Opinion
C.A. No. 98A-02-026 WCC.
Submitted: May 25, 1999.
Decided: November 30, 1999.
Ronald Stockwell; 256 Dixie Drive, Carneys Point, N.J. 08069. Pro se Appellant.
Timothy A. Casey, Esquire; 1310 King Street, P.O. Box 1328, Wilmington, DE 19899. Attorney for Chrysler Corporation, Appellee.
ORDER
This 30th day of November, 1999, after considering Ronald Stockwell's ("Employee") appeal from the decision of the Industrial Accident Board (the "Board"), it appears that:
1. The Employee injured his left wrist on July 26, 1971 while moving a table on Chrysler Corporation's ("Employer") assembly line and received-compensation for a 15% permanent impairment to his upper extremity. In 1978, Dr. Jani diagnosed the Employee as suffering from carpal tunnel syndrome and surgically performed a left carpal tunnel release. After the procedure, the Employee regained feeling and normal use of his hand. But in 1997, the Employee again experienced carpal tunnel syndrome, and David T. Sowa, M.D., performed a second left carpal tunnel release. As a result, the Employee petitioned for additional compensation, arguing that this subsequent surgery related to the compensable injury in 1971.
2. On December 1, 1997, the Board held a hearing on the Employee's petition. David T. Sowa, M.D., a board-certified orthopedic surgeon, testified that he first saw the Employee on January 6, 1997 due to recurring symptoms of numbness in his left hand after referral by his treating physician, Dr. Labowitz. After his examination corroborated the 1996 EMG findings of left carpal tunnel syndrome, Dr. Sowa recommended and subsequently performed a revision, carpal tunnel release surgery, on March 21, 1997. He opined that the need for surgery was due to a recurrent carpal tunnel syndrome in the left side that was originally caused by the Employee's repetitive activities on Employer's assembly line. In addition, Dr. Sowa opined that an incomplete release was possibly performed in 1978 due to findings of scarring and intact transverse carpal ligaments. But, without a detailed operative report, he could not definitively reach that conclusion.
Although Dr. Labowitz did not testify, he treated the Employee from 1979 until 1997.
The EMG was performed on December 11, 1996.
Dr. Sowa stated that the band of transverse carpal ligaments was either incompletely released at the time of the original surgery or had regrown since the original surgery.
Next, Andrew J. Gelman, D.O., a board-certified orthopedic surgeon, testified that he examined the Employee on March 11, 1997 and reviewed various medical records. He found that the Employee's left hand had not been actively treated after the 1978 left carpal tunnel release but that a 1985 EMG, which was performed for the right and left upper extremities due to right hand and neck difficulties, showed a borderline left carpal tunnel syndrome. Dr. Gelman stated that in December 1996, Dr. Labowitz made the first recorded complaint, noting numbness and soreness in the Employee's left hand. Furthermore, during Dr. Gelman's 1997 examination, the Employee complained that numbness in the left hand had been present for one year. While Dr. Gelman believed that features of a left carpal tunnel syndrome existed, he also opined that the symptoms were not related to the original injury of 1971, because a favorable outcome followed the 1978 procedure and records did not indicate difficulties nor treatment between 1978 and 1996. Furthermore, due to Dr. Labowitz's December 1996 note referencing soreness in the wrist after typing, Dr. Gelman opined that the current complaints resulted from repetitious, typing-related duties and not from his employment at Chrysler.
This EMG also showed a right carpal tunnel syndrome.
The Employee testified that in December 1979, about a year after his first surgery, until November 1997, Dr. Labowitz treated him for hand problems and for injuries sustained from a severe motorcycle accident in 1983. In September 1996, he had trouble with his left hand again in that he dropped things and lacked feeling in his hand. He testified that from 1979 to 1996, his left hand bothered him but acknowledged that Dr. Labowitz first indicated a problem with the left hand in December 1996. When asked to explain Dr. Labowitz's reference to his active status and soreness in his hands from typing, the Employee stated that he had actively typed letters on his computer and had used the computer to gather information in preparation for his petition. Since the second surgery, the Employee also testified that he regained feeling in his hand but maintained some numbness and soreness. While the Employee has not worked since September 1985 when he left Chrysler, he obtained several degrees in college over the course of approximately ten years, starting in January 1988.
As a result of this motorcycle accident, the Employee broke ribs and bones and eventually had low back surgery and was out of work for a year and a half.
The actual date of retirement from Chrysler was September 1, 1987.
3. After evaluating all the evidence, the Board denied the Employee's petition. Using the "but for" test in Reese v. Home Budget, the Board was not persuaded that the return of symptoms in 1996 resulted from the 1971 work accident. The Board based its decision on the lack of complaints between 1979 and 1996, the favorable result following the first surgery, the other potential causes of carpal tunnel syndrome, and Dr. Sowa's inconclusive opinion.
Del. Supr., 619 A.2d 907 (1992).
4. The Employee appealed the Board's decision pro Se, arguing that the Board should be reversed because (a) certain Superior Court Civil Rules, Board discovery rules and his due process rights were violated, (b) his attorney did not adequately represent him, (c) the Board misquoted the standard in Reese, supra, and (d) substantial evidence did not support the Board's decision. In response, Employer filed a Motion to Strike and a Motion to Affirm. On April 5, 1999, this Court denied the Motion to Affirm and stayed the Motion to Strike, finding that the standards set forth in Superior Court Civil Rule 72.1 had not been met. In addition, the Court cautioned the Employee in a footnote that his opening brief was untimely and that noncompliance with the rules would not be tolerated.
Employer filed an answering brief arguing that (a) the Board used the appropriate legal standard in Reese, supra, (b) there was sufficient evidence to support the Board's findings, (c) the claim alleging ineffective counsel did not amount to an appealable issue, and (d) claims concerning improper and inadequate discovery, conspiracy or collusion could not be raised on appeal. The Employee's reply brief included additional arguments relative to the Court's April 5, 1999 Order, claiming, inter alia, that the Court abused its discretion in its footnote regarding the untimely brief, the transcripts of the hearing were inaccurate, and the Board and the Court held the Employee to a "higher standard."
5. The Court does not sit as a trier of fact and weigh the evidence; instead, it is limited to determining whether the Board's decision was supported by substantial evidence based on the record. Substantial evidence is defined as, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." If substantial evidence exists, the Court must affirm the Board's decision.
Harvey v. Layton Home, Del. Super., C.A. No. 91A-12-13, Bifferato, J. (Oct. 19, 1992) (ORDER).
Id. ( quoting Onley v. Cooch, Del. Supr., 425 A.2d 610, 614 (1981)).
Harvey v. Layton Home, Del. Super., C.A. No. 91A-12-13, Bifferato, J. (Oct. 19, 1992) (ORDER).
6. Before turning to the merits of his appeal, the Court will address the miscellaneous assertions raised in the Employee's reply brief. First, the Court finds no merit in his assertion that it holds him to higher standards than the Board or Employer. The Employee has decided to represent himself and as such is required to abide by the rules of this Court. The Court is not required to accommodate for the Employee's inexperience in the law and simply intends to hold him to the same standard as any other appellant. Secondly, the Court did not abuse its discretion in cautioning the Employee about his untimely brief. The opening brief was to be filed with the Prothonotary by October 9, 1998 and was not filed until October 13, 1998. The Court reminds the Employee that ""file" does not mean "mail." Nonetheless, understanding the Employee's inexperience in this area and in an attempt to be fair, the Court did not strike his opening brief. The Court's warning was an attempt to ensure that the Employee understood that his pro se status did not allow him to ignore the rules of the Court. Lastly, while the Employee expresses concern for the transcripts' accuracy, the Court finds no reason to believe that the submitted record is inaccurate and needs correction.
7. The Employee next contends that the Board misquoted the standard provided in Reese, supra, when it stated that the "Claimant must demonstrate that but for the industrial accident in 1971 and the related carpal tunnel release in 1978, he would not have had the need for treatment in 1996." In Reese, the Supreme Court found that the "but for" definition of proximate cause used in torts could be equally applied in fixing the relationship between an acknowledged industrial accident and its aftermath. It further held that if the employee had a predisposition to a certain injury that had not manifested prior to the accident, an injury attributable to the accident would be compensable if the injury would not have occurred but for the accident, even if the accident just provided the "setting" or "trigger" for the injury. While the Board may not have regurgitated verbatim all the holdings set forth in Reese, the Court finds that it did not misquote the standard and that the standard applied by the Board was proper and consistent with Reese.
Bd. Dec. at 7.
Reese, 619 A.2d at 910.
Id.
8. Further, the Court finds that substantial evidence supports the Board's decision. In deciding that the Employee's return of symptoms and the need for the subsequent surgery did not result from the industrial accident, the Board relied upon Dr. Gelman's testimony. The Board is free to choose between the conflicting diagnoses of the medical experts. Furthermore, although the Employee testified that symptoms were constant throughout the years, no complaints were documented in the Employee's records until December 1996 when Dr. Labowitz noted that the Employee had soreness in his wrist from extensive typing. During the period of time when his symptoms reoccurred, Employee attended school and typed his own papers. In addition, the record supports the 1978 surgery's success because Employee admitted improvement, and Dr. Sowa's contrary findings were inconclusive. In brief, substantial evidence exists to support that the need for the subsequent surgery was unrelated to the 1971 injury.
DiSabatino Bros., Inc. v. Wortman, Del. Supr., 453 A.2d 102, 105-06 (1982).
In addition, while the Employee claims that the Board ignored evidence in making its decision, the Court finds no merit in his argument. It is within the sole province of the Board to consider the evidence presented and to assign the desired weight and credibility to that evidence. The Board is free to discount or ignore evidence that it finds unworthy of credit and to base its decision only on the evidence that it finds credible. Because substantial evidence supports the Board's decision that the Employee's recurrent problems were unrelated to his subsequent surgery, the Court finds no error.
9. Next, the Employee alleges that his rights and various discovery rules under both the Board Rules and the Superior Court Civil Rules were violated. All of these arguments are without merit. First, the Employee's reliance on the Superior Court Civil Rules for discovery is misplaced because these rules only govern procedures in the Superior Court and are not applicable to the Board proceedings. Second, the proceedings before the Board are governed by the rules and procedures that the Board promulgated. And, to the extent the Employee had a discovery dispute, the Employee first had an obligation to bring that issue to the Board's attention. Consequently, when this Court reviews an appeal from an administrative board decision, it will only consider issues raised before the tribunal because the appeal is based simply on the record before the Board. Because no discovery issues were raised by the Employee, the Court will not consider them. Third, the Employee makes general assertions of an alleged conspiracy or collusion between the Employer and the Board. These accusatory statements are simply unsupported and without merit.
Super. Ct. Civ. R. 1. See also 19 Del. C. § 2301A(I), which authorizes the Board to promulgate its own rules of procedure. The Court further notes that cases cited by Employee for this argument were inapplicable because they were procedurally and factually inconsistent with the present case.
Tatten Partners, L.P. v. New Castle County Bd. of Assessment Review, Del. Super., 642 A.2d 1251, 1262 (1993).
10. Lastly, the Employee questions his counsel's representation during the Board's hearing. This Court is without jurisdiction to hear this issue. The Court's statutory appellate function is to determine whether substantial evidence supports the Board's decision and whether legal error exists. As such, its limited appellate jurisdiction does not include whether counsel's representation was appropriate.
See Id.
Therefore, a claim for ineffective counsel is not an appealable issue at this stage of the litigation.
11. For the reasons set forth above, the Court AFFIRMS the Board's decision.
IT IS SO ORDERED. ________________________________ Judge William C. Carpenter, Jr.
The Employer's Motion to Strike is moot in light of this decision.