Opinion
C.A. No. 00a-07-005WCC
Submitted: March 14, 2001
Decided: June 27, 2001
Appellant Michael F. Wykpisz's Appeal from the Industrial Accident Board Decision. Affirmed.
Michael F. Wykpisz, Pro Se Appellant.
Anthony M. Frabizzio, Esquire, Attorney for Appellee, Helmark Steel.
ORDER
This 27th day of June 2001, after consideration of Michael F. Wykpisz's (the "Appellant") appeal from the decision of the Industrial Accident Board (the "Board"), it appears that:
1. On February 17, 1998, the Appellant sustained an injury to his back and right shoulder while working as a steel fitter for Helmark Steel (the "Employer"). The injury was acknowledged as a compensable work injury by the Employer and the Appellant was awarded total disability. On March 18, 1998, the Employer filed a termination petition and on October 26, 1998, the Board granted the Employer's Petition. The Appellant subsequently filed a petition for compensation for permanent impairment benefits in the amount of 5% to the right upper extremity, 3% to the cervical spine, and medical expenses. The Board held a hearing on June 5, 2000 and heard testimony from the Appellant and two medical experts, Dr. Ufberg, the Appellant's treating physician, and Dr. Baitch, an expert testifying on behalf of the Employer. The Board, agreeing with Dr. Baitch's testimony, found that the work injuries sustained on February 17, 1998 did not result in permanent impairment. The Board also found the Appellant's prescription expenses and ongoing treatment to be unreasonable and unnecessary. The Appellant appeals the Board's decision.
Pursuant to 19 Del. C. § 2346, Dr. Ufberg and Wilmington Pain and Rehabilitation Center were made parties to this action by the Appellant because they are medical providers whose expenses the Board found unreasonable and unnecessary. Neither Dr. Ufberg nor Wilmington Pain and Rehabilitation Center are participating in this Appeal.
Appellant was paid a rate of four hundred and six dollars a week with a corresponding compensation rate of two hundred seventy dollars and sixty eight cents.
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 Board's findings and conclusions. The Court does not sit as trier of fact with authority to weigh evidence, determine questions of credibility, nor make its own factual findings and conclusions. Weighing the evidence and determining questions of credibility, which are implicit in factual findings, are functions reserved exclusively for the Board. Where the medical evidence is in conflict, the Board is free to accept the testimony of one expert over contrary opinion testimony, and the substantial evidence requirement would be satisfied. Only where there is no satisfactory proof in support of a factual finding of the Board may this Court overturn it.
DiSabatino Bros. Inc. v. Wortman, Del. Supr., 453 A.2d 102 (1982).
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64 (1965).
Breeding v. Contractors-One-Inc., Del. Supr., 549 A.2d 1102, 1106 (1988); Conner v. Wells Fargo, Del. Super., C.A. No. 92A-11-006, Goldstein, J. (Oct. 4, 1994)(ORDER).
Carpenter v. Mattes Electric, Del. Super., CA. No. 96A-07-005, Quillen, J. (Apr. 9, 1997) (Letter Op.) at 3.
Id.
3. During the hearing, the Appellant testified that several days after the work accident he sought medical treatment from Dr. Cho, a chiropractor, and subsequently was referred to Dr. Singh. The Appellant was seen by Dr. Singh on a single occasion who, after examining the Appellant, prescribing an anti-inflammatory drug and providing a medical note for work, referred the Appellant to Dr. Bandera, who specialized in pain management. Dr. Bandera diagnosed the Appellant with a right shoulder injury resulting from the February 17, 1998 work accident, but after several days of treatment Dr. Bandera allowed the Appellant to return to light duty work. The Appellant than sought treatment from Dr. Ufberg on March 10, 1998.
February 17, 1998, he and a co-worker were carrying a 27-foot long steel beam when the co-worker let go of the beam and the weight of the beam shifted onto the Appellant.
Dr. Ufberg, also a specialist in pain management, testified that he had not treated the Appellant prior to the February 17, 1998 work accident. Upon his first examination of the Appellant, Dr. Ufberg found him "temporarily totally disabled from all work." Dr. Ufberg opined the Appellant had sustained a right trapezius strain, right posterior shoulder sprain, cervical thoracic lumbo sacral strain and fibromyalgia. Dr. Utberg placed the Appellant on a schedule of physical therapy and prescribed Percocet for the Appellant's pain. Despite the treatment, the Appellant continued to complain of significant pain. Dr. Ufberg opined that the Appellant sustained a 5% permanent impairment to his right upper extremity and a 3% impairment to his cervical spine resulting from the February 1998 work accident.
(Dr. Ufberg Dep. at 13.)
Dr. Ufberg continued to treat the Appellant when he sustained injuries from another accident while working for another employer in January of 1999.
Dr. Baitch, an orthopedic surgeon and expert for the Employer, first examined the Appellant on March 5, 1998 a few days before the Appellant sought treatment with Dr. Ufoerg. Dr. Baitch diagnosed the Appellant with a soft-tissue injury to the right girdle region. Dr. Baitch opined that with six weeks of medical treatment the Appellant should have recovered completely and the Appellant could return to work with sedentary restrictions. He testified that medications, such as anti-inflammatories and muscle relaxants, would have been appropriate for up to twelve weeks after the accident but narcotic medication was unnecessary. He agreed that the Appellant was likely suffering from posterior shoulder and right trapezius strain but disagreed with Dr. Ufberg's diagnosis of cervical thoracic, lumbar strain and fibromyalgia. He explained that he found no objective findings to support these diagnosis and fibromyalgia requires widespread pain in 11 of 18 possible tender areas "on both sides of the body, above and below the right waist" for over a three month time span and could not be diagnosed several days after an injury.
Dr. Baitch conducted four physical examinations on the Appellant.
(Dr. Baitch Dep. at 16.)
(Dr. Baitch Dep. at 25.)
(Dr. Baitch Dep. at 22-25.)
Dr. Baitch noted that the Appellant demonstrated "positive signs of functional overlay whether it's malingering, or exaggeration, or some other psychiatric diagnosis." Dr. Baitch was unable to locate any American Medical Association Guides (" AMA Guides") which would give impairment ratings based on the pain complaints of the Appellant. In fact, Dr. Baitch testified that "all four of his examinations were essentially normal in terms of objective findings." However, Dr. Baitch, relying solely on Appellant's subjective complaints, found that the Appellant had sustained 3% permanent impairment to the right upper extremity resulting from the February 1998 work accident, and a 3% permanent impairment to the cervical spine, as a result of the unrelated January 1999 work accident.
(Dr. Baitch Dep. at 22.)
(Dr. Baitch Dep. at 38.)
The Appellant testified that he had suffered several other injuries prior to and following the work accident on February 17, 1998. In 1991, a ladder fell on both his back and head. In January 1999, the Appellant was involved in an unrelated slip and fall work accident, where he injured his back, neck, wrist, and ankle.
4. After the hearing, the Board accepted Dr. Baitch's testimony and held that the Appellant sustained soft- tissue injuries from the February 17, 1998 work accident that should have been resolved in several weeks. The Board refused to award further medical expenses because the Employer had already paid compensation for medical treatment through June 1998 and prescriptions covering more than twelve weeks. The Board also found that Appellant did not sustain 3% impairment to the right shoulder because both doctors based their ratings on the Appellant's subjective complaints which the Board found were not reliable and not on objective findings supported by AMA Guides. The Board further found that the Appellant failed to establish permanent impairment to the cervical spine as a result of the February 1998 work accident.
5. The Court finds that there is substantial evidence in the record to support the Board's decision to limit the Appellant's medical treatment and deny his permanency claim. The Board accepted Dr. Baitch's expert opinion, and it is free to accept the medical testimony of one expert witness over that of another. Furthermore, absent a clear error of law or fact, the Court will not interfere with the Board's credibility determination. This is simply a case where the Board found more credible the findings of Dr. Baitch and there is clearly evidence in the record to support this conclusion. The Court accepts the well reasoned decision of the Board and since the Appellant had already been compensated for treatment that Dr. Baitch testified was reasonable and medically necessary, no additional compensation was warranted. Furthermore, since the Board found the Appellant's subjective complaints to be unreliable, it was appropriate for them to discount the permanency ratings provided by the doctors since they were solely based upon these unreliable complaints. The Board's actions are supported by the record and will not be disturbed by the Court.
Simmons v. Delaware State Hosp., Del. Supr., 660 A.2d 384, 388 (1995).
Id.
6. Based on the reasons set forth above, the decision of the Industrial Accident Board is AFFIRMED.
IT IS SO ORDERED.