Opinion
C.A. No. 06A-03-004 MMJ.
Submitted: January 9, 2007.
Decided: April 24, 2007.
Upon Appeal from a Decision of the Industrial Accident Board.
AFFIRMEDNancy Chrissinger Cobb, Esquire, Chrissinger Baumberger, Wilmington, Delaware, Attorney for Employer-Appellant.
Joseph W. Weik, Esquire, Weik, Nitsche, Dougherty Componovo, Wilmington, Delaware, Attorney for Employee-Appellee.
MEMORANDUM OPINION
United Parcel Service ("Employer") has appealed the February 7, 2006 decision of the Industrial Accident Board ("Board") denying Employer's petition for review and maintaining Dennis Houghton ("Claimant") on total disability status.
Employer asserts that the decision of the Board should be reversed in favor of Employer because the decision is not based on substantial evidence and is not otherwise supported by competent medical testimony. Employer contends that Claimant is physically able to return to work because he is able to function in a sedentary capacity. Employer also claims that the Workers' Compensation Hearing Officer ("Hearing Officer") applied the incorrect legal standard in the decision regarding the termination of total disability benefits.
Claimant argues that the Board's decision denying Employer's petition is free of legal error and supported by substantial evidence. Therefore, Claimant asserts that the Board's decision denying Employer's Petition to Terminate Benefits must be affirmed.
FACTS AND PROCEDURAL CONTEXT
On February 3, 1994, Claimant suffered a work accident. Employer paid total disability benefits. Claimant subsequently has received compensation for recurring total disability, commutation of partial disability benefits, and permanent impairment. On September 21, 2005, Employer filed a Petition to Terminate Benefits, arguing that Claimant is leading a sedentary lifestyle and is capable of returning to work in a sedentary position. Claimant argues that he had a failed back surgery and remains totally disabled.
The parties stipulated that this matter could be heard and decided by a Workers' Compensation Hearing Officer, in accordance with title 19, section 2301B(a)(4) of the Delaware Code. When hearing a case by stipulation, the hearing officer stands in the position of the Industrial Accident Board. A hearing was held on Employer's petition on January 25, 2006 ("Hearing"). The Hearing Officer denied Employer's petition, and ruled that Claimant is entitled to a medical witness fee and attorneys' fees.
Some of the findings of the February 7, 2006 decision denying Employer's petition are as follows:
• To terminate total disability benefits, the employer has the initial burden to show that the employee is no longer totally incapacitated for the purpose of working. When an employer files a petition to terminate total disability benefits but the claimant still has restrictions that may reasonably affect his earning capacity, the employer has the burden of proving not only that the person is not totally disabled, but also that the person is not partially disabled.
Torres v. Allen Family Foods, 672 A.2d 26, 30 (Del. 1955).
Waddell v. Chrysler Corp., Del. Super., C.A. No. 82A-MY-4, Bifferato, Jr. (June 7, 1983) at *2.
• The parties relied on conflicting medical opinions. When the experts disagree, the Board is free to rely on either one, as long as the standard of substantial evidence can be met upon review. The Hearing Officer found the opinion of Claimant's treating physician to be more reliable because he had been treating Claimant for more than eleven years, with the most recent consult occurring on December 27, 2005. Employer's medical expert examined Claimant only once, on June 22, 2005.
DiSabatino Brothers, Inc. v. Wortman, 453 A.2d 102, 106 (Del. 1982).
• Claimant has been suffering from failed back surgery syndrome since 1995. With that diagnosis, a patient's pain may worsen as a result of the surgery. Claimant's low back pain is chronic. The Hearing Officer accepted the testimony — that specialists from New York and Pennsylvania did not recommend a second surgery and that Claimant must rely on pain management for relief. Employer's medical expert concurred with the recommended pain management. The Hearing Officer noted the findings of objective signs of low back pain in Claimant's guarding and dysrhythmia.
• Claimant's reflexes, sensory and muscle testing were normal, but both experts agreed that one can have normal neurologic and orthopaedic findings and still have chronic pain.
• The Hearing Officer accepted Claimant's testimony that while Claimant is capable of driving, he is not driving daily. The Board found that driving to get groceries and to weekly therapy (fifteen minutes away), is not the equivalent of driving daily to and from a job at peak traffic times.
• The Hearing Officer found Claimant to be credible that he is having some difficulty with leg weakness and sleeping at night. Claimant testified that he is never without pain and that his low back is the primary pain generator and cause for treatment, not his neck or knee surgery.
• The Hearing Officer rejected Employer's argument that because Claimant is the primary custodian for an autistic child with special needs, Claimant is capable of working full-time in a sedentary position. The evidence was that the child is ambulatory and can dress himself, and that Claimant is receiving home health services from the state of Ohio for his son, including help with hygiene, food preparation, house cleaning and sometimes groceries.
• The Hearing Officer concluded that Employer had not met its burden of establishing that Claimant is not totally disabled.
STANDARD OF REVIEW
In reviewing the decisions of the Board, this Court must determine whether the findings and conclusions of the Board are free from legal error and supported by substantial evidence in the record. The function of the reviewing Court is to determine whether the agency's decision is supported by substantial evidence. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence is more than a scintilla, but less than a preponderance of the evidence. The appellate court merely determines if the evidence is legally adequate to support the agency's factual findings. It also determines if the Board made any errors of law.
Pursuant to 19 Del. C. § 2301B(a)(6), all references to the Board also refer to the Hearing Officer.
General Motors Corp. v. Jarrell, 493 A.2d 978, 980 (Del.Super. 1985); Talmo v. New Castle County, 444 A.2d 298, 299 (Del.Super. 1982), aff'd, 454 A.2d 758 (Del. 1982).
General Motors v. Freeman, 164 A.2d 686, 688 (Del. 1960); Johnson v. Chrysler Corporation, 213 A.2d 64, 66-67 (Del. 1965).
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battisa v. Chrysler Corp., 517 A.2d 295, 297 (Del.Super. 1986), app. dism., 515 A.2d 397 (Del. 1986).
Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).
On appeal "[t]he Superior Court does not sit as a trier of fact with authority to weigh the evidence, determine questions of credibility, and make its own factual findings and conclusions." The Superior Court may not overturn a factual finding of the Industrial Accident Board unless there is "no satisfactory proof" supporting the Board's finding. It is also well established that "[t]he credibility of the witnesses, the weight of their testimony, and the reasonable inferences to be drawn therefrom are for the Board to determine."
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
Id. at 67.
Coleman v. Department of Labor, 288 A.2d 285, 287 (Del. 1972).
ANALYSIS
Employer asserts that this Court should reverse the determination of the Board because it is flawed as it relies on speculative medical evidence, and inappropriately applies the provisions of the displaced worker doctrine. Claimant argues that there was substantial evidence in the record to support the Board's finding that Claimant remained totally disabled from work, and that the Hearing Officer did not erroneously apply the displaced worker doctrine.When faced with competing medical testimony, it is the Board's responsibility to determine which expert opinion is more credible. After reviewing the competing testimony of the expert witnesses, the Board found that Claimant's expert was more reliable because the doctor had been treating Claimant for more than 11 years. The record demonstrates that there was sufficient competent evidence to support Claimant's doctor's opinion that the Claimant remained temporarily and totally disabled due to chronic pain, sleep deprivation, fatigue and depression, all causally related to the work accident.
Downes v. State, 623 A.2d 1142, 1142 (Del. 1993).
Although Claimant may be capable of some routine activities of daily living, this does not necessarily mean that he is no longer totally disabled, as that term is defined by 19 Del. C. § 2324. The Delaware Supreme Court does not equate the term "total disability" with utter helplessness.
Hartnett v. Coleman, 226 A.2d 910, 913 (Del. 1967).
Claimant argues that he neither raised nor relied upon the displaced worker doctrine as a defense to Employer's petition to terminate. On September 6, 2001, the Board found Claimant to be totally disabled. At that time, the Board accepted the medical opinion of Claimant's doctor that Claimant was totally disabled as a result of his work accident. The Board rejected the medical opinions of the Employer's doctors (an orthopaedic surgeon and a neurologist).
Following the September 6, 2001 decision, Employer again filed for termination of Claimant's benefits. The Board issued another decision on August 18, 2003, ruling that Claimant was totally disabled from any employment.
Employer filed another petition for review on September 15, 2005, alleging that Claimant was physically able to return to work. Claimant's treating physician gave the same medical opinion, which he had given at the two prior hearings, that Claimant remained temporarily and totally disabled from any and all forms of employment as a result of the various injuries sustained in the February 3, 1994 work accident. During this hearing, however, Employer had two different experts (an orthopaedist and a psychiatrist). After considering the testimony, the Hearing Officer concluded that Employer had not sustained its burden of proof, and that Claimant's disability, which had been established at two prior Board hearings, had not ended.
The Hearing Officer did not base the decision upon a finding that Claimant was a displaced worker. The decision was that Employer had not met its burden of proof in establishing that Claimant was not totally disabled. In coming to this conclusion, the Hearing Officer noted that Claimant had been suffering from failed back surgery syndrome and has chronic low back pain. The Hearing Officer cited the Employer's orthopaedic expert's agreement that Claimant needs ongoing pain management and management for his chronic depression secondary to chronic pain. Employer's orthopaedist also found objective signs of low back pain in the form of guarding and dysrythmia.
This is not the first time in this case that a Worker's Compensation Hearing Officer has found Claimant credible and has accepted the testimony of Claimant's expert over that of the Employer's expert(s). In its September 6, 2001 decision, the Board found Claimant's testimony to be credible, forthright and not evasive, and Claimant's expert to be more persuasive than Employer's expert. In its August 19, 2003 decision, the Board again found Claimant's expert to be persuasive and found that Claimant is totally disabled from any employment. In its February 7, 2006 decision, the Board reached a similar conclusion. Each of the hearings was conducted by a different Worker's Compensation Hearing Officer. The displaced worker doctrine was neither raised nor relied upon in any of the proceedings.
The Court agrees with the Board's well-reasoned analysis and conclusion that Claimant remains totally incapacitated for the purpose of gainful employment. Faced with conflicting medical opinions, the Board had the job of assigning credibility and weight to the opinions relied on by the parties. The Board was free to rely on the opinion of any of the experts, based upon substantial evidence.
DiSabatino Brothers, Inc. v. Wortman, 453 A.2d 102, 106 (Del. 1982).
The Court finds that the Board did not err when it accepted Claimant's expert's opinion, rather than the Employer's experts' opinion as to the nature of Claimant's disability. The decision was not speculative and it was supported by competent medical testimony. The Board reviewed the testimony of each expert in some detail, stating the reasons that the Board agreed or disagreed.
CONCLUSION
Employer had the initial burden of showing that Claimant is no longer totally incapacitated for the purpose of working. Employer was not able to meet its initial burden of proving to the satisfaction of the Board that Claimant is not totally disabled. This Court will not substitute its judgment for that of an administrative body where there is substantial evidence to support the decision and subordinate findings of the agency. The Hearing Officer based the opinion upon the Claimant's history, the medical records, objective testing, the physical examination of the Claimant, and the testimony presented at the hearing. This Court must take due account of the experience and specialized competence of the Board and the purposes of the Worker's Compensation Act. The Court finds that the findings and conclusions of the Hearing Officer/Board are free from legal error and supported by substantial evidence in the record.
Olney v. Cooch, 425 A.2d 610, 613 (Del. 1981).
Therefore, the decision of the Industrial Accident Board is hereby
AFFIRMED.
IT IS SO ORDERED.