Opinion
Civil Action No: 00A-05-006.
Date Submitted: August 2, 2000.
Date of Decision: October 4, 2000.
Eric M. Doroshow, Esquire, Doroshow, Pasquale, Krawitz, Siegel Bhaya, 1202 Kirkwood Highway, Wilmington, Delaware 19805, attorney for Employee-Appellant;
Robert W. Ralston, Esquire, 10 East 13th Street, P.O. Box 1396, Wilmington, Delaware 19899, attorney for Employer-Appellee.
MEMORANDUM OPINION
This case presents an appeal from a decision of the Industrial Accident Board regarding the denial of a permanent impairment claim. For the reasons stated herein, the Court holds that the Board acted within the bounds of its discretion and upon substantial evidence. The Board's decision is affirmed.
NATURE AND STAGE OF THE PROCEEDINGS
On December 19, 1999, Claimant Below-Appellant, Stanley Johnson ("Johnson"), filed a claim for workers' compensation benefits with the Board alleging that on August 17, 1998, he injured his right shoulder from the cumulative detrimental effect of his work activities while employed at E.I. DuPont De Nemours and Company, Employer Below-Appellee ("DuPont"). Johnson sought temporary total disability, permanent partial disability, and disfigurement benefits from DuPont. The Board heard live testimony from Johnson and deposition testimony from two expert witnesses, Eric T. Schwartz, M.D. for Johnson, and David Sopa, M.D. for DuPont. The Board found that Johnson's shoulder injury was due to the cumulative detrimental effect of his work at DuPont. Johnson was awarded damages for total disability from the date of surgery, November 17, 1998, until the date his doctor released him, February 3, 1999. Johnson was also awarded damages for disfigurement, medical expenses, attorney's fees, and medical witness fees. His claim for permanent disability was denied. Johnson seeks reversal and remand of the denial of his permanent impairment claim.
SUMMARY OF THE EVIDENCE AND FINDINGS OF THE BOARD
On March 24, 2000, at a hearing before the Board, Johnson testified to the following. He was employed by DuPont as a spinning machine operator ("SMO"). His job involved wrapping nylon string in a repetitive overhead motion. On a "good day," Johnson performed this work for approximately 2.5 hours, and on a "bad day" he performed such work all day. Two out of five days were good while the remaining three days were bad. Johnson also performed other daily over-the-shoulder work, such as cleaning the machine by pushing a stick up against the machine to scrape away material.
Johnson first noticed pain in his right shoulder sometime in 1997. As the pain grew progressively worse, he began to have trouble performing certain duties at work. Johnson sought help from his family doctor on August 16, 1998. Physical therapy was prescribed but was not effective in relieving the pain, and Johnson was subsequently referred to Dr. Schwartz. Based on his examination and x-rays, Dr. Schwartz diagnosed Johnson with acromioclavicular arthritis. An October, 1998 MRI showed hypertrophic degenerative changes of the AC joint, partial tear and /or tendinitis of the rotator cuff, and some arthritis in the glenohumeral joint. Further physical therapy and cortisone injections were administered, but Johnson continued to suffer from shoulder pain. On November 17, 1998, Dr. Schwartz operated on Johnson to surgically resect his right distal clavicle, effectively removing the joint, to relieve symptoms of the AC arthritis. Johnson continued to go to physical therapy and he received another cortisone shot. At present, he frequently uses Tylenol to alleviate pain in his right shoulder. He still complains of tightness in his shoulder and has problems raising his right arm above his head.
The Board found as follows with regard to the issue of permanent impairment:
Permanent Impairment
Table 27 on page 61 of the AMA Guides provides for a 10% impairment of the upper extremity for resection arthroplasty of the distal clavicle. Dr. Schwartz, therefore, rated Claimant's permanent impairment at 10%. Dr. Sopa, on the other hand, explained that Claimant's surgery did not affect the stability of his shoulder and that the arthritis was successfully removed. He rated Claimant's permanent impairment at 0%. Claimant testified that he only has problems with overhead work and he showed the Board that he still has significant range of motion over the head. for these reasons, the Board accepts Dr. Sopa's rating over that of Dr. Schwartz and finds that Claimant has no ratable permanent impairment at this time.
I.A.B. Op. at 7
CLAIMS OF THE PARTIES
On appeal, Johnson argues that the Board erred as a matter of law by denying his permanent impairment claim. He claims that the Board did not fulfill its statutory duty under 19 Del. C. § 2345 because its decision did not clearly articulate the specific factual findings which led the Board to accept Dr. Sopa's opinion on the issue of permanent impairment over that of Dr. Schwartz. He further argues that the Board erred as a matter of fact and law because it accepted Dr. Sopa's opinion on Johnson's permanent impairment status without substantial competent evidence in the record to support such an opinion. Johnson maintains that the issue of permanent impairment should be reversed and remanded to the Board.
As support for his argument, Johnson cites to Lindsay v. Chrysler Corp., Del. Super., C.A. 94-A-04-005, Barron, J. (December 7, 1994). ("Lindsay"). In Lindsay, the Court reversed a Board's decision denying permanent impairment when "the Board concluded that the claimant had not yet carried her burden of proving disability, but [did] not articulate a standard for determining permanence or otherwise address the issue."Lindsay at 4. In Walden v. Georgia-Pacific Corp., Del. Super., C.A. 95-A-04-016, Cooch, J. (December 21, 1995) at 8 ("Walden"), the Court reversed a Board's decision when "the Board neither articulated nor applied the appropriate standard for determining whether [the] employee has suffered permanent impairment." Johnson further argues that the Board did not consider that permanent impairment benefits may be based solely on subjective complaints of pain. Wilmington Fibre Specialty Co. v. Rynders, Del.Super., 316 A.2d 229 (1975).
DuPont contends that there was substantial evidence to support the findings of the Board in the permanent disability portion of its award. DuPont points out that it is the function of the Board to resolve the conflict between the two expert witnesses and to choose between them.Simmons v. Delaware State Hospital, Del. Supr., 660 A.2d 384 (1995). DuPont argues that because Dr. Sopa provided the Board with a substantial basis for its denial of Johnson's permanent disability claim, the Board's decision must be upheld by this Court.
DuPont further maintains that in this instance, the Board went beyond the merely conclusory language objected to by the Court in Lindsay and Walden. In its decision, the Guides do not apply in Johnson's case because the surgery that was performed did not affect the stability of his shoulder. Though in agreement that the Board used less than precise language, DuPont asserts that the Board's decision was nevertheless sufficient to meet its statutory duty to provide the reasoning behind its findings.
DISCUSSION
The Supreme Court, and this Court have repeatedly emphasized the limited appellate review of the factual findings of an administrative agency. The function of the Superior Court on appeal from a decision of the Industrial Accident Board is to determine whether the agency's decision is supported by substantial evidence, and whether the agency made any errors of law. General Motors v. McNemar, Del. Supr., 202 A.2d 803, 805 (1964); General Motors v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994). The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965). It merely determines whether the evidence is legally adequate to support the agency's findings.
I. Did the Board's decision with regard to permanent impairment comply with 19 Del. C. § 2345? 19 Del. C. § 2345 states that the Industrial Accident Board, in determining a worker's compensation claim, is required to "hear and determine the matter in accordance with facts and the law and state its conclusion of fact and rulings of law." Johnson argues that the paragraph entitled "Permanent Impairment" is merely conclusory and does not clearly articulate or apply the appropriate legal standard for permanent impairment as required by 19 Del. C. § 2345. In Justison v. Home Health Corp., Del. Super., C.A. No. 98-A-08-008, Goldstein, J. (May 19, 1999) (Mem. Op.), 1999 WL 463702 (Del.Super.) at 4, the Board evaluated deposition testimony from two medical witnesses who disagreed as to the permanency of injuries sustained by the claimant. This Court held that although the reasoning of the Board must be apparent,
where the testimony has been explained as part of the preface to the findings of fact and law and where the Board's decision contains the appropriate details which led to its reasoning, this Court will not reverse simply because the Board did not repeat those facts in its "Findings."Id.
In the section of its decision entitled "Summary of the Evidence," the Board summarized Dr. Sopa's testimony and related his reasoning for concluding that Johnson had no permanent impairment. The Board stated:
Dr. Sopa asserted that Claimant has no permanent impairment. Once the Joint is removed, the arthritis is gone. In addition, the ligaments still attach everything together so stability has not been compromised. The AC joint does not provide stability in the shoulder in an adult. Dr. Sopa disagreed that Table 27 in the AMA Guides was appropriate in this case. The table applies better to joints that produce stability. In addition, arthroplasty does not necessarily mean a resection, it can be a remodification. Resection means that the problem has been removed. It was a removal and not a reconstruction. Furthermore, the AMA Guides are just a guide.
I.A.B. Op. at 5.
Taken together, the "Permanent Impairment" section and the "Summary of the Evidence" section of the Board's decision make it clear that the Board evaluated Dr. Schwartz's and Dr. Sopa's testimony, personally observed Johnson, and concluded that Dr. Sopa's testimony was more credible. Although the Board could have structured its decision in a more cohesive fashion, this Court will not overturn the decision of the Board simply because of its poor editing skills. Faced with a similar situation, the Supreme Court stated in DiSabatino Brothers. Inc. v. Wortman, Del. Supr., 453 A.2d 102, 106 (1982):
The question then becomes whether the clear and firm decision of the Board should be remanded for a further hearing solely because the Board did not say why it rejected the test supported conclusions of the claimant's psychiatrist. It would of course be a better record if the lay Board members could authoritatively state in a single statement in medical terms why they had not been persuaded by Dr. Pereira-Ogan's tests, diagnosis, and conclusions. But perhaps they were not able to be that precise. The simple fact seems to be that they found the counterapproach and countertestimony of Dr. Vates to be persuasive. The Board members accepted Dr. Vates' testimony, as enhanced by the employer's other medical testimony and by their evaluation of the claimant's credibility. As the triers of fact, they were entitled to do just that. No further clarification is required.
Furthermore, "[W]hen the Board decides not to expressly state certain findings, the courts are capable of inferring from the Board's conclusions what the underlying findings must have been. . . . [R]emand for further proceedings would simply be an unnecessary formality." Keith v. Dover City Cab Co., Del. Super., 427 A.2d 896, 899 (1981). Applying this proposition to the instant case, it is apparent that a remand of the permanency issue to the Board would not bring about a different result, but merely a more technically precise opinion. This Court finds that the Board has provided an explanation for its findings sufficient to meet the requirements of 19 Del. C. § 2345.
II. Was there substantial evidence in the record to support Dr. Sopa's permanent impairment rating for Johnson?
It is clear that the Board found Dr. Sopa's testimony more convincing than that of Dr. Schwartz. Where substantial evidence exists to support conflicting expert opinions, the Board is free to choose one expert's testimony over that of another. Boyd v. Chrysler Corp, Del. Supr., 558 A.2d 297 (1989). Dr. Sopa's expert opinion was the result of a personal examination of Johnson and a review of Johnson's medical records. This Court holds that the Board had substantial evidence for relying on Dr. Sopa's medical opinion. Despite the fact that the Board rejected Dr. Sopa's opinion with regard to causation, it is still free to accept his opinion of Johnson's permanent impairment. The Board is free to accept part of a medical witness' testimony as credible while discrediting the remainder. Hart v. Columbia Vending Service, Del. Super., C.A. No. 97A-01-003, Graves, J. (May 1, 1998) (Order) at 5.
In Turbitt v. Blue Hen Lines. Inc., Del. Supr., 711 A.2d 1214 (1998), the Board's finding of 15% permanent impairment to a claimant was overturned by the Supreme
9 Court. In that case, the Board was presented with an uncontroverted expert medical opinion rating the claimant's permanent impairment at 34%. The Board chose instead to rely on its own experience and concluded that the claimant's permanent impairment rating was 15%. Upon review, the Court held that the Board was not required to accept the expert's opinion, but also "was not free to select a different figure based simply on its general institutional experience" Id., at 1215. The Court noted that "[t]his is not a case where the Board was presented with differing medical testimony and was free to reject, in full or in part, the testimony of one physician based on its experience in gauging the testimony of witnesses who give conflicting testimony." Id.
The instant case is not one in which the Board based its decision on information outside of the record. The Board included the depositions of both doctors in the record, referred to their testimony in the decision, and explained its reasoning for preferring the testimony of Dr. Sopa. Also, unlike the Board's decisions in Lindsay and Walden, the Board here does not simply prefer one expert's testimony over that of another without providing reasoning for its preference. The Board presents Dr. Sopa's testimony, and in particular, his difference in opinion over the suitability of the AMA Guides for categorization of Johnson's particular injury. This Court finds that Dr. Sopa's opinion was based on substantial evidence, and so could be relied upon by the Board in reaching a decision regarding Johnson's permanent impairment rating.
CONCLUSION
Because the Board provided its reasoning for preferring Dr. Sopa's testimony over
that of Dr. Schwartz, and because substantial evidence existed in the record to support Dr. Sopa's opinion, the Court will affirm the decision of the Board. When taken as a whole, the decision makes it clear that the Board found Dr. Sopa's opinion regarding permanent impairment persuasive. It is the Board's function to weigh the credibility of conflicting testimony, and the Court will not disturb the findings of the Board. The Court holds that the decision of the Board is legally sound, and supported by substantial evidence, and so must be affirmed.
IT IS SO ORDERED.