Opinion
No. 374, 2011
12-19-2011
DAVID DAVIS, Claimant-Appellant, v. MARK IV TRANSPORTATION, Employer-Appellee.
Court: Superior Court of the State of Delaware in and for Kent County
C.A. No. K10A-06-012
Before STEELE, Chief Justice, HOLLAND, and RIDGELY.
ORDER
This 19th day of December 2011, it appears to the Court that:
(1) Claimant-Below/Appellant, David Davis, appeals from a Superior Court Order affirming the decision of the Industrial Accident Board (the "Board") granting Employer Mark IV Transportation's ("Mark IV's") petition for review to terminate Davis's total disability benefits. Davis raises two arguments on appeal. First, Davis contends that the Board erred as a matter of law when it based its decision on evidence not in the record. Second, Davis contends that the Superior Court erred when it determined that the Board's error was harmless. We find no merit to Davis's appeal and affirm.
(2) Davis suffered a compensable injury to his neck, lower back, knees, and left arm on December 18, 2006, while employed with Mark IV. Mark IV has paid Davis total disability benefits since February 6, 2009, the date of Davis's second surgery.
(3) On November 19, 2009, Mark IV filed a petition for review to terminate benefits to Davis on grounds that Davis was able to return to work with restrictions. After holding an evidentiary hearing, the Board granted Mark IV's petition as of the date of filing. The Board awarded Davis partial disability benefits in the amount of $571.64 per week and medical witness fees.
(4) Davis appealed the Board's decision in its entirety to the Superior Court. The Superior Court affirmed in a June 30, 2011 order. This appeal followed.
See Davis v. Mark IV Transp., 2011 WL 2623906 (Del. Super. June 30, 2011).
(5) We review a decision of the Board for errors of law, and determine whether substantial evidence exists to support the Board's findings 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.'" We will not weigh the evidence, determine questions of credibility, or make our own factual findings. Errors of law are reviewed de novo. Absent an 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.'"
Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009) (citing Stanley v. Kraft Foods, Inc., 2008 WL 2410212, at *2 (Del. Super. Mar. 24, 2008)).
Id. (quoting Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981)).
Id. (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66-67 (Del. 1965)).
Id.
Id. (citing Stanley, 2008 WL 2410212, at *2).
Id. (quoting Stanley, 2008 WL 2410212, at *2).
(6) Davis contends that the Board made factual findings and related conclusions not supported by the record, as evidenced by the following statement in its decision:
Claimant testified that he drives his car and the RV for up to an hour at a time, he goes grocery shopping and pushes the shopping car around the store, and he babysits his grandsons and even puts the baby into the crib for his nap. If he is able to carry his infant grandson, then he is capable of lifting and carrying up to ten pounds occasionally at work within his restrictions. The activities that Claimant would do at a job such as the ones listed on the labor market survey are not any more strenuous than the activities that he does at home and with his grandchildren.In fact, Davis had testified as follows during examination by Mark IV's attorney:
Harrison: [Y]ou told [the defense's medical examiner] that you go on the weekends with the RV, is that correct?
Davis: Yes ma'am, not every weekend, but on occasional weekends yes, ma'am.
Harrison: And she also indicated in her report that you told her that you do grocery shopping is that correct?
Davis: I go with my wife grocery shopping I push the cart.
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Board Member: You drive and you were injured back in December of 2006, what have you done your time between now and back when the injury [sic]?
Davis: Help my daughter with my last grandchild that was born and when I say help I just go up and sit on the sofa and kind of put the child to sleep . . . .
Davis v. Mark IV Transp., No. 1296631, at 18 (Del. I.A.B. June 3, 2010).
(7) Neither Davis' testimony nor other evidence in the record supports the Board's findings that David could "carry his infant grandson" or "puts the baby into the crib for his nap." Accordingly, the Superior Court properly found that there was not substantial evidence to support these particular factual findings.
(8) Davis next contends that Superior Court erred when it found that Board's unsupported factual findings constituted harmless error. The Superior Court found harmless error on grounds that the record contained other substantial evidence to support the Board's conclusion about Davis's work ability. "A Board's decision may be upheld if it rests upon substantial evidence after objectionable evidence is removed from consideration." Here, the Superior Court properly found that the testimony of medical examiner Dr. Stephens—who did not consider any of Davis's activities with his grandchild—provided independent substantial evidence to support the Board's conclusion.
Davis v. Mark IV Transp., 2011 WL 2623906, at *3 (Del. Super. June 30, 2011) (citing Wyrick v. Leaseway Auto Carriers, 2002 WL 537591, at *3 (Del. Super. Apr. 10, 2002)).
(9) Dr. Stephens' deposition testimony was introduced at the hearing on Mark IV's behalf. Dr. Stephens had performed a physical exam of Davis on September 11, 2009, taken Davis's history, and evaluated the Functional Capacity Evaluation ("FCE") report. Dr. Stephens opined that Davis was fit for sedentary work activity for four hours per day, five days per week. Dr. Stephens also stated that Davis could lift no more than ten pounds and needed to be able to change positions during work activity.
(10) Dr. Katz's deposition testimony was introduced on Davis's behalf. Dr. Katz first evaluated Davis on September 3, 2008. He recommended minimal, part-time work activity of two hours per day, three days per week in a sedentary to light-capacity position. He also recommended no frequent lifting or carrying, and weight restrictions per the FCE. Dr. Katz based his recommendations on Davis's complaints and the FCE.
(11) Davis contends that the Superior Court's finding of harmless error is inadequate because "there is nothing in record to state why [the Board] found Dr. Stephens' restrictions to be more reasonable than those of Dr. Katz." Yet, the Board's decision articulates that it found Dr. Stephens' recommendation to be more reliable than Dr. Katz's because it was better supported. The Board stated that Dr. Katz "does not explain why he limited Claimant to working only two hours a day, three days a week," and "does not know anything about Claimant's activities and abilities." In contrast, "Dr. Stephens based his release on the medical records, physical examination findings, and the FCE Report." Moreover, "Dr. Stephens was aware of Claimant's ability to do certain activities, such as driving a car and RV, pushing the shopping car when grocery shopping, and occasionally mowing the lawn."
Davis v. Mark IV Transp., No. 1296631, at 17 (Del. I.A.B. June 3, 2010).
Id.
Id.
(12) The record does not suggest that Dr. Stephens was aware of any activity Davis may have had with his grandchild. The Board later noted that it found Dr. Stephens' restrictions were "appropriate" for Davis, and based that assessment in part on its own unsupported findings. But the Board's comparison of Dr. Stephens' and Dr. Katz's findings indicates that the Board believed Davis's testimony simply corroborated Dr. Stephens' findings. The Board credited Dr. Stephens' findings and conclusion apart from its own findings about Davis's activities with his grandchild.
Id. at 18.
(13) This Court has recognized that "[a]n IAB decision stands unless no substantial evidence supports it." "[T]he sole function of the Superior Court, as is the function of this Court on appeal, is to determine whether or not there was substantial competent evidence to support the finding of the Board, and, if it finds such in the record, to affirm the findings of the Board." Here, Dr. Stephens' deposition testimony provided substantial, competent evidence to support the Board's finding of a partial, but not total, disability. This testimony stood independent of the unsupported factual findings.
Person-Gaines v. Pepco Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009).
Johnson v. Chrysler Corp., 213 A.2d 64, 67 (Del. 1965).
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(14) Accordingly, the Superior Court did not err when it found that the Board's unsupported factual findings and conclusions constituted harmless error.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
Henry duPont Ridgely
Justice