C.A. No. 98A-12-004 WCC.Superior Court of Delaware, New Castle County.Submitted: September 24, 1999.
Decided: January 21, 2000.
Appeal from Industrial Accident Board — AFFIRMED
Amy S. Coogan, Esquire and Maria J. Poehner, Esquire: 3 Mill Road, Suite 301. Wilmington, DE 19806. Attorneys for Employer-Appellant.
Gordon L. McLaughlin, Esquire and Richard T. Wilson, Esquire; 1203 North Orange Street, Wilmington, DE 19801. Attorneys for Employee-Appellee.
ORDER
CARPENTER, Judge
This 21st day of January, 2000, after considering Track
Trail, Inc.’s (“Employer”) appeal of the Industrial Accident Board’s (the “Board”) decision, it appears that:
1. On July 18, 1995, Christopher Conran (“Employee”) was injured during a work-related accident while working for the Employer as a mechanic, motorcycle assembler and inventory-stocker. A crate, weighing about 35 to 40 pounds, slipped from the Employee’s hands while he carried it overhead and a sharp edge from the crate severely lacerated his left leg during its descent. The cut required 65 stitches. The Employee eventually returned to work but continued to have burning sensations and pain in his leg. Because his symptoms increased, the Employee underwent surgery three different times by three different doctors to relocate nerves. But, the pain continued and eventually crept into his back. On February 1, 1997, due to severe pain in the left leg and back, the Employee was referred to Dr. Richard McKay, a chiropractor, who prescribed therapy. The Employee also underwent acupuncture treatment and received nerve blocks.
2. Although the Employee was previously paid total disability under an agreement, he filed a Petition to Determine Additional Compensation Due for impairment to his low back. On October 30, 1998, a hearing was held in front of a Hearing Officer.[1]
The Employee, age 36, testified that despite his injuries and doctors’ suggestions to stop working, he continued to work after his injury because he had to earn a living. He admitted that when he was initially injured in 1995, he had not injured his back. Instead, he had aching, burning and pain in the outer foot and leg, which went up above the knee and increased when he worked or tried to build the muscle. Although he underwent three surgeries to alleviate the pain in his leg, the pain returned, and eventually he began favoring the other leg by putting more weight on it to relieve the pressure on the left leg and started to limp. In addition, the pain from his leg eventually crept into his lower back. As such, on February 1, 1997, he went to see Dr. Richard McKay, who provided relief to his back pain. In eliminating potential intervening causes for his back pain, the Employee, a motorcycle racer and rider,[2] also testified about several injuries that he sustained from motorcycle accidents, ranging from hand to shoulder to leg injuries. But, except for a low back injury in 1988 from a slip and fall at work, in which he fully recovered, he stated that he had not injured his low back in any other accidents. Furthermore, he explained that during his independent medical examination with Dr. Gelman[3] which lasted five to ten minutes, Dr. Gelman only examined his knee and leg area and not his back and he remained seated throughout the examination. But he also admitted that he never mentioned to Dr. Gelman that his back was hurting.
Dr. Richard McKay testified by deposition for the Employee. Dr. McKay started treating the Employee on February 1, 1997 when he complained of lack of sleep and severe pain in his left leg and achy pain in his lower back. Upon examination, Dr. McKay found muscle spasms in his left lower back and concluded that the Employee had an antalgic gait, in that, as a result of his left leg injury, he put added pressure and weight on the right leg in order to shift away from loading the left leg joint. Dr. Mckay stated that despite his recommendation that the Employee not work because it aggravated his problems, the Employee insisted that it was necessary. For treatment, Dr. McKay administered therapy, which included spinal manipulation,[4] and found that it improved the Employee’s condition. He further stated that the Employee was not a symptom magnifier but that “he errs on the other side.”[5] In sum, Dr. McKay opined that the low back injury was causally related to his July 18, 1995 leg injury and was a sequelae of the chronic problems and change in his body mechanics occurring over many years. As a result, Dr. McKay believed that the Employee suffered a 12% permanent impairment to his lumbar spine.[6]
Dr. Andrew Geirnan testified by deposition for the Employer. He examined the Employee on October 5, 1998 and also reviewed various medical records. Despite his awareness that the Employee sought chiropractic care and his review of Dr. McKay’s 1997 and 1998 records prior to his examination, Dr. Gelman stated that he did not examine the Employee’s back because the Employee did not volunteer any information affecting his musculoskeletal system, including low back complaints.[7] Dr. Gelman also commented that the Employee did not limp. Upon request by the Employer, Dr. Gelman wrote a follow-up report on October 9, 1998 to address the lower back. In preparing this report, Dr. Gelman reviewed additional records and re-reviewed old records and opined that the Employee’s back problems were unrelated to the July 1995 work-related injury. In support, Dr. Gelman stated that the 1995 emergency room records reflected that there was only an injury to the left knee and that the Employee’s primary physician did not mention complaints to the back. Despite Dr. McKay’s records, Dr. Gelman further found that the Employee’s gait did not cause lower back problems and that no records of a gait or limping problem attributable to the lacerated knee were documented. When asked whether he would place a rating for permanent impairment to the low back as a result of his 1995 work accident, he stated “I would not place any rating upon Mr. Conran’s lower back in as far as whatever may have occurred in 1995 or his subsequent falls off motorcycles and/or problems going back to 1988. In my opinion, Mr. Conran has no basis to qualify for a rating referencing AMA criteria.”[8] In addition, he opined that any treatment to the back would not be reasonable or necessary as related to the 1995 work accident.
3. The Hearing Officer granted the Employee’s petition and found that the Employee’s low back injury was a natural consequence and result of the July 1995 work-related injury. The Hearing Officer accepted Dr. McKay’s opinion that the Employee’s leg injury forced him to compensate and shift weight away from the injured joint, which caused a low back injury over time. Furthermore, the Hearing Officer rejected Dr. Gelman’s testimony due to his brief examination, his failure to examine the back, and his contradictory testimony regarding documentation of the Employee’s gait problems. In addition, after finding the Employee’s testimony credible, the Hearing Officer found that, despite the Employee’s motorcycle accidents and the aggravation of the Employee’s back condition after a July 1997 motorbike accident, no intervening cause precipitated the back injury. After stating that Dr. McKay’s opinion regarding the permanency rating to the back was “uncontroverted,” the Hearing Officer next found that the Employee suffered a 12% permanent impairment to the low back, entitling him to $8,640. Lastly, the Hearing Officer found that the Employee was entitled to medical expenses, medical witness fees and attorney’s fees.
4. The Employer appeals the Hearing Officer’s decision, arguing that according to Georgia-Pacific Corporation v. Walden,[9] she abused her discretion by mischaracterizing Dr. Gelman’s testimony, particularly in the statement that “[a]s Dr. Gelman did not render an opinion regarding permanency of the back, Dr. McKay’s opinion is uncontroverted.”[10] The Employer asserts that the permanency rating was controverted because Dr. Gelman stated that he would place a 0% permanency rating on the back. In response, the Employee argues that it was irrelevant whether the Hearing Officer stated that Dr. Gelmart gave the Employee a 0% permanent impairment rating to the back because the main thrust of Dr. Gelman’s testimony was that the back injury was not related to the 1995 work-related injury and the Hearing Officer rejected his testimony. Lastly, the Employee asserts that despite a mischaracterization of evidence, remand is improper if the Board is only going to restate the obvious.
5. This Court’s standard of review for an appeal from a Board decision is to determine whether there was substantial evidence to support the Board’s findings and conclusions.[11] The Court does not sit as trier of fact with authority to weigh evidence, determine questions of credibility, nor make its own factual findings and conclusions.[12] Weighing the evidence and determining questions of credibility, which are implicit in factual findings, are functions reserved exclusively for the Board.[13]
6. The crux of the Employer’s argument centers around the basis for the Hearing Officer’s decision, entitling the Employee to 12% permanent impairment to the back. Relying upo Georgia-Pacific Corporation v. Walden,[14] the Employer argues that the Hearing Officer mischaracterized Dr. Gelman’s testimony on a material issue because there was a controversy in terms of a permanency rating. In Walden, the Court stated “while it is within the province of the Board to evaluate the credibility of the witness, it is an abuse of discretion for the Board to mischaracterize a witness’s testimony on a material issue in the case.”[15]
Here, the Hearing Officer stated the following in relation to determining the permanency rating:
Permanency ratings are based upon medical expert opinions. Claimant’s expert, Dr. McKay, opined that Claimant has suffered 12% permanent impairment of the low back. Track
Trail’s expert. Dr. Gelman, admitted that he did not examine Claimant’s low back and that he instead focused his examination on Claimant’s left lower extremity to which he attributed 10% permanent impairment. As Dr. Gelman did not render an opinion regarding permanency of the back, Dr. McKay’s opinion is uncontroverted. Having found that a relationship exists, the Hearing Officer also finds that Claimant has 12% permanent impairment to his low back.[16]
The Employer argues that Dr. Gelman did render an opinion, evidenced in the following exchange during Dr. Gelman’s deposition:
Q. And based on that opinion, would you, therefore, place a rating for permanent impairment on Mr. Conran’s back as a result of his 1995 work accident?
A. I would not place any rating upon Mr. Conran’s lower back in as far as whatever may have occurred in 1995 or his subsequent falls off motorcycles and/or problems going back to 1988. In my opinion. Mr. Conran has no basis to qualify for a rating referencing AMA criteria.[17]
The Court finds that the issue now raised by the Employer is nothing more than a battle of semantics. Whether one interprets Dr. Gelman’s testimony as reflecting a permanency rating of zero or as no opinion at all, the same conclusion is reached. Dr. Gelman’s testimony was discounted by the Hearing Officer based on inconsistencies in his testimony and the lack of attention given to the Employee’s back during his examination. This is a credibility decision that will not be disturbed by the Court.
Having reached that conclusion, the Hearing Officer was faced with an expert, whose opinion she found credible, providing a 12% impairment rating, versus an expert, whose opinion she rejected, providing no rating. Since the Hearing Officer had found a permanent impairment to the lower back, she obviously could not accept Dr. Gelman’s “zero rating.” The Hearing Officer’s only alternative was Dr. McKay’s opinion of 12% permanent impairment. It was the only credible permanency rating provided to her and to reject it would have subjected her to a Turbitt v. Blue Hen Lines, Inc.[18] claim. As such, it was not illogical to say that Dr. McKay’s permanency rating was uncontroverted. The Employer’s argument is, at best, an attempt to use an unartfully worded characterization of its expert opinion in order to find error where none exists.
7. The Court finds substantial evidence to support the 12% permanency rating based on the Hearing Officer’s credibility findings. As such, the Hearing Officer’s decision is AFFIRMED.
IT IS SO ORDERED.
(1982).