Opinion
C.A. No. 03A-07-008 HdR.
Submitted: March 15, 2004.
Decided: August 30, 2004.
Employer's Appeal from the Decision of the Industrial Accident Board.
Michael R. Ippoliti, Esq., Wilmington, Delaware for Appellant.
William F. Jaworski, Jr., Esq., Law Office of William F. Jaworski, Dover, Delaware for Appellee.
OPINION
This is an appeal brought by Appellant Wal-Mart Stores, Inc. (" Wal-Mart") from a decision of the Industrial Accident Board (" The Board") which granted a petition of appellee Rosemary Mazur ("Claimant") for worker's compensation benefits. The Board awarded benefits to Claimant for a period of total disability, medical expenses and attorneys fees. Wal-Mart has filed this appeal contending first, that the Board erred as a matter of law by failing to exclude the testimony of Claimant's medical expert, and second, that the Board's decision is not based on substantial evidence in the record. Because the decision of the Board is free of legal error and supported by substantial evidence, I affirm.
FACTS:
On July 28, 2002, while working in the Deli Department at Wal-Mart, Claimant was struck on her upper right shoulder by the swinging metal door that separates the kitchen from the Deli Department. The Claimant said that she immediately felt elbow pain and was stunned for a few minutes. She returned to work but left early due to discomfort. She reported the incident to Wal-Mart the next day and was taken to Milford Memorial Hospital for an examination. It was then determined that Claimant had a strain/sprain of the right shoulder. Throughout August 2002, Claimant was seen at Bayhealth Medical Center, Occupational Healthworks (" Healthworks") for chronic shoulder pain that could not be relieved with medicine and interrupted her sleep. She underwent physical therapy but often was in more pain after the therapy. On August 29, 2002, Claimant was referred by Healthworks to see Andrew P. Robinson, M.D., a board certified orthopedic surgeon who specializes in shoulder reconstruction. Dr. Robinson initially diagnosed Claimant as having a traumatic shoulder impingement with the possibility of a rotator cuff tear and AC joint arthralgia. Based on diagnostic injections, Dr. Robinson determined that Claimant did have a rotator cuff tear and he performed surgery on her shoulder on November 13, 2002. During the surgery, Dr. Robinson was able to view a Y-shaped defect in the rotator cuff tendon which although somewhat rare is not extremely unusual for someone of Claimant's age. Dr. Robinson opined that this tear was inflicted at the time of impact of the door on Ms. Mazur's shoulder and that he did not see any evidence of severe degeneration significant enough to cause the torn rotator cuff.
Following Dr. Robinson's surgery and diagnosis, Wal-Mart required that Claimant be examined by Dr. Errol Ger, a board certified orthopedic surgeon specializing in diagnosis and treatment of upper extremity conditions and injuries. Based on Claimant's medical records, Dr. Ger opined that the tear of the rotator cuff was caused by wear and tear over time. Dr. Ger did not see or examine the Claimant until after the surgery.
At the Board hearing, the Claimant had the burden of proof to show that the industrial accident caused her torn rotator cuff. There was no dispute over the fact of a torn rotator cuff, or that the surgery was reasonable and necessary nor over the total period of disability. The issue before the Board was causation.
The Board found the Claimant to be credible and accepted her description of the accident and her symptoms. The Board agreed that the Claimant was not improving as verified by Healthworks' referral to Dr. Robinson and the fact that the Claimant had to restart medication for pain. The Claimant was found to have suffered from an industrial accident on July 28, 2002 which required surgery. The Board accepted Dr. Robinson's opinion that the torn rotator cuff was caused by the industrial accident over the opinion of Dr. Ger that the cause of the torn rotator cuff was attrition and that only a shoulder contusion, not a tear, could have resulted from the impact of the door. The Claimant was found to be totally disabled from August 29, 2002 until January 27, 2003. Medical expenses and attorneys fees were awarded the Claimant.
DISCUSSION:
Standard of Review:
On appeal, this Court must determine whether the Board's decision is supported by substantial evidence and free from legal error. Substantial evidence is such relevant evidence that a reasonable mind might accept it as adequate to support a conclusion. Substantial evidence is defined as "more than a scintilla but less than a preponderance of the evidence." Where the only evidence presented to the Board is testimonial, this Court must determine if there is enough substantial evidence to support the Board's decision. The Board, not the Court, must resolve conflicts in testimony, issues of credibility and decide what weight to give the evidence presented. Wal-Mart's Daubert Objection Is Untimely And Not The Standard To Measure The Board's Decision On Appeal.
State of Delaware v. Stevens, 2001 WL 541473, at *3 (Del.Super.Ct. 2001).
Jenkins v. News Journal, 1994 WL 319013, at *3 (Del.Super.Ct. 1994).
Id.
Id.
Id.
Wal-Mart, objects on appeal to the qualifications of the Claimant's expert witness, Dr. Robinson, and his proffered testimony. However, this Court on appeal does not sit as the trier of fact to weigh the evidence and determine witness credibility. Where there is conflicting medical testimony, it is well established under Delaware law that the Industrial Accident Board may rely on the opinion of either expert and such evidence constitutes substantial evidence for the purpose of the Board's decision. Further, under Delaware law, a practicing physician is an expert and "it is not required that he be a specialist in the particular malady at issue in order to make his testimony as an expert admissible."
Id.
State of Delaware v. Steen, 1999 WL 743326, at *3 (Del.Super.Ct. 1999).
Id.
Furthermore, the issue has been waived in this case. The proper time to make objections to an expert's qualifications is at the time the testimony is offered and not on appeal. This Court has held that the employer cannot object based on Daubert after the claimant's expert has testified before the Board. This would defeat the purpose of Daubert which is to prevent unreliable testimony from being considered. The Daubert objection must be raised before the hearing commences. This Court does not have the power on appeal to weigh the evidence or make credibility determinations. As in Christiana Care, the employer in this case chose to rely on the qualifications of its own expert, rather than make a timely Daubert objection. Prior to the introduction of Dr. Robinson's deposition testimony the Board asked the Employer's counsel if there was any objection to this testimony and the attorney stated, "No objection."
Christiana Care Health System v. Taggart, 2004 WL 692640, at *17 (Del.Super.Ct. 2004).
Id.
Id.
Id.
Id.
See Id.
IAB Hearing Tr. at 68.