Opinion
C.A. No. 99A-05-002 WTQ.
Submitted: November 29, 1999.
Argued and Decided: January 18, 2000.
Letter Opinion and Order on Appellee/Employer American Original Foods Corporation's Motion to Affirm Pursuant to Rule 72.1
R. Scott Kappes, Esquire, Schmittinger and Rodriguez, P.A., 414 S. State Street, P.O. Box 497, Dover, DE 19903
Dennis J. Menton, Esquire, Heckler Frabizzio Durstein, Mellon Bank Center, Suite 1300, P.O. Box 128, Wilmington, DE 19899
MOTION DEFERRED PENDING FURTHER SUBMISSIONS
Dear Counsel:
This is the Court's Letter Opinion and Order on Appellee American Original Food Corporation's ("American") Motion to Dismiss Appellant's appeal of a decision of the Industrial Accident Board ("IAB") pursuant to Super. Ct. Civ. R. 72.1. For the reasons stated herein, the Court's decision on the Motion to Affirm is DEFERRED.
FACTS
Maria White-Cannon was first injured in September of 1985 when she fell down four or five stairs and injured her head and back while working for American. (I.A.B. Trans. at 12; hereinafter Tr. at ___). Her injuries were quite serious, and she required a back operation in 1987. (LaTourette Dep. at 7). She received total disability benefits through 1990, when the total disability benefits were terminated. At that time, she entered into an agreement with American to commute her future partial disability benefits and she received compensation for permanent impairment of the back, cervical spine, and all four extremities. She did not work for many years until she attempted to return to work in order to raise the money for her son to go to college. (Tr. at 15). Cannon obtained a job at Peninsula Regional Hospital where she tried to work but, because of pain, she had to resign after four or five months of work. Cannon had this job at some point between 1995 and 1997.
Appellant's counsel has referred to Mrs. White-Cannon as Ms. Cannon throughout her brief and, following suit, the Court has referred to her as "Cannon" throughout its decision on appeal.
In May of 1997, Cannon began seeing Dr. Phillip C. LaTourette for her pain problems with her back. Dr. LaTourette is board certified in internal medicine and practiced in Delaware in pain management. Cannon was then, and currently is, complaining of back pain and the pain to her extremities. Dr. LaTourette first prescribed physical therapy in addition to the Vicodin that Cannon was already taking for her pain. (LaTourette Dep. at 11). LaTourette ordered an MRI on July 3, 1997 which showed some scar tissue damage to her back. Id. at 14. Cannon had begun to take a wide variety of medications. In her November visit, Cannon stated that her pain had not gotten any better and she received a back injection. Id. at 24-26. Cannon reported that Vicodin was affording her less relief than before.
As noted infra, Dr. LaTourette moved his practice out of the State of Delaware in 1998.
LaTourette never wrote a note indicating that Cannon was unable to work until January 1998, although he stated that if asked he would have done so sooner. (LaTourette Dep. at 28). He maintained that Cannon was totally disabled the entire time that he was treating her. Id. at 45.
Because of the purported ineffectiveness of the treatment, Dr. LaTourette began to consider more drastic therapy. He prescribed Cannon a surgically implanted spinal cord stimulator which was removed because a risk of infection developed. Id. at 29. In March, the Doctor noted that the pinpoint injections that Cannon was receiving were becoming less effective. Cannon's Vicodin pills had been upgraded to Percocets. According to Dr. LaTourette, because the medications were not working, Cannon was prescribed and received a surgically implanted morphine pump in July of 1998. Id. at 35-36. Cannon developed an infection from the insertion of the morphine pump, so the pump was not filled until September 28, 1998. Id. at 42. The morphine drip was started at a slow rate and the medication was increased slowly.
Dr. LaTourette never completed his treatment of Cannon. Dr. LaTourette last saw Cannon on October 12, 1998 because he moved his practice to Spartanburg, South Carolina. It was solely for the period of time during which Cannon was receiving treatment from Dr. LaTourette that Cannon sought total disability benefits. It was Dr. LaTourette's testimony that Cannon had been totally disabled for the entire time that she had been treated by him. Id. at 45. Dr. LaTourette's medical opinion was the basis for Cannon's claims for recovery before the IAB.
At the IAB hearing, the medical expert that testified for American was Dr. Lanny Edelsohn. Dr. Edelsohn is a neurologist who had seen Cannon four times, the first time being in 1990. In 1990, Dr. Edelsohn concluded that Cannon could return to work in a sedentary position. (Tr. at 58). He again saw Cannon on January 20, 1998, where he noted there had been no objective change to her condition since 1993. (Tr. at 61). And, as of February 1999, at Cannon's latest visit with him, Dr. Edelsohn still felt that there was no sensory change and that Cannon could work at a sedentary position. (Tr. at 64-65).
The sole issue before the TAB was whether Cannon was totally disabled from a medical standpoint from May 2, 1997 to October 12, 1998 (the full span of her treatment with Dr. LaTourette) even though a disability slip was not issued until January of 1998. The Board held that based on the testimony of Dr. Edelsohn, Cannon did not meet her burden of proof that her pain was of such severity as to render her totally disabled.
Cannon has appealed the ruling of the JAB, claiming that the Board committed legal error by failing to consider Cannon's surgical procedures and hospitalizations when finding that she was not totally disabled. American has filed this Motion to Affirm claiming that the Cannon's appeal is without merit and should be dismissed.
STANDARD OF REVIEW
Pursuant to Superior Court Civil Rule 72.1, a Motion to Affirm may be granted where it is manifest on the face of the appellant's brief that the appeal is without merit because: (1) the issue on appeal is clearly controlled by settled Delaware law; (2) the issue on appeal to this Court is factual, and clearly there is sufficient evidence to support the jury verdict or findings of fact below; (3) the issue on appeal from a commission or board is factual, and there is substantial evidence to support the findings of fact below; or (4) the issue on appeal is one of judicial or administrative discretion and clearly there was no abuse of discretion. Super. Ct. Civ. R. 72.1; Wallace v. Alberici Construction Co., Del, Super., C.A. No. 98A-11-007, Quillen, J. (Apr. 22, 1999); Rodel, Inc. v. Johnson, Del. Super., C.A. No. 97A-04-014, Carpenter, J. (May 1, 1998).
DECISION
The crux of Cannon's appeal is that the Board did not consider that Cannon was eligible to receive total disability during the periods that she was hospitalized and recovering from hospitalization. Cannon argues it was legal error for the Board not to consider all aspects of her disability in its decision.
Cannon argued to the Board that she was only seeking total disability limited to the time period of May 2, 1997 through October 12, 1998, which is the entire period of time that she was receiving treatment from LaTourette. (Tr. at 3). The Board, in its discretion, agreed with the medical opinion of American's doctor, Dr. Edelsohn, over that of Cannon's doctor, Dr. LaTourette. Dr. Edelsohn testified that the diagnostic tests from 1987 through 1998 were essentially normal outside of the post operative changes. (Tr. at 66). The Board determined that Dr. Edelsohn's opinion was based on not only his own observations before, during and after Dr. LaTourette's period of treatment, but also on an extensive review of medical records which Dr. LaTourette did not see. (See LaTourette Dep. at 73). Dr. Edelsohn opined that Cannon's position with respect to total disability had not changed since 1990. Clearly, the Board is entitled to accept the medical testimony of one expert over another. Standard Distributing Co. v. Nally, Del. Supr., 630 A.2d 640, 646 (1993). If the Board accepted Dr. Edelsohn's opinion that Cannon was able to work at a sedentary position through the entire time period, then the question of total disability for intermittent hospitalization would have to be separately addressed if it was legitimately argued before the IAB.
The post operative changes indicate that were was a small degree of scar formation at the place where the 1987 surgery occurred.
But, in this case, it at least appears that Cannon was exclusively seeking recovery for the entire time frame and was not seeking total disability for intermittent hospitalization. Cannon's attorney states "[i]t is our sole position that she is medically, totally disabled for that entire period of time [May 2, 1997 — October 12, 1998] due to the severe subjective complaints." (Tr. at 150). The Board held that there was little objective evidence to support Cannon's claim. (IAB Op. at 12). Cannon did not clearly argue in the alternative that if full disability benefits for the entire period of time were unwarranted that at least short intervals of disability benefits should be awarded for the time that Cannon was hospitalized. On appeal, Cannon argues that the Board's ruling clearly indicated that it would not consider the reasonableness of the morphine pump as it related to the total disability issue, as well as the spinal cord stimulator. In effect, Cannon argues that the Board should have considered the issue even though it argued the issue, at best, peripherally.
Cannon argues correctly that the Board has a statutory duty to rule on each issue presented. Turner v. Bennett's Action Glass, Del. Super., C.A. No. 96A-06-002, Del Pesco, J. (Oct. 1, 1998). In Turner, the Board did not rule on points that Turner addressed in his Petition, opening statements and evidence, and therefore, the Board was subsequently reversed. Id. The situation is different in this case. Cannon argues that it presented the question of disability for the hospital stays and recovery periods as part of its case before the Board. But, it seems from the transcript that Cannon did not fully make out a separate argument for total disability as a result of intermittent hospital stays. In fact, Cannon only cites to one place in the record where she argues that she was disabled as a result of a hospitalization. (Tr. at 149), The record as a whole reflects virtually no argument by Cannon that she should be compensated as a totally disabled for the limited periods of time that she remained hospitalized.
It is clear that the Board can accept the testimony of Dr. Edelsohn over that of Dr. LaTourette. But it is also clear that Cannon was hospitalized as a result of her continuing back pain. The Opening Brief asks this Court to find "Cannon was totally disabled as a matter of law during her hospitalizations." Cannon "further requests that the Court remand this case to the Industrial Accident Board for a determination as to the period of total disability when Cannon was recovering from her surgical procedures." (Opening Br. at 16). The Employer in its Motion to Affirm suggests that Cannon is not entitled to such relief because the issue was not properly raised below and at least suggests the evidentiary base for such an award is lacking in the present record.
The Court finds that, insofar as the claim before the Board was more extensive than the periods of hospitalizations and recovery from surgical procedures, the Motion to Affirm has merit and should be granted. Insofar as the appeal asserts the Board erroneously declined to consider a lesser included claim for only the periods of hospitalization and recovery from surgical procedures, the Court finds the Motion should be explored further.
It does not seem to the Court that the Appellant Cannon should be entitled to a further hearing before the JAB to supply evidence as to the dates which would attach to any lesser included claim. If there is no evidence to support those dates in the present record, then it seems to me that the Employer has a valid argument, i.e. the Claimant went before the Board on an all or nothing basis for the entire period of Dr. LaTourette's treatment and lost without pursuing or supplying an evidentiary basis for a lesser included claim. Out of an abundance of caution. Cannon should have another opportunity to pinpoint the lesser included claim from the present record. Consequently, before the Employer's Brief is filed, the Court will require Cannon to file a supplemental letter detailing and setting forth the dates of disability from the present record for what I have called the lesser included claim. Such supplemental letter should be filed within one week and the Employer may respond within a week of Cannon's filing. IT IS SO ORDERED. Until the supplemental letters have been filed, the Court will withhold judgment on the Motion to Affirm.
Sincerely,
William T. Quillen