Opinion
C.A. No. 09A-08-008 (THG).
Date Submitted: February 15, 2010.
Date Decided: April 15, 2010.
On Board's Decision to Deny Claimant's Petition to Determine Compensation Due: AFFIRMED.
Matthew M. Bartkowski, Esquire, Kimmel, Carter, Roman Peltz, P.A., Newark, Delaware.
Nancy Chrissinger Cobb, Esquire, Chrissinger Baumberger, Wilmington, Delaware.
Dear Counsel:
This is the Court's decision on Eddie Reid's appeal of the Industrial Accident Board's ("the Board") decision dated August 13, 2009, which denied Mr. Reid's Petition to Determine Compensation Due ("the Petition"). The Board's decision is affirmed for the reasons set forth below.
STATEMENT OF THE CASE
A. Procedural History
On April 14, 2008, Mr. Reid filed the Petition, alleging that he sustained a compensable work-related injury on March 16, 2007. Specifically, Mr. Reid alleged he sustained bilateral carpal tunnel syndrome in his wrists and bilateral medial epicondylitis in his elbows as the result of the cumulative detrimental effect or overuse due to activities performed during the course and scope of his employment with ILC Holdings ("Employer"). Employer disputed the causal relationship of Mr. Reid's injuries to his employment. A hearing was held on the matter before the Board on October 14, 2008. By way of written decision dated August 13, 2009, the Board denied Mr. Reid's Petition. In so doing, the Board concluded the evidence presented failed to establish that Mr. Reid's injuries were causally related to his employment. Mr. Reid filed a timely appeal of the Board's decision in this Court. The parties have fully briefed their positions and the matter is ripe for decision.
B. The Board Hearing
At the Board hearing, Mr. Reid testified he had worked in the area of building maintenance for Employer for eight years. His duties consisted of the cleaning of high beams and machine parts ("high cleaning") and general janitorial work. While his specific duties varied on a day-to-day basis, Mr. Reid testified that all of the tasks to which he was assigned involved the use of his hands.
Mr. Reid testified that in March of 2007, his hands started hurting and tingling. He saw his family doctor, Brian Benson, M.D., who prescribed braces. Subsequently, Mr. Reid saw Stephen Penny, M.D., for an EMG. Dr. Penny concluded Mr. Reid suffered from carpal tunnel syndrome. Dr. Amir, whom Mr. Reid was seeing for prior back pain, administered nerve block injections in an effort to alleviate Mr. Reid's wrist pain. Mr. Reid saw another two physicians before being referred to A. Lee Osterman, M.D., a board-certified orthopedic surgeon with added qualifications in hand surgery. Dr. Osterman placed Mr. Reid on work restrictions and performed surgery on Mr. Reid's right hand. Mr. Reid testified the surgery helped the pain, as did the follow-up physical therapy. On March 17, 2008, Dr. Osterman examined Mr. Reid and released him to work with no restrictions. Subsequently, Mr. Reid's pain returned, despite the fact Mr. Reid has been out of work since October of 2007.
Mr. Reid also testified he had been involved in multiple motor vehicle accidents and suffered injury to his lower back as a result. Through 2007, Mr. Reid received medical treatment for this lower back pain, such treatment including injections and pain medications. Due to the back pain, Mr. Reid testified he tried to limit lifting at work and in his daily activities. Mr. Reid contested Dr. Penny's medical records, which indicated Mr. Reid had complained of a three-year history of intermittent tingling and numbness in both hands. Dr. Amir, whom Mr. Reid saw for his back pain, referred Mr. Reid to Magdy Boulos, M.D., who examined Mr. Reid and concluded he was able to work. Mr. Reid then sought a second opinion from Glen Rowe, M.D.
Mr. Reid testified he had not complained of wrist pain to anyone prior to March of 2007. In response to questions from the Board, Mr. Reid stated he did not experience a gradual onset of pain; instead, Mr. Reid asserted his pain came on "overnight". Mr. Reid testified he reported the injury to Jackie in Human Resources and then went to see Dr. Benson, his family physician. Mr. Reid also testified Dr. Benson told him in December of 2006 that he was borderline diabetic.
Dr. Osterman testified via deposition. Dr. Amir referred Mr. Reid to Dr. Osterman for a second opinion. Dr. Osterman evaluated Mr. Reid in November of 2007. Dr. Osterman testified Mr. Reid had not suffered a specific accident or incident that gave rise to the injury. Dr. Osterman agreed with Dr. Penny's diagnosis of mild bilateral carpal tunnel syndrome. Dr. Osterman noted that Mr. Reid did not have any conditions that would predispose him to carpal tunnel syndrome: specifically, Dr. Osterman observed that Mr. Reid was not diabetic, did not have any fractures in his wrist or elbow area, and did not have significant thyroid disease. At the time Dr. Osterman saw Mr. Reid, Mr. Reid had been out of work since October 8, 2007. Dr. Osterman testified his physical exam of Mr. Reid and his review of Mr. Reid's medical records were, in his view, consistent with Mr. Reid's complaints. Dr. Osterman recommended a cortisone injection and placed Mr. Reid on light duty restrictions. Dr. Osterman performed surgery on Mr. Reid's right wrist in December of 2007. Dr. Osterman saw Mr. Reid for follow up in January of 2008. At that time, Mr. Reid was doing better but was still having issues with wrist pain. Dr. Osterman last saw Mr. Reid in March of 2008 and opined that the surgery had been successful.
With regard to the cause of Mr. Reid's injury, Dr. Osterman testified he thought Mr. Reid's work was a "substantial factor" in causing the bilateral carpal tunnel syndrome. Dr. Osterman based his opinion on three factors: (1) Mr. Reid did not have any relevant medical history; (2) Mr. Reid's work activities, as described to Dr. Osterman by Mr. Reid, involved "some lifting with his arms bending over" and the occasional use of a vibrating tool; and (3) when Mr. Reid was not working, his condition improved.
Kimbery Ann Taha, Employer's Manager of Human Resources, testified at the hearing that Mr. Reid's job consisted of a variety of different work assignments. Ms. Taha testified the job of high cleaning was a job that was in keeping with light duty work restrictions. Ms. Taha testified Mr. Reid first reported his injury to the human resources office on September 11, 2007. At that time, Ms. Taha had Mr. Reid fill out forms for both short term disability and workers' compensation. She testified she did this because she "couldn't get any specific injury data that would support that [the injury] was work related." Pursuant to the doctors' notes in Ms. Taha's possession, Mr. Reid was released for unrestricted work duty on October 9, 2007, per Dr. Boulos. According to Ms. Taha, Mr. Reid was not happy with Dr. Boulos's opinion and he then sought the opinion of Dr. Rowe. Dr. Rowe issued an order restricting Mr. Reid to one-arm work duty. Ms. Taha testified she could not accommodate the one-arm work duty order.
Board members asked Ms. Taha several questions. In response thereto, Ms. Taha testified Mr. Reid's main job was high cleaning. She also testified that, in the event Mr. Reid had complained of pain to his supervisor, the supervisor was required to fill out an accident report and submit the report to her. At that point, Human Resources would send Mr. Reid for a medical exam. Ms. Taha did not receive an accident report regarding Mr. Reid's wrist and elbow injuries.
Mohammad Kamali, M.D., an orthopedic surgeon, testified via deposition. Dr. Kamali saw Mr. Reid on February 28, 2008. When Dr. Kamali took Mr. Reid's medical history, Mr. Reid stated he had Type II diabetes and had been placed on two different medications with respect to that diagnosis. Mr. Reid stated that he had stopped taking his medication without consulting with his family physician, Dr. Benson. Mr. Reid also informed Dr. Kamali that he had been diagnosed with hyperthyroidism. Dr. Kamali performed a physical exam of Mr. Reid, which showed that Mr. Reid still had some weakness in his right hand but was otherwise healing well from the surgery. Dr. Kamali stated Mr. Reid's medical history was notable for the presence of chronic back pain. Dr. Kamali also observed that the EMG conducted after Mr. Reid's surgical procedure still showed some signs of carpal tunnel syndrome, in spite of the fact Mr. Reid was not working and, therefore, not using his hands in an allegedly repetitive fashion. Dr. Kamali stated the EMG results were unusual in this regard because the vast majority of patients completely improve after surgery. As such, the results caused Dr. Kamali to think that, perhaps, there was another basis for Mr. Reid's pain. Indeed, Dr. Kamali opined that Mr. Reid's carpal tunnel syndrome was not related to his work duties. In support of this opinion, Dr. Kamali noted that Mr. Reid's job responsibilities were not repetitive.
Thomas Berry testified live at the Board hearing. He also works in Employer's maintenance department and testified that he was usually the person who assigned Mr. Reid his work tasks. Mr. Berry testified the job responsibilities vary. Some of Mr. Reid's responsibilities included: operating a genie's joystick-like controls to elevate the genie to a level where Mr. Reid could then do the high maintenance work; high maintenance work, consisting of operating the genie and then wiping down beams with a damp rag; tying wires around broken down cardboard; and sometimes helping to take up floor tiles with a putty knife. Mr. Berry also testified that he was out of work when Mr. Reid's alleged injury took place but that he had heard Mr. Reid complain about the pain in his wrists and elbows several times over the last four or five years. Mr. Berry testified that, to his knowledge, Mr. Reid had never left work due to his wrist or elbow pain.
DISCUSSION
A. Standard of Review
The review of the Board's decision is confined to an examination of the record for errors of law and a determination of whether substantial evidence exists to support the Board's finding of fact. Histed v. E.I. Du Pont de Nemours Co., 621 A.2d 340, 342 (Del. 1993). The Supreme Court and this Court have emphasized the limited appellate review of the agency findings of fact. The reviewing Court must determine whether the administrative decision is supported by substantial evidence. Johnson v. Chrysler Corp., 213 A.2d 64, 66-67 (Del. 1965). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994). The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings. Johnson v. Chrysler, 312 A.2d at 66. Questions of law are reviewed de novo. Delhaize America, Inc. v. Baker, 2002 WL 31667611, at *2 (Del. Super. Sept. 18, 2002).
B. The Merits: Was the Board's finding that Mr. Reid's injury was not causally related to his employment supported by substantial evidence?
The Board made the following observations in the "Findings of Fact and Conclusions of Law" section of its opinion:
The Board does not accept the opinion of Dr. Osterman. First, it appears that unbeknownst to Dr. Osterman, Claimant did have unrelated factors that could have caused Claimant's progression of symptoms. The Board did not find Claimant to be credible and is not convinced that Claimant's onset of tingling and numbness in his hands commenced in March 2007. The Board does not accept Claimant's representation that he never had tingling and numbness sensations in his hands prior to March 2007.
On the other hand, the Board found Mr. Barry to be credible. Mr. Barry testified that Claimant had complained of tingling and numbness in the hands as early as 2005/2006 and such symptoms became pronounced after Claimant had a truck accident. Claimant acknowledged having automobile accidents prior to March 2007. Dr. Kamali cited Dr. Penny's EMG report on which Dr. Penny noted that Claimant has had a three-year history of intermittent tingling and numbness in the hands bilaterally. The three-year time frame is more consistent with Mr. Barry's 2005/2006 reference. Such prior condition could have been progressing independent of Claimant's job. Dr. Osterman's opinion was partly based on Claimant's representation of not having such symptoms prior to March 2007.
In addition, unbeknownst to Dr. Osterman, Claimant was diagnosed with Type 2 diabetes. Claimant also had a hyperactive thyroid. Both conditions Dr. Osterman testified could make someone pre-disposed to developing carpal tunnel syndrome. Ms. Taha testified that Claimant was so vague with respect to the onset of symptoms and reporting of what happened that she could not determine whether Claimant's symptoms were related to work. The Board does not find such vagueness to be a coincidence.
Dr. Osterman testified that Claimant would experience heightened stress with arm movement due to an unrelated back injury and that Claimant's heavy use of his hands in his job is enough to cause Claimant's condition at issue before the Board. The Board agrees with Dr. Kamali that despite the fact that Claimant's work duties involved heavy hand use, such hand use varied and required different mechanics that were not repetitive. In light of the totality of the Board's findings, the Board was not satisfied that Claimant's work responsibilities caused Claimant's condition or even aggravated a pre-existing condition.
Board Opinion at 12-13. In essence, the Board chose to believe Dr. Kamali's opinion as to the causation of Mr. Reid's injury over that of Dr. Osterman.
Mr. Reid challenges the Board's opinion as not being supported by substantial evidence. This argument is without merit. The burden of proof regarding the issue of causation lies with the claimant in a workers' compensation case. See Johnson v. Chrysler, 213 A.2d at 66. The Board "is free to adopt the opinion testimony of one expert over another, and that opinion, if adopted, will constitute substantial evidence for purposes of appellate review." Bolden v. Kraft Foods, 2005 WL 3526324, at *4 (Del. Dec. 21, 2005), 889 A.2d 283 (Del. 2005) (TABLE); see also Jepsen v. University of Delaware-Newark, 2003 WL 22139774, at *2 (Del. Super. Aug. 28, 2003) ("[A]s a finder of fact, the board is entitled to discount the testimony of any witness on the basis of credibility, provided it states specific, relevant reasons for so doing."). The Board set out its reasons for discounting Dr. Osterman's opinion above. Those findings are specific and relevant and will not be disturbed on appeal. In addition, ample evidence was presented to the Board that casts doubt on Mr. Reid's assertion that his injury came on "overnight" in March of 2007. Ms. Taha, Manager of Human Resources, testified she did not learn of Mr. Reid's injury claim until September of 2007. Mr. Reid's co-worker testified that Mr. Reid had complained of pain for years prior to the alleged date of injury. Dr. Kamali gave weight to Dr. Penny's notes, which indicated Mr. Reid complained of a three-year history of wrist and elbow pain in 2007. "It is well-settled that issues of credibility rest solely within the Board's discretion and will not be disturbed absent a showing of unreasonable or capricious circumstances." Hart v. Columbia Vending Serv., 1998 WL 281241, at *4 (Del. Super. May 1, 1998). In this case, the Board did not abuse its discretion in opting to give more weight to Employer's witnesses than to Mr. Reid's witnesses. Finally, and most importantly, the Court notes the complete lack of evidence in the record supporting the notion that Mr. Reid's job responsibilities included repetitive hand motion. In light of the foregoing, the Court is satisfied the Board's finding Mr. Reid's injury was not causally related to his work duties was supported by substantial evidence.
CONCLUSION
Based on the foregoing, the Board's decision is affirmed.
IT IS SO ORDERED.