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Bacon v. City of Wilmington

Superior Court of Delaware, New Castle

January 31, 2014

LYCURGUS BACON, Claimant-Below, Appellant,
v.
CITY OF WILMINGTON, Employer-Below, Appellee.

Submitted: October 18, 2013

On Appeal from the Industrial Accident Board.

Elwood T. Eveland, Jr., Esq., The Eveland Law Firm, Attorney for Appellant.

Andrea C. Panico, Esq., Heckler & Fabizzio, Attorney for Appellee.

ORDER

Calvin L. Scott Judge

Upon consideration of the parties' briefs and the record below, it appears that:

1. Appellant was employed by the City of Wilmington ("Employer") as a labor foreman. On June 7, 2011, Appellant injured his lower back during the course and scope of his employment while removing a tree on city property. As a result, Appellant was disabled from his regular employment for a period of greater than three days and Employer paid medical expenses through October 2012 as a result of the compensable work accident.[1]

2. On June 29, 2012, Appellant filed a Petition to Determine Compensation Due, seeking benefits for Total Temporary Disability and the payment of ongoing medical expenses. A hearing was held before the Board on February 6, 2013. The parties stipulated that the issues in dispute were the severity of the injury, the continuation of Appellant's temporary total disability payments as of January 2012, and the compensability of ongoing medical treatment for the lower back injury. The hearing was attended by counsel for both parties, Appellant, Appellant's witness, Dr. Manonmani Anthony (by deposition), and Employer's witnesses, Dr. Senu-Oke (by deposition) and Genevieve Hinkle, Director of Risk Management and Employee Benefits for Employer.

3. At the hearing, it was established that, after the accident, Appellant treated with Dr. Kenneth Smith, who placed him on total disability. Dr. Smith then instructed him to visit Dr. Anthony, who recommended physical therapy and performed injections. Appellant had an allergic reaction to the injections and was treated at an emergency room. It was also established that Appellant was also diagnosed with rheumatoid arthritis. He first treated with Dr. Pando, but after receiving very little to no relief, he began seeing Dr. Herrara, Appellant's current rheumatologist. Dr. Herrara was able to better control Appellant's arthritis.

4. Appellant also had some issues relating to his back prior to the accident. For example, Appellant suffered some aches and pains in his back as a result of a motor vehicle accident in 1998. Although Appellant testified that he did not have any issues with his sciatic nerves prior to the accident, evidence was also presented to the Board that he saw Dr. Smith in June 21, 2010, December 21, 2010, and March 22, 2010 for sciatica.

5. The Board found that Appellant was entitled to rely on his treating physicians' opinion that he remained totally disabled; however, the Board found that Appellant failed to show that the work injury caused him to continue to be totally disabled and that and that his current condition related to the work accident. In doing so, the Board weighed the testimony of Dr. Anthony and found that her lack of knowledge of Appellant's medical history "detracted" from the reliability of her opinion. The Board discussed the testimony relating to Appellant's arthritis treatment with Dr. Pando and Dr. Herrera. In addition, the Board noted that Dr. Anthony testified that she would not release Appellant to return to work until she discussed it with Dr. Herrara. The Board acknowledged that Appellant had "flare ups, " but found that it was likely due to the arthritis and not the work-related injury. The Board also rejected the opinion of Dr. Senu-Oke because he had only examined Appellant once since the incident. However, the Board stated that "Dr. Senu-Oke raised noteworthy points"[2]relating to the relationship between arthritis and the types of conditions that Appellant suffered from.

6. The Court's review of a Board decision is limited to whether the Board's findings were supported by substantial evidence and whether the decision is free from legal error.[3] "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."[4] Under this standard, the Court does not weigh evidence or determine credibility.[5] "If the medical evidence is in conflict, the Board is the finder of fact and must resolve the conflict. Where the Board adopts one medical opinion over another, the opinion adopted by the Board constitutes substantial evidence for purposes of appellate review."[6]

7. Under Delaware's Workers' Compensation Act, employees are entitled to "compensation for personal injury or death by accident arising out of and in the course of employment…"[7] In order to obtain compensation, an employee must prove by a preponderance of the evidence that the injury was caused by the accident occurring within the course and scope of employment.[8] The Supreme Court has stated:

The "but for" definition of proximate cause in the substantive law of torts finds equal application in fixing the relationship between an acknowledged industrial accident and its aftermath. If the worker had a preexisting disposition to a certain physical or emotional injury which had not manifested itself prior to the time of the accident, an injury attributable to the accident is compensable if the injury would not have occurred but for the accident. The accident need not be the sole cause or even a substantial cause of the injury. If the accident provides the 'setting' or 'trigger, ' causation is satisfied for purposes of compensability.[9]

To be considered "totally disabled, the employee must be found to have "a disability which prevents an employee from obtaining employment commensurate with his qualification and training."[10]Where an employee "can only resume some form of employment by disobeying the orders of his or her treating physician" that employee is considered "totally disabled, at least temporarily, regardless of his or her capabilities."[11]

8. Appellant does not dispute that the Board properly stated the law as it applied to his case.[12] Instead, Appellant argues that the Board lacked substantial evidence for its factual findings. The Court disagrees and finds that the Board's decision was supported by substantial evidence. Appellant's arguments essentially amount to a request that this Court reweigh the testimony and the conflicting evidence presented to the Board and make its own determinations. Such a practice is contrary to the well-established standard of review stated above. First, Appellant argues that that the Board incorrectly found that Dr. Anthony had a lack of knowledge of Appellant's prior medical history, which it found to detract from the reliability of her opinions. The Board did acknowledge that Dr. Anthony was aware of the problems that Appellant had prior to the work accident, but also stated that she did not appear to be aware certain medical visits

and the ongoing diagnosis of sciatica prior to the work accident. It was this lack of knowledge that led the Board to view her other opinions with less weight. Appellant also challenges the Board's statement that Dr. Anthony did not expressly state that Appellant's work injury was totally disabling due to the fact that Dr. Anthony did state that Appellant could not return to work on a sedentary status and that he needed additional time because of the "acute flare ups of his back pain." The Board did take note of Dr. Anthony's testimony about these flare ups, but also found that the evidence suggested that these flare ups were likely due to Appellant's arthritis, not the work injury.

9. Appellant also argues that Dr. Senu-Oke's expert testimony was "devoid of probative weight or was otherwise unreliable."[13] This argument is unpersuasive. The Board rejected Dr. Senu-Oke's testimony that related to Appellant's ability to return to work because he only examined Appellant once after the work accident. Appellant argues that the Board should not have considered the "noteworthy points" in Dr. Senu-Oke's testimony regarding rheumatoid arthritis. The Court finds that the Board was entitled to reject Dr. Senu-Oke's testimony that specifically related to Appellant, while taking note of the general principles that he discussed regarding arthritis.[14]

10. For the aforementioned reasons, the Court finds that the Board's decision was supported by substantial evidence and free from legal error. Therefore, the Board's decision is AFFIRMED. IT IS SO ORDERED.


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