Opinion
C.A. No. 00A-04-008
Date Submitted: September 6, 2000
Date Decided: December 21, 2000
UPON CLAIMANT'S APPEAL FROM THE INDUSTRIAL ACCIDENT BOARD
AFFIRMEDDanielle K. Yearick, Esq., Tybout, Redfem Pell, 300 Delaware Avenue, P.O. Box 2092, Wilmington, DE 19899. Attorney for Employer Below — Appellant.
Robert P. Lobue, Esq., 803 Shipley Street, Wilmington, DE 19801. Attorney for Claimant Below — Appellee.
ORDER
On this 21St day of December, 2000, upon consideration of the Appeal and Reply Briefs filed by the State of Delaware ("Employer"), Daniel Kelso's ("Appellee") Answering Brief, and the record of the proceedings below, it appears to the Court that:
(1) On September 10, 1996 Appellee sustained a work related injury to his lower back. Temporary total disability benefits were paid to Appellee from September 1996 to January 1997 when Appellee returned to work. In April of 1997, Appellee suffered a reoccurrence and subsequently began receiving total disability benefits. On November 4, 1999, Employer filed a petition for termination of total disability benefits. Appellee has a history of back problems dating back to 1988 and had surgery in 1992.
(2) At the March 8, 2000 hearing before the Industrial Accident Board ("Board"), each party presented expert medical testimony. Andrew J. Gelman, DO. testified via deposition for Employer. Dr. Gelman examined Appellee on August 11, 1999 and reviewed Appellee's medical records. Dr. Gelman opined that Appellee has degenerative lumbar disc disease with associated epidural fibrosis. Dr. Gelman stated that although the accidents in 1996 and 1997 may have aggravated his ongoing back problems, he did not find anything in Appellee's records to support that the accidents caused new trauma. When questioned about Appellee's ability to work in any capacity Dr. Gelman stated that Appellee is "probably" able to "work in some sort of at least part-time sedentary to light-duty work". Dr. Gelman also stated he would place a number of work restrictions on Appellee such as: i) he should be allowed to both sit and stand, neither to be continuous; ii) no repetitive bending at the waist; in) no stooping or crawling; and iv) lifting more than 10 — 15 pounds. Dr. Gelman opined that Appellee has reached his maximum medical improvement.
(3) Frank J.E. Falco, M.D. testified via deposition for the Claimant. Dr. Falco first saw Appellee on September 2, 1999. Dr. Falco testified that Appellee has failed back syndrome, meaning that Appellee's complaints of back and leg pain have failed to decrease even though he has had a number of back surgeries. Dr. Falco stated that Appellee has a significant amount of pain for which he is taking a total of about 400 milligrams of morphine like drugs per day to lessen the pain. Although Dr. Falco stated that Appellee could possibly return to working, it must be in a very restricted capacity. Dr. Falco opined that Appellee could not work a "typical restricted capacity" job and that the jobs Appellee would be able to work were only a very small subset. Dr. Falco testified that if Appellee did return to any type of work he would only be able to work 20 hours per week and out of each work day Appellee should not sit any more than 40% of the four hour work day which should not be continuous. In addition, Dr. Falco testified that Appellee should not lift any more than 5 — 10 pounds. Dr. Falco stated that of the twenty jobs provided on the labor market survey he believed Appellee was only capable of performing two of them due to the sitting requirements. Dr. Falco testified that he rejected the jobs for which the high end of the range of time required to sit exceeded 40%; since in his experience employers tend to exceed the restrictions.
(4) Employer also presented the testimony of Robert Stackhouse, a vocational rehabilitation specialist. The labor market survey composed by Mr. Stackhouse identified twenty jobs within Dr. Gelman's physical restrictions and Appellee's educational and vocational capabilities. However, only eight jobs differed part-time employment.
(5) Appellee testified that his pain level today is the same if not worse than it was in August of 1997. Appellee testified that he has pain which goes from his back, through his leg, and down to his ankle. Appellee stated that his left foot is also weak. Appellee testified that he takes various pain medication which causes him to be lethargic, making him feel like he is in a "dream world." Appellee has not worked in any capacity since August of 1997. When asked if Appellee thought he could possibly work for 20 hours a week, Appellee expressed concern regarding structure and reliability. Appellee talked about the medication he had to take and his problems sleeping at night and the effect each would have on his ability to be reliable. Appellee stated that he simply could not say that it is predictable he would be good to work from day to day. Appellee testified that he cannot go a day without taking the pain medications. On cross-examination, Appellee stated that he does take care of his kids and does some activities with them that do not require him to bend or do anything that will aggravate his injury. Appellee stated that he is not able to participate in the same type of activities he used to. Appellee testified that he helps with housework such as doing dishes and vacuuming as much as he can but it is not on a continuous basis because he does not want to aggravate his back.
(6) The Board found that Appellee was still totally disabled and denied Employer's petition to terminate the benefits. The Board rejected Dr. Gelman's opinion that Appellee is able to perform part-time sedentary to light duty work. The Board found that Dr. Falco as Appellee's treating physician was better suited to assess Appellee's ability to work. Although Employer challenged Dr. Falco's credibility because he did not begin treating Appellee until September of 1999 and did not review prior medical records, the Board discarded the challenge and found that Dr. Falco's opinion addressed Appellee's current ability to work. The Board also found Appellee to be credible and agreed that he probably would not be able to work a structured job due to the pain medication he takes and their effects on him. The Board believed that the medication Appellee takes makes him lethargic. The Board considered Appellee's testimony that he is not able to sleep well because of the pain, so then he dozes off periodically during the day. The Board observed Appellee during the two hour hearing and noted that Appellee was not able to sit comfortably for more than twenty minutes at a time. The Board found that the effects of the pain medication Appellee takes prohibits him from working in positions that comply with Dr. Falco's restrictions. The Board stated that to show total disability has ended Employer must show that Appellee is able to work with or without restrictions and that Appellee is not partially disabled. The Board found that Employer failed to prove Appellee is no longer disabled.
Relying on Howell v. Supermarkets General Corp., Del. Supr. 340 A.2d 833, 835 (1975) and Waddell v. Chrysler Corp., C.A. No. 82-A-My, Bifferato, R.J. (Jun. 7, 1993).
(7) The function of the Court on appeal from a decision of the Industrial. Accident Board is to determine whether the Board's decision is based on substantial evidence and is free from legal error. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The reviewing Court is not to weigh the evidence or determine questions of credibility, or make its own factual findings. The Court is only to decide whether the evidence is legally adequate to support factual findings.
General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960).
Oceanport Ind., Inc. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994).
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66-67 (1965).
(8) Employer argues that the Board erred as a matter of law by continuing the total disability benefits because Dr. Gelman and Falco agreed that Appellee could return to work in some capacity. Employer contends that since the medical testimony agrees that Appellee is no longer totally incapacitated and may return to work with restrictions, it has met its burden for the purpose of terminating total disability benefits. Employer also contends that since it has met its burden, the onus now shifts to Appellee to show that he is a displaced worker and that he has done a reasonable job search. Employer contends that Appellee failed to meet this burden.
(9) Employer also argues that the Board erred as a matter of law because it failed to address the shifting of the burden to Appellee to show he had done a reasonable job search after the medical testimony of both doctors proved that Appellee is no longer totally disabled. It is Employer's contention that once an employer proves that a claimant is no longer totally disabled, which Employer argues it has in this case, the burden then shifts to the claimant to prove that he is a displaced worker. Employer asserts that Appellee made no claim to be a displaced worker and nor did the Board make any findings that Appellee is a displaced worker. Employer further asserts that due to Appellee's education, skills, and work experience, he is not a prima facie displaced worker and neither has Appellee shown he has made a reasonable but unsuccessful job search.
(10) Employer also argues that the Board's decision was not supported by substantial evidence. Employer argues that the facts do not support a finding that Appellee is totally disabled or is a displaced worker. Employer contends that both experts agree that Appellee is able to work in some capacity and is therefore no longer totally disabled. In addition, Employer argues that the labor market survey it presented shows the availability of employment within Appellee's capabilities. Employer asserts that although Dr. Falco stated that only two of the jobs outlined on the survey were suitable for Appellee, he failed to acknowledge the notations on other job descriptions that purported to allow an employee the discretion to change positions from sitting to standing and vise versa. Employer argues that the finding of lack of availability of employment within Appellee's physical capabilities by the Board is not supported by substantial evidence because it was erroneous to rely upon the maximum percentage rates for time required to sit listed with the various job descriptions.
(11) In addition, Employer argues that the medical testimony does not support the Board's conclusion that the medications Appellee takes prevent him from working. Employer asserts that Appellee admitted he is able to drive and take care of his children. Employer further asserts that Appellee was clear and articulate during his testimony. Employer argues that Dr. Falco did not place any restrictions upon Appellee due to effects of the medications.
(12) The Court finds there is substantial evidence in the record to support the Board's decision that Appellee is totally disabled. The Board relied on the opinion of Dr. Falco and the testimony of Appellee to come to its decision. The Board is free to choose between conflicting medical opinions and either opinion will constitute substantial evidence for an appeal. In addition, a reviewing court is to defer to the Board's ability to assess the credibility of the witnesses in making its decision. In this case the Board found Dr. Falco's opinion more credible. The Board explained that Dr. Falco is in a better position to assess Appellee' s capabilities as his "treating physician, thus appropriately providing a basis for its choice given the nature of the testimony. The Board accepted Dr. Falcon's opinion regarding: i) the very limited circumstances in which Appellee could "possibly" work ; 2) and his testimony regarding the amounts of pain medication Appellee takes per day. In addition, the Board found Appellee to be credible and accepted his testimony regarding his pain and the effects of the pain medication he is taking. Taking the testimony of each into consideration, the Board found that Appellee is totally disabled.
Reese v. Home Budget Ctr., Del. Supr., 619 A.2d 907 (1993).
Lindsay v. Chrysler, Del. Super., C.A. No. 94A-04-005, Barron, J. (Dec. 7, 1994) (Mem. Op. at 7).
See Id. (providing that the Board is required to specify its reasons for finding one witness to be more credible than another when the testimony is given by deposition).
(13) Employer goes to great lengths in its arguments to convince the Court that Appellee has failed to sustain its burden of showing he is a displaced worker, prima facie or by failure to show a reasonable job search. However, before such burden is assigned to an employee, an employer seeking to terminate benefits must first prove the claimant is no longer totally incapacitated. Upon making a petition to terminate benefits, the employer bears the initial burden of showing that a claimant is not longer totally incapacitated for the purpose of working. Only if the employer satisfies this burden does the burden shift to the employee to prove he/she is a displaced worker. The Board found that the evidence supported the conclusion that Appellee is totally incapacitated for the purpose of work, thereby properly never reaching the issue of displaced worker. Nor did Appellee argue he was a displaced worker. Although the more prudent approach may have been to additionally present evidence supporting that Appellee is a displaced worker since there was a risk that the Board would not find total disability, he certainly was not required to do so. Employer introduced evidence of job availability anticipating a displaced worker argument. Now Employer asserts it was legal error for the Board to consider the evidence in making its determination without discussing displaced worker. However, Employer offers no case support for this proposition and the Court finds no support for this proposition.
See Torres v. Allen Family Foods, Del. Supr., 672 A.2d 26, 30 (1995).
Id.
Id.
For the forgoing reasons, the Court finds the decision of the Industrial Accident Board is supported by substantial evidence and is free from legal error and is hereby
AFFIRMED.
IT IS SO ORDERED.