Summary
finding that when the "[Industrial Accident] Board's opinion does not indicate it considered this collateral evidence in rendering its decision," such admitted evidence constitutes "harmless error, if error at all."
Summary of this case from Imhof v. Del. Bd. of Med. Licensure & DisciplineOpinion
C.A. No. 05A-12-003 JTV.
Submitted: May 10, 2006.
Decided: August 31, 2006.
Upon Consideration of Appeal From Decision of the Industrial Accident Board. AFFIRMED.
Walt F. Schmittinger, Esq., and Magnolia Solano, Esq., Schmittinger Rodriguez, Dover, Delaware. Attorneys for Appellant.
Robert H. Richter, Esq., Elzufon, Austin, Reardon, Tarlov Mondel, Wilmington, Delaware. Attorney for Appellee.
OPINION
This is an appeal brought by Patrick Conley ("the claimant") from a decision of the Industrial Accident Board ("the Board") which denied his petition for compensation. He alleged that he was injured on the job while installing a window air conditioner in the employer's (Capital Homes) office. Capital Homes contends that the claimant was not injured on that occasion or any other relevant occasion while employed by Capital Homes. The Board agreed with the employer.
FACTS
The claimant began working for Capitol Homes on or about May 23, 2005. Claimant testified at the hearing that all his previous jobs involved heavy lifting but later testified that he worked as a manager of a Papa John's restaurant at one time. Claimant claimed he often worked overtime by skipping his lunch break, however, this was disputed by his boss, Ms. Robin Miller. She testified that often he was sent home early if it was raining or if there was no work. On June 10, 2005, Ms. Miller asked the claimant to install an air conditioner. Claimant testified he was required to perform the installation without assistance but later said that Mr. Daniel Carey helped. Ms. Miller also testified that Mr. Carey helped. The claimant testified he hurt his back while installing the air conditioner and reported this to his employer. However, Ms. Miller claimed he did not. Claimant completed his work for the day. He testified he spent the weekend resting and returned to work on Monday, June 13, 2005. Ms. Miller testified the claimant told her he had gone fishing over the weekend. When she advised him he was to set up a house, he grabbed his back and said it hurt but he did work a full day.
On Tuesday, June 14, 2005, the claimant and Mr. Carey were sent to install anchors and skirting on a home. The claimant testified at the hearing that he had injured his back when Mr. Carey lost hold of one of the two handles of the anchor causing claimant to wrench his back. At the end of the day, claimant returned to the office and did not complain to Ms. Miller of back pain. The following day, the claimant left a message on Ms. Miller's voice mail advising her he had injured his back. Ms. Miller testified that when she and claimant spoke later in the day, he told her he could not recall how he had injured his back but knew it happened on Friday. It was not until she reviewed his work lists from Friday that he claimed the injury occurred while installing the air conditioner. She claimed he did not tell her about the incident with the anchors. She told him he should go to the hospital, however, claimant's attorney advised him to see Dr. Richard P. DuShuttle.
Dr. DuShuttle testified on the claimant's behalf. The doctor saw claimant initially following a 1999 automobile accident for injuries to his low back and left knee. The treatment resulted in back surgery in March 2000. Claimant did well after surgery. On August 31, 2000 the claimant had left knee surgery in connection with the same accident. By November 2000 claimant was discharged with permanent light-duty restrictions imposed.
In 2001 Dr. DuShuttle saw cliamant for episodic low back pain complaints. In 2002 the claimant saw the doctor regarding his right knee following an industrial accident on September 23, 2002 while working at Papa John's. The claimant required another knee surgery. Dr. DuShuttle saw claimant again on January 7, 2004. The doctor felt the claimant had reached a stable point and discharged him from continuing care. The doctor testified he saw claimant on February 5, 2005 for another motor vehicle accident, which occurred on February 2, 2005 and the claimant complained of pain in the middle of his back.
On June 15, 2005, claimant telephoned Dr. DuShuttle's office stating he re-injured his back. The claimant saw the doctor on June 17, 2005 and told Dr. DuShuttle he hurt himself on June 10, 2005, installing an air conditioner. He had pain radiating up into the scapula and trapezius, and numbness and tingling in the left leg. He also had a positive contralateral straight leg raise test. The doctor's initial diagnosis was a lumbar strain with radiculopathy. Dr. DuShuttle prescribed medications and a sequential stimulator was provided to minimize pain and spasm. Claimant was prescribed muscle relaxers, pain relievers, and an anti-inflammatory. An MRI was done on June 22, 2005. A comparison of this MRI to one from 2001 revealed a new herniation at the L5-S1 level.
On June 30, 2005, Dr. Dushuttle saw the claimant again. Claimant said his symptoms were slightly better but he still exhibited an antalgic gait, was not working, and was having numbness and tingling radiating just below the left knee. He was continued on medications, physical therapy was prescribed, and he was given a no-work note.
On July 22, 2005, claimant reported to Dr. DuShuttle that he continued to have pain down the left leg and it seemed to have worsened. The range of motion exam revealed limited flexion and he was having guiding and tightness. He was continued on conservative treatment with physical therapy, was given additional prescriptions, and kept out of work.
On August 30, 2005, the claimant reported he had improved. Physical examination showed mild stiffness, sciatic notch tenderness, left buttock pain, pain in the left leg, and positive tightness and splinting. He reported he was unable to go to physical therapy because of insurance issues, and the doctor told him this would jeopardize his recovery. Celebrex was prescribed but the doctor did not feel surgery was necessary. Dr. DuShuttle recommended permanent light duty work. The claimant's symptoms and the MRI findings were, in Dr. DuShuttle's opinion, related to the lifting incident described by claimant.
On September 20, 2005, Dr. DuShuttle again examined claimant and the contralateral straight leg raise had returned. The claimant had a positive straight leg raise on the left, range of motion was sixty degrees, there was pain, tightness, and guiding and splinting, and tightness. He was given another note recommending light duty.
On October 24, 2005, the claimant was still not in physical therapy and his back was unchanged. He had pain down the left buttocks and mild straight leg, tightness, and guiding and splinting. At that point, the doctor felt claimant had plateaued. The doctor recommended permanent light duty.
Dr. DuShuttle again saw claimant on October 28, 2005 because he had an acute flare-up and severe low back pain when he twisted his back getting out of his truck. The physical examination revealed positive sciatic notch tenderness on the left, positive straight leg raising on the left and mild on the right, tightness, and guiding and splinting. He had subjective leg radicular complaints and tenderness in the left paravertebral muscles of the low back. His condition was objectively worse than it had been four days earlier, and the physical examination corroborated the claimant's report that he had a flare-up. The doctor prescribed Ultracet, ordered an MRI, and referred the claimant for chronic pain management. Dr. DuShuttle took the claimant out of work again. The doctor related the claimant's continuing symptoms to the work-related incident in June 2005. He believed claimant's treatment, including the physical therapy, was reasonable, necessary and related to that injury.
Dr. Bruce Grossinger, a board certified pain management neurologist, testified by deposition on behalf of the employer. He reviewed all of the claimant's medical records. On October 14, 2005, the doctor performed a physical and neurological exam of claimant. Dr. Grossinger testified that during the examination the claimant had normal mobility in his neck and back, normal lumbar forward flexion, extension, side bending, rotation, straight-leg raising, and sitting root signs. There were no findings of point tenderness, muscle guarding or restricted lumbar mobility. Further, the sensory examination was normal and the claimant was walking normally. Dr. Grossinger stated that claimant told him he was injured when using an anchor machine. The claimant did not tell the doctor about an incident involving the installation of an air conditioner.
The doctor did not relate claimant's symptoms to work injury. It was not possible for him to distinguish a new injury or even an aggravation of an old injury given the extent and distribution of the claimant's injuries, which included an L4-5 herniated disk and surgery. The doctor associated the flare-up with the prior herniated disks and a prior surgery. Although Dr. Grossinger believed claimant's medical treatment was reasonable and necessary, he believed it was not causally related to the work related incident, if it indeed occurred. Dr. Grossinger noted that claimant had been symptomatic prior to that time, and that his own treating doctor, Dr. DuShuttle determined he had a permanent injury relating to his 1999 motor vehicle accident and would experience very significant flare-ups and require treatment following this accident and subsequent back surgery.
The doctor reviewed the MRI report of June 22, 2005, and agreed it indicated a small epidural impression at L4-5 which was consistent with a small disk herniation. He agreed this was a new finding relative to the June 2001 exam. Dr. Grossinger agreed that lifting an air conditioner or using an anchor machine could potentially be competent to produce a lumbar strain. Assuming the existence of a work-related injury as described by claimant, an injury of that sort would serve to produce an injurious result by precipitating or accelerating a previously dormant condition. The fact that the claimant had a bad back and prior surgery would predispose him to physical injury from a less rigorous activity than someone who had a stronger back.
The Board permitted the employer to elicit testimony from claimant and Ms. Robin Miller regarding whether claimant was told by the Department of Labor he was eligible for unemployment insurance benefits presumably to bolster its contention that no work related accident occurred. The claimant objected to such testimony as hearsay and because the employer refused to produce any documents regarding such benefits. Notwithstanding, the Board allowed Ms. Miller to testify that she received a letter from the Department of Labor stating claimant was receiving unemployment benefits, and she no longer considered him an employee of Capitol Homes.
At the hearing the claimant wanted to call Jamie Cronin as a rebuttal witness. However, the Board found the claimant had violated Industrial Accident Board Rule 9 which requires that all medical and lay witnesses be noticed in the pre-trial memorandum at least thirty days prior to the hearing. Ms. Cronin had not been identified in accordance with the rule.
The Board issued its decision on December 6, 2005. In the decision, the Board noted the claimant initially bears the burden of proving that an industrial accident occurred. The Board found that claimant did not meet this burden of proof. Specifically, the Board found the claimant was not credible. In finding his testimony not credible, it noted there were many inconsistencies in his testimony. Additionally, the Board noted the claimant told Dr. DuShuttle he was injured while installing an air conditioner but told Dr. Grossinger he was injured while using an anchor machine, with no mention of an air conditioner. The Board also stated it accepted Ms. Miller's testimony that the claimant did not show any signs of back pain until she told him about his job duty for the day on June 13, 2005, and he worked that day and June 14, 2005, without any problems.
STANDARD OF REVIEW
This Court's function on appeal is to determine whether the Board's decision is supported by substantial evidence and free from legal error. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The appellate court does not weigh the evidence, determine questions of credibility or make its own factual findings. It merely determines if the evidence is legally adequate to support the agency's factual findings.
General Motors v. Freeman, 164 A.2d 686, 688 (Del.Super. 1960); Johnson v. Chrysler Corporation, 213 A.2d 64, 66-67 (Del. 1965).
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del.Supr. 1999); Battista v. Chrysler Corp., 517 A.2d 295, 297 (Del.Super. 1986), appeal dism., 515 A.2d 397 (Del. 1986).
Johnson at 66.
The Board has the discretion to accept the testimony of one expert over that of another expert when evidence is in conflict and the opinion relied upon is supported by substantial evidence. In addition, when an expert's opinion is based in large part upon the patient's recital of subjective complaints and the trier of fact finds the underlying facts to be different, the trier is free to reject the expert's testimony.
Reese v. Home Budget Center, 619 A.2d 907, 910 (Del. 1992); DiSabatino v. Wortman, 453 A.2d 102, 106 (Del. 1982); General Motors Corp. v. Veasey, 371 A.2d 1074, 1076 (Del. 1977) (rev'd on other grounds by Duvall v. Charles Connell Roofing, 564 A.2d 1132 (Del. 1989)); Butler v. Ryder M.L.S., 1999 Del. Super. LEXIS 29 at *5-6 (Del.Super. 1999).
Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).
CONTENTIONS OF THE PARTIES
First, the claimant asserts that the Board erred as a matter of law when it refused to allow the claimant's rebuttal witness to testify. The employer claims it was not abuse of discretion for the Board to enforce its own rule.Second, claimant claims that the Board's failure to discuss the medical evidence is an error of law and its decision is thus unsupported by substantial evidence. The employer asserts that the Board did not err because the claimant failed to prove there was a work related injury.
Finally, claimant states that the Board abused its discretion by permitting testimony regarding Department of Labor documents that were never produced to the claimant's attorney despite repeated requests for production and therefore the decision must be reversed. The employer claims that the Board's decision allowing such testimony was not an abuse of discretion and even if it was, it was harmless error.
DISCUSSION
I. The Board's Refusal to Permit Claimant's Rebuttal Witness to Testify
The Board refused to allow Ms. Jamie Cronin to testify as a rebuttal witness on behalf of claimant because she had not been named as a witness in the pre-trial memorandum. The claimant argues that this was a denial of his constitutional right to due process in that he was deprived of the opportunity to present relevant evidence, and therefore denied a full and fair hearing. Claimant claims that Industrial Accident Board Rule 9 does not contain a specific requirement in the rule that a party name its rebuttal witnesses. Further, he asserts that such a requirement would be illogical given the nature of rebuttal witness testimony generally. The claimant does admit that he did not provide notice of his rebuttal witness in the pre-trial memorandum but she was named as such on November 11, 2005 through correspondence to the Board prior to the hearing.
The employer asserts that the Delaware General Assembly gave the Board authority to make its own Rules of Procedure and therefore it is proper for the Board to enforce such rules. Because the rule states that all witnesses are to be named no later than thirty days prior to the hearing, the employer contends, the claimant was required to include any witnesses to be called during his case-in-chief or rebuttal.
The Board's rules of procedure are promulgated for the "more efficient administration of justice." The Delaware Supreme Court has previously held that it is not an abuse of discretion in enforcing a well-known procedural rule. Enforcement serves the interests of order and efficiency in Board proceedings as well as the prevention of unfair surprise. Industrial Accident Board Rule 9 requires that all witness information be submitted thirty days prior to trial and be sent to opposing counsel. The Delaware Supreme Court has previously held this rule permits the Board to exclude witnesses whose identification is untimely. The rule does not differentiate between case-in-chief witnesses and rebuttal witnesses. Although counsel did notify the Board that he intended to call Jamie Cronin as a witness, the notification was after the 30 day requirement. It was not an abuse of discretion for the Board to enforce this well known rule by refusing to allow Jamie Cronin to testify.
Cole v. Department of Corrections, 1984 WL 547838 (Del.Super.).
Haveg Industries, Inc. v. Humphrey, 456 A.2d 1220, 1222 (Del. 1983).
Id.
Id.
II. The Board's Refusal to Discuss the Medical Evidence
Claimant claims that the Board is required to consider and weigh all the evidence presented at the evidentiary hearing in order to determine whether the movant has sustained his burden of proof. In this case, the claimant states, it was not proper for the Board to stop its analysis upon the determination that the claimant was not credible and therefore did not sustain his burden of proving he sustained a work related injury. Capitol Homes asserts that the Board's duty was to determine whose testimony it deemed most worthy of credit. Once the Board found the claimant not credible and that no work related accident occurred, there was no need for the Board to discuss medical testimony.
It is clearly within the discretion of the Board to weigh the credibility of witnesses and resolve conflicting testimony. In worker's compensation cases, the plaintiff has the burden of proving his claim by a preponderance of the evidence. Thus, the claimant must first prove by a preponderance that there was a work-related injury. There is substantial evidence within the record to support the Board's finding that the claimant was not credible based on claimant's testimony at the hearing and the different information provided to his treating physician, Dr. DuShuttle, and to the employer's physician, Dr. Grossinger as to the cause of his injury. Based on the conflicting statements the Board found that the claimant was not credible and did not believe he suffered a work related injury. Because claimant did not meet his burden of establishing that he suffered a work-related injury, it was not error for the Board not to discuss the medical evidence in its opinion. The Board's decision that the claimant had not suffered a work-related injury did not require an evaluation of the medical evidence.
Johnson v. Chrysler Corporation, 213 A.2d 64 (Del. 1965).
Malinowski v. Ponns Thomas, 1993 WL 189483 (Del.Super.) ( citing Lawson v. Chrysler Corp. 199 A.2d 749, 751 (Del.Super. 1964)).
Id.
III. The Board Abused Its Discretion by Allowing Testimony Regarding Department of Labor Documents
Claimant argues that Industrial Accident Board Rule 11 requires a party upon whom a discovery request is served to respond within 15 days after service of the request, unless the material is privileged or the request is otherwise objectionable. In this case, no response was ever received by counsel following requests for production of unemployment documents in the possession of Capitol Homes. Therefore, contends the claimant, such violation of the rule should result in a reversal of the Board's decision or at the very least the decision should be remanded for a new hearing. The complainant cites Hoey v. Hawkins as support for its contention that a new hearing is required. However, Hoey is distinguished on its facts as it involved a trial in Superior Court instead of a more informal agency hearing.
Hoey v. Hawkins, 332 A.2d 403, (Del. 1975).
The employer argues that the claimant did not object to Ms. Miller's testimony until she was asked whether or not claimant was found to be eligible for unemployment benefits. The employer further asserts that even if it were found that admission of such evidence was error, it was harmless.
The claimant objected when Ms. Miller was asked whether the claimant was found eligible for unemployment benefits. She testified that she did not consider claimant an employee of Capitol Homes after receiving a letter from the Department of Labor stating he was receiving unemployment. The claimant objected to this testimony because the documents were not turned over to him. First, it is important to note that it is well-settled that "administrative agencies operate less formally than courts of law" and, as such, "rules of evidence do not strictly apply." Due to the informal nature of the Board's hearings, the Board has some latitude in applying the rules of evidence. Therefore this Court will defer to the Board's evidentiary decisions in most cases, absent an abuse of discretion. Second, and more importantly to this case, the Board's opinion does not indicate it considered this collateral evidence in rendering its decision. Substantial evidence exists apart from the unemployment document to support the Board's conclusion that there was no work related accident. Therefore, its admission into evidence was harmless error, if error at all.
Walden v. Georgia-Pacific Corp., 1999 WL 1611419 *6, (citing Standard Distributing Co. v. Nally, 630 A.2d 640, 647 (Del. 1993)).
Jarman v. Willow Grove Meats, 1994 WL 146031 * 9 (Del.Super.).
The Board's decision is supported by substantial evidence and is free from legal error. Therefore, the decision of the Board is affirmed.