Opinion
C.A. No. 02A-02-002 HDR
Submitted: June 18, 2002
Decided: September 30, 2002
Upon Employer's Appeal from a Decision of the Industrial Accident Board AFFIRMED
J. R. Julian, Esq. of J. R. Julian, P.A., Wilmington, Delaware, for Employer Below-Appellant.
John S. Grady, Esq. of Grady Hampton, P.A., Dover, Delaware, for Claimant Below-Appellee.
ORDER
This 30th day of September, 2002, upon consideration of the parties' briefs and the record below, it appears that:
(1) This is an appeal by an Employer, Playtex Products, Inc. ("Playtex") from a decision of the Industrial Accident Board (the "Board") which awarded worker's compensation benefits to Lorraine Harris ("Harris") for an injury suffered during an industrial accident. Playtex argues on appeal that the Board erred because substantial evidence demonstrated that Harris was capable of working; substantial evidence demonstrated that much of the awarded medical expenses were not reasonable, necessary, or causally related to the industrial accident; the Board abused its discretion by accepting testimony of one doctor through the testimony of another; and finally, that the Board did not afford a full and fair hearing. I find that the decision is supported by substantial evidence and free of legal error. Accordingly, it is affirmed.
(2) Harris had worked for Playtex for approximately six years, when working the Friday evening of June 22, 2001 to the Saturday morning of June 23, 2001 she felt a heaviness in her neck. Harris worked a complete shift on Monday, June 25; however, her neck pain increased on June 26 and she was unable to finish that shift. She reported the neck pain to her line manager for the first time on June 26.
Between the industrial accident and the Board hearing, Harris has been evaluated by many physicians and specialists. Dr. Richard DuShuttle, the company physician, examined Harris on June 27, 2001, and diagnosed a cervical strain and told Harris to return to work in a light-duty capacity. Dr. DuShuttle opined that Harris's cervical strain was the result of the work injury of June 25. Harris returned to work on June 28. She blacked out at work and was taken to the emergency room. On July 11, 2002, Harris went to see Dr. Irwin Lifrak. Dr. Lifrak instructed Harris not to work and renewed that order on July 19. On August 14, Harris visited Dr. DuShuttle again, at Playtex's request. Dr. DuShuttle informed Harris that she could work in a light-duty capacity and that there were light-duty positions available at Playtex.
Harris returned to work on August 20 through August 23. She was performing a job where she had to hold her head down, which bothered her neck. Harris has explained that her neck and shoulders felt terrible at the end of each day. She visited Dr. Andrew Robinson several times between August 21 and September 20. Dr. Robinson told Harris that she could work in a light-duty position on August 21. After Harris relayed her experience when she attempted to return to work August 20 through August 23, Dr. Robinson instructed Harris not to work. Dr. Robinson renewed the no work order on September 20, 2001.
On September 25, 2001, Harris went to see Dr. Hari Kuncha because the pain continued. Dr. Kuncha told Harris that she could perform sedentary work beginning on October 23. At Playtex's request, Harris visited Dr. DuShuttle again on October 23. Dr. DuShuttle opined that Harris was not totally disabled and should return to work, with certain restrictions. Harris returned to work on October 29, but went home at lunchtime because of the pain. On November 1, 2001, it was Dr. Kuncha's impression that she had a myofascial pain syndrome and left rotator cup tendonitis, and issued a note stating that Harris could not work.
On November 19, 2001, Harris had an MRI performed, which revealed a disk herniation. On December 5, Harris saw Dr. Edward Quinn, upon Dr. Kuncha's referral. Dr. Quinn ordered a cervical mologram CAT scan which revealed mild defects of the disks caused by a thickened ligament found in Harris's body type. Dr. Quinn performed surgery on January 9, 2002.
At the hearing before the Board, deposition testimony from Dr. DuShuttle and Dr. Robinson was presented. Dr. Robinson believed that Harris's work related injury aggravated a preexisting condition. This aggravation led to herniated disks, thereby rendering Harris unable to perform work under restrictions from the date of her industrial accident to the present. Dr. DuShuttle did not believe that the myofascial pain syndrome was related to Harris's industrial accident because there was no indication that it was traumatically induced. Dr. DuShuttle admitted that he would recommend that a patient listen to her treating physician, but he would have recommended that Harris return to work and see how she felt. Harris testified about the events surrounding her industrial accident and subsequent attempts to return to light duty work. The Board also heard testimony from the Production Manager at Playtex describing the company's policy for reporting accidents and the type of light duty work available to Harris.
The Board accepted Dr. Robinson's testimony that it was reasonable for Harris to be out of work, as a result of her injury from the industrial accident. The Board stated that Harris had the right to rely on her treating physician's advice regarding her ability or inability to work. The Board found that Harris had complied with what Playtex had asked of her. Harris attempted to perform the one light duty job that was offered to her but it caused her too much pain. No lighter work was offered, although it was available. The Board awarded total disability benefits from June 26, 2001, to the present, except for the four days that she worked. Additionally, Harris was awarded medical expenses, attorney's fees and medical witness fees.
(3) In reviewing the decisions of the Board, the function of this Court is to determine whether its conclusions are supported by substantial evidence and free from legal error. Substantial evidence means such relevant 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 its own factual findings. It merely determines if the evidence is legally adequate to support the agency's factual findings. The Court must also determine whether the Board's decision is free from legal error. The Court's review of alleged legal errors is de novo.
M.A. Hartnett, Inc. v. Coleman, 226 A.2d 910, 911-12 (Del. 1967); Johnson v. Chrysler Corp., 213 A.2d 64, 66-67 (Del. 1965); General Motors v. Freeman, 164 A.2d 686, 689 (Del. 1960).
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994).
Johnson at 66.
Brooks v. Johnson, 560 A.2d 1001, 1002 (Del. 1989).
Id.
(4) Playtex argues that Harris had not met her burden to prove total disability because substantial evidence demonstrates she was capable of working. Playtex relies upon the numerous times that a doctor released Harris to light duty work. Even Harris's medical expert released her several times to return to work. Playtex asserts that instead of returning to work, Harris continued to go from doctor to doctor in an attempt to find a physician who would render her totally disabled.
The record is replete with doctor's releases to work, chronologically followed by orders to not work. My review of this records notes a pattern where Harris is released to work, on three of those occasions she returned to work but was unable to continue working because of the pain, then she was given a doctor's no work order. Essentially the Board was faced with conflicting opinions from the two doctors that testified. Dr. DuShuttle stated that on all three occasions he saw Harris she was not totally disabled and could work. Dr. Robinson believed that Harris's industrial accident aggravated a previous existing condition. Dr. Robinson testified that from a medical standpoint Harris could return to work. However, Dr. Robinson felt that Harris's attempts to return to work were not fruitful because the work she was offered by Playtex increased her pain.
Dr. DuShuttle Dep. at 35.
Dr. Robinson Dep. at 34-35.
Id. at 37.
Id. at 21.
It is within the Board's discretion to accept the testimony of one expert over another when their testimonies are conflicting but supported by substantial evidence. It is the exclusive province of the Board, rather than the Court, to reconcile inconsistent testimony, to resolve conflicts in testimony and to decide which witnesses are credible. The Board accepted the testimony of Dr. Robinson and rejected the opinion of Dr. DuShuttle when it stated "[t]he Board is persuaded by Dr. Robinson's testimony that it was reasonable for Claimant to be out of work, as a result of Claimant's injury from her industrial accident." The Board's conclusion is supported by substantial evidence.
Goicuria v. Kauffman's Furniture, 1998 WL 67720 (Del.Supr.); Coleman v. Dept. of Labor, 288 A.2d 285, 287 (Del.Super.Ct. 1972).
Simmons v. Delaware State Hosp., 660 A.2d 384, 388 (Del. 1995).
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
Bd. Dec. at 10.
(5) Playtex's second argument is that the Board erred in awarding medical expenses because the substantial evidence demonstrated that many of the medical expenses were not reasonable, necessary, or causally related to Harris's industrial accident. Playtex asserts that all medical treatment rendered after October 2001 relate to a pre-existing condition.
The Board asked Harris if she was requesting payment of medical expenses. Harris responded in the affirmative, with an approximate amount covering the period from the date of the injury to the date of the hearing, excluding only Dr. Quinn. When the medical bills were put into evidence, Playtex's counsel remarked "I have no objection to the bills going into evidence although I reserve the right to question amounts, and validity." No further objection was raised by Playtex before the Board regarding the reasonableness or validity of the medical expenses.
Tr. Bd. Hr'g at 2.
Id. at 2 and 8.
Id. at 9.
Under 19 Del. C. § 2322(a), an employer is obligated to pay the necessary and reasonable medical expenses related to an employee's work injury. Disputes over the reasonableness of medical expenses are factual questions for the Board to decide. To resolve a conflict, the Board must weigh the credibility of the medical testimony. The Board, as trier of fact, is free to accept the opinion of one medical expert over another. The opinion of a medical expert will constitute substantial evidence for purposes of an appeal.
19 Del. C. § 2322 states in pertinent part:
(a) During the period of disability the employer shall furnish reasonable surgical, medical, dental, optometric, chiropractic and hospital services, medicine and supplies . . . as and when needed, unless the employee refuses to allow them to be furnished by the employer.
(b) If the employer, upon application made to the employer, refuses to furnish the services, medicines and supplies mentioned in subsection (a) of this section, the employee may procure the same and shall receive from the employer the reasonable cost thereof within the above limitations.
Santiago v. Radisson Hotel, Del. Super., C.A. No. 94A-08-5, Herlihy, J. (Feb. 28, 1995) (citing Keil's Wholesale Tire v. Marion, Del. Supr., No. 174, 1986, Moore, J. (Oct. 27, 1986) (ORDER)).
Id. at 5.
DiSabitino Bros. v. Wortman, 453 A.2d 102, 106 (Del. 1982).
Johnson v. Indus. Accident Bd., Del. Super., C.A. No. 93A-11-001, Lee, J. (June 3, 1994).
Playtex wants this Court to infer that even though an objection to reasonableness was not explicitly raised below, the Board understood Playtex's position to be that Harris's herniated discs were not caused by her industrial accident, and that this position implicitly includes a finding that all medical treatment related to the herniated disks be found uncompensable. The record contains no direct testimony by a doctor, or any witness for that matter, that the requested medical expenses, which excluded Dr. Quinn, were unreasonable, unnecessary or inappropriate for the diagnosed injury. Playtex asserts that at a minimum Dr. Lifrak's expenses are unnecessary and relies upon Dr. Robinson's statement, that Dr. Lifrak's records were of "no help at all" or that Dr. Lifrak's assessment and plan do not add much to the overall picture.
Appellant's Opening Br. at 18-19.
When read in context of the deposition, Dr. Robinson's statement was in response to a question of whether he relied upon Dr. Lifrak's records in forming his own opinion. A conclusion that Dr. Robinson believed that Dr. Lifrak's treatment was unnecessary or unreasonable is not supported by the deposition. To the contrary, support can be found in the depositions that both doctors agreed that the treatment Harris received was reasonable to her diagnosis, they just disagreed on whether the industrial accident was to blame for the extent of her injury. The Board's conclusion that the requested medical expenses were compensable is supported by substantial evidence.
Dr. Robinson Dep. at 9.
Id. at 34; Dr. DuShuttle Dep. at 48-51.
(6) Playtex's third argument contends that the Board erred as a matter of law and abused its discretion by accepting testimony of Dr. Lifrak and Dr. Quinn through the testimony of Dr. Robinson. Playtex argues that Dr. Robinson had no contact with Harris after September 20, 2001, so his opinion of her disability beyond that point must be based upon his review of subsequent doctor records. Playtex suggests that basing a medical diagnosis on this type of information is not generally accepted in the medical field and does not comply with the Delaware Rules of Evidence. Alternatively, Playtex argues that the Board may have looked through Dr. Robinson's deposition to the opinions of Dr. Lifrak or Dr. Quinn, whom Playtex did not have the opportunity to cross-examine. Playtex concludes the Board relied on improper testimony, whether its findings are based on Dr. Robinson's opinion or if it looked through Dr. Robinson's opinion to the records of doctors that Playtex did not have the ability to cross-examine. In a hearing to determine worker's compensation benefits, the Board is not strictly bound by the rules of evidence. Rule 14(B) of the Industrial Accident Board Rules states:
The rules of evidence applicable to the Superior Court of the State of Delaware shall be followed insofar as practicable; however, that evidence will be considered by the Board which, in its opinion, possesses any probative value commonly accepted by reasonably prudent men in the conduct of their affairs. The Board may, in its discretion, disregard any customary rules of evidence and legal procedures so long as such a disregard does not amount to an abuse of discretion.
An abuse of discretion occurs where the Board exceeds "the bounds of reason in view of the circumstances and has ignored recognized rules of law or practice so as to produce injustice." The Court must look to see if admitting Dr. Robinson's testimony produced an injustice; if an injustice occurred, the Board abused its discretion and the decision should be reversed. This Court's review of the deposition transcript notes ample opportunity for counsel to object and to question Dr. Robinson on his expertise or the validity of what he considered in rendering his opinions. Under the circumstances here, I am satisfied that the Board did not abuse its discretion by allowing Dr. Robinson's testimony.
Pitts v. White, 109 A.2d 786, 788 (Del. 1954); McDowell v. State of Delaware, Del. Super., C.A. No. 88A-JN-3, Steele, J. (March 14, 1991) (ORDER) at 2.
(7) Lastly, Playtex asserts that the Board did not afford a full and fair hearing and denied Playtex the time necessary to present its case. As an example, Playtex submits an affidavit of its counsel stating that the Board members were seen leaving the hearing shortly after the testimony was offered and were not carrying the deposition transcripts with them. I note, however, that much of the deposition testimony was read into the record. Even so, Playtex argues that the Board did not review the submitted deposition transcripts as it stated it would, or at a minimum spend enough time considering the deposition as would be necessary to support the Board's findings.
As explained in Cook v. Oberly:
Due process essentially requires that an individual be given a full and fair hearing before an impartial tribunal at a meaningful time and in a meaningful manner. It is not a technical notion with a fixed content but a flexible concept which calls for such procedural protections as the situation demands.
459 A.2d 535, 538 (Del.Ch. 1983) (citations omitted).
Whether or not Playtex's statement, that "[i]t is well known within the Department of Labor and among counsel who appear before the Board that the Board makes its decisions immediately following the hearing," is true, it would be inappropriate to assume that because the Board members were observed leaving without the submitted transcripts that the transcripts were not reviewed before the written decision was issued. This argument is without merit.
Aff. of J. R. Julian at 2 (attached to Appellant's Opening Br.).
(8) Finally, I turn to Harris's request that this Court consider the purported policy of the Board to disallow the introduction of medical records into evidence. This request appears for the first time in Harris's answering brief, and no cross-appeal pursuant to Superior Court Civil Rule 72(h) has been filed. This question is not properly before the Court at this time.
Accordingly, the Board's decision to award disability benefits, medical expenses, attorneys' fees and medical witness fees is AFFIRMED.
IT IS SO ORDERED.