Opinion
C.A. No. 05A-02-009 MMJ.
Submitted: December 12, 2005.
Decided: March 1, 2006.
Upon Appeal from a Decision of the Industrial Accident Board. Decision AFFIRMED.
Tabatha L. Castro, Esquire, Rapposelli, Castro Gonzales, Wilmington, Delaware, Attorney for Employer-Appellant.
Thomas J. Roman, Esquire, Kimmel, Carter, Roman Peltz, Bear, Delaware, Attorney for Employee-Appellee.
MEMORANDUM OPINION
New Castle County ("Employer") has appealed the Industrial Accident Board ("Board")'s January 25, 2005, decision concluding that Brent Sheehan ("Claimant")'s physical therapy bills were reasonable, necessary and causally related to the June 20, 2002 work accident. Employer, argues that the physical therapy treatment was not reasonable and necessary or causally related to the June 20th accident, because several of the modalities were treating non-compensable body parts. Employer requests that this Court reverse the Board's decision because the Board committed error as a matter of law and its decision is against the weight of the evidence.
Claimant requests that the Court affirm the Board's decision because the physical therapy bill of $1,855.00 is compensable. Claimant asserts that the physical therapy was reasonable and necessary medical treatment causally related to the work accident.
FACTS AND PROCEDURAL CONTEXT
On June 20, 2002, Claimant, while working for Employer, injured his left shoulder in a work related accident. Claimant underwent physical therapy at Pro Physical Therapy from October 10, 2002 until December 6, 2002. Surgery was performed on Claimant's left shoulder in March 2002 and May 2002. On August 11, 2003, Claimant returned to Pro Physical Therapy to rehabilitate his shoulder and restore his strength. Physical therapy continued until December 31, 2003. Claimant returned to full duty as a police officer in January 2004.
When Claimant began physical therapy, an exercise program was designed to strengthen his left shoulder and return Claimant to pre-injury form. Pro Physical Therapy designs programs to rehabilitate patients to their physical condition prior to the accident to enable the patient to return to work. Claimant's therapy sessions consisted mainly of shoulder exercises and a limited amount of abdominal and lower extremity strengthening. In all therapy sessions, the great majority of exercises were designed to strengthen Claimant's shoulder. The physical therapist estimated that between 75% and 90% of the exercises performed were designed to strengthen the shoulder. The Board considered testimony said that the physical therapy bills would not have changed drastically if only shoulder exercises were performed and billed.
Employer did not pay all of the bills for Claimant's physical therapy because Employer contends that some of the exercises performed were unrelated to the shoulder. $1,855.00 remains unpaid and owed to Pro Physical Therapy.
On September 3, 2004, Claimant filed a Petition to Determine Compensation Due, alleging that he had suffered a permanent partial disability of his left upper extremity as a result of the compensable June 20, 2002 work accident. Claimant also sought compensation of physical therapy expenses already incurred. Claimant's permanent impairment is not at issue having been resolved. For purposes of this appeal, attorney's fees are not at issue.
A hearing was held before the Board on January 10, 2005 ("Hearing"). The Board rendered its decision on January 25, 2005 and concluded that Claimant proved by a preponderance of the evidence that the unpaid physical therapy bills in the amount of $1,855.00 are compensable. The Board determined that the physical therapy was reasonable and necessary medical treatment, causally related to the work accident.
Some of the findings of the Board are as follows:
• Whether medical services are necessary and reasonable or whether the expenses are incurred to treat a condition causally related to an industria accident are purely factual issues within the purview of the Board.
• The physical therapy treatments performed by Pro Physical Therapy were reasonable and necessary and were related to Claimant's compensable shoulder injury. Claimant required physical therapy for his shoulder to rehabilitate it after surgery. Each of the 54 therapy sessions included shoulder exercises. Pro Physical Therapy estimated that 75 to 90% of the exercises overall were shoulder-related. Lower extremity and abdominal exercises were included to prepare Claimant for his return to full duty as a police officer.
• Claimant stated that he was unable to exercise as much as normal after the injury and thus had lost strength. Employer offered no testimony contradicting the necessity of the exercises. The Board found Claimant's position to be credible and persuasive in light of the physical demands of Claimant's job. The Board noted that the therapy regimen was apparently effective, as Claimant returned to full duty work as of January 2004.
Bullock v. K-Mart Corp., 1995 WL 339025, at *3 (Del.Super. 1995).
On February 23, 2005, Employer initiated an appeal to the Superior Court of the State of Delaware, asking the Court to reverse the Board's decision.
STANDARD OF REVIEW
In reviewing the decisions of the Board, this Court must determine whether the findings and conclusions of the Board are free from legal error and supported by substantial evidence in the record. The function of the reviewing Court is to determine whether the agency's decision is supported by substantial evidence. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence is more than a scintilla, but less than a preponderance of the evidence. The appellate court merely determines if the evidence is legally adequate to support the agency's factual findings. It also determines if the Board made any errors of law.
General Motors Corp. v. Jarrell, 493 A.2d 978 (Del.Super. 1985); Talmo v. New Castle County, 444 A.2d 298 (Del.Super. 1982), aff'd, 454 A.2d 758 (Del. 1982).
General Motors v. Freeman, 164 A.2d 686, 688 (Del. 1960); Johnson v. Chrysler Corporation, 213 A.2d 64, 66-67 (Del. 1965).
Oceanport Ind. V. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battisa v. Chrysler Corp., 517 A.2d 295, 297 (Del.Super. 1986), app. dism., 515 A.2d 397 (Del. 1986).
Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).
On appeal "[t]he Superior Court does not sit as a trier of fact with authority to weigh the evidence, determine questions of credibility, and make its own factual findings and conclusions." The Superior Court may not overturn a factual finding of the Industrial Accident Board unless there is "no satisfactory proof" supporting the Board's finding. It is also well established that "[t]he credibility of the witnesses, the weight of their testimony, and the reasonable inferences to be drawn therefrom are for the Board to determine."
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
Id. at 67.
Coleman v. Department of Labor, 288 A.2d 285, 287 (Del. 1972).
THE PARTIES' CONTENTIONS
Section 2322 of title 19 of the Delaware Code requires an employer to pay for an injured worker's medical expenses as long as they are reasonable, necessary and causally related to the work injury. It is undisputed that Claimant was involved in a work accident that necessitated two surgeries to his left shoulder, and that physical therapy was necessary. What is disputed is whether the body parts of Claimant that were not deemed compensable were treated along with the body parts that were compensable. The Board concluded that all physical therapy treatment was reasonable, necessary and causally related to the work accident. Employer disagrees with the Board's conclusion, asserting that 40% of the modalities implemented involved unrelated body parts.Employer asserts that substantial evidence does not exist to support the Board's decision to grant Claimant's Petition for Additional Compensation Due. Employer also contends that the Board erred as a matter of fact and law; and that the Board's decision is unsupported and against the weight of the evidence.
See General Motors Corp. v. Freeman, 164 A.2d 686, 689 (Del.Super. 1960).
Employer argues that if a physician directs a patient to undergo treatment which turns out not to be reasonable or necessary to treat a compensable injury, or if the injury being appropriately treated is not causally related to the industrial accident, there is nothing in the statute that requires the employer to pay the cost. Employer asserts that one of the legislative purposes of 19 Del. C. § 2322(a) is to protect the employer against unreasonable charges and fraudulent claims.
Id.
McCormick Transp. Co. v. Barone, 89 A.2d 160, 163 (Del.Super. 1952), aff'd, 135 A.2d 140 (Del. 1957).
Employer cites the fact that though Claimant's own physician never prescribed physical therapy for Claimant's legs or abdomen, the physical therapist decided to perform such treatment. Employer contends that any treatment with regard to Claimant's legs, abdomen or any body part other than his left shoulder should be charted to Claimant's medical insurance company for payment.
Employer asserts that the Board erred in concluding that all the physical therapy treatment provided is reasonable, necessary and causally related to the work incident in this case. There were over 54 physical therapy sessions that included stretching, shoulder exercises, crunches, abdominal exercises, and lower extremity activities. The representative of Pro Physical Therapy testified that treatment to other body parts was performed to prepare Claimant for his return to full duty as a police officer. Employer argued that the The statute does not require Employer to make an employee whole.
Claimant asserts that the Board's decision that Claimant's unpaid physical therapy bill reflects reasonable and necessary medical treatment, is supported by substantial evidence. Claimant is entitled to benefits for death or injury arising out of and during the scope of employment. The Board must decide as a matter of act whether medical services are reasonable and necessary. The Board also may require, in its discretion, an employer to supply additional medical services that the Board deems right and proper.
19 Del.C. § 2304.
Bullock v. K-Mart Corp. 1995 WL 339025 at *3 (Del.Super. 1995).
19 Del.C. § 2322(c).
Claimant asserts that it is undisputed that physical therapy was necessary after surgery to rehabilitate his shoulder. Claimant's evidence supported his assertion that between 75% and 90% of the exercises, every session, were related to the shoulder injury. The additional exercises were performed while the shoulder was resting and were designed to build strength in areas of the body that had lost strength because of the work related accident. Claimant argues that it was necessary to restore the strength in Claimant's abdomen and lower extremities in order for him to return to work and to perform his duties as a police officer. The abdominal exercises were performed to indirectly help the shoulder. Claimant's duties as a police officer required strong abdominal muscles to protect his shoulder from the force of his firearm. When a firearm is fired, a weak abdominal area puts unnecessary pressure on the shoulder which could re-injure Claimant's shoulder.
Claimant asserts that even if the physical therapy to Claimant's other areas of the body were not considered reasonable and necessary, the Board has discretion under 19 Del.C. § 2322(c) to supply additional medical services that the Board deems right and proper. The Board found the physical therapy performed on Claimant to be right and proper. Claimant's muscle tone and endurance, necessary to perform his duties as a police officer, suffered because of his work-related injury on June 20, 2002. A limited amount of physical therapy to his abdomen and lower extremities to increase muscle tone and restore the shoulder to its original capacity was reasonable and necessary.
ANALYSIS
There is no dispute that Claimant was involved in a work accident that necessitated two surgeries to his left shoulder. There is also no dispute that Claimant needed physical therapy in order to fully recover. The only dispute is the extent of the physical therapy — an issue over which the Board has considerable discretion.
Employer has asked this Court to reverse the Board's ruling that Claimant's physical therapy bill is compensable. Employer argues that the part of the exercise program that Claimant underwent at Pro Physical Therapy that did not involve his left shoulder was unreasonable and unnecessary and not causally related to the work accident.
Even though 19 Del.C. § 2322(a) requires an employer to pay for medical expenses that are reasonable and necessary, whether medical services are reasonable and necessary is a factual issue for the Board to decide. The Board may require, at its sole discretion, an employer to supply additional medical services that it deems right and proper. The Board's conclusion that Claimant's physical therapy was necessary and reasonable to treat the injury causally related to the work accident is within the purview of the Board.
Bullock v. K-Mart Corp., 1995 WL 339025, at *3 (Del.Super. 1995).
19 Del.C. § 2322(c).
Bullock v. K-Mart Corp., 1995 WL 339025, at *3 (Del.Super. 1995).
In order for the Board to conclude that Claimant's submitted physical therapy bills were reasonable, necessary and causally related to the work accident of June 20, 2002, Claimant had the burden of establishing by a preponderance of the evidence that he was entitled to payment of the disputed physical therapy bills from Pro Physical Therapy. Claimant met this burden to the satisfaction of the Board. This Court will not substitute its judgment for that of an administrative body where there is substantial evidence to support the decision and subordinate findings of the agency. This Court must take due account of the experience and specialized competence of the Board and the purposes of the Worker's Compensation Act.
Olney v. Cooch, 425 A.2d 610, 613 (Del. 1981).
CONCLUSION
THEREFORE, the Court having found that Claimant Brent Shahan's physical therapy bills were reasonable, necessary and causally related to the June 20, 2002 work accident, the decision of the Industrial Accident Board is hereby AFFIRMED.IT IS SO ORDERED.