Opinion
C.A. 05A-12-001-ESB.
Submitted: March 28, 2006. Decided June 27, 2006.
Henry C. Davis, Esquire, Henry Clay Davis III, P.A., Georgetown, DE.
John J. Klusman, Esquire, Susan A. List, Esquire, Wilmington, DE.
Dear Counsel:
This is my decision on Kendora Osborne's ("Osborne") appeal of the Industrial Accident Board's ("Board") denial of her Petition to Determine Additional Compensation Due. The Board's decision is affirmed in part and reversed in part for the reasons set forth herein.
PROCEDURAL BACKGROUND
Osborne worked as a convenience store clerk for Two Farms, Inc. She injured her back at work on May 16, 2004. The injury was compensable and Osborne was on disability for three months before returning to work. Two Farms terminated Osborne soon thereafter for taking food without paying for it. She has not worked since then. Osborne injured her back at home on March 29, 2005. She then filed a Petition to Determine Additional Compensation Due with the Board, alleging that her current back problems were caused by her accident at work.
The Board held a hearing on October 27, 2005. Osborne and Barbara Stevenson, a vocational rehabilitation specialist, testified in person. Ganesh Balu, M.D., a pain management and rehabilitation specialist, and Andrew J. Gelman, D.O., a board certified orthopedic surgeon, testified by deposition. Osborne described her accidents and treatment. Drs. Balu and Gelman offered their opinions as to causation. Stevenson described jobs that Osborne could do. The issues before the Board were (1) whether Osborne was totally disabled, and (2) whether Osborne's total disability was caused by her accident at work or home.
STATEMENT OF FACTS
Osborne injured her back at work on May 16, 2004, when she bent over to pick up a pack of cigarettes that she had dropped on the floor. She was examined and treated by Richard J. Sternberg, M.D., and Dr. Balu. An MRI performed at the time showed that she had a herniated disc at L4-5. Dr. Balu diagnosed Osborne with lumbar facet syndrome and radiculopathy. He treated her with injections. Dr. Gelman examined Osborne at the time on behalf of Two Farms and diagnosed her with sacroiliac joint dysfunction. Sternberg released Osborne after three months to work full-time with light-duty restrictions. Two Farms terminated Osborne shortly thereafter for taking food without paying for it. She has not worked since then.
Osborne injured her back at home on March 29, 2005. Osborne testified that she hurt her back when she grabbed her daughter to prevent her from falling into a coffee table. However, Osborne's medical records indicate that she told the emergency room personnel that she hurt her back while disciplining her child. An MRI performed at the time showed that she had herniated discs at L3-4, L4-5 and L5-S1. Dr. Balu treated Osborne and testified that she still has lumbar facet syndrome and radiculopathy and that they were caused by her accident at work. Dr. Gelman examined Osborne again and testified that she still has sacroiliac joint dysfunction. He testified further that if Osborne was totally disabled for any period of time, then it was because of her accident at home. His rationale for this was that Osborne had recovered from her accident at work and, therefore, her accident at home had to be the cause of her total disability. Dr. Gelman testified further that Osborne has now recovered from her accident at home and can work full-time with light-duty restrictions, just as she could before her accident at home.
THE BOARD'S DECISION
The Board decided that Osborne failed to sustain her burden of proof of showing that her current back problems were caused by her accident at work. It also decided that Osborne's accident at home was an unforeseen, intervening, superceding event that cut off the casual connection between Osborne's current back problems and her accident at work. The Board did not address the issue of total disability. Osborne then filed an appeal with this Court.
STANDARD OF REVIEW
The Supreme Court and this Court repeatedly have 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. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. It merely determines if the evidence is legally adequate to support the agency's factual findings. Absent an error of law, the Board's decision will not be disturbed where there is substantial evidence to support its conclusions.
General Motors v. McNemar, 202 A.2d 803, 805 (Del. 1964); General Motors v. Freeman, 164 A.2d 686 (Del. 1960).
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battisa v. Chrysler Corp., 517 A.2d 295, 297 (Del.), app. dism., 515 A.2d 397 (Del. 1986).
Johnson v. Chrysler Corp., 312 A.2d 64, 66 (Del. 1965).
29 Del.C. § 10142(d).
Dellachiesa v. General Motors Corp., 140 A.2d 137 (Del.Super.Ct. 1958).
DISCUSSION
The Board decided that Osborne failed to sustain her burden of proof of showing that her current back problems were caused by her accident at work. 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. In reaching its decision, the Board found that Osborne was not credible because she described her accident at home differently on several occasions and did not tell Drs. Sternberg and Balu about it. The Board also found that Dr. Balu's opinion on causation was not persuasive because he did not know about Osborne's accident at home when he reached it. The Board's findings are free of legal error and supported by substantial evidence in the record.
Oakes v. Chrysler Corporation, 1999 WL 1568376, at *3 (Del.Super.), citing Lawson v. Chrysler Corp., 199 A.2d 749, 751 (Del.Super.Ct. 1964).
Osborne told the Board that she hurt her back when she grabbed her daughter to prevent her from falling into a coffee table at home. She also told the Board that she told Drs. Sternberg and Balu about this accident. However, Osborne's medical records and Dr. Balu's testimony did not support Osborne's statements to the Board. Osborne went to Nanticoke Memorial Hospital's emergency room after the accident. The emergency room's records indicate that Osborne told the emergency room personnel that she "admitted to disciplining her child, jerked back and pulled something in her back . . ." Osborne followed up with Dr. Sternberg a few days after being released from the emergency room. His records did not mention the accident. They only said that Osborne went to the emergency room with increased lumbar pain. Dr. Balu's records also did not mention the accident. Dr. Balu testified that had no knowledge of the accident until he read about it in Dr. Gelman's report. Osborne's explanation for these discrepancies was that she disciplined her child after preventing her from falling and that her doctors' medical records simply did not reflect everything that she told them. This may well be the case, but the Board was faced with conflicting evidence and there is substantial evidence in the record to support the Board's decision to question Osborne's credibility and resolve the conflicting evidence by rejecting her testimony. The law is 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."
New Castle County v. Shahan, 2006 WL 1161283, at *2 (Del.Super.), citing Coleman v. Department of Labor, 288 A.2d 285, 287 (Del. 1972).
The Board was faced with, as it often is, conflicting opinions from two medical doctors. There is nothing about either Dr. Balu's or Dr. Gelman's opinions, or their rationales for them, that clearly makes one more persuasive than the other. The only obvious difference is that Dr. Balu's opinion on causation did not take into consideration Osborne's accident at home. He readily admitted that his opinion was based, in part, on what Osborne told him and that it could change if the facts were different. Given that Dr. Balu's opinion was based on incomplete information, there is substantial evidence in the record to support the Board's decision to reject it. It is well-established that when parties provide testimony from expert witnesses, the Board is free to choose between conflicting medical opinions, and either opinion will constitute substantial evidence for purposes of an appeal. In that same light, it is within the Board's discretion to accept the testimony of one expert over another when their opinions are conflicting and supported by substantial evidence. Additionally, it is within the purview of the Board, and not this Court, to weigh the credibility of the witnesses, and to accept or reject the employee's subjective complaints. Moreover, since Dr. Gelman testified that Osborne's brief period of total disability was caused by her accident at home, the Board's finding that Osborne did not prove that her current back problems were caused by her accident at work is also supported by substantial evidence in the record.
Romine v. Conectiv Communications, Inc., 2003 WL 21001030, at *5 (Del.Super.), citing Reese v. Home Budget Center, 619 A.2d 907, 910 (Del. 1992).
Romine, 2003 WL 21001030, at *5, citing Downes v. State, 1993 WL 102547, at * 2 (Del.Supr.); Reese, 619 A.2d at 910.
Romine, 2003 WL 21001030, at *5. See, e.g., Oakes v. Triple C. Railcar, 1994 WL 680094, at *4 (Del.Super.); Vasquez v. Abex Corp., 1992 WL 397454, at *2 (Del.Supr.).
The Board also found that Osborne's accident at home was "an unforseen, intervening, superseding event that broke the casual chain" to the injury that occurred at work. However, this finding is not supported by either logic or substantial evidence in the record. The Board erred by focusing on the unforeseeable nature of the accident at home instead of its practical consequences. Three witnesses offered testimony as to causation. Osborne described her accidents at work and home. Dr. Balu testified that Osborne's current back problems were caused by her accident at work. The Board rejected the testimony of both, leaving only Dr. Gelman's testimony. Dr. Gelman, after both of his examinations of Osborne, diagnosed her with sacroiliac joint dysfunction. He testified that this has always been Osborne's problem and that it is the cause of her current back problems. If this is the case, then it cannot be an intervening event because it was present before Osborne's accident at home. Dr. Gelman also testified that Osborne has recovered from her accident at home and that she can work full-time with light-duty restrictions, just as she could before her accident at home. If Osborne's current back problems are related to a problem she had before her accident at home, and if she has recovered from her accident at home and can work at the same level as she could before her accident at home, then the accident at home cannot, by simple logic, be "an unforeseen, intervening, superceding event" that excuses Two Farms from responsibility for Osborne's current back problems for the simple reason that it did not cause them. Put another way, based on the only medical testimony that the Board accepted, Osborne's accident at home was an event that has come and gone, leaving no lasting consequences on Osborne's ability to work. Thus, Osborne and Two Farms are in the same position as they were before her accident at home.
CONCLUSION
The Board's denial of Osborne's Petition to Determine Additional Compensation Due is affirmed in part and reversed in part.