Opinion
C.A. No. 98A-03-012 WCC.
Submitted: April 26, 1999.
Decided: October 4, 1999.
Kenneth F. Carmine, Esquire; 840 N. Union Street, P.O. Box 514, Wilmington, DE 19899. Attorney for Claimant-Appellant.
Sean A. Dolan, Esquire; 300 Delaware Avenue, Suite 1100, P.O. Box 2092, Wilmington, DE 19899. Attorney for Employer-Appellee.
ORDER
This 4th day of October, 1999, upon consideration of Harriet Floyd's (the "Claimant") appeal of the Industrial Accident Board's (the "Board) decision made on remand, it appears that:
1. While working for Atlantic Aviation (the "Employer"), the Claimant injured her low back in a work-related accident on January 12, 1988. Four compensation agreements were approved by the Board on March 14, 1990, awarding various degrees of permanency and temporary partial disability benefits. When the Employer petitioned for a termination of benefits, the Board held a hearing on February 25, 1991. The Board denied the petition and found that the Claimant was unable to return to work due to physical and mental disabilities and that her depressive disorder was related to the accident.
2. On April 11, 1995, the Employer filed a second petition to terminate temporary total disability benefits. On February 20, 1996, the Board held a second hearing. After examining the evidence, the Board found that the Claimant was capable of returning to work both physically and mentally in a sedentary position and that the Claimant suffered from a pre-existing psychological condition that was not aggravated by nor attributable to the work-related accident. As such, the Board found that the psychiatric bills and medication for her psychiatric condition were not related to the industrial accident and were not compensable.
3. The Claimant appealed the Board's 1996 decision and this Court reversed and remanded it back to the Board. The Court held that the Employer was collaterally estopped from arguing the causation of the Claimant's psychiatric condition and was bound by the 1991 decision. Therefore, due to the inconsistency between the 1996 decision and the 1991 decision concerning the Claimant's psychiatric condition, the Court held that a modification of the earlier decision on this issue would only be justified if, upon remand, intervening factors subsequent to the 1991 decision were presented and the Board found that those factors, and not the 1988 work-related accident, were causing the present condition.
Floyd v. Atlantic Aviation, Del. Super., C.A. No. 96A-09-007, Carpenter, J. (Oct. 30, 1997) (ORDER). The Court will not reiterate the facts that were outlined in the October 30, 1997 decision and will incorporate them herein.
4. On December 18, 1997, the Board held a hearing upon remand where supplemental evidence from Dr. Kaye, Dr. Weisberg, and the Claimant was presented and the record from the prior hearing of February 20, 1996 was incorporated in its entirety.
During Dr. Kaye's testimony, he reiterated his opinion that regardless of causation, the Claimant was capable of working from a psychiatric perspective. Dr. Kaye also identified from Dr. Weisberg's notes several events in the Claimant's life since 1991 that would have acted as significant stressors to her depression: the death of her adult son in July of 1994 from a fatal motor vehicle accident, a motor vehicle accident in August of 1994 where she was significantly injured and where her grandson almost died, an illness suffered by her daughter in May of 1997, the stroke suffered by her husband in November of 1997, and stress from the litigation of the car accident. Dr. Kaye also testified that when he examined the Claimant in 1996, she was at the "baseline, the way that I had seen her previously." During cross-examination, Dr. Kaye stated that while the Claimant was clinically worse in 1996 than in 1993 due to increased depression, she was functioning at the same level in 1996 as she was in 1993. Dr. Kaye believed that treatment provided by Dr. Weisberg in the last two years was related to the additional stressors in the Claimant's life, but that regardless of these additional stressors, the Claimant was capable of working.
Hr'g Tr. at 20.
Next, the Board heard from Dr. Weisberg, the supervising physician, who was treating the Claimant since August 8, 1995, along with the help of a licensed professional counselor, Ken Stecker. When Dr. Weisberg first saw the Claimant, he felt that she was not psychiatrically capable of regular employment. Dr. Weisberg also testified that although the Claimant's depression had worsened since the car accident due to physical problems that resulted, her depression returned to a baseline level when her physical problems abated. When asked whether the Claimant was psychologically capable of maintaining a regular job, Dr. Weisberg testified that she was still depressed, had poor concentration and would be unable to work on a continuous basis.
5. Under the direction of the Court, the Board concentrated on whether "but for" the 1988 work-related accident, the Claimant would not require the psychological treatment. The Board found that the post-1994 treatment for depression was not related to the Claimant's industrial accident in 1988, but rather, it was related to the car accident in 1994. Therefore, these psychiatric bills were not compensable. In addition, after considering all the evidence of both hearings, the Board found that the Claimant was psychiatrically able to return to work. As such, the Board renewed its order for a diminution in benefits to $48.42.
See Reese v. Home Budget, Del. Super., 619 A.2d 907 (1992).
According to the Board's February 21, 1996 decision, the Employer's petition for a diminution in benefits to $48.42 was granted. The Board calculated a loss of earning capacity by using the Claimant's average weekly wage of $385.98 and, relying upon the testimony of Joseph Lucy, a vocational consultant who used Dr. Case's recommendations, $313.35, as the amount upon reentry into the job market.
6. The matter before the Court today is the Claimant's appeal of this December 18, 1997 Board decision. The Claimant asserts that the Board erroneously relied upon Dr. Kaye's opinion, which was not supported by the facts. The Employer did not submit an answering brief, and as such, the Court will rely upon only those submissions made to the Court and the record below.
The decision of Employer's counsel not to file an answering brief was unfortunate and disturbingly appears to be a pattern in regards to this litigation. However, the Court will assume that counsel's actions were taken at the direction of the client and not in dereliction of his responsibility to the Court.
7. This Court's function on appeal from a decision of the Board is to determine whether the Board's decision is based on substantial evidence. Substantial evidence has been defined as such relevant evidence that a reasonable mind may accept to support a conclusion. This Court does not weigh evidence, determine questions of credibility, or make its own factual findings. A party seeking to modify an award by subsequent review bears the burden of establishing by a preponderance of the evidence that the award should be modified.
DiSabatino Bros. Inc. v. Wortman, Del. Supr., 453 A.2d 102 (1982).
Oceanport Indus. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892 (1994).
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965).
Avon Prod., Inc. v. Lamparski, Del. Supr., 293 A.2d 559, 560 (1972).
8. Upon remand, the issues before the Board were two-fold: (1) whether there continued to be a causal relationship between the present depression and the 1988 accident or whether the present depression was based upon intervening factors that had occurred since the 1991 Board decision and (2) whether the Claimant's mental condition had improved since the Board's 1991 decision, which would give her the capacity to return to work. The Board made the following findings:
The Board believes that Claimant is psychiatrically able to return to work according to the testimony of Dr. Kaye. Although she may think she cannot work, she needs to be encouraged to return to work which the Board believes is therapeutic. If Claimant were successful in an appropriate job, it would benefit her mental status in the Board's view. The determination of whether she is capable of work should not be based on her own perception of her disability. More importantly, the Board does not believe the Claimant's present depression is related to her industrial accident in 1988. While it is true she had some depression as noted by Dr. Kaye in 1993 that required a period of treatment in order to learn to cope with the residuals, the Board finds the Claimant's current condition is related to the severe motor vehicle accident in 1994.
Bd. Dec. at 5.
9. First, the Court finds substantial evidence to support the Board's decision that the Claimant is capable of working. The Board heard testimony from Dr. Case and Dr. Kaye to support this conclusion. This Court does not determine issues of credibility nor weigh the evidence nor substitute its own view as long as there is evidence to support the conclusion reached by the Board. The Board was free to accept the expert medical testimony of one expert over that of another, and those findings will not be disturbed. While the Claimant argues that Dr. Kaye's opinion is unsupported by the facts, the Court finds no merit in this argument. Dr. Kaye testified that regardless of what caused the Claimant's psychiatric condition, he opined that she was capable of working. He held this opinion after his examinations in 1993 and in 1996 and reached the same conclusion despite his finding that the Claimant was clinically worse. Even Dr. Weisberg's testimony would support the finding that the Claimant had the mental faculties to return to work, just the amount and type of work would be at issue. Again, this issue is one of credibility, and the Court cannot find a reasonable basis to undermine the Board's reliance upon the expertise of Dr. Kaye.
Simmons v. Delaware State Hosp., Del. Supr., 660 A.2d 384, 388 (1995).
10. Secondly, the Court finds substantial evidence to support the Board's decision that no causal relationship existed between the Claimant's present depression and the 1988 work accident. Since the summer of 1994, the Claimant has faced a number of events, which have caused additional stress and have fueled her depression. In July of 1994, the Claimant first lost her son in a fatal car accident and then a month later she was involved in a serious car accident where she lost consciousness, sustained head injuries, broke her hands and her grandson almost died. The Claimant also experienced additional stress in 1997 when her daughter was ill and her husband suffered a stroke. The record indicates that the treatment received from Dr. Weisberg starting in 1995 centered largely upon the car accident in 1994. While the psychiatric treatment that was provided prior to 1994 was necessary in helping the Claimant deal with the residuals of the 1988 industrial accident, after that, it was essentially provided for the depression that resulted from the additional stressors in the Claimant's life. In light of these traumatic events, to believe the Claimant's present depression was related to the work accident in 1988 would stretch the limits of common sense. The Court cannot ignore these intervening factors and dismiss them as having no effect on the Claimant's condition.
Lastly, counsel for the Claimant attempts to argue that the Board cannot reasonably find that the Claimant's present condition was unrelated to the 1988 work accident when, according to Dr. Kaye, the Claimant was functionally the same in 1993, prior to her auto accident, as she was in 1996, after the accident. However, the Claimant is confusing the two issues that were before the Board. The Board relied upon Dr. Kaye's opinion in deciding the issue of her ability to return to work. But Dr. Kaye's consistent opinions in 1993 and 1996 did not mean that the Claimant was still psychiatrically dealing with the 1988 work accident. Instead, the more logical conclusion from the evidence is that the Claimant returned to a similar psychiatric level in 1996 after treatment for the intervening factors. In deciding whether the Claimant's present depression was related to the 1988 accident, the Board relied upon the totality of the circumstances and common sense and not exclusively upon Dr. Kayc's opinion, as the Claimant asserts. The Board focused upon Dr. Weisberg's notes, which revealed the need for treatment due to the post-1994 traumatic events, and reasonably and logically found that the 1988 accident was unrelated to her present psychological condition. As such, the Board's conclusions are consistent with the evidence presented.
11. The Court finds that the Board's decision is supported by substantial evidence and its decision is AFFIRMED for the reasons set forth above.
IT IS SO ORDERED. ______________________________ Judge William C. Carpenter, Jr.