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noting that the Industrial Accident Board was "not free to accept [contested expert testimony as a basis of its determination] in isolation of all other evidence"
Summary of this case from Haggerty v. Bd. of Pension Trs.Opinion
C.A. No. 07A-01-007 PLA.
Submitted: May 9, 2007.
Decided: September 18, 2007.
ON APPEAL FROM THE INDUSTRIAL ACCIDENT BOARD, REVERSED AND REMANDED.
This 18th day of September, 2007, upon consideration of the appeal of Fidel San Juan from the decision of the Industrial Accident Board ("Board" or "IAB"), it appears to the Court that:
1. Fidel San Juan ("San Juan") began working at Mountaire Farms ("Mountaire") on January 31, 2003 where he deboned chickens with knives and scissors. To debone the chickens, San Juan bent his wrist until he could not bend it anymore. In January 2005, San Juan began to experience pain in his right wrist. Prior to that date, San Juan had not experienced any pain.
Docket 3 (Board Decision), p. 2; Docket 5, p. 2; Docket 6, p. 2.
2. In March 2005, San Juan visited his primary care physician, Dr. Julio Pena, in March 2005. He then returned to work in the same position until July 2005, when he switched to the lighter duty job of cleaning floors. San Juan cleaned floors until January 30, 2006, at which point he ceased working. Throughout this period, San Juan continued seeking treatment with Dr. Pena.
Docket 3, p. 2; Docket 5, p. 2
3. In January 2006, San Juan had an MRI performed and was referred to Dr. Edmund Carroll, an orthopedic surgeon. Dr. Carroll diagnosed San Juan with Kienbock's Disease and referred him to Dr. Richard DuShuttle, a board certified orthopedic surgeon. On January 27, 2006, San Juan met with Dr. DuShuttle, who recommended that San Juan undergo surgery.
Kienbock's Disease, also known as "avascular necrosis" or "AVN," is a "violation of the blood supply" to the wrist that causes the bone to die. Docket 5, p. 2.
Docket 3, p. 3; Docket 5, p. 2; Docket 6, p. 2.
4. San Juan underwent surgery by Dr. DuShuttle on March 15, 2006. Dr. DuShuttle prescribed San Juan a wrist brace after the surgery. In July 2006, San Juan underwent a second surgical procedure for removal of the pins implanted during the first surgery.
Docket 3, p. 3; Docket 5, p. 2; Docket 6, p. 2.
5. Following both surgeries, Dr. DuShuttle met with San Juan on August 29, 2006. Dr. DuShuttle recommended that San Juan work in a one-handed light duty position. Mountaire could not accommodate that request, so Dr. DuShuttle continued San Juan's total disability note until September 26, 2006. Dr. DuShuttle also recommended physical therapy, but San Juan did not follow through with the therapy as he was unable to afford it.
Docket 5, p. 2; Docket 6, p. 2.
Docket 3, p. 3; Docket 5, p. 3.
6. On March 22, 2006, San Juan filed a Petition to Determine Compensation Due with the Board, wherein he sought payment of medical expenses and total disability benefits related to his development of Kienbock's disease. The Board held a hearing on September 20, 2006, at which Dr. DuShuttle testified by deposition that San Juan's Kienbock's disease was causally related to his job duties with Mountaire. Dr. DuShuttle based his opinion on medical literature that recognized a high incidence of the disease in individuals with occupations involving repeated minimal trauma to the hand.
Docket 3, p. 5.
7. Also at that hearing, Dr. Errol Ger, a board certified orthopedic surgeon with a subspecialty in surgery of the hand, testified by deposition on behalf of Mountaire. Dr. Ger testified that the cause of San Juan's Kienbock disease is unknown and therefore could not be attributed to work at Mountaire. Dr. Ger relied upon the most current medical textbooks in forming his opinion that "no single factor can be cited for the development of Kienbock's disease."
Id., p. 6.
8. In rendering its decision, the Board found Dr. Ger's opinions persuasive and rejected the opinions of Dr. DuShuttle. Specifically, the Board acknowledged that the etiology of Kienbock's disease is unknown and that the definitive book on hand surgery, Green's Operative Hand Surgery, 5th Edition, published in 2005, states that there is no relationship between people who perform repetitive-type jobs and the disease. The Board also accepted Dr. Ger's findings because of his current training on Kienbock's disease. The Board discounted Dr. DuShuttle's conclusion that San Juan's work caused his injury because he had relied upon a 1997 article that Dr. Ger considered to have been based upon nothing other than speculation. As a result, the Board denied San Juan's petition because it found that he had failed to meet his burden of proving that he suffered an industrial injury due to his work at Mountaire.
Id.
For example, prior to his deposition, Dr. Ger spent four days at the annual meeting for the American Society for Surgery of the Hand and attended the session on Kienbock's disease. At that meeting, the physicians agreed that there has been no proof "in any way that trauma, repetitive trauma or activities of the wrist are responsible for the cause of Kienbock's disease." Id.
Specifically, the author of the article stated that repeated minimal trauma or a single acute episode to the hand "has grown as the most common reason for" Kienbock's disease. Id., p. 5. The Board accepted Dr. Ger's opinion, however, that this statement lacks any scientific basis. Id., p. 7.
Docket 3, p. 7-10.
7. San Juan has now appealed the Board's decision to this Court and argues that its decision is not supported by substantial evidence. In essence, San Juan argues that the Board erred when it determined that San Juan's employment was not a substantial factor in the development of his Kienbock's disease because the Board failed to consider the appropriate legal standard or any of the other record evidence indicating a causal connection. In response, Mountaire argues that the Board correctly chose to accept Dr. Ger's opinion and reject Dr. DuShuttle's opinion about causation because the Board, as the trier of fact, may accept testimony from one expert and reject the testimony of another expert where the medical testimony conflicts.
Docket 5, p. 4.
San Juan also argues that San Juan's employment at Mountaire was the "but for" cause of the development of his Kienbock's disease. Because there was no identifiable accident in this case, however, the Court finds that the "but for" standard is inappropriate. See State v. Steen, 719 A.2d 930, 932 (Del. 1998) ("[W]hen there is an identifiable industrial accident, the compensability of any resultant injury must be determined exclusively by an application of the `but for' standard of proximate cause. . . .In cases where a claimant is injured by the aggravation of a pre-existing condition and there is no identifiable industrial accident, however, causation is governed by the usual exertion rule."). Nonetheless, the Court finds that the Board erred when it failed to address Dr. Ger's testimony under the usual exertion rule as discussed hereinafter.
8. Appellate review of an IAB decision is limited. The Court's function "is confined to ensuring that the Board made no errors of law and determining whether there is `substantial evidence' to support the Board's factual findings." Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The Court "does not weigh the evidence, determine questions of credibility, or make its own factual findings." The "substantial evidence" standard means "more than a scintilla but less than a preponderance of the evidence." The Court must also give "a significant degree of deference to the Board's factual conclusions and its application of those conclusions to the appropriate legal standards." In reviewing the evidence, the Court must consider the record "in the light most favorable to the prevailing party below." The Court reviews questions of law de novo to determine "whether the Board erred in formulating or applying legal precepts."
Bermudez v. PTFE Compounds, Inc., 2006 WL 2382793, at *3 (Del.Super.Ct. Aug. 16, 2006).
Anchor Motor Freight v. Ciabottoni, 716 A.2d 154, 156 (Del. 1998).
Hall v. Rollins Leasing, 1996 WL 659476, at *2 (Del.Super.Ct. Oct. 4, 1996) (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)).
Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).
Bermudez, 2006 WL 2382793 at *3 (citing 29 Del. C. § 10142(d)).
Id.
Id.
9. "For medical expenses to be compensable, they must be reasonable, necessary, and causally related to the work accident." Both parties agree that San Juan's surgery in March, 2006 was reasonable and necessary. Therefore, the only disputed issue is whether San Juan's disease is causally related to his work at Mountaire.
Standard Distrib., Inc. v. Hall, 2006 WL 2714960, at *4 (Del.Super.Ct. Sept. 20, 2006).
Dr. Ger, who testified on behalf of Mountaire, stated that the wrist surgery was reasonable and necessary to treat San Juan's Kienbock disease. Docket 3, p. 6.
10. Where there is no specific accident causing an injury, compensation is determined by the "usual exertion rule." Under the "usual exertion rule," a claimant may recover workers' compensation benefits "as long as the ordinary stress and strain of employment is a substantial factor in proximately causing the injury." Under the "substantial factor" standard, the claimant has the burden of demonstrating through expert testimony that his employment was "a material element and a substantial factor in bringing it about[,]" even if the claimant had a pre-existing injury. Conversely, if the employer can demonstrate through expert medical testimony that the employee would have sustained the injury regardless of the usual stress and strain of employment, the employee's injury is not compensable.
State v. Steen, 719 A.2d 930, 932 (Del. 1998).
Id. at 933.
Id. at 935.
Id.
11. Where the medical testimony is in conflict, the Board may accept one expert opinion and reject the other so long as there is substantial evidence supporting both conclusions. In choosing one expert opinion over another, the Board must determine "the reliability of the sources on which the expert relied."
DiSabatino Bros. v. Wortman, 453 A.2d 102, 106 (Del. 1982); see also Adams v. F. Schumacher and Co., Inc., 886 A.2d 1277, at *2 (Del. 2005) (Table) ("When there are conflicting expert testimonies, the Board is free to choose to accept one and reject the other."); Reese v. Home Budget Ctr., 619 A.2d 907, 910 (Del. 1992) ("The Board, of course, was free to choose between the conflicting diagnoses of [two medical experts] and either opinion would constitute substantial evidence for purposes of appeal.").
Adams, 886 A.2d 1277 at *2.
12. For example, in Clements v. Diamond State Port Corp., the Board found the testimony of Dr. Townsend, a neurologist who testified that the claimant was only partially disabled, to be more persuasive than the testimony of Dr. King, the claimant's treating physician and a pain management specialist, who testified that the claimant was totally disabled.
831 A.2d 870 (Del. 2003).
On appeal, the Delaware Supreme Court determined that the Board did not err in accepting one expert's opinion and rejecting the other:
The weight to be given to the expert testimony of a treating physician, however, is for the Board to determine, as the trier of fact. In the absence of agreement between medical experts, the Board properly relied on all the record evidence to reach its determination to accept Dr. Townsend's opinion. . . . This Court has consistently held that it is the Board's function to resolve conflicts in medical testimony. . . . The Board set forth the factual basis for its conclusion that Dr. Townsend's testimony was more persuasive. Those factual findings are supported by the record.
Clements, 831 A.2d at 877 (citations omitted).
13. After reviewing the record, the Court concludes that the Board's decision to accept Dr. Ger's opinion and reject Dr. DuShuttle's opinion is not supported by substantial evidence. Specifically, the record reflects that San Juan was diagnosed with Kienbock's disease after working at Mountaire for nearly two years. San Juan's job involved bending his wrist to cut chickens "until he could not bend his wrist any more [sic]." In January 2005, San Juan "started noticing the palm of his hand hurt and then his wrist hurt and it has progressed ever since." Both Dr. DuShuttle and Dr. Carroll agreed that these complaints were consistent with Kienbock's disease. San Juan also stated that he had not experienced any pain before he began working at Mountaire. Moreover, the Board noted that it is "`pretty well accepted' in the medical literature that repetitive minimal trauma can cause Kienbock's disease, because the repetitive trauma violates the blood supply to the bone." Dr. Ger, on the other hand, disputed that repetitive trauma caused the disease but could offer no other basis for causation of San Juan's disease. At no time did Dr. Ger suggest that San Juan would have developed Kienbock's disease regardless of the usual stress and strain of employment. Indeed, the only evidence that San Juan's work was not a "substantial factor" in the disease's development was that the etiology is still unknown. Dr. Ger offered no opinion, other than a generalized statement about the disease's etiology, that suggested that San Juan's employment with Mountaire was not a substantial factor in the development of his disease. Only where the testimony on causation is supported by substantial evidence may the Board accept one opinion of an expert over another. Thus, though the Board was free to accept Dr. Ger's opinion about etiology, the Board was not free to accept his opinion in isolation of all other evidence, especially where Dr. Ger could offer no opinion as to what caused the claimant's Kienbock's disease.
Docket 3, p. 2.
id., p. 4
id., p. 5
id.
id.
Standard Distrib. Co. v. Nally, 630 A.2d 640, 646 (Del. 1993) (citing DiSabatino Bros., 102 A.2d at 105).
14. Moreover, while the Court must give "a significant degree of deference to the Board's factual conclusions and its application of those conclusions to the appropriate legal standards," the record indicates that the Board failed to apply the correct, if any, legal standard. The record reflects that San Juan offered substantial evidence establishing that his work was a "material element or substantial factor in bringing about" his disease. At that juncture, Mountaire had to demonstrate that San Juan would have developed Kienbock's disease regardless of the usual stress and strain of employment. At no time, however, did Dr. Ger state that San Juan's employment was not a material element in the development of his disease. At best, Dr. Ger's testimony on behalf of Mountaire established that there is no proof that his repetitive work caused or did not cause San Juan's disease. The Board, however, did not have to determine whether San Juan's employment actually caused the disease under the "usual exertion rule." Rather, the Board had to determine whether Dr. Ger's testimony established that San Juan would have developed the disease regardless of his work. Because the Board failed to address whether San Juan satisfied the "usual exertion rule" or whether Mountaire established that his injury would have occurred regardless of his employment, the Court finds that the Board failed to apply the correct legal standard.
Bermudez, 2006 WL 2382793 at *3 (citing 29 Del. C. § 10142(d)).
Steen, 719 A.2d at 935.
Id.
15. Mountaire relies upon Clements to argue that the Board properly accepted Dr. Ger's testimony. The Court, however, finds Clements to be distinguishable from the case at bar. In Clements, the Board found that there was substantial evidence supporting both doctors' opinions that the claimant was either partially disabled or totally disabled before finding the testimony of one expert more persuasive than the other. Here, Mountaire offered no evidence suggesting that San Juan would have developed his disease regardless of his employment. Though Dr. Ger was arguably more qualified to render an opinion about Kienbock's disease than Dr. DuShuttle, Dr. Ger at no time stated that San Juan would have developed his disease regardless of the usual stress and strain of his work. Thus, unlike the Board in Clements, the Board accepted Dr. Ger's testimony without finding any evidence that San Juan's employment was not a substantial factor in the development of his disease. While the Board has the sole authority to determine the credibility of witnesses and may accept one witness's testimony over another's, the Board can only do so where there is substantial evidence supporting both opinions. Upon review of the record, the Court finds that the Board's decision is wholly lacking any evidence that the usual stress and strain of San Juan's employment was not a material element in the development of his Kienbock's disease.
Specifically, the Board found Dr. Ger to be more qualified based on his training and specialization:
Dr. Ger is a hand surgeon and is extremely up-to-date on his training in issues related to hand surgery. He cited the most recent textbook on Kienbock's disease and attended a seminar on Kienbock's disease two days before his deposition. Dr. DuShuttle, on the other hand, is a qualified general orthopedic surgeon, but he does not specialize is [sic] the hand and relied on a review article in a journal from 1997. In this particular situation, the Board finds that Dr. Ger's opinion is more persuasive, given his specialty, focus of his medical practice, and extremely recent training on Kienbock's disease.
Docket 3, p. 8. The Board, however, had to determine whether San Juan's employment was a material element in the development of his disease. Despite the Board's finding that Dr. Ger was more qualified to testify about Kienbock's disease, Dr. Ger never stated that San Juan's employment was not a substantial factor in the development of Kienbock's disease. Dr. Ger, in fact, could not state with any certainty what caused San Juan's disease. Without substantial evidence that San Juan's employment did not lead to the development of his disease, the Board was not permitted to engage in a résumé contest and accept Dr. Ger's testimony.
16. The IAB decision of Adkins v. Lear Corp. is instructive. In Adkins, the Board rejected Dr. Ger's opinion and accepted the opinion of Dr. Kahlon, claimant's treating physician, that claimant's work of repeatedly stuffing foam into car headrests for her employer was a substantial factor in the development of her Kienbock's disease. Specifically, the Board accepted Dr. Kahlon's medical opinion that the cumulative repetitive stress of over six years of assembly line work caused minor compressions in her wrist that led to her being symptomatic. The Board also noted that the claimant was a credible witness, and her work was undisputedly repetitive. In rejecting the testimony of Dr. Ger, who testified on behalf of the employer, the Board noted that Dr. Ger "could only speculate that Claimant would have developed Kienbock's disease regardless of her work . . . and that she was forthright and credible at the defense medical examination." Because Dr. Ger could only provide a "generalized rationale" of the condition, the Board accepted Dr. Kahlon's opinion that her work was a cause of the development of her Kienbock's disease.
IAB Hearing No. 1283557 (Nov. 30, 2006). Mountaire objects to having this Court consider this case because it was decided after San Juan's decision and it was never argued before the Board. Docket 6, p. 9-10. In response, San Juan argues that Adkins has been included "for illustrative purposes due to its strikingly similar fact pattern as this case and this Court is certainly free to give it whatever degree of deference it sees fit." Docket 7, p. 6. The Court is aware that the Board had no opportunity to address Adkins in its decision. The similarity between the facts of Adkins and this case, however, persuades the Court that Adkins should be discussed because the decision demonstrates that the Board erred in this case by accepting Dr. Ger's testimony without considering any other record evidence. As a result, the Court mentions the Adkins decision to provide guidance to the Board on remand.
Adkins, IAB Hearing No. 1283557 at 11.
17. Though the Adkins case was not argued before the Board, the in-depth analysis in Adkins, contrasted with the analysis in this case, leads the Court to find that the Board's decision is not supported by substantial evidence. Unlike the Board in Adkins, the Board failed to mention the "usual exertion rule" at any point in its opinion and failed to address the evidence under that standard. Moreover, unlike the Board in Adkins, the Board in this instance accepted Dr. Ger's "generalized rationale" about the etiology of Kienbock's disease without considering the other record evidence, such as San Juan's credibility or causes for the development of San Juan's Kienbock's disease aside from his employment. While the Court is not suggesting that the decision in Adkins mandates that the Board reject Dr. Ger's testimony, the discussion in Adkins persuades the Court that the Board's failure to discuss the "usual exertion rule" in this case, and its failure to consider the record evidence, other than Dr. Ger's credentials, was error.
18. After reviewing the record, the Court is convinced that the Board's decision to accept Dr. Ger's opinion is not supported by substantial evidence. Simply stated, there is no evidence in the record offered by Mountaire that rebuts San Juan's claim that the usual strain and stress of his knife-cutting job was a substantial factor in the development of his Kienbock's disease. More importantly, at no point in its decision did the Board make a finding about whether San Juan's employment was a substantial factor in the development of his disease, as is required under Delaware law.
The Board stated that it accepted Dr. Ger's opinion "after studying all of the testimony[.]" Docket 3, p. 7-8.
See 29 Del. C. § 10128(b)(3) ("Every case decision of any agency shall be incorporated in a final order which shall include, where appropriate: . . . [c]onclusions of law. . . .") (emphasis added).
18. Accordingly, the decision of the Industrial Accident Board denying Fidel San Juan's petition for workmen's compensation benefits is REVERSED, and the cause is REMANDED to the Board for further consideration consistent with this Opinion.
IT IS SO ORDERED.