Opinion
C.A. No. 04A-11-008-JOH.
6-6-2005
JACQUELINE WATSON, Appellant, v. FASTRACK CONSTRUCTION INC., Appellee.
Matthew M. Bartkowski, Esquire, of Kimmel Carter Roman & Peltz, Bear, Delaware, attorney for appellant. H. Garrett Baker, Esquire, of Elzufon Austin Reardon Tarlov & Mondell, Wilmington, Delaware, for appellee.
Jacqueline Watson appeals two decisions of the Industrial Accident Board involving two separate claims of injuries one involving her knee and the other her back. The Board granted the petition of her employer Fastrack Construction to terminate benefits as to her knee injury but denied Watson's Petition for Determination of Compensation Due as to a back injury claim. Both decisions of the Board are AFFIRMED.
Procedural History
On March 29, 2004, Fastrack filed a petition for review asking the Board to determine whether Watson was physically able to return to work referencing a May 19, 2003 work injury. That was the date of a knee injury. The Petition for Termination of Benefits was designated #1233953. Watson later filed a petition to determine compensation due for total disability on June 24, 2004. This petition was designated #1236476 and related to a claimed low back injury. A hearing was scheduled on July 12, 2004, in response to Fastrack's Petition for Review. A continuance was granted.
Appellant's Opening Brief, at 11.
Appellant's Opening Brief, at 11.
A second hearing was held on September 13, 2004. In its September 27, 2004 decision, the hearing officer ("the Board") ruled that Watson conceded her knee injury had resolved and that she was able to return to work. Her benefits for that injury were terminated as of the date Fastrack filed its petition . The Board then addressed Fastrack's petition and held that Watson did not meet her burden of proving that an injury occurred on July 30, 2003 and that she was not entitled to total disability benefits. It denied Watson's petition to determine compensation due. Her subsequent Motion for Reargument was denied on November 17, 2004.
19 Del. C. §2301B(a)(4):
(a) There is hereby created within the Department of Labor the full-time position of hearing officer. With respect to cases arising under Part II of this title, the hearing officers hall have:
(4) The power, with consent of the parties, to conduct hearings, including any evidentiary hearings required by Part II of this title, and to issue a final decision determining the outcome of such hearings. In such circumstances, the hearing officer's decision has the same authority as a decision of the Board and is subject to judicial review on the same basis as a decision of the Board....
Watson v. Fastrack Construction, Inc., Hearing Nos. 1232953, 1236474, Industrial Accident Board Decision (September 27, 2004), at 6-7.
Facts
On May 19, 2003, Watson tripped over drywall and injured her right knee and inner thigh. A MRI indicated a torn meniscus. Surgery to repair the injury to her right knee was performed on August 4, 2003, by Dr. Craig Morgan. As to the knee injury, Watson was released to full-duty work on November 6, 2003. Dr. Robert Smith, an orthopedic surgeon examined Watson a few days later on behalf of Fastrack and concurred she was able to return to work as far as the recovery from the knee injury. Since that time Watson has not been treated for the injury to her right knee.
While awaiting surgery on her knee, Watson returned to work at Fastrack to do sedentary/light duty work. This work entailed organizing and filing papers. On July 30, 2004, Watson was asked to move and count door sets in boxes stacked four high. After counting and numbering the sets, she was to return the sets to the boxes and then return the boxes to the original location. This job took forty-five minutes to one hour. She claimed she sustained an injury to her back while lifting the boxes.
Initially Watson went for an x-ray at the Emergency Room of Delaware Hospital because she could not stand up straight and her knee was swollen. The x-ray was negative. She received medication and was told to contact her family doctor, Dr. John Moore. He took her off work. He prescribed a muscle relaxer as well as physical therapy at this office. The therapy involved stretching, ball exercises and massages. Watson stated that neither the medication nor the treatment helped her. Watson then went to Dr. Kenneth DeGroot, a chiropractor, to whom she was referred by a friend. There she did heat and water therapy as well as stretching exercises. She stated that these treatments did not help her.
Dr. Moore then sent her to Hands on Health where she received hand and body massages and exercises, some of which she was to do at home. She stated that this treatment would help her for about one hour but then the symptoms would return.
Dr. Moore also referred Watson to Dr. Anne Mack. Dr. Mack testified by deposition. There were references in her deposition to some of Dr. Moore's records. Dr. Mack prescribed different medications. In addition, she would have Watson do some therepy exercises such as a treadmill, bicycle, and she administered heat on the lower part of the back. Watson stated that the medications and therapy received from Dr. Mack did not help. In addition, Dr. Mack gave Watson injections one each on the right and left sides of the mid back. The injections would help for about a week, according to Watson. Watson stated that the pain was a constant ache that sometimes burns. The pain is located in Watson's low back, right side, left side, the spine, buttocks and down the right side of her leg. She stated that she is not able to stoop, get down on her knees, stand or sit in a position for a long time, go up or down stairs easily or do manual labor.
One of the records from Dr. Moore, to which there was a reference, stated that he found muscle spasm in Watson's low back. During Dr. Mack's various visits with Watson, however, she never detected a spasm. There were no objective findings of injury to Watson's back, other than the records of Dr. Moore, but those findings were uncorroborated by Dr. Mack.
Dr. Robert Smith, to whom Fastrack had sent Watson for examinations of her knee and back, also testified by deposition. He examined Watson on two occasions, the last being July 2004. He, too, detected no back spasm(s) but found her range of motion limited (by pain). He testified that as early as November 2003 when he saw her for the first time, there was nothing which prevented Watson from returning to work. Dr. Smith admitted on cross-examination that he had not reviewed Dr. Moore's records or Watson's physical therapy records. He seemed to be vague on other parts of her history and dates.
Board Decision
After finding Watson had conceded her knee injury had resolved, the Board further determined that Watson had the burden to show injury and total disability. It found she has not met that burden and had presented no evidence on partial disability. In so deciding, the Board found Watson lacked credibility. The reasons were that Dr. Mack found no evidence of spasm, that no treatment improved her condition and there was no objective evidence, other than tertiary records of spasm, of objective injury. Because Watson's credibility was suspect, Dr. Mack's opinions, being based on Watson's complaints, were likewise suspect.
Parties' Claims
Watson contends that the Board erred as a matter of law: (1) in its ruling that Watson conceded the termination petition; (2) in its finding that Watson did not suffer compensable injury to her back; and (3) in its finding that Watson was not entitled to compensation as it is not supported by substantial evidence.
She also asserts she never conceded that Fastrack's petition to terminate should be granted. Even that petition related to her knee injury she argues that it was still an open issue and included her back injury, too. As such, the burden to show no back injury never shifted from Fastrack to her. The Board, therefore, erred by placing the burden of persuasion on her and in ruling she had not met it.
Fastrack counters that the Board's decision: (1) properly found that Watson conceded the employer's petition by acknowledging that the undisputed evidence showed she was no longer under any restrictions pertaining to the knee injury and that was the subject of its petition ; and (2) properly denied Watson's petition for total disability benefits associated with the July 30, 2003 low back injury.
Standard of Review
This Court's scope of review of the Board's decision is limited to whether the decision is supported by substantial evidence and free from legal error. Substantial evidence is such evidence as a reasonable person might accept as adequate to support a conclusion. The Court does not sit as a trier of fact, does not weigh the evidence, or determine the credibility of the witnesses. It does not make factual findings and conclusions. That is done by the Board. The Court is only to determine if the evidence is legally adequate to support the Board's factual findings. In reviewing the evidence, the Court is to consider the record in light most favorable to the prevailing party below.
Histed v. E.I. Dupont de Nemours, & Co., 621 A.2d 340, 342 (Del. 1993).
Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).
Delaware Alcohol Beverage Control Commission v. Newsome, 690 A.2d 906, 910 (Del. 1996).
Johnson v. Chrysler Corporation, 213 A.2d 64, 66 (Del. 1965).
Canyon Construction v. Williams, 2003 WL 1387137, at *1 (Del.Super.2003) citing 29 Del. C. §10142.
Stigars v. Speakman, 1993 WL 138720 (Del.Super.), at *3; aff'd, 633 A.2d 371 (Table), 1993 SL 397603 (Del.).
Discussion
A
The first issue presented is whether the Board erred as a matter of law in its decisions dated September 27, 2004, and November 17, 2004, when it found that Watson stipulated to Fastrack's petition for termination of benefits.
The Board opened the hearing by stating that there were two petitions, one a petition for review for termination of benefits while the other was a petition to determine compensation due. Fastrack stated that the parties agreed there was an injury to Watson's low back but disagreed as to whether she required any total disability during the time specified. Watson countered that, as Dr. Morgan had taken her out of work with regard to her back, she was out of work for two separate injuries.
Hearing Transcript September 13, 2004, at 1.
Hearing Transcript, at 2.
Hearing Transcript, at 4.
In both its decisions dated September 27, 2004, and November 17, 2004, the Board stated that Watson stipulated to the entry of the termination petition. It is a little unclear from the hearing transcript whether Watson actually stipulated to the termination petition. The transcript reads as follows:
Watson v. Fastrack Construction, Decision, at 6 and Order, at 2.
Counsel for Watson: There was a Petition , the Petition for Review was filed with the Petition to Terminate an there was some confusion as to what accident or what injury was. There was a Legal Hearing held and the effect of that was basically just a continuance of that Hearing and we filed our Petition as well, so they're kind of co-mingled, it's really kind of difficult to do so.
Hearing transcript, at 4.
***
Counsel for Fastrack: I don't know if Mr. Bartkowski is opposing my Petition for Review, frankly.
Counsel for Watson: Well, with regard to the knee we're not, but again it's because it's so, I'm not clearing her from the Board's last Decision, what we're here on and that's why I don't want to concede anything at this point in time just because I'm not sure what the final release (sic) were.
Counsel for Fastrack: Well, if where we are, where I think we are and that is that he's not opposing on the knee and we're only going forward on the back then I'll defer to Mr. Bartkowski to put his case in first.
Counsel for Watson: Yeah, that's fine, we'll go first.
Hearing Officer: Fair Enough.
Counsel for Fastrack: Is that where we are Matt?
Counsel for Watson: Yeah, but I don't want to concede to the Determination Petition only because from the Legal Hearing it wasn't clear what that Termination Petition was for.
Counsel for Fastrack: You're not opposing the Petition as far as the May 19, 2003?
Hearing Transcript, at 5-6.
Thus, there was a question whether the second hearing was based upon just the petition for review for termination of benefits or whether the petition to determine compensation due was also considered. Fastrack's petition indicates only May 19, 2003, as the date of the injury. That is the date of the knee injury. There is no direct or indirect reference to the July 30, 2003, back injury. At a minimum, the record is to be considered in the light most favorable to Fastrack, the prevailing party before the Board, the Court will assume at this juncture that the initial hearing concerned only the petition for termination of benefits. The Court is satisfied that the record is sufficiently clear to show that: (1) Watson conceded that her knee injury no longer prevented a return to work, and (2) that Fastrack's petition was essentially unopposed. This also means that at the second hearing in September, with the stipulation, the only matter in controversy was Watson's petition to determine compensation.
There is no transcript, decision, order or any other documentation for the July 12, 2003, hearing included in the file.
There are several indications that Watson herself, and through counsel, conceded the issue of whether she was able to return to work after he knee injury. First, Watson stated that she was released, as to her knee condition, to go back to work by Dr. Moore in November of 2003. Second, Watson's counsel agreed to proceed first after Fastrack proposed "(H)e's not opposing on the knee and we're only going forward on the back then I'll defer to [Watson's counsel] to put this Case in first." Third, her counsel stated he did not "want to concede to the determination petition only because from the legal hearing it wasn't clear what the termination petition was for." Finally, her counsel stated that it was correct that he was not opposed to the petition to terminate as far as the May 19th injury.
Hearing Transcript, at 14.
Hearing Transcript, at 5.
Hearing Transcript, at 5.
Hearing Transcript, at 6.
Watson also contends that Fastrack was paying benefits for the back injury as well as for the knee injury. She draws this conclusion from the fact that she was receiving benefits after her back injury and continued to receive them after it was clear in November that the knee injury no longer prevented her from working. She asserts, therefore, that the burden remained with Fastrack to prove that there was a change in her condition or that she no longer suffered from the work-related back injury.
Watson claims two separate work-related injuries. Both parties agree that she suffered a knee injury and was entitled to receive benefits for that injury. They both agree that she has been released to return to work after surgery and rehabilitation to her knee. The two parties, however, do not agree on the second injury. Both parties acknowledge that Watson injured her back on July 30, 2003. However, while Watson claims that she was receiving benefits for two separate work-related injuries, Fastrack asserts she was receiving benefits only for the knee injury. Watson argues that she was taken out of work by her physician, Dr. Moore, and has remained out of work ever since due to the back injuries she sustained. Dr. Mack, to whom Watson was referred by Dr. Moore, has continued to keep Watson out of work. She asserts she was receiving temporary total disability benefits for both injuries and that the petition for termination of benefits was related to both the May 19th and July 30th injuries. Watson continues that there is further evidence that the compensation was for both injuries as Fastrack continued to pay the benefits after she was released and returned to work after her knee surgery. She alleges that, because Fastrack agreed that she suffered an injury to her back on July 30, 2003, and continued to pay benefits after she was able to return to work from the knee injury, the only interpretation can be that the benefits paid since the November 2003 "return to work" status were related to the back injury. Watson contends that, because Fastrack did not file its petition for termination of benefits for approximately four months after she was permitted to return to work from her knee injury, there was an implicit agreement that the benefits were then due to the back injury. She concludes from that, because there was the implicit agreement, Fastrack has the burden of proving that she was no longer disabled.
Hearing Transcript, at 12.
Hearing Transcript, at 17-18.
This conclusion is not correct. By law, an employer cannot cease payment of disability benefits until both parties agree to such termination or the Board orders termination of such payment. This statute does not require that such a petition must be filed immediately after the employee is deemed healthy enough to return to work. In addition, any agreement between Watson and Fastrack must be reduced to a memorandum signed by both parties-in-interest that is subsequently filed with and approved by the Department of Labor. Neither party has cited to any such memorandum. Therefore, the Court finds that there was no agreement as to payment of benefits for the July 30, 2003 injury. Further, the Board did not commit an error of law when it found that Watson stipulated to the termination of benefits in so far as they related to the May 19, 2003 knee injury.
19 Del. C. § 2347:
On the application of any party in interest on the ground that the incapacity of the injured employee has subsequently terminated, increased, diminished or recurred to that the status of the dependent has changed, the Board may at any time, but not oftener than once in 6 months, review any agreement or award....
Compensation payable to an employee, under this chapter, shall not terminate until and unless the Board enters an award ending the payment of compensation after a hearing upon review of an agreement or award, provided that no petition for review, hearing or an order by the Board shall be necessary to terminate compensation where the partied to an award or an agreement consent to the termination....
Compensation shall be paid by the Department to the employee after the filing of the employer's petition to review from the Workers' Compensation Fund until the parties to an award or agreement consent to the termination or until the Board enters an order upon the employer's petition to review....
19 Del. C. § 2344(a):
(a) If the employer and the injured employee, to the employee's dependents in case of the employee's death, reach an agreement in regard to compensation or other benefits in accordance with this chapter, a memorandum of such agreement signed by the parties in interest shall be filed with the Department and, if approved by it, shall be final and binding unless modified as provided in § 2347 of this title. Such agreement shall be approved by the Department only when the terms thereof conform to this chapter. This section shall not apply to deductible claims.
The procedural consequences of all this are that: (1) there was an agreement that the knee injury had resolved and no further payments were due; (2) that the petition before the Board was Watson's to determine benefits for the back injury; and (3) the burden shifted to her to show total disability.
B
The second issue before the Court is whether the Board erred when it denied Watson's petition to determine compensation due her. As the Court previously determined that the petition for termination of benefits did not include benefits for Watson's back injury, the Court must now turn its attention to the petition to determine compensation due. As Watson filed the petition to determine compensation due, she has the burden or proving that there is a change in her situation.
19 Del. C. § 2345:
If the employer and employee, or the employee's dependants in the case of the employee's death, fail to reach agreement in regard to compensation under this chapter, or if after they reach such an agreement the Board shall refuse to approve the same, either party may notify the Department of the facts and the Department shall thereupon notice the time and place of hearing which shall be served on all parties in interest personally or by certified mail. The Board or a hearing officer with consent of the parties shall hear and determine the mater in accordance with the facts and the law and state its conclusions of fact and rulings of law.
Strawbridge & Clothier v. Campbell, 492 A.2d 853, 854 (Del. 1985).
This Court does not weigh the evidence or determine the credibility of a witness. The Board is to determine the credibility of the expert witnesses and ascertain the appropriate weight to of each opinion. The Board is to make factual finding and draw conclusions. On appeal, the Court is to determine whether the Board's decision is supported by substantial evidence is free from legal error.
General Motors v. Huester, 242 A.2d 314, 317 (Del.Super.1968).
Bell Atlantic-Delaware, Inc. V. Hall, No. 00A-05-007-JOH, Herlihy, J. (Del.Super. 2001), at 7.
Lemmon v. Northwood Const., 690 A.2d 912, 914 (Del. 1996).
General Motors v. Jarrell, 493 A.2d 978, 980 (1985).
After hearing the testimony presented at the hearing, the Board found that Watson was not credible. It also determined that neither expert witness was persuasive so it did not choose the testimony of one expert over that of the other. The Board is able to reject the conclusions of an expert when those conclusions are based mainly upon the subjective complaints of the patient. There is sufficient evidence to sustain the Board's finding that Watson did not meet her burden of proving that there was a compensable injury to her on July 30, 2003, requiring total disability. The Board did not err as a matter of law in denying Watson's petition for determination for compensation due.
Breeding v. Contractors-One-Inc., 549 A.2d at 1104.
Air Mod Corporation v. Newton, 215 A.2d 434, 438 (Del. 1965).
Conclusion
For the reason stated herein, the decision of the Industrial Accident Board is AFFIRMED.