Opinion
C.A. No. 01A-11-005 WCC
Submitted: June 3, 2002
Decided: September 30, 2002
Appeal from Industrial Accident Board — DENIED
James Jay Lazzeri, Esquire, Attorney for Claimant-Appellant.
Cassandra Faline Kaminski, Esquire, Attorney for Employer-Appellee.
ORDER
This 30th day of September 2002, after consideration of Jack Wanzer, Sr.'s ("Appellant") appeal from the decision of the Industrial Accident Board ("Board") it appears that:
1. On July 14, 2000, the Appellant alleged that he sustained a low back injury when he fell through an uncovered hole while working for Breslin Contracting Co., Inc., (the "employer") at a construction site. The injury was not acknowledged as a compensable injury by the employer and subsequently, the Appellant filed a petition on May 17, 2001 to seek disability benefits and payment of related medical expenses. The Board held a hearing on October 3, 2001, and issued its decision on October 15, 2001. The Board found that the Appellant had failed to establish by a preponderance of the evidence that he suffered a low back injury as a result of the July 14, 2000 accident. The Appellant appeals the Board's decision.
2. This Court's standard of review for an appeal from a Board decision is to determine whether there was substantial evidence to support the finding of the Board, and, if it finds such in the record, to affirm the findings of the Board. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The Court is not the trier of fact nor has the authority to weigh evidence, determine questions of credibility, or make its own factual findings and conclusions. Rather, this Court merely determines if the evidence is legally adequate to support the Board's factual findings. Weighing the evidence and determining questions of credibility, which are implicit in factual findings, are functions reserved exclusively for the Board.
DiSabatino Bros., Inc. v. Wortman, 453 A.2d 102 (Del. 1982).
Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994).
Johnson v. Chrysler Corp., 213 A.2d 64 (Del. 1965).
Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1106 (Del. 1988); Conner v. Wells Fargo, 1994 WL 682486 (Del.Super.Ct.).
3. In Delaware, disability benefits are designed to compensate an employee for lost earnings as a result of an injury. Likewise, compensation is paid for medical expenses for personal injury arising out of the course of employment. Whether an injury arises out of the course of employment is essentially a question of fact which lies solely within the Board's purview. A finding of injury or disability does not automatically flow from a finding that the claimant was involved in an accident. The claimant bears the burden of proving by a preponderance of the evidence a causal connection between the current condition and a compensable work-related injury.
See DEL. CODE ANN. tit. 19 Del. C. § 2324 (1995).
DEL. CODE ANN. tit. 19 Del. C. § 2304 (1995).
Buchler v. State, 1990 WL 96563, at *1 (Del.Super.Ct.).
Beyer v. Nanticoke Homes, Inc., 1992 WL 9163 (Del.Super.Ct.).
General Motors Corp. v. Freeman, 157 A.2d 889 (Del.Super.Ct.), aff'd, 164 A.2d 686 (Del. 1960).
4. In the hearing held before the Board, the Appellant relied upon the deposition testimony of Dr. Jerry Case to establish the medical condition from the accident. Dr. Case's opinion as to the possible connection to the accident was based upon his assumption that the patient's subjective symptoms were correct. When asked about the relationship of the accident to the injury, Dr. Case testified:
Well, basically, we're going on the patient's history that he was asymptomatic up until the time of this accident. The degenerative changes and the spinal stenosis is a pre-existing condition that was there before this fall. He claimed he was able to do heavy work until the episode. If you except [sic] that history as being correct, then the work accident would be a substantial cause of his ongoing symptoms.
Deposition of Dr. Jerry Case dated May 4, 2001, at 14-15.
While there was no other medical evidence presented to support a connection to the accident, Appellant reported that he had experienced back problems fifteen years earlier and there was evidence that Appellant suffered from a degenerative spinal condition. Even though Appellant saw two other doctors shortly after the accident, neither their depositions nor their opinions were presented to the Board and the reasons for the issuance of two non-work slips were not explained. Thus, the evidence presented to the Board established a pre-existing medical condition and no objective testing or symptoms noted by the treating physicians. As such, the only connection to the accident was Appellant's subjective complaints and before accepting Dr. Case's medical conclusions, the Board was required to assess the credibility of the Appellant's testimony in light of the overall testimony presented.
See Deposition of Dr. Jerry Case dated September 25, 2001, at 4.
5. If the Board decides to reject evidence on the basis of credibility, it must provide specific reasons for doing so. Here, the Board reasoned its decision on the following. First, during the hearing the Appellant testified that he felt stiff and sore before he left work on July 14, 2000 to go to a previously scheduled doctor's appointment with a pulmonologist, Dr. Rizzo. However, both Ms. Burris and Mrs. Lanouette testified that the Appellant denied having sustained any injury and declined an offer of medical treatment. The Appellant further testified that he reported the accident to Dr. Rizzo that afternoon, but Dr. Rizzo's notes fail to make mention of it.
Turbitt v. Blue Hen Lines, Inc., 711 A.2d 1214, 1215 (Del. 1988) (citing Lemmon v. Northwood Construction, 690 A.2d 912, 913-14 (Del. 1996)).
This doctor's appointment with Dr. Rizzo was for an unrelated illness.
Ms. Burris is the Office Manager for the employer and Mrs. Lanouette is the employer's Safety Coordinator.
Secondly, the Board found the evidence contradicted the Appellant's assertion that he experienced lingering problems as a result of the incident. In fact, the Appellant worked full duty for three days following the week of the accident without complaint or requesting accommodation. Although it appears that the Appellant was seen by Dr. Mancusco for his alleged back problem approximately a week after the accident, this evidence was not found by the Board to be persuasive because the disability slip issued by Dr. Mancusco was dated July 25, 2000, eleven days after the accident and five days after he failed to report to work. Moreover, the disability slip failed to list any medical reason for the disability. The Board found the same problem to exist with a subsequent disability slip issued by Dr. Kuzis on August 15, 2000, more than a month after the accident.
Both Ms. Burris and Mrs. Lanouette offered testimony to support this.
Lastly, in September 2000, the Appellant went to Dr. Malik for a physical. Here, not only did Dr. Malik's notes fail to mention current back complaints, but his notes specifically state that the Appellant had a prior history of back problems that dated back to 1980 and 1981. That testimony, coupled with the testimony offered by Dr. Case that the Appellant suffered from a pre-existing spinal stenosis, reasonably allowed the Board to find the injury was not causally related to employment.
Dr. Malik's notes also fail to mention any fall or back injury from July 20, 2000.
Dr. Case, an orthopedic surgeon, testified on behalf of both the Appellant and the employer. He saw the Appellant on two separate occasions, in May 2001, and again in September 2001.
6. The Board recognized that Dr. Case offered testimony to support the Appellant's allegations, namely that the accident would be capable of producing the alleged period of total disability and medical treatment. However, when the medical opinions presented are entirely based upon the subjective complaints of the Appellant, the Board is free to accept or reject that testimony based upon their assessment of the credibility of the patient. Assessing the credibility and demeanor of witnesses is solely within the province of the trier of fact and the Court may not substitute its judgment for that of the Board. Simply, this is a case where the Board found the Appellant's testimony as to the relationship of the back injury to the accident lacked sufficient credibility and since the causation evidence was totally premised upon the undocumented complaints of the Appellant, it too failed to be established by a preponderance of the evidence. The Court can not find this decision to be legally inadequate.
Dr. Case prefaced that testimony with the statement "[i]f you except [sic] [the Appellant's] history as being correct."
Sears Roebuck Co. v. Farley, 290 A.2d 639 (Del. 1972).
Johnson v. Chrysler Corp., 213 A.2d 64 (Del. 1965).
7. As a result, the Court finds that the Board's decision is supported by substantial evidence and its decision is AFFIRMED for the reasons set forth above. IT IS SO ORDERED.