Opinion
C.A. No. 06A-11-003 JTV.
Submitted: June 20, 2007.
Decided: September 28, 2007.
Upon Consideration of Appellant's Appeal From Decision of the Industrial Accident Board.
AFFIRMED.Walt F. Schmittinger, Esq., Schmittinger Rodriguez, Dover, Delaware. Attorney for Appellant.
Robert H. Richter, Esq., Elzufon, Austin, Reardon, Tarlov Mondell, Wilmington, Delaware. Attorney for Appellee.
OPINION
The claimant below, Timothy Briney ("claimant"), is the Appellant in this action. The claimant appeals the November 9, 2006 decision of the Industrial Accident Board ("Board"), which denied the claimant's Petition to Determine Additional Compensation Due. On appeal, the claimant contends that the Board erred in failing to find that the claimant's disability was the result of a recurrence of a compensable industrial injury. For the reasons which follow, the decision of the Board is affirmed.
Briney v. M.A. Kimball Masonry Contractors, IAB Hearing No. 983489 (November 9, 2006).
FACTS
In 1989, the claimant sustained a low back injury while working for M A Kimball Masonry Contractors ("Kimball"), as a laborer. Dr. Nidia Yanez performed low back surgery on the claimant, and the claimant returned to work. In September of 1992, the claimant sustained a second industrial injury while employed at Kimball. Dr. Michael Mattern ("Dr. Mattern") treated the claimant following his second industrial injury. The treatment was conservative, but involved a period of total disability. Subsequent to the period of total disability, the claimant returned to work at Kimball. Shortly after returning, the claimant left Kimball and went to work at Farm Fresh. Eventually, the claimant returned to Kimball where he worked in a position that was physically less demanding than the one he previously held. The claimant quit Kimball again in 1996. Following his second stint at Kimball, the claimant held a few odd jobs, but has been unemployed since 1997.Although the claimant had symptoms from time to time, he received no medical treatment for his back from 1994 to 2004. In December 2004, the claimant returned to Dr. Mattern for treatment of his low back after he woke up one morning and decided he `could no longer tolerate the pain.' Dr. Mattern treated him with injections and physical therapy. Dr. Mattern also referred the claimant to Dr. Ganesh Balu ("Dr. Balu"), a pain management specialist, who treated him from December 2004 until March 2006, when claimant moved to Pittsburgh, Pennsylvania. Currently, the claimant is seeking treatment from his primary care physician in Pennsylvania.
On September 30, 2005, the claimant filed a Petition to Determine Additional Compensation Due seeking workers' compensation benefits for recurrence of total disability and associated medical expenses. On October 16, 2006, the Board held an evidentiary hearing on the petition.
Dr. Balu, who treated the claimant from December 29, 2004 to March 2006, testified by deposition on behalf of the claimant at the hearing. In his opinion, the claimant's total disability since December 29, 2004 is causally related to his 1989 and 1992 industrial accidents. In rendering his opinion, Dr. Balu reviewed some of Dr. Mattern's treatment records. Dr. Mattern diagnosed the claimant with chronic low back pain and lumbar radiculopathy after examining him on December 6, 2004. Dr. Mattern took the claimant out of work at that time for a period of at least three months. An MRI in December 2004 showed the history of a laminectomy and a right-sided herniated disk at L4 — 5 with some mass affect of the dural sac and also narrowing of neural foramen. According to Dr. Balu, the results of the MRI could be expected from the claimant's previous surgery. An MRI taken in January 2006 showed the same results as the December 2004 MRI. Dr. Balu agreed that Dr. Mattern's findings in 1994 and 2004 had not really changed from an objective standpoint. Dr. Balu's diagnosis was chronic pain, post-laminectomy syndrome, lumbar facet, and lumbar radicular symptoms. Dr. Balu's treatment included taking the claimant out of work, which was consistent with Dr. Mattern's recommendation.
Dr. Robert Keehn ("Dr. Keehn"), a board-certified orthopedic surgeon, testified by deposition on behalf of Kimball at the hearing. Dr. Keehn examined the claimant on July 21, 2005. In conjunction with his examination, Dr. Keehn reviewed the claimant's relevant medical records. He believes that the claimant is physically capable of working full-time in a sedentary capacity and that his treatment and total disability period since 2004 are unrelated to the industrial accidents. Specifically, Dr. Keehn reached the opinion that the claimant suffered an industrial injury in 1989, for which he underwent surgery, and another in 1992 that amounted to a sprain or strain to the low back. Noting that the claimant had not sought medical treatment for ten years prior to his visit with Dr. Mattern in 2004, Dr. Keehn believes that the claimant's current complaints are related to degenerative disease of the lumbar spine or arthritis and are not causally related to the prior industrial accidents.
After considering the evidence presented at the hearing, the Board rendered its decision on November 9, 2006. In its decision, the Board denied the claimant's Petition in its entirety. Specifically, the Board held that the claimant had failed to prove that his symptoms, treatment, and total disability period since 2004 were causally related to either of his industrial accidents.
Thereafter, the claimant filed a timely appeal to this Court. On appeal, the claimant contends that the Board erred in failing to find that his disability was the result of a recurrence of his industrial injury. Additionally, the claimant argues that the Board erred when it improperly considered unsupported allegations of the claimant's alleged alcoholism in rendering its decision.
STANDARD OF REVIEW
The scope of review for an appeal of an IAB decision is limited to examining the record for errors of law and determining whether substantial evidence is present on the record to support the Board's findings of fact and conclusions of law. When the issue raised on appeal from the IAB is exclusively a question of the proper application of the law, review by this Court is de novo. However, this Court should defer to the "experience and specialized competence of the agency" in its findings of fact. "Substantial Evidence" is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. On appeal, the court does not "weigh the evidence, determine questions of credibility, or make its own factual findings." The court is simply reviewing the case to determine if the evidence is legally sufficient to support the agency's factual findings.
Histed v. E.I. DuPont de Nemours Co., 621 A.2d 340, 342 (Del. 1993); Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
Porter v. Insignia Mgmt. Group, 2003 Del. Super. LEXIS 360, at *8.
DEL. CODE ANN. tit. 29, § 10142 (2007).
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
Johnson, 213 A.2d at 66.
ILC of Dover, Inc. v. Kelley, 1999 Del. Super. LEXIS 573, at *3.
DISCUSSION
At the hearing, Kimball accepted the compensability of the claimant's 1989 and 1992 industrial accidents, but argued, however, that the medical treatment and total disability period since 2004 were not causally related to his industrial accidents. The Board agreed. On appeal, the claimant contends that the Board erred when it failed to find that he experienced a recurrence of total disability, and the Board's decision is not supported by substantial evidence. Additionally, he argues that the Board improperly considered unsupported allegations of his alcoholism in rendering its decision.I. The Board's decision to find that the claimant did not experience a recurrence of total disability was supported by substantial evidence.
In an IAB hearing, the claimant bears the burden at the hearing of showing a recurrence of total disability. In a workers' compensation context, a recurrence is the "return of an impairment without the intervention of a new or independent accident." The Board concluded that the claimant did not meet his burden, upon finding that the claimant's medical treatments and total disability were not causally related to the previous industrial accidents.
Cherrix v. Skating Club of Wilmington, 2004 Del. Super. LEXIS 160, at *7.
Walden v. Georgia-Pacific Corp., 1999 Del. LEXIS 327, at *10 (quoting DiSabatino Sons, Inc. v. Facciolo, 306 A.2d 716, 719 (Del. 1973)).
A. The Board properly applied the Successive Carrier Rule.
The claimant now contends that the Board erred as a matter of law when it agreed with the Employer's expert, Dr. Keehn's, finding. Claimant believes that the Board's ruling was inconsistent with the Successive Carrier Rule and the decision in Pa. Mfrs. Ass'n Ins. Co. v. Home Ins. Co., hereinafter PMA.
584 A.2d 1209 (Del. 1990).
In the claimant's 1996 IAB hearing, the Board found that the 1992 accident aggravated the claimant's post 1989 condition. The Employer accepted the compensability for these industrial accidents. The Employer also produced medical evidence that the claimant's treatment and total disability since 2004 were not causally related to those industrial accidents, but were in fact related to a degenerative disk disease. The claimant's reliance on the Successive Carrier Rule and the PMA decision are not correct, precisely because the Board found that the present injury is not causally related to the industrial accidents.
This finding was supported by all of the medical experts.
The rule in PMA maintains that if an injured worker has a recurrence of a compensable accident, then he may apply for additional compensation under 19 Del. C. § 2347. When there is a recurrence, the liability falls on the original insurer or employer. If the injury is not a recurrence of the original injury but is an aggravation of that injury by a new accident then the liability will fall on the insurer or employer at the time of the new i njury. Delaware Workmen's Compensation Law "assure[s] compensation for work-related injuries without regard to fault."
Pa. Mfrs. Ass'n Ins. Co. v. Home Ins. Co., 584 A.2d 1209, 1212 (Del. 1990).
Id.
Id.
Id. at 1214 (quoting Kofron v. Amoco Chemicals Corp. 441 A.2d 226, 231 (Del. 1982) (emphasis added)).
The claimant urges this Court to find that, as a matter of law, his injuries are work-related because the claimant had compensable injuries in the same area of the body. Claimant's argument oversteps the logic of the Successive Carrier Rule. The finding that an employer will be liable for an injury and its recurrence or the aggravation of an injury does not then purport to mean that the employer will be held liable for any injury in that region of the body, even if there is substantial evidence that the injury is not causally related. Thus when the Board concluded that the claimant's current injury is not causally related to the earlier compensable injury, the Board correctly severed Kimball's liability for this new injury.
B. The Board's decision is supported by substantial evidence
It is the responsibility of the Board to weigh the credibility of the witnesses and draw reasonable inferences to determine the facts. As the factfinder, "it is the exclusive function of the Board to address the credibility of the witnesses. Therefore, if there is substantial evidence to support the Board's decision, the court will not substitute its judgment for that of the Board.
McDowell v. Johnson Controls, 2004 Del. Super. LEXIS 199, at *5 (citing Coleman v. Department of Labor, 288 A.2d 285, 287 (Del. 1972)).
Id. at *13 (citing Johnson, 213 A.2d at 64).
Id. at *15 (citing Olney, 425 A.2d at 613).
There was substantial evidence in the IAB hearing to justify a conclusion that the claimant did not experience a recurrence of total disability attributable to the prior compensable injury. In support of that finding, Dr. Keehn opined that the claimant's current medical problems are related to a degenerative disk disease. Both experts agreed upon the objective findings that claimant's condition did not change objectively from 1994 to 2004. However, the experts interpreted those findings differently. Dr. Balu, claimant's expert, heavily relied on the claimant's subjective medical history in his opinion to state that claimant's condition had worsened and that it was causally related to the industrial accident. Dr. Keehn disregarded the claimant's subjective medical history, because he found the claimant to be unreliable.
When the medical testimony is in conflict, the Board may determine which physician is more credible. The Board found Dr. Keehn's opinion more persuasive for the following reasons. Claimant had not sought medical treatment for more than ten years between the time of the second industrial injury and the time that he returned to Dr. Mattern in December 2004. The Board believed that claimant recovered from his industrial injury because he returned to work for a period after his second industrial accident. The claimant was working some in 2004. The MRIs showed no signs of a worsened condition. Lastly, the Board found no objective change in claimant's condition since 1994. This piece of evidence the Board found most significant in determining that the claimant's injuries where not causally related to the previously compensable injury.
Standard Distributing Co. v. Nally, 630 A.2d 640, 646 (Del. 1993) (citing DiSabatino, 453 A.2d at105).
Given the numerous factors supporting Dr. Keehn's opinion, the Board's finding that claimant had not met his burden of proof was based on substantial evidence.
II. The Board did not err when it considered the claimant's credibility as part of the factors in evaluating the evidence presented by the medical experts.
The Board is free to assess the claimant's credibility in determining whether to believe his subjective complaints made to Dr. Balu. In the claimant's case, the only major disagreement between the medical experts about causation was with the proper weight to put on the claimant's subjective complaints. In order for the Board to determine the weight to be given to the opinion of Dr. Balu, it needed to determine the credibility of the doctor's source of information; the claimant. The Board may reject a medical expert's opinion on causation if that opinion is largely based on the claimant's subjective medical history and the Board finds the claimant to be not credible.
Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988); McDowell, 2004 Del. Super. LEXIS 199, at *14.
Id..
The Board found that Dr. Balu largely based his opinion on the claimant's subjective complaints of pain. Even though Dr. Balu asserted that claimant's alleged alcoholism was no longer an issue, the Board was free to reject this assertion and to accept Dr. Keehn's opinion that claimant was still dealing with alcoholism. The Board considered the claimant's evasiveness to Dr. Keehn's questioning about his prior surgery with Dr. Yanez and his alleged alcoholism. Both of these issues were important to his condition and treatment. The Board ultimately concluded that the claimant was not credible, and that Balu's opinions were flawed because of the doctor's heavy reliance on claimant's subjective complaints of pain.
Standard Distributing Co., 630 A.2d at 646 (citing DiSabatino, 453 A.2d at 105).
The Board was proper in including claimant's credibility in the evaluation of the evidence presented by Dr. Balu. In McDowell v. Johnson Controls, the Hearing Officer found that McDowell was not credible. The Hearing Officer therefore rejected the doctor's opinion because it was based upon McDowell's subjective complaints. The court maintained that a "medical expert's opinion as to causality may be rejected if the trier of fact finds that the opinion is based in large part on the claimant's subjective history and the claimant is found to be not credible." McDowell is on point with the present issue of whether it was proper for the Board to reject Dr. Balu's opinion given it's reliance on claimant's subjective history.
McDowell, 2004 Del. Super. LEXIS 199, at *3.
Id. at *2.
Id. at *1.
Id. at *3 (citing Breeding, 549 A.2d at 1104).
The claimant relies, in part, upon the case of Lemmon v. Northwood Construction. Claimant points to the court's statement there that "[s]ince the Board expressly referred to evidence of Lemmon's alleged drinking habits, but has provided no other finding which could be the basis for rejecting his testimony, we assume that the evidence was used to determine credibility." In Lemmon, the court found that it was improper for the Board to determine Lemmon's credibility based on innuendoes of alcoholism when the claimant's testimony was uncontroverted. In contrast, the Board in this instance determined that the claimant's credibility not on his alleged drinking habits, but on what it concluded to be a failure to be fully forthcoming with Dr. Keehne and his medical record. Lemmon is distinguishable. The Board chose to put more weight on one medical expert over another based on claimant's credibility rather than to reject a claimant's uncontroverted testimony based on unsupported allegations.
690 A.2d 912 (Del. 1996).
Lemmon v. Northwood Construction, 690 A.2d 912, 913 (Del. 1996).
Id.
The claimant did not initially report to Dr. Keehn his prior surgery with Dr. Yanez nor did he report his alleged alcoholism.
CONCLUSION
The Board, as the factfinder, relied on substantial evidence to conclude that claimant's current medical expenses and total disability period are not causally related to the industrial accident. The Board's finding that the claimant was not credible, and therefore, Dr. Balu's opinion was not reliable, were permissible findings based upon substantial evidence.The decision of the Board is affirmed.
IT IS SO ORDERED.