Opinion
C.A. No. N12A-01-005-JRJ
08-06-2012
STATE OF DELAWARE, Employer-Appellant, v. DAWN STURGEON Claimant-Appellee.
Susan List Hauske, Esquire, Robert D. Cecil, Jr., Esquire and Andrew M. Lukashunas, Esquire, Tybout, Redfearn & Pell, Attorneys for Appellant. Heather A, Long, Esquire, Kimmel, Carter, Roman & Peltz, P.A., Attorney for Appellee.
OPINION
Upon Appeal from the Industrial Accident Board: AFFIRMED
Susan List Hauske, Esquire, Robert D. Cecil, Jr., Esquire and Andrew M. Lukashunas, Esquire, Tybout, Redfearn & Pell, Attorneys for Appellant. Heather A, Long, Esquire, Kimmel, Carter, Roman & Peltz, P.A., Attorney for Appellee. Jurden , J.
I. INTRODUCTION
Before the Court is the State of Delaware's ("Employer") appeal from the Industrial Accident Board's (the "Board") decision. Employer argues that the Board abused its discretion and committed legal error when it denied Employer's Petition to Terminate Temporary Total Disability Benefits (the "Petition"). For the reasons that follow, the Board's decision is supported by substantial evidence and free from legal error, and thus the Board's decision is AFFIRMED.
II. FACTS AND PROCEDURAL HISTORY
Dawn Sturgeon ("Claimant") worked for Employer at Governor Bacon Health Center as a dietary aide for over twenty years. On September 25, 2005, Claimant injured her lower back while working. Claimant sought medical treatment from Dr. Ali Kalamchi, who recommended surgery. Claimant, however, chose to forgo surgery in favor of conservative treatment and returned to work until she reinjured her back on February 25, 2008. Following this reinjury, Claimant tried to continue working, but was unable to work as of September 2008. Since that time, Dr. Ganesh Balu has issued Claimant disability slips and provided pain management treatment.
The Industrial Accident Board for the State of Delaware, Decision on Employer's Petition to Terminate Benefits ("IAB Decision") (August 30, 2010) (Trans. ID. No. 44946574) at 2. As a dietary aide, Claimant served breakfast on carts, fed residents, returned dishes to the kitchen, washed dishes, and prepared food for lunch. Id.
Id.
Id.
Id. at 2-3.
Id. at 3. Claimant has been receiving disability benefits since September 18, 2008. Id. at 2.
Id. In 2008, Dr. Bruce Katz provided a second opinion recommending surgery, but Claimant again chose to forgo that option. Id.
On April 2, 2008, Dr. Samuel Matz examined Claimant. Dr. Matz diagnosed Claimant with lumbar disc disease, which he believed was caused by Claimant's original 2005 work-related injury and was exacerbated by her second injury in 2008. Dr. Matz also noted that Claimant's back showed signs of a preexisting condition, spinal stenosis. As a result of his exam, Dr. Matz concluded that surgery on Claimant's back was reasonable and necessary.
Id.
Id. at 3-4.
Id. at 4.
Dr. Matz examined Claimant again on December 29, 2009. Although Dr. Matz found that Claimant's physical condition remained the same, he told Claimant that she could return to work in a sedentary job. A functional capacity evaluation ("FCE") in May 2010 yielded different results, and indicated Claimant was unable to work in any capacity. Following an examination on May 25, 2010, notwithstanding the results of the FCE, Dr. Matz's diagnosis remained the same.
Id.
Id.
Id. at 5.
Id. at 4-5.
In light of Dr. Matz's finding that Claimant could return to work, Employer filed its Petition on February 18, 2010. Claimant opposed Employer's Petition and claimed that she remains unable to work due to continuing pain. On August 30, 2010, the Board found that Employer failed to meet its burden to show that Claimant's disability had "diminished such that termination of total disability benefits is warranted at this time." On June 9, 2011, this Court reversed and remanded the Board's decision, finding that the Board applied the incorrect legal standard in denying Employer's Petition. On remand, the Board found that "Claimant is not yet physically able to return to work in any capacity," and thus remains eligible to receive compensation.
Id. at 2.
Id.
Id. at 11.
State v. Sturgeon, 2011 WL 2416306, at *13 (Del. Super.) The Court found that the Hearing Officer "impermissibly required the employer to show a 'change in condition,' rather than to show that [Claimant] is no longer entitled to receive compensation." Id. at 12.
The Industrial Accident Board Remand Decision ("IAB Remand Decision") (Hearing No. 1275661) at 4.
III. STANDARD OF REVIEW
When reviewing the Board's decision, this Court must determine whether the Board's findings are supported by substantial evidence and free from legal error. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In reviewing the record for substantial evidence, the Court considers the record in the light most favorable to the party prevailing below. This Court does not weigh the evidence, determine questions of credibility, or make factual conclusions.
Brown v. Unemployment Ins. Appeal Bd, 2011 WL 863310, at *1 (Del. Super.).
Byrd v. Westaff USA, Inc., 2011 WL 3275156, at *1 (Del. Super.) (citing Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del.1994)).
Drewry v. Air Liquide-Medal, LLC, 2011 WL 6400550, at *1 (Del. Super.).
Byrd, 2011 WL 3275156, at *1 (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del 1965)).
IV. DISCUSSION
Employer argues that the Board abused its discretion and committed legal error because its finding was based on hearsay testimony. Employer maintains that although the Board found the FCE to be inadmissible and limited the testimony about it to Claimant's understanding of the results, the Board relied upon the FCE when denying its Petition. The Delaware Rules of Evidence, however, are not strictly applied to administrative hearings. The Board may hear "all evidence which could conceivably throw light on the controversy," and is entitled to give appropriate weight to testimony when it contradicts expert testimony.
Id. at 10.
Tenaglia-Evans v. St. Francis Hosp., 913 A.2d 570 (Del. 2006) (TABLE).
Id. at 3 (citing Ridings v. Unemployment Ins. Appeal Bd., 407 A.2d 238, 240 (Del.1979)). See also Sunrise Assisted Living, Inc. v. Milewski, 2004 WL 2419141, at *7 (Del. Super.) (holding that the Board was "entitled to give appropriate weight to ...lay testimony when it was supported by medical evidence and/or when it contradicts the expert testimony.").
Despite the results of the FCE, the only medical expert to testify, Dr. Matz, disagreed that Claimant could not work, opining that there was no reasonable explanation why Claimant could not work in a sedentary capacity. The Board rejected Dr. Matz's opinion regarding Claimant's capacity to work, finding that the "detailed and convincing testimony from Claimant and her husband about the degree of Claimant's physical dysfunction, together with medical testimony about the May 2010 FCE results and the severity of Claimant's medical condition ... effectively rebut Dr. Matz'[s] opinion that Claimant is capable of returning to sedentary work." The Board found that the "absence of any detail in [Dr. Matz's] testimony about Claimant's actual daily activities or function capabilities" undermined his opinion regarding Claimant's capacity to work. The Board chose to rely on Claimant and her husbands' testimony describing the extent of Claimant's dysfunction in her current daily life, and the determination Claimant demonstrated when she decided to continue working after her initial injury in 2005. The Board determined that the continuation of total disability was supported by "testimony from Claimant and her husband, the results of an FCE discussed by Dr. Matz, the severity of Claimant's diagnosis and proposed treatment, and the similarity of exam findings over time." Because the Board's decision is supported by substantial evidence in the record and free from legal error, the Board's decision is AFFIRMED.
IAB Decision at 5. Dr. Matz testified that he "could not find any objective measure of effort during the FCE exam." He was also concerned that the FCE was signed by a chiropractor, and was not sure how well trained the chiropractor was to perform a FCE. Id. at 5.
Id. at 4.
IAB Remand Decision at 6.
Id. at 5.
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V. CONCLUSION
For the foregoing reasons, the Board's decision is AFFIRMED.
IT IS SO ORDERED.
__________________
Jan R. Jurden, Judge
cc: Prothonotary