Opinion
C.A. No. 98A-08-006-NAB. No. 120, 1999.
Submitted: September 7, 1999.
Decided: October 5, 1999.
Employer's Motion to Affirm. Granted.
Mr. Robert B. Gakes, Jr., 333 W. Windmill Way, Middletown, Delaware, Pro Se Claimant.
Timothy A. Casey, Esquire, Prickett, Jones, Elliott, Kristol Schnee, Wilmington, Delaware, for Employer.
ORDER
Having reviewed the parties' submissions, as well as the record below, the Court finds and concludes as follows:
1. Claimant Robert Oakes began working as an electrician for Chrysler (Employer) in 1989. In June 1993 he slipped at work and injured his right ankle and foot. In July 1993, he sprained his right ankle while at home. After again twisting the ankle at home on August 1, 1993, Claimant went to the Newark Emergency Room for treatment. After several more twists and sprains, Claimant underwent surgery to stabilize the right ankle, although he subsequently reported that he experienced continuing weakness, pain and restricted motion. He had no ankle treatment from 1995 through 1997. During this time, he continued to work full-time at Chrysler and also operated his own electrical contracting business, which occupied an additional 40 hours per week of his time.
2. On May 29 1997, Claimant fractured his left lower leg in a work accident. He was operated on almost immediately by Evan Crain, M.D., a board-certified orthopedic surgeon. After recovering from the surgery, Claimant returned to work with certain minor restrictions in September 1997. However, he no longer operated his contracting business.
3. Claimant's left knee had caused him significant problems since childhood, and he had had several surgical procedures relating to the left knee prior to the 1997 operation. As an adult, he was diagnosed with severe tricompartmental arthritis in his left knee, which causes swelling and soreness, although he had not been receiving treatment for it just prior to the May 1997 work accident.
4. On March 30, 1998, Claimant's right ankle gave out as he was walking at work. On June 2, 1998, Dr. Crain operated on Claimant's right ankle.
5. On March 20, 1998 (ten days prior to the last alleged work accident), Claimant filed a Petition to Determine Additional Compensation Due with the Industrial Accident Board (Board). He sought a 41% permanent impairment to the left leg and medical expenses for the left knee injury relating to the May 1997 work accident. He also sought total disability benefits from March 30, 1998, and ongoing, as well as medical expenses, relating to a right ankle injury allegedly caused by the combined effect of the work accidents on June 3, 1993; May 29, 1997; and March 30, 1998. The Board conducted a hearing on July 7, 1998, and issued its written decision on July 15, 1998. The Board granted Claimant a 41% permanency rating for his left leg, but denied total disability for the right ankle and medical expenses for the left knee and right ankle. Claimant filed a timely appeal to this Court, and Employer filed a motion to affirm.
Employer also filed a motion to strike the opening brief. Having stricken an earlier version of the opening brief, the court is confident that the cause can proceed with the opening brief in its current condition. Employer's second motion is therefore denied.
6. Claimant's medical evidence. Dr. Crain testified by deposition on Claimant's behalf. In Dr. Crain's opinion, the May 1997 work accident aggravated Claimant's longstanding, severe left knee arthritis. Dr. Crain assigned a 41% permanency rating to the left leg. In Dr. Crain's opinion, the combined effect of the work accidents in June 1993, May 1997, and March 1998 were a substantial cause of the right ankle problems, culminating in the June 1998 surgery. Following surgery, Dr. Crain expected Claimant to be totally disabled for approximately six weeks. Dr. Crain testified that Claimant had not complained of right ankle pain from February 1995 through May 1997. Dr. Crain was unaware of at least some of the accidents that Claimant had had at home. Dr. Crane's outstanding bills relate to the left knee and right ankle.
7. Employer's medical evidence. Two physicians testified on Chrysler's behalf. Andrew J. Gelman, M.D., a board-certified orthopedic surgeon, testified by deposition. Lawrence Desi, M.D., board certified in occupational medicine, appeared and testified at the hearing. Dr. Gelman testified that Claimant's right ankle problems stem from several sources, including the August 1, 1993 injury at home which necessitated treatment at the emergency room, the August 14, 1993 injury at work, the compensatory phenomenon induced by advanced left knee arthritis and Claimant's weight. As to the left leg, Dr. Gelman assigned a 32% permanency rating.
8. Dr. Desi is the medical director at Chrysler's Newark plant. He testified that the May 1997 work accident exacerbated Claimant's pre-existing right knee condition but that the knee problem resolved by September 1997. Dr. Desi was not aware that Claimant alleged another work accident on March 30, 1998. He noted that Claimant did not report to the main medical facility where a physician would have been on duty, and that he failed to show up for an evaluation the next day. Dr. Desi attributed Claimant's right knee problems to his compensation for the knee arthritis and his weight. Dr. Desi rejected the idea that there was any residual effect from the various 1993 ankle injuries because Claimant worked two jobs until the May 1997 work accident.
9. The award. The Board awarded Claimant 102.5 weeks of compensation at a 41% permanent rating for left leg injuries stemming from the May 1997 work accident. The Board denied Claimant's petition for total disability benefits from March 30, 1998, and ongoing for the right ankle, as well as the petition for medical expenses for the right ankle and left knee injuries.
10. Issues. On appeal, Claimant challenges the denial of total disability benefits for his right ankle and medical expenses for the left knee and right ankle injuries. His main arguments on appeal are that (1) the Board's factual findings are not supported by the evidence; (2) Dr. Gelman's testimony was unreliable; and (3) the Board erred as a matter of law in applying the but-for standard of causation. He raises other arguments which the Court addresses as they arise within the main discussion. Employer filed a motion to affirm the Board's decision, asserting that it is manifest on the face of the opening brief that the appeal is without merit because the issue is clearly controlled by settled Delaware law and the Board's factual findings are supported by substantial evidence.
Super. Ct. Civ. R. 72.1(b).
11. The function of this Court on review of a Board decision is to determine whether the Board's factual findings are supported by substantial evidence. Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. This Court does not weigh the evidence, determine questions of credibility or make factual findings. It merely determines if the evidence is adequate to support the Board's factual findings. The Court may grant a motion to affirm only when the Board's factual findings are supported by substantial evidence and when the issues are controlled by settled Delaware law.
General Motors v. Freeman, Del. Supr., 164 A.2d 686 (1960).
Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994).
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66-67 (1965).
Super. Ct. Civ. R. 72.1(b).
12. On a petition to determine workmen's compensation benefits, the burden of proof rests with the claimant, who must prove a work-related accident by a preponderance of the evidence. Such evidence must clearly establish that the injury happened at a fixed time and place and was attributable to a clearly traceable incident of employment.
Lawson v. Chrysler Corp., Del. Super., 199 A.2d 749, 751 (1964).
Apartment Communities v. Adkins, Del. Super., C.A. No. 96A-06-008, Barron, J. (ORDER) (Oct. 16, 1996) (citing Madanat v. GMC, Del. Super., 316 A.2d 233 (1974)).
13. The right ankle. Claimant argues that the Board's findings regarding the right ankle are not supported by the evidence. Because Claimant contended that the limp from his left knee problem contributed to his right ankle injury, the Board considered the evidence and made rulings on the causes of the left knee condition before addressing the ankle. The Board noted that after Claimant returned to work in September 1997, his complaints of pain and swelling were consistent with his pre-existing condition of severe tri-compartmental arthritis, which had necessitated several surgeries prior to the May 1997 work accident.
14. The Board accepted the opinion of Dr. Gelman and Dr. Desi that the May 1997 work accident caused only a temporary exacerbation of the arthritis in Claimant's left knee and that his left knee had returned to its baseline condition when he returned to work in September 1997. Thus, the Board concluded that to the extent that the limp contributed to the right ankle injury, the limp itself is a result of the pre-existing arthritis rather than the May 1997 work accident. Having reviewed the record, the Court concludes that this finding is supported by substantial evidence.
15. The Board also rejected the contention that the 1993 work accident contributed to the right ankle because Claimant had worked two full-time jobs for more than two years without any ankle problems until January 1998 (according to the testimony of Claimant's physician, Dr. Crain). The Board also found that the alleged March 1998 work accident did not cause or contribute to the right ankle problems. Dr. Gelman had pointed out that, as early as 1995, Dr. Chavin had predicted ankle problems due to compensation for the left knee limp and Claimant's weight. The Board also found that Claimant's right ankle had already deteriorated by March 30, 1998, because he was simply walking when his ankle gave way.
16. For the above-stated reasons, the Board accepted the testimony of Dr. Gelman and Dr. Desi, both of whom attributed Claimant's right ankle problems to the combined effects of Claimant's accidents at home, his long history of compensating for his left knee arthritis, and his weight. After reviewing the record, the Court concludes that the Board clearly articulated its findings regarding the right ankle and those findings are based on substantial evidence.
17. Claimant's weight. Claimant objects to any mention of his weight because, as he correctly observes, in worker's compensation cases, an employer takes an employee as he finds him. If the Board had found that the right ankle problems were caused by a work accident, but concluded that the injury was not compensable because of Claimant's weight, the ruling would be error. However, where the injury is found to be the result of accidents and falls at home, a pre-existing condition, and the Claimant's weight, the injury cannot be said to be compensable, and therefore it is not error to quote the doctor's opinion that weight was a contributing factor. The Court finds no error in the Board's conclusion that the combined effects of at-home accidents, long-term severe arthritis and weight caused Claimant's right ankle problems.
Reesse v. Home Budget Center, Del. Supr., 619 A.2d 907, 911 (1992).
18. Claimant's credibility. Claimant also challenges the Board's finding that Claimant was less than wholly candid in regard to the March 1998 event. Contrary to Claimant's assertion that the Board did not provide any factual support for its credibility finding, the Board noted first that, after the alleged fall, Claimant chose to report to the so-called "sub medical facility," rather than the main medical station where a physician was on duty. Second, the Board observed that Claimant obtained a pass from a nurse to leave work but failed to report for a medical evaluation scheduled with Dr. Desi the next day.
19. The Board found these actions consistent with Claimant's "prior attempts to tailor his history," such as not informing Dr. Kamali, Dr. Crain or Dr. Gelman about an accident at home which forced Claimant to the emergency room for treatment for his ankle. Findings as to credibility of witnesses are wholly within the Board's discretion, and the Court finds no abuse of discretion where the Board clearly stated its several reasons for questioning Claimant's testimony.
Johnson v. Chrysler, supra.
20. Causation. Claimant argues that the Board erred as a matter of law in using the Reese but-for standard of causation and that the Board should have applied the aggravation-acceleration standard. The law regarding causation in workers' compensation cases is well settled in Delaware. Where a specific and identifiable accident is alleged, compensability of any injury must be determined by applying the "but-for" standard of causation. That is, an injury is compensable if the injury would not have occurred but for the accident.
Reese v. Home Budget Center, 619 A.2d at 911.
Id.
21. However, when a claimant is injured by aggravating a pre-existing condition and there is no identifiable industrial accident, causation is determined by the "usual exertion" rule. This rule provides that the injury is compensable if the ordinary stress and strain of employment is a substantial factor in causing the injury. This test is used where there is no discrete accident because of the difficulty of establishing a link between "regular job-related duties" and the aggravation of pre-existing conditions. Obviously, this difficulty does not exist when a claimant alleges specific accidents. In the case at bar, Claimant alleges that his injuries were caused by work accidents which occurred on June 3, 1993, May 29, 1997 and March 30, 1998. The Court therefore concludes that the Board appropriately adopted and applied the but-for standard of causation in this case. Furthermore, this issue is controlled by settled Delaware law.
Duvall v. Charles Connell Roofing, Del. Supr., 564 A.2d 1132, 1133 (1989).
See Super. Ct. Civ. R. 72.1(b).
22. Expert medical testimony. Claimant argues that the testimony of Dr. Gelman was unreliable and that the Board erred in accepting it. In support of this argument, Claimant asserts that when witnesses testify by deposition, the Board's discretion to make credibility determinations is lessened. While it is true that this rule is based at least in part on the Board's opportunity to see and hear the witnesses testify, it is also true that the Board is free to choose between the conflicting opinions of expert witnesses, and either opinion will usually serve as substantial evidence for the Board's factual findings. In the case at bar, the Board provided specific reasons for accepting or rejecting particular parts of the expert testimony, as discussed above, unlike the case cited by Claimant, where the Board found a witness to be persuasive but provided no basis for so finding.
See, e.g., Steen v. State, Del. Super., C.A. No. 96A-11-010, Barron, J. (Opinion) (April 22, 1997) (citing Children's Bureau v. Nissen, Del. Super., 29 A.2d 603, 609 (1942)).
DiSabatino Bros., Inc. v. Wortman, Del. Supr., 453 A.2d 102, 105-106 (1982).
Walden v. Georgia-Pacific Corp., Del. Super., C.A. No. 94A-03-024, Barron, J. (Aug. 19, 1994).
23. Claimant attempts to demonstrate the unreliability of Dr. Gelman's testimony by describing the conclusions that Claimant believes Dr. Gelman should have formed. However, the fact that medical records are subject to more than one interpretation does not mean that the opinions of a doctor who disagrees with a claimant was an unreliable witness or that the Board was wrong in relying on that doctor's testimony. In fact, the Board is free to rely on the opinion of either expert witness as long as the conflicts in the testimony are resolved, as the Board did in this case. At the hearing before the Board, both parties had the opportunity to present expert medical opinions regarding the correct interpretation of Claimant's history and condition. Dr. Gelman's opinions were based on his understanding of Claimant's medical records, as well as his physical examination of Claimant. The Court finds that Dr. Gelman's testimony was reliable and that the Board did not err in relying on Dr. Gelman's opinions.
DiSabatino, supra.
For all the foregoing reasons, Employer's motion to affirm the Board's decision must be and hereby is GRANTED.
IT IS SO ORDERED.