Opinion
C.A. No. 00A-09-008-CG
Date Submitted: July 12, 2001
Date Decided: August 23, 2001 Date Revised: August 28, 2001
ON APPEAL FROM THE INDUSTRIAL ACCIDENT BOARD. AFFIRMED.
Sajid L. Syed, pro Se, Wilmington, Delaware, Appellant.
Anthony M. Frabizzio, Heckler Frabizzio, Wilmington, Delaware, Attorney for Appellee.
MEMORANDUM OPINION
This is an appeal by the claimant from decisions of the Industrial Accident Board dated September 26, 2000 and December 27, 2000. Claimant below and Appellant, Sajid L. Syed, sustained a compensable work accident on January 31, 1992 while working as a chemical operator for employer below and Appellee, Hercules, Inc. On May 13, 1994, the parties filed an Agreement as to Compensation with the Board. The Agreement acknowledged a five percent permanent impairment to Syed's neck, low back, right upper extremity, left upper extremity, right lower extremity, and left lower extremity related to the January 31, 1992 work injury.
On March 23, 2000, Syed filed a Petition to Determine Additional Compensation Due with the Board, requesting payment of increased permanency benefits and for certain medical expenses. On September 13, 2000, the Board held a hearing to consider Syed's petition. On September 26, 2000, the Board issued its decision denying Syed's petition on the basis that Syed had not met is burden to show an increase in permanent impairment. The Board also determined that certain medical expenses were reasonable, as well as certain prescription drug expenses. However, the Board found that Syed failed to show that his headaches were related to his industrial accident, so that any treatment for the headaches was not compensable.
On October 13, 2000, Syed filed a Motion for Reargument with the Board, raising several issues. On December 27, 2000, the Board an Order on the Motion for Reargument. The Board reaffirmed its earlier findings as to Syed's claim for permanency benefits and for medical expenses. However, the Board found that Syed's expenses for the drug Pamelor were compensable. Syed subsequently appealed the Board's decisions to this Court.
At the September 13, 2000 hearing, Syed testified in his own behalf. Syed described the January 31, 1992 work accident where he fell from a two-foot high platform while working as a chemical operator at Hercules. Syed testified that the accident occurred on a Friday and that he returned to work the following Monday and was assigned light duty work. On March 4, 1992, Hercules laid Syed off Syed testified that he has not worked since that time and that he last looked for work in 1994.
Syed testified that his current symptoms include headaches, neck pain and pain in both arms, upper back and shoulder area. Syed testified that his pain goes down both legs and feet and that his feet burn at times. Syed testified that he has been on medication for pain and depression since 1993 or 1994. Syed also stated that he gets headaches two or three times per week. Syed testified that he has seen Drs. Koyfman, Carunchio, Bose, and Ufberg for treatment since the 1992 accident. Syed believes that his condition has worsened since the accident.
Syed also testified that he was involved in a motor vehicle accident on June 18, 1993, in which another vehicle struck his car from the rear. Syed stated that after the accident, his headaches and neck pain increased along the right side. Syed testified that Dr. Bose recommended surgery in 1994 for herniated discs at C5-6 and C6-7, but that he decided not to have the surgery because Dr. Bose did not guarantee his improvement and because there would be a four-month recovery period during which he would have to wear a cervical collar. Syed explained that he decided to forego the surgery as long as he is able to tolerate his pain.
Dr. Ross M. Ufberg testified via deposition on Syed's behalf. Dr. Ufberg testified that he first examined Syed on July 29, 1993, about sixteen months after the 1992 work accident. Dr. Ufberg testified that Syed had described his 1992 work accident and June 18, 1993 automobile accident. Syed presented to Dr. Ufberg with complaints of neck, back, upper extremity, and lower extremity pain.
Dr. Ufberg testified that he was familiar with the permanency ratings of five percent to the neck, lower back, and extremities assigned to Syed in 1994 by Dr. Bose. Dr. Ufberg opined that Syed's condition had worsened over the past seven years and that his permanent impairment has increased. Dr. Ufberg testified that he believed Syed's impairment to the cervical spine had increased from five percent to nineteen percent and that Syed's impairment to the lumbosacral spine had increased from five percent to ten percent. Dr. Ufberg related the increases to Syed's 1992 work accident.
Dr. Ufberg testified that he based his opinion upon his diagnosis of bilateral C6-S1 radiculopathy, bulging discs at L5-S1 and C3-6, left lateral disc herniation at C6-7, cervical lumbosacral sprain, fibromyalgia, post-traumatic headaches, and depression with anxiety. Dr. Ufberg agreed that his diagnoses had remained essentially unchanged from his initial diagnoses. Dr. Ufberg detailed his clinical findings in support of his findings.
Dr. Ufberg testified that, in calculating Syed's permanency ratings, he relied on the Fourth Edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA guide, Fourth Edition). Dr. Ufberg then described in detail the calculations he used to arrived at his permanency ratings. Dr. Ufberg also testified that he did not believe Dr. Bose's permanency ratings in 1993 were as high as they should have been. Dr. Ufberg noted that Dr. Bose used the Third Edition of the AMA Guide to arrive at his ratings, but that the appropriate tables in the guide were essentially the same as the Fourth Edition, except for a slight change in wording.
Dr. Ufberg testified that he believed that he was in a better position to accurately rate Syed's degree of permanent impairment because he has treated Syed for seven years. Dr. Ufberg opined that Syed's radiculopathy has increased over the years and that he did not believe Syed's 1993 automobile accident contributed to his permanent impairment because there was no finding or objective test indicating a significant injury. Finally, Dr. Ufberg opined that his treatment of Syed has been medically necessary due to the work accident.
Dr. John B. Townsend, III, a neurologist, testified via deposition on behalf of Hercules. Dr. Townsend examined Syed on August 15, 2000. Dr. Townsend testified that he had also reviewed Syed's medical records from Dr. Ufberg, Dr. Carunchio, Dr. Bose, Dr. Sommers, and Dr. Handler, along with reports from Syed's physical therapy and diagnostic testing. Dr. Townsend admitted that he did not review reports from Hercules' medical department, Dr. Arminio, or Dr. Dettwyler. Dr. Townsend did not review medical records from Dr. Bose except for the 1993 permanency report. Dr. Townsend's records from Dr. Ufberg did not include records from September 1993 to April 1997.
Dr. Townsend testified that he did not see any strong reason to find an increase in Syed's permanent impairment because Syed's complaints have remained the same and because there is no objective evidence showing a change in overall permanency. Dr. Townsend noted that Dr. Ufberg has treated Syed since 1993 but that his medication has remained the same except for an increase in his dosage of Pamelor. Dr. Townsend testified that his clinical findings included mildly decreased range of motion in the neck and back, no muscle spasm, and no evidence of pressure on the nerve roots. Syed had strength and sensation and his deep tendon reflexes were two plus throughout.
Dr. Townsend summarized his own findings as to Syed's degree of permanent impairment based on the AMA Guide, Fourth Edition. Dr. Townsend testified that he rated Syed's degree of permanent impairment to the cervical spine at 9.5 percent. Dr. Townsend rated Syed's impairment to his lower back at six percent. Because the rating was very close to Dr. Bose's 1993 rating of five percent, Dr. Townsend testified that he found no strong reason to increase Syed's impairment rating.
Dr. Townsend testified that he disagreed with Dr. Ufberg's ratings of Syed's permanent impairment. Dr. Townsend explained that he believed Dr. Ufberg did not calculate those impairments correctly and described in detail what he believed to be the problems with Dr. Ufberg's calculations.
In its September 26, 2000 decision, the Board determined that Syed did not meet his burden to show an increase in his permanent impairment. In support of its determination, the Board stated that it found Dr. Ufberg's method of calculating permanency was inconsistent with the AMA Guide. Specifically, the Board stated:
Claimant relies on Dr. Ufberg, a specialist in pain management, but the Board finds his method of calculating permanency is inconsistent with the AMA Guides. First, the DRE or Injury Model is the preferred model in evaluating permanent impairment and Dr. Ufberg did not indicate why he chose not to rely on that model. Second, Dr. Ufberg's explanation of how he arrived at his ratings was very confusing and difficult to follow. Dr. Ufberg utilized Table 75 under the ROM Model, which incorporates DRE percentage impairment estimates. The instructions indicate that the percentages "should be combined with range of motion impairment estimates and with wholeperson impairment estimates involving sensation, weakness, and conditions of the musculoskeletal, nervous, or other organ systems." AMA Guides at 113. Dr. Ufberg used the DRE percentages in combination with range of motion estimates for rotation in the cervical spine and flexion in the lumbar spine. He, however, incorrectly used the DRE conversion factors of .35 and .75 to arrive at regional values for the cervical spine and lumbar spine which he should have used the ROM conversion factors of .80 and .90, respectively, as Dr. Townsend pointed out. Hence, the Board finds Dr. Ufberg's ratings to be unreliable.
The Board also found that the objective evidence indicated that Syed's condition is actually unchanged even if the Board accepted the corrected calculations. The Board stated:
The Board notes that the June 2, 1994 cervical and lumbar myelogram and CT scan revealed the same problems as before. Since Claimant's diagnosis and treatment have remained essentially the same, the Board is not inclined to recognize an increase in permanency to the cervical spine. With respect to the lumbar spine, the Board notes that the June 1995 EMG of the lower extremities was essentially normal without evidence of radiculopathy. While Dr. Phoon's October 1996 EMG revealed a change in 51 radiculopathy from mild to moderate, the Board accepts Dr. Townsend's opinion that EMG findings are questionable if there is no evidence of radiculopathy on physical examination. Neither Dr. Townsend nor Dr. Carunchio found any evidence of pressure on the nerve root. In a patient with chronic radiculopathy, one would expert to see motor unit changes over time suggesting innervation of muscles. While Dr. Phoon found two plus fibrillation potential AP waves in certain muscles, he felt they were normal in appearance and motor potentials.
The Board concluded that it rejected Syed's argument that Dr. Bose's recommendation for surgery in 1994 was an indication that his condition had worsened.
The Board found that Dr. Ufberg's treatment of Syed three to four times a year was reasonable and compensable, as were the identified prescriptions. The Board declined to find that Syed's headaches were a result of the 1992 accident so that his prescriptions for the drugs Pamelor and Midrin were not compensable.
On October 13, 2000, Syed filed a Petition for Reargument and Rehearing with the Board. The Board granted and denied in part Syed's petition. The Board upheld its determinations that Syed had failed to meet his burden to show an increase in permanent impairment and that his headaches were related to the 1992 work accident. However, the Board stated that it accepted the testimony of Dr. Ufberg that he prescribed the drug Pamelor to Syed to induce sleep in addition to headaches so that Syed was entitled to compensation for that prescription.
Syed has now appealed the Board's decision to this Court. In support of his appeal, Syed argues that the Board erred "as a matter of fact and law" in denying his Petition to Determine Additional Compensation Due for increased permanent impairment. Syed argues that the Board erred by finding that he had sustained no increased permanent impairment since 1993.
The role of this Court, in reviewing a decision of the Board, is to determine whether the Board's factual findings are supported by substantial evidence. Histed v. E.I duPont de Nemours, Del. Supr., 621 A.2d 340, 342 (1993). "Substantial evidence" has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Olney v. Cooch, Del. Supr., 425 A.2d 610, 614 (1981). It is the Board's role, rather than the Court's, to resolve conflicts in testimony and to decide which witnesses are credible. Johnson v. Chiysler Corp., Del. Supr., 213 A.2d 64, 66 (1965). Where testimony is introduced by deposition, rather than in person, the Court may reject the Board's determinations if those findings have no satisfactory proof grounded in the underlying depositions. Walbert v. General Metaicraft, Del. Super., Terry, J., C. A. No. 97A-04-003 (Nov. 26, 1997), Mem. Op. at 9 (citing Children's Bureau v. Nissen, Del. Super., 29 A.2d 603, 609 (1942)).
Syed's first argument in support of his appeal is that the Board erred by accepting Dr. Townsend's "conclusory" testimony. Syed points out that Dr. Townsend conceded that he did not have Syed's records from Hercules and that he did not have Dr. Ufberg's records from September 1993 through April 1997. As a result, Syed argues, Dr. Townsend's opinion as to Syed's permanency rating cannot be given any probative weight. Syed also argues that Dr. Townsend admitted that Syed's permanency percentage had increased.
In addition, Syed argues that the Board "failed to articulate its findings" that Syed's percentage of permanency had increased. Although the Board rejected Dr. Ufberg's opinion because it was "very confusing and difficult to follow," Syed argues that such a determination is not a basis for the Board to deny Syed's claim for increased permanent impairment. According to Syed, the Board is "completely wrong" in stating that the objective evidence indicated that Syed's condition was actually unchanged. Syed concedes that Board does not have to accept his argument that his permanent impairment has increased "just because there are objective tests or because his doctor testifies to an increase in permanent impairment." However, Syed concludes, in this case, the basis of the Board's decision "is not apparent from the Board's Order."
Syed's initial argument in fact involves two separate issues, which can be summarized as follows: whether Dr. Townsend's opinion should have been given no weight because he had not reviewed certain medical records and whether the Board erred by failing to articulate the basis of its decision from the underlying depositions. Initially, the Court notes that the Board correctly determined that it was Syed's burden to prove that he had an increase in permanent impairment. Avon Products v. Lamparski, Del. Supr., 293 A.2d 559, 560 (1972) (citing C. F. Braun Co. v. Mason, Del. Supr., 168 A.2d 105, 107 (1961)("A party seeking to modify an award by subsequent review bears the burden of establishing by a preponderance of the evidence that the award should be modified."). The Board determined that Syed failed to meet that burden.
In support of its determination, the Board stated that it rejected Dr. Ufberg's opinion as to permanency, upon which Syed relied, because it found that Dr. Ufberg's method of calculating permanency was inconsistent with the AMA Guide, noting that Dr. Ufberg's explanation of how he arrived at his ratings was confusing and difficult to follow. Also, the Board found that the objective evidence presented indicated that Syed's condition was actually unchanged. As quoted above, the Board provided detailed references to the record in its explanation for those findings. As a result, the Court cannot find that the Board failed to sufficiently articulate its findings in its decision or that the basis of the Board's decision is not apparent from the Board's Order.
In addition, the Court finds that the Board did not err by failing to reject Dr. Townsend's testimony in its entirety because he did not review the medical records mentioned above. As noted above, it is the Board's role to accept one expert witness' testimony over that of another where the opinions offered are in conflict. Where testimony is introduced by deposition, rather than in person, the Court may reject the Board's determinations if those findings have no satisfactory proof grounded in the underlying depositions. Walbert, C. A. No. 97A-04-003, Mem. Op. at 9.
As set forth in detail above, the basis of the Board's decision was not based entirely upon its acceptance of Dr. Townsend's opinion as to permanency. Rather, the Board found that Dr. Ufberg's calculations were not consistent with the AMA guide, noting also that the Board also found his calculations confusing and difficult to follow. The Board noted that Dr. Townsend pointed out that Dr. Ufberg used the DRE conversion factors of .35 and .75 when he should have used the ROM conversion factors of .8 and .9 to arrive at regional values for the cervical and lumbar spine. Syed has not shown that Dr. Townsend's failure to review the identified medical records should have affected the Board's reliance on that testimony.
In addition, the Court finds that Syed has failed to show that Dr. Townsend's testimony was otherwise rendered devoid of probative weight. Dr. Townsend testified that he had reviewed all of Syed's objective test results. The Board stated that the objective evidence indicated that Syed's condition was unchanged. In summary, the Court finds that Syed has failed to show that the portions of Dr. Townsend's testimony upon which the Board relied were rendered unreliable due to the missing medical records. It is the Board's function, not the Court's, to determine whether it believed Dr. Townsend to be a credible witness. The Court also notes that Syed has provided no evidence that Hercules deliberately withheld medical records from Dr. Townsend.
Nor can the Court find that Dr. Townsend's opinion was conclusory or that he based his entire opinion upon the fact that Syed had a normal physical exam at his only examination with Dr. Townsend. Although Dr. Townsend testified that Syed had normal physical findings during his examination, Dr. Townsend also explained that his findings were consistent with examinations from other evaluating physicians and that Syed had no change in his objective test findings. In summary, the Court finds that the Board did not err by relying on Dr. Townsend's testimony in reaching its decision and that the Board's findings are supported by substantial evidence contained in the record.
Syed's second argument in support of his appeal is that the Board committed an error of law by failing to articulate and apply the proper standard for determining permanent impairment. In support of his argument, Syed cites Lindsay v. Chrysler Corp., Del. Super., C. A. No. 94A-04-005, Barron, J. (Dec. 7, 1994), Mem. Op. In Lindsay, the Board's conclusions of fact and rulings of law consisted of one paragraph, which stated that the Board found one expert witness more persuasive than the other and therefore accepted that witness's opinion. Id. at 6. The claimant argued on appeal that the Board's decision was unsupported by substantial evidence. Id. The Court reversed and remanded the Board's decision, finding that the Board's decision, "in its current form provides an insufficient foundation for appellate review." Id. at 7. In addition, the Court found that the Board erred as a matter of law by concluding that the claimant had not carried her burden of proof to prove permanent disability because the Board did not articulate a standard for determining permanence or otherwise address the issue. Id. at 9
Unlike Lindsay, the Board in this case noted that Syed had the burden of proof to show an increase in permanent impairment. The Board cited 19 Del. C. § 2326(a) and (g), which provide that the Board shall award proper and equitable compensation for the loss of use of any part of the body and sets for the standards for determining compensation. The Board noted that permanency ratings are based upon expert opinion. Again, as set forth above, the Board provided detailed support of its findings of fact and its conclusion that Syed had not met his burden of proof. As a result, the Court finds that the Board adequately articulated and applied the appropriate legal standard in Syed's case.
Syed's third argument in support of his appeal is that the Board's rejection of Dr. Ufberg's testimony, based on his use of the wrong modifier and use of the range of motion model, was not proper. Syed submits that, even if Dr. Ufberg's rating was confusing and unreliable as the Board stated, the Board erred by using those findings as a basis for denying Syed's claim for increased permanent impairment. Syed notes that he requested the opportunity to submit a new report by Dr. Ufberg in his motion for Reargument to the Board, but that his request was denied. Syed argues that a doctor's mistake in calculation should not deprive him of his rights under the Workers' Compensation Act and that the Board erred by discounting Dr. Ufberg's testimony due to his "apparently inadvertent error" of choosing the wrong modifier to calculate Syed's degree of permanent impairment.
The Court finds that Syed's argument is without merit. As set forth in detail above, the Board rejected Dr. Ufberg's opinion as to Syed's percentage of permanent impairment, stating that it found his method of calculating permanency to be inconsistent with the AMA Guides. The Board noted that the DRE or Injury Model is the preferred method to evaluate permanent impairment and that Dr. Ufberg did not explain why he chose not to rely on that model. Also, the Board found Dr. Ufberg's explanation of how he arrived at his ratings to be confusing and difficult to follow. The Board went on to provide a detailed explanation, quoted above, for its rejection of Dr. Ufberg's opinion. Upon review ofthe record, the Court finds that the Board's findings are supported by substantial evidence in the record so that the Board acted within its discretion in rejecting Dr. Ufberg's opinion as to permanency.
The Court notes that Syed's reliance upon Turbitt v. Blue Hen Lines, Inc., Del. Supr., 711 A.2d 1214 (1998), is misplaced. Turbitt held that Board erred by rejecting an expert witness's opinion based on what the Board considered to be outdated guidelines because the Board "did not articulate the specific effect the use of such material had upon [the expert's] evaluation." Id. at 1216. As set forth in detail above, such is not the case here. Unlike Turbitt, the Board provided a detailed explanation of its reasons for rejecting Dr. Ufberg's evaluation.
Finally, the Court finds that the Board did not err by refusing to allow Syed to submit a revised report by Dr. Ufberg. As noted above, the Board found that even if Dr. Ufberg had used the correct modifiers, the objective evidence showed that Syed's permanency had not increased so that Syed had failed to show that his condition had changed since the previous rating. Also, the Court finds that the Board did not err in determining that Syed's request to supplement the record with information that would have been available to him prior to the hearing was not raised in a timely manner. As the Board noted, "at some point, a proceeding must be closed."
Syed's fourth argument in support of his appeal is that the Board's Order contained legal error which mandates reversal. Specifically, Syed argues that "the medical expert witnesses for both parties appear to be in agreement with respect to the issue of increased permanent impairment." In other words, Syed argues, both Dr. Ufberg and Dr. Townsend agreed that Syed's percentage of permanent impairment had increased. As a result, Syed argues that the Board erred as a matter of law by substituting its own findings to determine that Syed's percentage of permanent impairment had not increased. Syed argues that "unambiguous testimony" from Dr. Townsend substantiates Syed's claim that his permanent impairment has increased.
The Court finds that Syed has misstated Dr. Townsend's testimony regarding his opinion as to Syed's percentage of permanent impairment. Dr. Townsend testified that, when he evaluated Syed using the AMA guide, 4th edition, he arrived at a 9.5 percent impairment of the cervical spine and a six percent impairment to the lumbar spine. However, Dr. Townsend concluded that, "I found that there would be no reason to modify the patient's permanency over that which was found in 1993 because, frankly, there had been no change in the patient's physical examination nor on the findings which were found between findings in my office and those that were found in 1992." Dr. Townsend also opined that there had been no objective change in Syed's condition from the 1993 permanency rating to indicate increased permanency in this case.
As a result, the Court reiterates its earlier conclusion that the Board's determination that Syed failed to prove that he has sustained an increase in his percentage of permanent impairment to be supported by substantial evidence in the record. The Court finds that the Board did not err as a matter of law by making that determination.
Syed's final argument in support of his appeal is that the Board failed to judge the credibility of Dr. Townsend's testimony. Specifically, Syed sets forth several specific parts of Dr. Townsend's testimony which he claims are inconsistent. Syed then argues that it was legal error for the Board "not to disagree with Dr. Townsend's testimony" because Dr. Townsend ignored most of Syed's objective tests.
Again, the Court finds that Syed has failed to show that the Board's decision is unsupported by substantial evidence or that its decision is the result of legal error. Syed, in his final argument, basically is attempting to argue that Dr. Townsend's opinion as to Syed's permanency rating was wrong. Again, as set forth above, it is the Board's role, not the Court's, to determine whether an expert witness is credible, as long as the Board's findings are supported by satisfactory proof in the underlying depositions. The Court has found, as explained in detail above, that the Board's determinations are supported by a proper evidentiary basis in the record. As a result, Syed's final argument must also fail.
Therefore, for the foregoing reasons, the decision of the Industrial Accident Board denying Syed's Petition to Determine Additional Compensation Due is hereby AFFIRMED.
IT IS SO ORDERED.