Opinion
C.A. No. 05A-12-001 RBY.
Submitted: October 3, 2006.
Decided: January 8, 2007.
Upon Consideration of Appellant's Appeal from Decision of Industrial Accident Board AFFIRMED.
Walt F. Schmittinger, Esq., Schmittinger Rodriguez, Dover, Delaware, for Appellant.
Jessica L. Julian, Esq., Marshall, Dennehey, Warner, Coleman Coggin, Wilmington, Delaware for Appellee.
OPINION AND ORDER
Claimant-Below/Appellant ("Appellant"), Lillian Walt, appeals the November 4, 2005, decision of the Industrial Accident Board ("Board"). The Board granted Appellant's Petition to Determine Additional Compensation Due. Specifically, the Board granted the Appellant's request for medical expenses and total disability compensation associated with her cervical spine surger y. Appellant appeals, claiming the Board's failure to award total disability benefits beyond August 18, 2005. For the following reasons, the Board's decision is AFFIRMED.
FACTS
On July 3, 2004, the Appellant was employed by the State of Delaware as a Certified Nursing Assistant at the Delaware Home and Hospital for the Chronically Ill ("the Hospital"). In response to an emergency call, the Appellant ran down a hall in the Hospital to get the head nurse. As she came around a hallway she grabbed onto a doorframe to brace herself. In doing so, the Appellant's wedding band got caught on the metal lip of the doorjamb. She came to an abrupt stop, slamming into the wall. The immediate results of this impact included bruises on the Appellant's face and lacerations on her hand. In addition, her wedding band somehow become imbedded in her finger and had to be cut off by her supervisor. Because this injury occurred during a holiday weekend when the Hospital was short-staffed, the Appellant`s supervisor would not release her to leave. Instead, the supervisor told her to go back to work but not to do anything that required hand washing. On the following Monday, the Appellant sought treatment from her primary care physician, Dr. Aljuanidi. By this time, her hand, wrist and face were bruised and her fingers were swollen. Dr. Aljuanidi issued a no-work order, and began treating the Appellant.
By August 2, 2004, Dr. Aljuanidi had lifted the no-work order; and the Appellant had returned to work with directions that she was to perform one-handed duty only. However, while caring for a morbidly obese patient, the Appellant had to grab the patient with both hands to prevent the patient from falling onto the floor. Following this incident, the Appellant's wrist swelled up and her neck, which had already been bothering her, got worse. The Appellant returned to Dr. Aljuanidi for treatment of her hand and wrist, but self-treated with ice and ibuprofen for her neck pain. Sometime after this, the neck pain allegedly became so intense that she contacted Dr. Rowe, an orthopedic surgeon. Dr. Rowe ordered physical therapy for her hand and ice applications and ibuprofen for her neck. When the Appellant's complained of increased neck pain, Dr. Rowe referred her to Dr. Godfrey. Dr. Godfrey treated the Appellant with Darvocet, myofacial stretching and epidurals.
The pain did not subside, and by March 2005, the Appellant sought the advice of Dr. Ali Kalamchi. Based on the Appellant's medical record, Dr. Kalamchi believed the conservative treatments ordered by Drs. Rowe and Godfrey had failed to alleviate the Appellant's pain. He believed that a surgical fusion of the cervical spine would offer more relief to the Appellant. The Appellant agreed. On April 20, 2005, she underwent surgery. Following the surgery, the Appellant's symptoms significantly improved.
On April 29, 2005, the Appellant filed a Petition to Determine Additional Compensation Due. At the time of the filing of the Petition, Dr. Kalamchi had issued a no-work order to the Appellant, but had not placed an end date on that order. In addition, Dr. Kalamchi believed that the Appellant's cervical spine surgery was related to the industrial accident that occurred on July 3, 2004. At the Appellee's request, the Appellant was examined by Dr. John Townsend, a neurologist, on May 23, 2005. Dr. Townsend concluded that the Appellant's neck pain and the cervical spine surgery undertaken to correct it were not related to the July 3, 2004, industrial accident. Instead, he believed these claims to be related to some non-work activity. In addition, Dr. Townsend opined that the Appellant was capable of returning to work in a light duty capacity as of the day of his examination. On August 18, 2005, nearly three months before the hearing in this matter, Dr. Kalamchi saw the Appellant again, determining that she could now return to light to medium duty work.
DECISION OF THE BOARD
On November 4, 2005, the Board held a hearing on the Appellant's Petition. While the State accepted the compensability of the Appellant's industrial accident, it disputed the causality of the cervical spine injury, and therefore, did not believe the medical bills and total disability period associated with the cervical spine surgery were compensable. The Board stated in the proceeding that the Appellant bore "the burden of proving that the cervical spine surgery and associated total disability period were reasonable, necessary, and causally related to the industrial injury." For the Board, the matter turned on a conflict between the medical testimony of Drs. Kalamchi and Townsend. The Board held that Dr. Kalamchi's opinion "was more persuasive as it was consistent with [the Appellant's] overall condition and history." Thus, the Board accepted Dr. Kalamchi's opinion that the Appellant injured her cervical spine during the industrial accident. Based on this, the Board found the medical bills and associated total liability period compensable, as they were "reasonable, necessary, and causally related to the industrial accident."
Walt v. State, IAB Hearing No. 1253838 (Nov. 14, 2005), at 11.
Id.
Id.
Id.
Id. at 12.
Id. at 13.
STANDARD OF REVIEW
On appeal, this Court reviews a decision of the Board to determine whether the Board's decision was supported by substantial evidence and free from legal error. Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In addition, substantial evidence is "more than a scintilla but less than a preponderance." On appeal, this Court does not have the "authority to weigh evidence, determine the credibility of witnesses or make independent factual findings." If the Board's decision is supported by substantial evidence, this Court "must affirm the ruling unless it identifies an abuse of discretion or a clear error of law." Questions of law are reviewed de novo.DISCUSSION
At issue in this appeal is the Board's alleged failure to award total disability benefits beyond August 18, 2005. To begin, our courts have held that "total disability" means "a disability which prevents an employee from obtaining employment commensurate with his qualifications and training; that the employee is unable to perform any services `other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist.'" In addition, total disability "encompasses both physical disability and economic disability."In the present case, the Appellant appealed that the Board's failure to award total disability benefits beyond August 18, 2005, arguing that this failure is contrary to law, and is not supported by substantial evidence because: (1) the Board failed to conduct the proper analysis in its determination regarding the total disability period and (2) the Board failed to conduct the proper analysis under the Displaced Worker Doctrine.
The Board Conducted the Proper Analysis Regarding Total Disability Period
The Appellant does not argue that the Board erred in accepting Dr. Kalamchi's opinion as to the total disability of the Appellant until August 18, 2005, nor should she. Instead, the Appellant argues that the Board had to undertake the analysis outlined in Ham v. Chrysler, Inc. before determining when, if ever, the total disability period ended. In Ham, the Delaware Supreme Court further elucidated the odd-lot doctrine adopted in M. A. Hartnett, Inc. v. Coleman, supra. The Ham Court also chose to refer to a worker falling into the "odd-lot" as a displaced worker, thereby renaming the odd-lot doctrine the Displaced Worker Doctrine. Thus, the Appellant is arguing that the Board should have applied the displaced worker doctrine instead of the analysis it undertook. Plaintiff's reliance on Ham is inapposite to the situation presented to the Board.
231 A.2d 258 (Del. 1967).
Id. at 261.
Id.
In determining that the total disability period associated with the cervical spine surgery was compensable and that it ended on August 18, 2005, and not May 23, 2005, the Board cited Gilliard-Belfast v. Wendy's, Inc. and Clements v. Diamond State Port Corp. These cases stand for the proposition that "when the treating physician renders a no work order — even if the employer's physician disagrees — the claimant is totally disabled for the purpose of Delaware Workers' Compensation statute." Unquestionably, the claimant's employer is entitled to dispute the treating physician's no work order and even allowed to ask that he reconsider it. However, when a dispute arises between experts, it is for the Board to determine who is more credible. Until such time as the Board makes that determination the claimant is entitled to rely on it and to remain out of work, for our courts have been unwilling to accept the "untenable" situation that would arise if the rule were otherwise. If the Board finds the treating physician's no work order to be credible, the claimant is entitled to total disability payments for the period during which she or he is under a "no work" order.
754 A.2d 251 (Del. 2000).
831 A.2d 870 (Del. 2003).
Id. at 879.
19 Del. C. § 2343.
See Reese v. Home Budget Center, 619 A.2d 907, 910 (Del. 1992) (When reviewing the testimony of conflicting expert witnesses, the Board has the discretion to adopt the opinion of one expert, and reject the other.).
Gilliard-Belfast, 754 A.2d 251 at 253.
Delhaize America, Inc. v. Baker, 2002 WL 31667611, at *3 (Del.Super.).
The issue before the Board was whether or not the cervical spine surgery and the total disability period associated with that surgery were reasonable, necessary, and causally related to the industrial injury such that the Appellant was entitled to compensation for them. The Board credited Dr. Kalamchi's testimony and found that the cervical spine surgery was causally connected to the industrial injury. The Board then turned to the total disability period. In this regard, the Board determined that the total disability period associated with the surgery ended on August 18, 2005, when Dr. Kalamchi lifted the no-work order, rather than on May 23, 2005, as Dr. Townsend opined. The Board's decision settled this issue and this issue alone. The Board was not asked to address whether or not the Appellant was totally physically disabled due to some reason other than the surgery, was totally physically disabled beyond the bounds of the no-work order, or was totally economically disabled, i.e. a displaced worker. Furthermore, the decision was consistent with the case law regarding the effect of a treating physician's no work order.
The Board did not need to undertake the Ham analysis, which deals exclusively with total economic disability, because Ham is inapplicable to situations where it is argued that a worker suffers from a total physical disability because of a doctor's no work order, as was the Appellant's case. The Board correctly relied on Gillard-Belfast and its progeny to conclude that during the period of time the Appellant was under Dr. Kalamchi's no work order, from the date of the surgery until August 18, 2005, she was totally physically disabled and entitled to compensation. Therefore, there is no ruling by the Board adverse to a claim of Appellant to address.
The Board Did Not Err by Not Conducting a Displaced Worker Doctrine Analysis
The discussion regarding the Appellant's total disability period argument also has bearing on the Appellant's argument that the Board failed to conduct the proper analysis under the Displaced Worker Doctrine. These arguments are related because the Appellant again raises the issue of the Board's alleged failure to apply an analysis for an issue it was never asked to address.
Those entrusted with adjudicatory authority may be a lot of things, but they are not expected to be mind readers. In order for a board to grant a moving party relief, the party must seek it and must prove entitlement to it. If such party does not seek a specific type of relief, there is no reason for a board to address the issue. In this case, the Appellant was the claiming party. The burden of pleading and proving any claim under the Displaced Worker Doctrine rested with the Appellant. Therefore, because the Appellant only argued the issue of total disability arising from Dr. Kalamchi's no work order, and never raised the issue of displaced worker status, the Board did not err as a matter of law by failing to conduct a displaced worker analysis. "Under the waiver rule, issues or arguments that are not raised to an administrative agency cannot be considered by a reviewing court."
Falconi v. Coombs Coombs, Inc., 902 A.2d 1094, 1097 (Del. 2006) (citing Strawbridge Clothier v. Campbell, 492 A.2d 853, 854 (Del. 1985)).
Berchock v. Council on Real Estate Appraisers, 2001 WL 541026, *4 (Del.Super.).
Accordingly, the decision of the Board is AFFIRMED.
SO ORDERED.