Opinion
C.A. No. 05A-07-004 WLW.
Submitted: March 8, 2006.
Decided: June 30, 2006.
Upon Appeal of the Decision of the Industrial Accident Board. Denied.
Walt F. Schmittinger, Esquire and Lori A. Brewington, Esquire of Schmittinger and Rodriguez, P.A., Dover, Delaware; attorneys for the Appellant.
Colin M. Shalk, Esquire of Casarino Christman Shalk, P.A., Wilmington, Delaware; attorneys for the Appellee.
ORDER
Upon consideration of the parties' briefs and the record below, it appears to the Court:
Employee, Donald Cottman ("Cottman"), filed an appeal from the June 30, 2005 decision of the Industrial Accident Board ("Board"), which denied his Petition to Determine Additional Compensation Due ("Petition") against his former employer, Burris Fence Construction ("Burris"). Cottman argues that the Board erred as a matter of law when it failed to find a recurrence of total disability, medical expenses and permanent impairment benefits related to a compensable work accident. Burris contends that the Board's decision is supported by substantial evidence and is free from legal error.
The salient facts are as follows: In August of 2003, Cottman suffered a compensable work injury when he fell into his truck after a dog lunged at him. Cottman had previously injured his back in a work accident in Maryland in April of 1988 when he was lifting an 80-pound bag of Sakrete. As a result of the August 2003 injury, Cottman and Burris entered into an "Agreement as to Compensation" from September 17, 2003 until April 2, 2004. It was on April 2, 2004, that Cottman met with Dr. Piccioni, who determined that there were no residuals from the August 2003 injury. Based on Dr. Piccioni's conclusion, Cottman signed a "Receipt for Compensation Paid" on April 3, 2004. Subsequent to the termination of his benefits and another attempt to return to work in August of 2004, wherein Cottman reinjured his back, Cottman filed the Petition seeking: (1) ongoing total disability benefits from September 20, 2004; (2) unpaid medical expenses in the amount of $4,958 and authorization for physical therapy treatment; and (3) permanent impairment benefits for a 28 percent loss of use to his low back. The Board denied Cottman's Petition, noting, "For several reasons, the Board finds Dr. Zant and Dr. Piccioni's conclusions to be more credible than those of the other medical experts." Both Dr. Zant and Dr. Piccioni testified that Cottman's August 2003 injury was temporary and that the complaints on which the current Petition was based were related to another injury that occurred in August of 2004, when Cottman returned to work for two days. The Board stated, "Dr. Piccioni went even further, stating unequivocally that Claimant's work injury was a temporary exacerbation of his underlying condition, which had resolved by April 2004, and that any symptoms thereafter were wholly unrelated to the work accident." The Board also concluded that because Cottman's work injury was only an exacerbation of a preexisting injury, which had completely resolved by April of 2004, he was not entitled to any benefits for permanent impairment.
Cottman v. Burris Fence Construction, IAB Hearing No. 1240319 (June 30, 2005), at 21.
Id. at 21-22.
Id. at 22.
Id. at 25.
For the reasons set forth below, Cottman's appeal from the decision of the Board is denied.
Standard of Review
The review of an Industrial Accident Board's decision is limited to an examination of the record for errors of law and a determination of whether substantial evidence exists to support the Board's finding of fact and conclusions of law. Substantial evidence equates to "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." This Court will not weigh the evidence, determine questions of credibility, or make its own factual findings. Errors of law are reviewed de novo. Absent error of law, the standard of review for a Board's decision is abuse of discretion. The Board has abused its discretion only when its decision has "exceeded the bounds of reason in view of the circumstances." Additionally, "this Court will give deference to the expertise of administrative agencies and must affirm the decision of any agency even if the Court might have, in the first instance, reached an opposite conclusion." "Only where no satisfactory proof exists to support the factual finding of the Board may the Superior Court overturn it."Discussion
Cottman's assertion that the Board erred as a matter of law when it denied his Petition is based on three primary arguments: (1) the proper standard for causation was under Reese, which the Board did not apply; (2) the Board should have applied the successive carrier line of cases to determine compensability; and (3) the Board erred in not accepting Dr. Rodgers' testimony that Cottman suffered a 28 percent permanent impairment. Each of Cottman's contentions will be addressed seriatim below.First, Cottman claims that the causation standard in Reese applies. In Reese, the Supreme Court noted that it followed the "but for" rule and opined:
If the worker had a preexisting disposition to a certain physical or emotional injury which had not manifested itself prior to the time of the accident, an injury attributable to the accident is compensable if the injury would not have occurred by for the accident. The accident need not be the sole cause or even a substantial cause of the injury. If the accident provides the "setting" or "trigger," causation is satisfied for purposes of compensability.
Id. at 910.
Although the statement of law provided by Cottman is correct, it is completely inapplicable to the case before me. First, Cottman's preexisting disposition had manifested itself prior to the work injury in August of 2003. Second, "[a]fter a voluntary termination of total disability benefits, however, the burden is on the injured claimant to establish his right to additional benefits." Here, the Board concluded that Cottman did not meet that burden. Third, the Board clearly determined that Cottman had returned to baseline as of April 2, 2004 based on Dr. Piccioni's opinion. While it is true that a preexisting condition does not disqualify an employee from receiving compensation for a work injury that results therefrom, that does not preclude the Board from making a determination that the employee only suffered a temporary exacerbation of the preexisting condition and had returned to baseline. Cottman's contention that there is no evidence to support the Board's finding that the August 2003 injury was only a temporary exacerbation is erroneous. Dr. Piccioni clearly opined, and the Board accepted his testimony, that Cottman suffered only a temporary exacerbation of his underlying condition. In Sobolak v. Potts Welding Boiler Repair Co., the Court stated:
McGlinchey v. Phoenix Steel Corp., 293 A.2d 585 (Del.Super. 1972).
2006 Del. Super. LEXIS 202.
Under Delaware law, "[t]he Board, sitting as the trier of fact, is permitted to pass on the credibility of witnesses and to accord their testimony the appropriate weight." This Court held that "[t]he function of resolving conflicts in, and reconciling, inconsistent testimony and evidence is exclusively reserved for the Board. It is exclusively the Board's role to resolve conflicts in the testimony and weigh the credibility of each witness ." When the testimony of expert witnesses for opposing parties conflicts, "the Board [is] entitled to accept the testimony of one medical expert over the views of another."
Id. at *14 (citations omitted).
Moreover, when the Board accepts the testimony of one expert witness over another, that opinion constitutes substantial evidence for the purpose of an appeal. Thus, the Board's decision to accept the testimony of Dr. Piccioni amounts to substantial evidence, so Cottman's first argument is unsuccessful.
Reese, 619 A.2d at 910.
Next, Cottman relies on Standard Distributing Company v. Nally for the standard concerning successive carrier responsibility in recurrence/aggravation disputes. Cottman contends that Standard concluded that where an employee is injured initially while working for an employer and then is injured a second time while self-employed, the successive carrier line of cases should apply. In Standard, the Court provided:
630 A.2d 640 (Del. 1993).
The rule we endorse for determining successive carrier responsibility in recurrence/aggravation disputes places responsibility on the carrier on the risk at the time of the initial injury when the claimant, with continuing symptoms and disability, sustains a further injury unaccompanied by any intervening or untoward event which could be deemed the proximate cause of the new condition. . . . The burden of proving the causative effect of the second event is upon the initial carrier seeking to shift responsibility for the consequences of the original injury.
Id. at 646.
Again, this case is inapposite. The Board clearly and properly accepted the opinion of Dr. Piccioni that Cottman had a temporary exacerbation and had returned to baseline. Therefore, case law regarding successive carrier liability is inapplicable because there could not have been either a recurrence or an aggravation of the initial work injury as the injury no longer existed. The Board even stated in its decision, "[i]n this case, the exacerbation Claimant experience in August 2004, when he returned to work for two days, is completely unrelated to the compensable injury, which had resolved by that time."
Evans, IAB Hearing No. 1240319, at 26.
Cottman's final argument is that the Board erred when it concluded that Dr. Rodger's testimony did not establish that the August 2003 work injury caused any permanent injury. Cottman relies on case law that holds that the last injurious exposure rule has the effect of cutting off the first carrier's liability. Additionally, he asserts that Burris is not entitled to a credit for any prior permanency rating given to Cottman as a result of his 1988 work injury. Dr. Rodgers testified that Cottman suffered from a 28 percent permanent impairment. However, the Board observed:
He could not say, to a reasonable degree of medical probability, that his rating now would be higher than Claimant's rating before the work accident because he does not know what Claimant's range of motion was before the work accident. . . . Dr. Rodgers' testimony, therefore, does not establish that the August 2003 work accident caused any permanent impairment.
Id. at 25.
As mentioned previously, it is the Board's function to determine credibility. Here, the Board did not find Dr. Rodgers' opinion credible. Consequently, any argument by Cottman regarding his testimony is moot.
Based on the foregoing, Cottman's appeal from the decision of the Board is denied. IT IS SO ORDERED.