Submitted September 12, 2014.
Motion for Reargument Filed 11/12/14; Denied 11/13/14. Case Closed November 13, 2014.
This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.
Court Below--Superior Court of the State of Delaware, in and for New Castle County. C.A. No. N13A-07-011.
Before HOLLAND, RIDGELY, and VALIHURA, Justices.
Henry duPont Ridgely, Justice.
This 6th day of November 2014, upon consideration of the parties' briefs and the record below, it appears to the Court that:
(1) The appellant, Juan Torres, filed this appeal from a Superior Court decision, dated April 24, 2014, which affirmed a decision of the Industrial Accident Board (" the Board" ) terminating Torres' total disability benefits. After careful consideration, we find no merit to the appeal. Accordingly, we affirm the Superior Court's judgment.
(2) The record reflects that Torres worked for Reybold Homes (" the Employer" ) as a construction worker. On March 27, 2006, he injured his right knee while on a job site. As a result of his injury, Torres was placed on total disability and underwent significant medical treatment, including three arthroscopic surgeries, between 2006 and 2009. Despite these surgeries, his knee pain persisted. Between 2010 and 2012, Torres continued to see various doctors for pain management. He also continued physical therapy.
(3) In March 2012, Torres first saw Dr. Patrick Swier who diagnosed Torres with an injury to part of the saphenous nerve. In June 2012, Dr. Swier performed denervation surgery. Torres experienced complications following the surgery, which persisted. Torres walks with a cane and complains of constant shooting pain and numbness. With pain medication, Torres is able to walk, drive for short periods, and accomplish minor daily activities independently.
(4) In October 2012, the Employer filed a petition to terminate Torres' total disability benefits. In December 2012, the Employer filed an appeal of a Utilization Review Decision to dispute the reasonableness and necessity of Torres' ongoing medical treatment that began in 2012. The Board held a consolidated hearing on both petitions on April 29, 2013.
(5) At the hearing, the Board heard live testimony from Torres, from Torres' former supervisor, Paul Zachery, Jr., and from a vocational expert, Mary Ann Shelli-Palmer. The Board also considered deposition testimony from Dr. Swier, Dr. Damon Cary, and Dr. Elliot Leitman. Dr. Cary testified that Torres remains totally disabled because of his constant pain, which requires pain medication. Dr. Leitman testified that Torres could return to work in a sedentary or light-duty capacity. The Board also watched a videotape, which showed Torres walking without a cane, getting in and out of a car, walking up hills and bending his knee at a ninety degree angle.
(6) Ultimately, the Board found the Employer's evidence more credible. The Board concluded that Torres was no longer completely disabled and thus terminated his total disability benefits. The Board also found that Torres was not a displaced worker. Nonetheless, the Board awarded Torres partial disability benefits and also found that Torres' ongoing medical treatment was necessary and reasonable. The parties filed cross-appeals in the Superior ...