Opinion
C.A. No. 00A-02-004-CG.
Date Submitted: June 19, 2000.
Date Decided: July 11, 2000.
ON APPEAL FROM THE INDUSTRIAL ACCIDENT BOARD. AFFIRMED IN PART, REVERSED IN PART.
Beth H. Christman, Casarino, Christman Shalk, Wilmington, Delaware, Attorney for Appellant.
Joseph J. Rhoades, W. Christopher Componovo, Wilmington, Delaware, Attorneys for Appellee.
MEMORANDUM OPINION
This 11th day of July, 2000, upon consideration of the record in this case and the papers filed by the parties, it appears to the Court that:
(1) Claimant-below and Appellee, Otis Stanford, was injured on August 1, 1995, while working for employer-below and Appellant, Irvin H. Whitehouse Sons Construction ("Whitehouse"). Pursuant to an Agreement as to Compensation, Whitehouse paid total disability compensation to Stanford. On March 9, 1999, Whitehouse filed a Petition for Review seeking termination of Stanford's benefits, claiming that Stanford was physically capable of returning to work. The Industrial Accident Board held a hearing on November 29, 1999 to consider the petition.
(2) At the Board hearing, Dr. Leo W. Raisis testified via deposition on behalf of Whitehouse. Dr. Raisis testified that he first examined Stanford on July 30, 1997 when he diagnosed Stanford with left shoulder acromioclavicular joint injuries that appeared to be related to Stanford's 1995 work-related accident.
(3) Dr. Raisis stated that Stanford missed two appointments in September 1997, but returned on February 16, 1998, complaining of recurrent pain. Stanford told Dr. Raisis that an injection he received on August 20, 1997 had given him several months of relief, but that over the past several weeks the pain had reoccurred.
(4) Dr. Raisis testified that he performed surgery on Stanford's shoulder on October 26, 1998 to attempt to alleviate his shoulder pain. Dr. Raisis stated that Stanford did well postoperatively and was referred to physical therapy. Dr. Raisis saw Stanford on several occasions and released Stanford to work on February 1, 1999 without any restrictions.
(5) Dr. Raisis next saw Stanford on April 28, 1999. Dr. Raisis testified that Stanford reported some left shoulder pain, particularly with activity. Dr. Raisis stated that Stanford's range of motion was still somewhat limited, but overall, he appeared to be doing well. Dr. Raisis placed Stanford on anti-inflammatory medicine and scheduled Stanford to return in four weeks. As of that date, Dr. Raisis testified, he would have allowed Stanford to continue working.
(6) Dr. Raisis testified that Stanford did not return to his office after the April 28, 1999 visit. On May 14, 1999, in response to a telephone call from Stanford's attorney, Dr. Raisis drafted a letter to Stanford's counsel stating that Stanford had a recurrence of severe left shoulder pain. Dr. Raisis also noted in the report that work activity caused Stanford discomfort. Dr. Raisis testified that it was his understanding that Stanford had returned to work but that he did not know where Stanford worked or what he was doing.
(7) Dr. Raisis, based on the telephone call from Stanford's counsel, then placed restrictions on Stanford's ability to work. Dr. Raisis testified that he specified no lifting over thirty pounds, no use of his left shoulder at shoulder level or above, and no significant pushing or pulling with the left shoulder.
(8) Dr. Raisis testified that Stanford failed to keep appointments on June 1, 1999 and July 28, 1999 and that he had not seen Stanford since the April 28, 1999 visit. Dr. Raisis stated that he could not comment on Stanford's current condition.
(9) On cross examination, Dr. Raisis testified that he had reviewed a report by Dr. Case dated October 18, 1999. Dr. Raisis agreed that Dr. Case made the same restrictions as Dr. Raisis regarding Stanford's ability to work.
(10) Joseph Lucey, a vocational rehabilitation expert, also testified on behalf of Whitehouse. Lucey reviewed a labor market survey he performed on behalf of Stanford using the restrictions Dr. Raisis placed upon Stanford in his May 1999 report. Lucey stated that between February and May 1999, Stanford would not have experienced a wage loss and was capable of working with no wage loss. Lucey noted that Stanford had been incarcerated between April and September 1999.
(11) Stanford did not testify on his own behalf at the Board hearing, nor did Stanford present expert medical testimony. Thomas A. Dimeo, a vocational rehabilitation expert, provided the only testimony presented by Stanford. Dimeo did not conduct his own labor market survey; rather, Dimeo was asked to comment on the survey prepared by Joseph Lucey. Dimeo agreed with the majority of Lucey's survey, but noted that Stanford's felony criminal record might disqualify him from a job with the City of Wilmington. Dimeo believed the $335 per week average pay rate Lucey arrived at was somewhat high.
(12) The Board determined that Whitehouse had met its burden of proof to show that Stanford was no longer totally disabled, noting that Stanford did not testify and that his counsel conceded that Stanford is capable of working. The Board then found that no testimony had been presented that Stanford was a prima facie displaced worker or that he was unsuccessful in finding work due to his injuries.
(13) The Board then noted that, ordinarily, Whitehouse would have the burden of proof to show that Stanford was not partially disabled as a result of his work accident. However, the Board determined that Whitehouse was correct in its argument that the burden of proof had shifted to Stanford to show partial disability because he had returned to work. The Board found that the only evidence presented regarding Stanford's return to work was Dr. Raisis' testimony that Stanford told him that Stanford's shoulder pain recurred due to work activity.
(14) The Board determined that Stanford had met his burden of proof to show he was partially disabled and awarded partial disability benefits at the weekly compensation rate of $316.02. The Board initially rejected Dr. Raisis's May 14, 1999 work restrictions upon Stanford, explaining:
The evidence was that Dr. Raisis released Claimant to work fulltime without restrictions as of February 1, 1999. The Board rejects Dr. Raisis' change of work status in his May 14, 1999 letter report, as it was based on information received from Claimant's attorney. Dr. Raisis did not even speak to Claimant. While Dr. Raisis testified that the restrictions were consistent with Claimant's April 28th complaints, the fact remains that Dr. Raisis did not change Claimant's work status after his April 28th examination, even though he considered and discussed the matter with Claimant. In addition, Dr. Raisis did not examine Claimant after April 28th he had no follow-up. Consequently, Dr. Raisis could not provide any update on Claimant's condition.
However, the Board then found that Stanford had presented evidence of a loss of learning capacity. The Board stated:
Still, according to an October 18, 1999 report, Dr. Case found the same restrictions as Dr. Raisis with respect to Claimant's work status. Those restrictions included light duty, no lifting more than thirty pounds and no pushing and pulling with the left upper extremity. Hence, the Board finds that between February 1, 1999 and the time of Dr. Cases's examination, Claimant was capable of working full time. As of Dr. Case's examination, however, the Board finds that Claimant is unable to return to his former position and that he has sustained a loss of earning capacity as a result of the work injury.
The Board noted that there was no testimony in the record as to the exact date of Dr. Case's examination.
(15) Whitehouse subsequently filed a motion for reargument with the Board, arguing that the only basis for the award of partial disability was hearsay information regarding Dr. Case's examination. Whitehouse also argued that Stanford did not call any witnesses and therefore did not meet its burden of proof to show partial disability. The Board denied the motion for reargument, stating that the Board regularly accepts hearsay evidence relating to records and reports of other physicians through the testimony of medical experts who have reviewed those records. The Board also noted that Whitehouse's counsel did not object when the evidence was submitted during the hearing.
(16) Finally, the Board found that substantial evidence existed in the record to support a finding of partial disability contained in Whitehouse's witness testimony. The Board stated, "the Board is unaware of a requirement that a claimant must call a witness during a hearing before the Board has authority to award workers' compensation."
(17) Whitehouse has appealed the Board's decision to this Court. Whitehouse argues that the Board's decision to award partial disability benefits is not supported by substantial evidence in the record and that the Board, while properly shifting the burden of proof to Stanford to prove partial disability, misapplied the burden of proof standards.
(18) 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). The Court must also determine whether the Board's decision is free from legal error. The Court's review of alleged errors of law by the Board is de novo. Brooks v. Johnson, Del. Supr., 560 A.2d 1001, 1002 (1989).
(19) In workers' compensation cases, it is well settled that the burden of proving a change in condition is upon the party asserting the change. Strawbridge Clothier v. Campbell, 492 A.2d 853, 854 (1985). Therefore, upon making a petition to terminate benefits, the employer bears the initial burden of showing that the employee is no longer totally incapacitated from work. Governor Bacon Health Ctr. v. Noll, Del. Super., 315 A.2d 601, 603 (1974). In such a proceeding, the employer, as the moving party, must also prove that the employee is not partially disabled when evidence exists that the employee, in spite of improvement, has a continued disability that could reasonably affect the employee's earning capacity. Waddell v. Chrysler Corp., Del. Super., C. A. No. 82A-MY-4, Bifferato, J. (June 7, 1983), Letter Op. at 5.
(20) However, the employer has no burden to disprove partial disability "`as part of a petition to terminate total disability benefits pursuant to § 2324 when the claimant has returned to regular full-time employment prior to the hearing on the petition.'" Allen v. Megee Plumbing Heating, Del. Super., C.A. No. 96A-01-002, Graves, J. (July 25, 1996), Mem. Op. at 6 (quoting DeAngelo and Rossi v. Del Campo Bakery, Del. Super., C.A. No. 89-AP-Ol, Del Pesco, J. (May 23, 1990), Letter Op. at 4.)
(21) In this appeal, Whitehouse agrees that the Board correctly granted the petition to terminate Stanford's temporary total disability benefits, but argues that the Board erred in its award of partial disability benefits because there is not substantial evidence in the record to support such a finding. Specifically, Whitehouse argues that Stanford refused to testify at the hearing and provided no evidence that he sought employment after February 1, 1999 and did not provide any information as to where he was working after that date. Stanford's vocational expert did not make an affirmative effort to find employment for Stanford; rather, Whitehouse argues, the expert appeared only to try to "destroy" evidence provided by Whitehouse. Nor did Stanford call a medical expert to testify at the hearing.
(22) Whitehouse points out that the Board rejected the testimony of Dr. Raisis regarding the restrictions he placed upon Stanford on May 14, 1999. Whitehouse argues that the Board erred by basing a determination that Stanford was partially disabled upon Dr. Case's report. Whitehouse argues that a minor reference to a report of a doctor who was not called as a witness at a hearing is insufficient to constitute substantial evidence to support the Board's determination that Stanford is partially disabled.
(23) Whitehouse also argues that the Board misapplied the burden of proof requirements Stanford had to meet to show partial disability. According to Whitehouse, Stanford was required to show that he made reasonable efforts to secure suitable employment without success due to his injury. Whitehouse argues that, because Stanford presented no evidence that he sought employment and failed to provide proof that any disability was the result of his injury rather than other factors, such as his incarceration, the Board erred by finding that he met his burden of proof.
(24) Stanford does not dispute the Board's determination that he was no longer totally disabled. Stanford also acknowledge that the Board properly placed the burden of proof upon Stanford to show that he was partially disabled. Rather, Stanford argues, the Board properly applied the burden of proof and that Stanford met his burden of proof to show partial disability based upon substantial evidence in the record.
(25) Stanford disputes Whitehouse's claim that he presented no evidence in support of partial disability. Stanford argues that he accepted and adopted Whitehouse's labor market survey through his own vocational rehabilitation specialist. Stanford also argues that he specifically reserved the right to call and rely upon any of Whitehouse's witnesses in the pretrial memorandum submitted to the Board. Stanford asserts that Whitehouse presented no authority to support its contention that the Board cannot consider evidence presented by an employer to award partial disability benefits even where it is the employee's burden to prove entitlement to such benefits.
(26) Stanford also argues that the Board did not err by relying upon the opinion of Dr. Case in making its determination. According to Stanford, the Board is permitted to rely upon the opinions of doctors expressed in reports that are admitted into evidence. Stanford points out that, although Whitehouse's counsel objected to Dr. Raisis' testimony about Dr. Case's report at the deposition, counsel withdrew the objection at the time of the hearing.
(27) Stanford concludes that, taken as a whole, the Board's decision was the product of an orderly, logical and well-reasoned process since the Board first established that work restrictions existed by relying on Dr. Case's opinion and than determined, based upon the labor market survey, that Stanford met his burden to prove partial disability.
(29) Initially, the Court notes that it can find no authority that would prevent the Board from considering evidence submitted by an employer in order to determine substantial evidence exists to award benefits even where it is the employee's burden to prove such entitlement. Therefore, the Board did not err by considering the testimony and evidence presented by Whitehouse in considering whether Stanford met his burden to prove he was partially disabled.
(30) The Court finds that the Board's determination that, between February 1, 1999 and the time of Dr. Case's examination (which the Board admits it does not know the date of), Stanford was capable of working full time is supported by substantial evidence contained in the record. However, the Court finds that the Board's determination that, as of the time of Dr. Case's examination, Stanford was unable to return to his former position and that he had sustained a loss of earning capacity as a result of his work injury is unsupported by substantial evidence.
(31) In its decision, the Board rejected the restrictions placed upon Stanford by Dr. Raisis in his May 14, 1999 report because Dr. Raisis based the restrictions upon information provided by Stanford's attorney, rather than by Stanford. However, the Board found that, because those restrictions were the same as restrictions imposed in an October 18, 1999 report by Dr. Case, Stanford sustained a loss of earning capacity as of the date of Dr. Case's examination. The Court finds that this evidence does not constitute substantial evidence to support the Board's finding.
(32) Dr. Case did not testify, live orby deposition, at the Board hearing. Nor was his actual October 18, 1999 report submitted by either party at the hearing. The sole evidence concerning the report's contents was provided by Dr. Raisis, who testified that he had seen the report and that Dr. Case made the same restrictions as Dr. Raisis as to Stanford's ability to work. The Court finds that this testimony, unsupported by any other information about Dr. Case's report, cannot constitute substantial evidence to support the Board's conclusion that Stanford met his burden to show he had sustained a loss of earning capacity. Specifically, there is no evidence as to Dr. Case's basis to impose any work-related restrictions, or even whether they were based upon a physical examination of Stanford or upon specific complaints conveyed by Stanford. The Board admits that there was no evidence in the record to determine even the date of any examination by Dr. Case.
Specifically, the transcript of Dr. Raisis' deposition testimony regarding Dr. Case's report, reads, in its entirety:
Q. Doctor, do you have a copy of Dr. Case's 10/18/99 report?
A. No, I do not.
Q. Understanding Ms. Christman's objection, I am going to ask.
(33) In its decision on Whitehouse's motion for reargument, the Board stated, "the Board has regularly accepted evidence relating to the records! reports of other physicians through the testimony of medical experts who have reviewed the same." The Board cited Thomas v. Christiana Excavating Co., Del. Super., C.A. No. 94A-03-009, Cooch, J. (Nov. 15, 1994), Mem. Op., in support of its decision to rely upon Dr. Case's report. However, in Thomas, the Court held that the Board did not err by admitting medical records offered into evidence over a hearsay objection by employee's counsel even though there was no records custodian to vouch for the accuracy of those records. The Court stated, you to take a quick look at the last paragraph of it, if you'd just be kind enough to read it quickly.
A. Yes.
Q. Would it be fair to say that Dr. Case has made the same restrictions as you have with respect to Mr. Stanford's ability to work?
A. Yes.
"the medical experts in the case at bar testified as to information contained in medical records that were produced and compiled by medical personnel, and thus, this Court finds that the Board did not `exceed the bounds of reason in view of the circumstances' in considering this expert testimony." Id. at 6. This case is clearly distinguishable as the report at issue was not submitted, nor was any other evidence pertaining to its contents submitted to the Board. Therefore, even though Dr. Raisis' testimony regarding Dr. Case's report was properly admitted into evidence, the Board erred by relying on the testimony as substantial enough to support its finding.
Although Whitehouse's counsel objected to Dr. Raisis' questioning by Stanford's counsel as to Dr. Case's report during the deposition, it appears that she withdrew that objection during the Board hearing when the deposition was entered into evidence.
(34) As the above-quoted testimony regarding Dr. Case's testimony provides the only evidence contained in the record regarding Stanford's loss of earning capacity after February 1, 1999, the Court finds that the Board erred by detennining that Stanford suffered a loss of earning capacity due to his work-related accident after February 1, 1999. Therefore, the Board's determination to award benefits for partial disability as of the date of Dr. Case's examination must be reversed.
Therefore, for the foregoing reasons, the Court hereby AFFIRMS the Board's decision granting Whitehouse's petition to terminate Stanford's total disability benefits as of the date of the filing of Whitehouse's petition. The Court hereby REVERSES the Board's decision awarding partial disability benefits to Stanford.
IT IS SO ORDERED.