Rahaim Saints, Wilmington, Delaware, Attorney for Appellant.
David G. Culley, Esquire, Jennifer S. Naylor, Esquire, Tybout, Redfearn Pell, Wilmington, Delaware, Attorneys for Appellee.
ORDER
George Smith has appealed the November 25, 2002 Industrial Accident Board decision denying additional compensation for neck and low back treatment, including two surgeries and the subsequent period of total disability. The Board concluded that Smith's neck and back problems were due to prior injuries and a congenital condition. The Board did award Smith an emergency room visit with a 48 hour stay. Additionally, the Board awarded Smith a medical witness fee and an attorney's fee. Essentially, the appeal questions the evidentiary basis for the Board's partial denial of compensation.
I.
On March 4, 2000, Smith was injured while working for Diamond State Port Corporation. Smith was driving a forklift when another forklift, driven by a co — worker, rammed him from behind. Smith suffered a torn rotator cuff as well as a torn anterior and inferior labrum. As a result, Smith underwent left shoulder arthroscopic surgery on July 19, 2000. Diamond State admitted this injury and the medical procedures were covered under temporary total disability benefits, as was the time missed from work.
Smith, however, asserts the accident injured his neck and low back as well. Eventually, Smith underwent a cervical discectomy with anterior fusion on May 30, 2001, and a laminectomy and L5 discectomy of the lumbar spine on October 31, 2001. Diamond State refused compensation for most of the cervical and lumbar treatment.
Smith admitted an extensive history of neck and back pain pre-dating the March 2000 industrial accident, including several motor vehicle accidents and two workplace accidents involving neck and lower back injuries. Smith testified that his pain would flare up and require medical treatment upon re-injury, but that he could use over-the-counter medicines to control the pain during the interim periods, including the three years prior to the March 2000 industrial accident.
Smith's medical expert, Dr. Pierre Leroy, treated Smith since 1984. Dr. Leroy testified that in 1984 Smith suffered a work injury to his lumbar spine, which resulted in a 5% permanency rating to the back and a 3% permanency rating to the spine. In 1986, Smith was in a car accident and suffered an additional 5% rating to his lumbar spine and a 10% rating to the neck. According to Dr. Leroy, a 1994 car accident permanently aggravated Smith's symptoms and herniations were found at C4-5 and L5-S1, though the herniations were surgically insignificant.
Dr. Leroy further testified that Smith suffered from a "congenital narrowing of the spinal canal which required surgical decompression because of his disc herniations." Dr. Leroy conceded that the surgeon who performed Smith's spinal surgeries diagnosed Smith with congenital stenosis. As far as the thirteen day hospital stay beginning May 30, 2000, Dr. Leroy testified that some tests Smith had were unrelated to the March 2000 industrial accident, and all the tests conducted during that stay could not have been completed within 48 hours.
Diamond State's expert witness, Dr. Samual Matz, an orthopaedic surgeon, testified that after examining Smith, he diagnosed Smith with:
(1) congenital narrowing of the cervical spine with annular bulging and [degenerative, pre-existing arthritis in his small neck joints] from C3-4 through C5-6; and
(2) congenital narrowing of the lumbar spine with a mild lumbar [arthritis] and annular bulge with a right paracentral annular tear L5-S1.
Furthermore, Dr. Matz also testified that "the MRI of the lumbar spine showed a lot of degenerative changes pre-existing and findings that could be related to his back as it existed prior to the accident of March 4, 2000."
Dr. Matz believed Smith embellished his symptoms during examination, as there were no "anatomic objective neurological defects." Dr. Matz concluded with regard to Smith's neck and back: "no treatment, in my opinion, would be necessary and related to the accident of March 4, 2000. . . ." And that: "diagnostic studies tend to clearly point to pre-existing degenerative disease and spinal stenosis." He further opined that the May 30, 2000 hospitalization was only partially related to the March 2000 industrial accident.
II.
Despite Dr. Matz's testimony to the Board, Smith argues that his neck and back surgery were related to the March 2000 industrial accident and the Board erred in finding that he had not met his burden of proof. He asserts that the Board's findings are not supported by the evidence.
Smith's argument begins with the proposition that "the Board found Dr. Matz's opinion to be persuasive in light of [Smith's] longstanding history of . . . back complaints and the inconsistencies between [Smith's] complaints of pain and the clinical findings. There is, however, no substantial evidence to support Dr. Matz's position." Smith further challenges the Board's finding that the evidence showed that Smith's symptoms from his prior injuries never abated. Smith backs this claim by pointing to the fact that he did not seek medical treatment for three years before his March 2000 industrial accident.
Additionally, Smith asserts that the Board's finding that a congenital narrowing of Smith's spinal canal is not, by itself, a reason to deny compensation. Even though the records state that Smith suffered from a spinal stenosis condition, Smith argues "there was no evidence presented that this condition alone is generally symptomatic or was so in [Smith's] case." Smith bolsters this argument by pointing to the fact that he worked heavy duty jobs for 20 years before his March 2000 industrial accident.
Finally, Smith claims that based on Dr. Matz's testimony, the Board awarded him a 48 hour hospital stay as compensable. The Board, however, did not find "that treatment, such as therapy and medication, for four to six weeks after the accident would be appropriate also," as stated by Dr. Matz.
III.
The standard of review on appeal is limited. As to questions of law, the court's review is plenary. But as to questions of fact, it does not reexamine evidence, much less make its own findings. The Board's decision stands if there are no legal errors and substantial evidence supports its factual findings. Substantial evidence is adequate to a reasonable mind to support a conclusion. The reviewing court does not weigh the evidence, determine questions of credibility, or make its own factual findings. Simply put, the court does not sit as trier of fact, nor should the court replace its judgment for the Board's. The court determines if the evidence is legally adequate to support the agency's factual findings. In this case, the court is concerned whether the Board's conclusion that Smith is not entitled to additional compensation, is supported by the law and the record.
Del. Code Ann. tit. 29 Del. C. § 10142, § 10161(a)(8) (1997 Supp. 2000).
General Motors Corp. v. Jarrell, 493 A.2d 978 (Del.Super.Ct. 1985).
Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994).
Johnson v. Chrysler Corp., 213 A.2d 64, 66-67 (Del. 1995).
Id.
Histed v. E.I. duPont de Nemours Co., 621 A.2d 340, 342 (Del. 1993).
With respect to medical testimony, Sears, Roebuck Co. v. Farley holds, "where medical testimony is based solely upon the subjective complaints of the claimant, a trier of fact is free to accept that medical testimony." Additionally, when a physician's opinion is based on the veracity of a claimant's complaints, the Board is permitted to rely upon the claimant's credibility when crediting or discounting the physician's testimony. Here, of course, the Board clearly relied on Dr. Matz's expert medical opinion. Not only did he discount Smith's subjective complaints as embellished, Dr. Matz explained why he connected Smith's neck problems with congenital and degenerative causes. According to Dr. Matz, his opinions were consistent with objective evidence, which he also discussed.
290 A.2d 639, 641 (Del. 1972), citing DeBernard v. Reed, 277 A.2d 684, 686 (Del. 1971).
Beyer v. Nanticoke Homes, Inc., Del. Super., C.A. No. 91A-01-002, Ridgely, J. (January 10, 1992).
IV.
On a Petition to Determine Additional Compensation Due, the claimant carries the burden of proof and must demonstrate by a preponderance of the evidence that but for his work accident, claimant would not have experienced a recurrence of total disability. After hearing all the testimony, and weighing the facts and the credibility of the witnesses, the Board concluded that there was no causal connection between Smith's March 2000 industrial accident and his neck and lower back problems.
Reese v. Home Budget Center, 619 A.2d 907 (Del. 1992).
The fatal flaw in Smith's position is that he presents the record in a favorable light to him. As explained, however, at this point the record must be viewed favorably to the Board's findings. Along the same line, at times Smith presents the record in a way that subtly but unjustifiably seems to enhance Smith's position. For example, Smith presents Dr. Leroy's summarization:
. . . there are reports here, letters from, reports from Dr. Long who did the surgery that in his opinion the surgery and the treatments were necessitated by the March 4 accident. . . .
Dr. Matz's testimony, however, is that according to the records from Dr. Long, at Johns Hopkins:
[Smith] has clear-cut moderate cervical spinal canal stenosis. The problem is principally at C5-6. There is some decrease at C4 and additionally problems at C3-4.
Dr. Long then writes that "the narrowing is congenital." Thus, Dr. Long is not necessarily opining that Smith suffered a traumatic condition as Smith contends. Instead, a reasonable inference Dr. Matz drew was that Dr. Long was talking about a degenerative process associated with a congenital condition, rather than trauma from the industrial accident. Both side's experts agreed that Smith had neck and back problems, which worsened over time. But Dr. Matz attributed the long-term problems to pre-existing and on-going processes.
What this all boils down to is that Smith presented evidence from which the Board could have ruled in his favor. It is beyond dispute that the forklift accident aggravated Smith's neck and back. Smith had surgeries 14 months and 19 months later. Smith had a case. But so did Diamond State. The Board accepted Diamond State's position over Smith's. Even if reasonable minds can differ on appeal, about whose case was stronger, under the circumstances the court has to accept the Board's finding. The Board accepted the employer's medical expert's opinion over the employee's. And the employer's experts opinion was based on substantial evidence.
V.
For the foregoing reasons, the November 25, 2002 decision finding that Smith is not entitled to additional compensation is AFFIRMED.
IT IS SO ORDERED.